Judgment :- 1. This Second Appeal arises out of the Judgment in A.S.No.184/2002 confirming the Judgment of the trial court in O.S.No.7324/1998 passing Preliminary decree for partition of Plaintiffs 1/3rd share. Unsuccessful 1st Defendant is the Appellant in the Second Appeal. For convenience, parties are referred as per their array in the suit in O.S.No.7324/1998. 2. The parties are related as under: | | K.V.Pattammal(died on 15. 98) K.V.Shenbagavalli W/o.K.V.Vijayaranga Mudaliar W/o.K.V.Nataraja Mudaliar | | | | | | | Saroja(Plff) V.Balasubramanian(D1) Shantha Padma Susila | | | (B. Karthikeyan) (B. Mohanakrishnan) (Petitioners in the impleading Petition) 3. The case of the Plaintiff is that 1st Defendant is her brother and the defendants 2 and 3 are the tenants. Entire property situated at Door No.42, Rakkiappa Mudali street, Mylapore, Chennai was jointly owned and well possessed by two sisters namely Pattammal (mother of the Plaintiff and 1st Defendant) and K.V. Shenbagavalli. They were jointly enjoying the said property along with their son and daughters respectively. Family members of Pattammal and Shenbagavalli entered into Ex.A9 Partition deed dated 30.3.95 and in the said partition ground floor portion was jointly allotted to Pattammal, V. Balasubramanian (D1) and Saroja (Plaintiff) while the first floor portion was jointly allotted to the share of Shenbagavalli, Shantha, Padma and Susila. Ever since the date of partition, respective parties have been enjoying their respective portions till this date. During the life time of Pattammal, being Kartha of the family she received rent from the tenants of ground floor. Pattammal died on 15. 98 leaving behind the Plaintiff and the 1st Defendant as her legal heirs and as such the Plaintiff and the 1st Defendant are entitled to equal moiety from the date of death of Pattammal. Since the 1st Defendant failed to pay half of the rent from the date of death of Pattammal, Plaintiff caused legal notice to the 2nd Defendant and other tenants to pay rent to her. 1st Defendant has been collecting rent in respect of the ground floor and 1st Defendant has not paid due half share to the Plaintiff and therefore, Plaintiff has filed Partition suit claiming her half share. 4. Denying the plaint averments, 1st Defendant has filed written statement contending that the suit property is not joint family property. 1st Defendant has been collecting rent in respect of the ground floor and 1st Defendant has not paid due half share to the Plaintiff and therefore, Plaintiff has filed Partition suit claiming her half share. 4. Denying the plaint averments, 1st Defendant has filed written statement contending that the suit property is not joint family property. The case of the 1st Defendant is that the suit property was purchased by Pattammal and Shenbagavalli out of their own funds. During the life time of K.V. Pattammal, she executed a registered Will dated 23. 1996 (Ex.B3) bequeathing the suit property to her grand sons B. Karthikeyan and Minor B. Mohanakrishnan. Beneficiaries under the said Will have filed Petition seeking grant Letters of Administration and the suit is premature and cannot be decided before the decision in the above O.P. Suit is bad for non-joinder of necessary parties. Property was never an ancestral property and the same was purchased from and out of the funds of Pattammal and Shenbagavalli. Partition deed dated 30.3.1995 and allotment is true. In view of Will dated 23. 96 executed by Pattammal, neither the 1st defendant nor the Plaintiff are entitled to the property and Karthikeyan and Minor Mohanakrishnan being the grand sons are necessary parties to the suit. 5. On the above pleadings, relevant issues were framed. Upon consideration of evidence, trail court held that the property was joint family property of Pattammal and Shenbagavalli in which the Plaintiff is entitled to a share as per Ex.A9 partition deed. Trial court further held that at the most Pattammal could have bequeathed only her 1/3rd share and left open that 1/3rd share of Pattammal, trial court passed decree for partition of Plaintiffs 1/3rd share. 6. Aggrieved, 1st Defendant has preferred appeal in A.S.No.184/2002. Confirming the findings of the trial court, lower Appellate court dismissed the appeal. Courts below held that the legatees are not necessary parties to the suit and negatived the defence plea of non-joinder of necessary parties. 7. Second Appeal has been preferred against the concurrent findings of Courts below passing Preliminary decree for partition. With consent of both the counsels, Second Appeal was taken up for hearing. During the course of arguments the following substantial questions of law were formulated for consideration:- 1. 7. Second Appeal has been preferred against the concurrent findings of Courts below passing Preliminary decree for partition. With consent of both the counsels, Second Appeal was taken up for hearing. During the course of arguments the following substantial questions of law were formulated for consideration:- 1. Whether a property stands in the name of female can be treated as joint family property merely on the basis of statement made in the notice prior to suit without any proof of joint family nucleus before purchase of the property? 