JUDGMENT 1. The appellant, who is the 2nd defendant in the suit filed this Second Appeal against the Judgment and decree dated 20.03.2002 made in A.S.No.96 of 2000 on the file of Additional District Court cum Chief Judicial Magistrate Court, Perambalur confirming the judgment and decree dated 22.06.2000 made in O.S.No.160 of 1991 on the file of Subordinate Court, Perambalur. 2. For the sake of convenience, the second defendant in the suit referred as appellant and the plaintiffs 1 to 3 are referred as respondents 1 to 3 and 1st defendant referred as 4th respondent and 3rd defendant referred as 5th respondent hereafter. 3. The respondents 1 to 3 and one unborn child filed a suit for partition of 4/10 shares in the A-schedule properties and also the 1st respondent seeking relief of recovery of B-schedule movable properties or the value of Rs.10,800/- for the above said movable properties. Subsequently, the above said unborn child died on January 1991. 4. Briefly the case of the respondents 1 to 3 is that the 1st respondent is wife of 4th respondent and their children are the respondents 2 and 3. According to the respondents 1 to 3, the suit A-schedule properties are joint family properties and therefore, the respondents 1 to 3 and the above said unborn deceased child are entitled to 4/10 shares in the suit properties. It is further stated that the B-schedule properties belongs to 1st respondent and therefore, the 1st respondent is entitled to the above said B-schedule movables or cost of movables of Rs.10,800/-. Since the 3rd respondent is necessary party to the suit, he is impleaded as a party. Hence, the suit. 5. The 4th respondent and the appellant herein, who are the 1st and 2nd defendant in the suit filed the written statement and additional written statement, in which they admitted that the 1st respondent is wife of 4th respondent and respondents 2 and 3 are their children. But, denied the contention that the suit properties are joint family properties. The suit items 2, 3 and 4 belongs to the mother of the appellant namely Dhanabagyathammal and the other items except 10th item are self-acquired properties of the appellant. Further, 10th item and one acre 90 cents in 8th item alone are ancestral properties. Therefore, the respondents 1 to 3 are not entitled to any share in the suit properties. The suit items 2, 3 and 4 belongs to the mother of the appellant namely Dhanabagyathammal and the other items except 10th item are self-acquired properties of the appellant. Further, 10th item and one acre 90 cents in 8th item alone are ancestral properties. Therefore, the respondents 1 to 3 are not entitled to any share in the suit properties. It is further stated that the 5th respondent, who is wife of the appellant is also a joint owner with the 4th respondent, hence, she is necessary party. Further, the appellant daughters namely Rukmani, Suseela and Chinthamani are also necessary parties to the suit. Therefore, the respondents 1 to 3 are not entitled to any share in the suit properties. 6. The 5th respondent filed a separate written statement, in which, it is stated that the 2nd item in A-schedule was purchased by the father of the 5th respondent namely Periyathambi Padayachi on 01.07.1944 and the above said property was given to 5th respondent as Sreedhana on the date of marriage on 20.08.1951 and therefore, the respondents 1 to 3 are not entitled to any share in the 2nd item since it is not a joint family property. Further, this respondent is also entitled to 1/3 share except items 2, 3 and 4. 7. From the above said pleadings, the trial court has framed nine issues. On the side of the respondents 1 to 3/plaintiffs one witness was examined as PW1 and marked 11 documents as Exs.A1 to A11 and on the side of the appellant two witnesses were examined as DW1 and DW2 and marked 12 documents as Exs.B1 to B12. The trial court has considered the above said oral and documentary evidence adduced on either side and finally held that the respondents 1 to 3 are entitled to 3/15 share in A-schedule properties except 2nd item and dismissed the suit in respect of other reliefs. Aggrieved over the above said finding of the trial court, the appellant, who is 2nd defendant in this suit alone preferred the first appeal in A.S.No.96 of 2000. The 1st appellate court has confirmed the decree and judgment passed by the trial court and dismissed the first appeal. 8. Aggrieved over the above said concurrent findings of both the courts below, the appellant who is 2nd defendant in the suit preferred this second appeal. 9. The 1st appellate court has confirmed the decree and judgment passed by the trial court and dismissed the first appeal. 8. Aggrieved over the above said concurrent findings of both the courts below, the appellant who is 2nd defendant in the suit preferred this second appeal. 9. The Second Appeal is admitted on the following substantial questions of law:- "1. Whether the decree and judgments of the courts below decreeing 3/15 share in the A-schedule properties except item No.2 is legally sustainable ? 2. Whether the decree and judgment of the courts below is legally sustainable inasmuch as blending the Item No.4 of the A-schedule property, with the Joint family property after giving a finding that it belongs to the Mother of the appellant and rejecting the Exhibits B.3 ? 3. Whether the decree and judgments of the courts below is legally sustainable in granting 1/3rd share to the pre-deceased son of plaintiff as a co-parcener ? 4. Whether the decree and judgments of the courts below is legally sustainable in rejecting Exhibits B.6 and B.9 to show Item No.5,6,7 and 9 are self acquired properties of the appellant ?" 