2. Whether adding children as parties to a partition deed along with co-owners will create interest on the property in favour of the children? 3. Whether non-joinder of legatees of one of the deceased co-owner is fatal to suit for partition? 4. Whether a decree for partition can be made subject to the result of another proceedings? 8. Challenging the findings of the Courts below, Mr. K. Senthilkumar, the learned counsel for the Appellant contended that the entire share will have to be decided in a suit for partition and leaving open 1/3rd share of Pattammal would vitally affect the preliminary decree. The learned counsel for the Appellant would submit that mere statement made by the Appellant in the reply notice would not clothe the suit property with the character of joint family property. It was further submitted that the property allotted to Pattammal under Ex.A9 partition deed absolutely belonged to her and mere inclusion of Plaintiff and 1st Defendants name in Ex.A9 partition deed will not confer any right of share upon the Plaintiff and 1st Defendant and the Judgments of the Courts below are unsustainable. 9. Laying emphasis upon Ex.A9 partition deed, Mr.J.R.K. Bhavanantham, the learned counsel for the 1st Respondent/Plaintiff has submitted that since the Plaintiff and the 1st Defendant have been included as one line along with Pattammal in Ex.A9 – Partition deed, Courts below rightly held that the Plaintiff would be entitled to 1/3rd share. The learned counsel for the Respondent would further submit that in the light of defence, Pattammals 1/3rd share was left open. The learned counsel for the Respondent further argued that when the 1st defendant has admitted in Ex.A10 reply notice that the suit property is the joint family property and 1st Defendant cannot turn round and contend that the suit property is the separate property of Pattammal. 10. The learned counsel for the Respondent further argued that when the 1st defendant has admitted in Ex.A10 reply notice that the suit property is the joint family property and 1st Defendant cannot turn round and contend that the suit property is the separate property of Pattammal. 10. Petitioners in C.M.P.No.1/2008 who claimed to be the legatees under the Will purportedly executed by Pattammal have filed Petition in C.M.P.No.1/2008 to implead themselves. Mr. B.K. Sreenivasan, the learned counsel for the impleading Petitioners contended that the property has been bequeathed to the Petitioners and they are necessary parties in the suit for partition and without impleading the legatees, suit for partition is not maintainable. The main contention urged by the Petitioners is that preliminary decree for partition cannot be passed subject to the result of other proceedings. 11. From the evidence and findings, the following facts are discernible. Pattammal and Shenbagavalli have jointly purchased the suit property under Ex.A1 sale deed dated 25. 1937. Under Ex.A9 partition deed dated 30.3.1995 Pattammal and Shenbagavalli have partitioned the suit property amongst themselves. In Ex.A9 partition deed, Pattammal and her son Balasubramanian (D1) and Saroja (Plaintiff) shown as one group and were allotted ground floor of the suit property. Shenbagavalli and her three daughters viz., Shantha, Padma and Susila were shown as another group and were allotted first floor of the suit property. The fact that son and daughters of Pattammal and Shenbagavalli were shown as parties in Ex.A9 partition deed is a strong piece of evidence indicating that parties treated the suit property as joint family property. 12. The case of the Appellant/D1 is that the suit property was not joint family property, but separate property of Pattammal and Shenbagavalli and that Pattammal had executed a Will on 23. 1996 bequeathing the property to 1st Defendants sons Karthikeyan and Mohanakrishnan. Viewed in the context of inclusion of son and daughters of Pattammal and Shenbagavalli in Ex.A9 partition deed, the above contention is unsustainable. 13. Admittedly, Pattammal and Shenbagavalli have jointly purchased the suit property. To ascertain whether the property was self acquired or joint family property of the purchasers, the intention of parties, act of person who acquired the property to throw it into common stock are relevant facts. 13. Admittedly, Pattammal and Shenbagavalli have jointly purchased the suit property. To ascertain whether the property was self acquired or joint family property of the purchasers, the intention of parties, act of person who acquired the property to throw it into common stock are relevant facts. As rightly held by the Courts below Ex.A9 is piece of evidence of positive character to show that the acquirers intended that the property should be treated as part of family stock. 14. In fact, 1st Defendant himself has admitted that property to be the joint family property of Pattammal. Prior to the filing of the suit, Plaintiff had issued Ex.A4 legal notice calling upon the 1st Defendant to effect partition. 