10. Heard the learned counsel appearing for the appellant and the respondents. Perused the materials available on record. 11. Admittedly, the respondents 1 to 3 and also one unborn child filed a suit for partition of 1/4th share in items 1 to 10 in A-schedule properties and also the 1st respondent seeking relief of recovery of movable properties or the cost of the above said movables. During the pendency of the suit, the above said unborn child was abortioned. In the above said circumstances, the trial court has held that the respondents 1 to 3 are not entitled to any share in item 2 of A-schedule properties, on the ground that it is self-acquired property of the wife of the appellant and not joint family property. The trial court has granted a decree for partition of 3/15 share in items 1 to 9 of A-schedule. The respondents 1 to 3 who are the plaintiffs in the suit not challenged the above said findings. But, the appellant herein, who is 2nd defendant in the suit alone preferred the first appeal and also this second appeal. 12. The trial court has granted a decree for partition of 3/15 share in items 1 to 9 of A-schedule. The respondents 1 to 3 who are the plaintiffs in the suit not challenged the above said findings. But, the appellant herein, who is 2nd defendant in the suit alone preferred the first appeal and also this second appeal. 12. The main contention of the appellant is that the 4th item in A-schedule properties are not joint family property as contended by the respondents 1 to 3 and therefore, the respondents 1 to 3 are not entitled to any share in the property. According to the appellant, the 4th item of suit property was purchased by his mother namely Dhanabagyathammal under Ex.B3 sale deed and after her death, the 2nd respondent is absolute owner of the property as sole legal heir of his mother and therefore, it is not joint family property as contended by the respondents 1 to 3. 13. Per contra, the learned counsel appearing for the respondents 1 to 3 admitted that the above said 4th item was purchased by the appellant's mother namely Dhanabagyathamnmal as self-acquired property. But, after her death, the property was enjoyed by the 2nd respondent and all other family members along with other joint family properties and therefore, the respondents 1 to 3 are entitled to the share in the above said suit property also. Further, the learned counsel appearing for the respondents 1 to 3 pointed out that the original Patta was in the name of Dhanabagyathammal and her husband Adimoola Padayachi for the item No.4 and also other property in Survey No.217 and after death of Dhanabagyathammal, the patta was transferred in the name of appellant, who is son of Dhanabagyathammal under Ex.B12. The learned counsel further submitted that after the death of Dhanabagyathammal and her husband, patta was transferred in the name of appellant, who is only son of Adi Moola Padayachi along with other properties and the 4th item also enjoying by the entire family members along with other joint family properties and therefore, the respondents 1 to 3 are entitled to the share in the property. 14. 14. The learned counsel appearing for the appellant mainly contended that it is not the case of the respondents 1 to 3 that the 4th item was purchased in the name of appellant's mother, out of joint family nucleus or it is not self-acquired property of mother of the appellant. But, only contended that after death of Dhanabagyathammal, all the members of joint family enjoying the above said property along with joint family properties. Except oral evidence, no other documents to prove that the above said property blending with other joint family properties and enjoying by all the members of joint family. 15. Per contra, from oral and documentary evidence adduced on either side, it is clearly proved that the mother of the appellant purchased the property and she was absolute owner of the property till her death. After her death, only son namely the appellant is entitled to the property as self-acquired property, as sole legal heir of his mother. Therefore, item 4 of A-schedule properties were not proved as joint family property by the respondents 1 to 3. But, both the courts below have not properly considered the above said facts and therefore, the findings of both the courts below regarding 4th item of suit property are perverse finding as rightly pointed out by the learned counsel for the appellant. 16. From the above said discussion, it is clear that the respondents 1 to 3 are entitled to share in A-schedule properties except items 2 and 4 and not entitled to any other reliefs. Further, the learned counsel appearing for both sides admitted that both the courts below have wrongly calculated the share of the parties and granted decree to the appellant as 3/15 share instead of 3/8 share in the suit properties. As rightly conceded by both sides counsel, the respondents 1 to 3 are entitled to 3/8 share instead of 3/15 share as wrongly allotted by both the courts below. Therefore, the decree and judgment passed by both the courts below are to be modified and the respondents 1 to 3, who are the plaintiffs in the suit are entitled to 3/8 shares in items 1, 3 and 5 to 10 and respondents 1 to 3 are not entitled to any shares in items 2 and 4 and answered all the substantial questions of law accordingly. 17. 17. In the result, the second appeal is partly allowed and the decree and judgment passed by both the courts below are modified and passed a preliminary decree for partition and allotted 3/8 shares (1/8 share each) to the respondents 1 to 3 / plaintiffs in respect of items 1, 3 and 5 to 10 and the suit is dismissed in respect of items 2 and 4 and other reliefs. No order as to costs.