1st Defendant had sent Ex.A10 notice admitting that the suit property was purchased from out of joint family funds and construction was also put up by making use of joint family funds and the suit property is joint family property, though it stands in the name of Pattammal and Shenbagavalli. Having himself admitted that the suit property is joint family property, 1st Defendant cannot turn round and contend that suit property is the separate property or self acquired property of Pattammal and Shenbagavalli. The admission by the 1st Defendant would certainly go a long way showing that Pattammal and Shenbagavalli treated the property as joint family property in which other sharers were entitled to right. 15. The case of the Petitioners in C.M.P.No.1/2008 is that Pattammal had executed a Will dated 23. 1996 bequeathing the property to the Petitioners and the Petitioners have filed O.P.No.778/1999 for Probate of the said Will dated 23. 1996 and the same has been converted into suit in T.O.S.No.52/2000. It is the further case of the Petitioners that they being the legatees under the Will are necessary and proper parties to the proceedings. It is relevant to note that Petitioners claiming to be the legatees have not taken steps for impleading themselves either in the trial court or before the lower Appellate court. Question of joinder of necessary parties being a question of fact cannot gone into by exercising jurisdiction under Sec.100 C.P.C. in the Second Appeal. 16. Denying the execution of Will, Plaintiff is contesting T.O.S.No.52/2000. Assuming for arguments sake that Pattammal did executed Will, it could be binding only to the extent of 1/3rd share of Pattammal. Question of joinder of necessary parties being a question of fact cannot gone into by exercising jurisdiction under Sec.100 C.P.C. in the Second Appeal. 16. Denying the execution of Will, Plaintiff is contesting T.O.S.No.52/2000. Assuming for arguments sake that Pattammal did executed Will, it could be binding only to the extent of 1/3rd share of Pattammal. Courts below rightly left open 1/3rd share of Pattammal and passed preliminary decree for partition of Plaintiffs 1/3rd share. 17. The learned counsel for the Appellant mainly contended that decree for partition cannot be made subject to the result of another proceedings and the rights of parties will have to be settled in the decree for partition. It was further argued that leaving open 1/3rd share of Pattammal would vitiate the preliminary decree. It is pertinent to note that the 1st Defendant has filed written statement in October 1999 and this plea was not raised in the written statement. In this regard, no issue was framed. At any rate, assuming even if the Plaintiff is entitled to 1/3rd share, 1/3rd share could be worked out at any time by adjusting the shares. There is no force in the contention that leaving open 1/3rd share would vitiate the preliminary decree for partition. 18. The stage in which Second Appeal was filed and pursued is relevant to be noted. A.S.No.184/2002 was disposed on 22.03.2004. Immediately, Second Appeal was not filed, but filed only on 19.01.2006 and the same was dismissed for default on 08.03.2006. In the mean time, after contest in I.A.No.18671/2002, Final Decree was passed on 211. 2005. In Final Decree proceedings, upon consideration of Advocate-commissioners report, trial court recorded the finding that the property is divisible and accepting the mode of division suggested by the Advocate-commissioner, trial court passed Final Decree on 211. 2005. 119. Challenging the Final Decree, Appellant/1st Defendant has also filed A.S.No.457/2006 on the file of the VI Additional Judge, City Civil Court, Chennai which was also dismissed on 17. 2007. Plaintiff has also filed E.P.No.2064/2006 for taking delivery of possession as per the Final Decree. It appears that only at that stage, 1st Defendant had taken steps for pursuing the Second Appeal. When the Final Decree proceedings have reached the finality, it is not open to the Appellant/1st Defendant to challenge the preliminary decree for partition. 120. 2007. Plaintiff has also filed E.P.No.2064/2006 for taking delivery of possession as per the Final Decree. It appears that only at that stage, 1st Defendant had taken steps for pursuing the Second Appeal. When the Final Decree proceedings have reached the finality, it is not open to the Appellant/1st Defendant to challenge the preliminary decree for partition. 120. Upon appreciation of Ex.A9 partition deed and admission in Ex.A10 notice, Courts below rightly reached the conclusion that the Plaintiff is entitled to 1/3rd share in the suit property. The concurrent findings recorded by the Courts below do not suffer from any perversity warranting interference and the Second Appeal is bound to fail. 121. In the result, Judgment of the lower Appellate court in A.S.No.184/2002 dated 22.03.2004 on the file of VI Additional Judge, City Civil Court, Chennai (arising out of the Judgment in O.S.No.7324/1998 dated 15.02.2002 on the file of XIV Assistant Judge, City Civil Court, Chennai) is confirmed and this Second Appeal is dismissed. C.M.P.No.1/2008:- Petition praying to implead the Petitioners as Respondents 4 and 5 in the Second Appeal is dismissed. Petition seeking stay of operation of decree in O.S.No.7324/98 is dismissed. C.M.P.No.5462/2006:-M.P.No.998/2008:-Interim stay already granted is vacated and C.M.P.No.998/2008 is ordered accordingly. In view of the relationship of parties, there is no order as to costs.