JUDGMENT : The Defendant in OS.No.14 of 1997 on the file of the Principal Sub Court, Kumbakonam is the Appellant herein. 2. The above suit had been filed by the Respondent/ Plaintiff, seeking partition and separate possession of 5/6th share in the suit property and also for mesne profits and for delivery of possession and for costs. 3. The suit property was a Mangalore tiled house to an total area of 3990 sq.ft. at New Door No.12, Old Door No.8, S.No.150/1-A-1, Thirumanjana Veedhi, Swamimalai Village, Kumbakonam Taluk, Thanjavur District. The Plaintiff S.G. Swaminatha Gurukkal and the Defendant Gurunatha Gurukkal were brothers and sons of Gnanaskanda Gurukkal. The property originally belonged to one Natesa Gurukkal. He executed a Will dated 13.6.1946. According to the Will, the property was bequeathed to Ammalu @ Rajammal, who was the mother of the Plaintiff and the Defendant. After her death, the suit property came to the hands of her six sons, who included the Plaintiff and the Defendant. There were six sons and two daughters. Except for the Defendant, the other four sons released their respective undivided 1/6th shares in favour of the Plaintiff. Consequently, the Plaintiff claimed 5/6th share in the suit property. The Defendant did not release his share and consequently, it was claimed that he was entitled to 1/6th share. The suit was filed seeking partition and separate possession of 5/6th share. 4. In the written statement filed by the Defendant, it had been stated that there were disputes among the brothers. It had been further stated that the Defendant had been in possession of the suit property and had spent about Rs.50,000/- for maintenance of the house. It was also claimed that there were immovable items, such as, silver vessels, gold jewels, brass vessels and utensils. It was also stated that there was also right to conduct pooja in the Swaminatha Temple at Swamimalai, which right also has to be divided among the parties. It had been further stated that there were two other sisters, who have not been joined as parties. It was also claimed that the suit should be dismissed. 5. It was also stated that there was also right to conduct pooja in the Swaminatha Temple at Swamimalai, which right also has to be divided among the parties. It had been further stated that there were two other sisters, who have not been joined as parties. It was also claimed that the suit should be dismissed. 5. By way of an additional written statement, it had been claimed that the release by the other brothers in favour of the Plaintiff was actually a release of an undivided share in a joint family and consequently, the shares ploughed back into the joint family property increasing the shares of the remaining coparceners and therefore, the claim of the Plaintiff that he was entitled to 5/6th share is not correct and on that ground also, it was claimed that the suit should be dismissed. 6. The parties went to trial. During the trial, the court below had framed the following issues for trial:- 1. Whether the Plaintiff is entitled to 5/6th share in the suit property? 2. Whether the suit is bad for partial partition? 3. Whether the suit is bad for non joinder of necessary parties? 4. Whether the Defendant's claim for spending amount for maintenance can be adjudicated in view of the failure of payment of court fees? 5. Whether the suit is barred under Order 2 Rule 2 of CPC? 6. To what other relief, is the Plaintiff entitled to? 7. The court below had also framed the following additional issues:- 1. Whether the share claimed by the Plaintiff is correct? 2. Whether the Defendant is entitled any share in the property? 8. The Plaintiff was examined as PW.1 and the Defendant was examined as DW.1 The Plaintiff had marked Ex.A1 to Ex.A6. Ex.A1 is the release deed by the other brothers in favour of the Plaintiff dated 18.7.1996. Ex.A2 and Ex.A3 are the legal notices exchanged between the parties. Ex.A5 is the memo filed in OS.No.363 of 1993. The Defendant did not mark any document. 9. On consideration of the oral and documentary evidence, the court below held that the suit was maintainable and was not barred under Order 2 Rule 2 of CPC or on the ground of non joinder of necessary parties or on the ground of partial partition. The Defendant did not mark any document. 9. On consideration of the oral and documentary evidence, the court below held that the suit was maintainable and was not barred under Order 2 Rule 2 of CPC or on the ground of non joinder of necessary parties or on the ground of partial partition. The court below further held that since other brothers had released their shares in favour of the Plaintiff, the Plaintiff was entitled to an undivided 5/6th share in the suit property. A preliminary decree was accordingly passed. Hence, the Defendant is before this court by filing this appeal against the said judgment. 10. Pending the appeal, the Defendant who was the Appellant died and his legal representatives have been brought on record. The Plaintiff, who was the 1st Respondent, also died and his legal representatives have also been brought on record. One of the legal representatives also died and his legal representatives have in turn been brought on record. 11. The main ground argued is that Ex.A1, which is the release deed executed by the other four brothers in favour of the Plaintiff, is actually a release deed in favour of the joint family and consequently, it was claimed that the remaining co-parceners, namely, the original Plaintiff and the Defendant were entitled to equal shares in the entire property and consequently, the Appellant claimed an undivided one half share in the suit property. The other aspects with respect to the Will and other facts were admitted by both the parties. 12. The learned counsel for the Appellant stressed that when a released deed is executed in respect of an undivided share, it will not benefit the releasee, but would benefit the joint family and consequently, all the remaining co-parceners. The learned counsel for the Appellant relied on the decision of this court reported in 1997 3 LW 333 (P.R. Muniswamy Naidu Vs. V. Venkatesan and 14 others), wherein in paragraph 17, it had been held as follows:- “17. In view of the settled position of law, the conclusion is irresistible, namely, that even if the document is taken as one for consideration, the executants of Ex.B6 are only effacing themselves from the family and to that extent, the share of the remaining coparceners is increased. The relinquishment can only be in favour of the family even if the document is only for consideration. The relinquishment can only be in favour of the family even if the document is only for consideration. The finding of the lower appellate court is therefore correct and accordingly, the second appeal is dismissed. No costs.” The learned counsel for the Appellant also relied on the decision reported in 58 LW 54 (Chella Subbanna Vs. Balasubba Reddi) wherein in the case of ancestral property, it was held as follows:- “The relinquishment by one co-paracener of his interest in the family estate in favour of the members of the co-parcenary does not amount to an alienation; it merely amounts to an extinction of his interest in favour of the others. The gift of his interest to one of several other coparceners would not mean the extinction of that interest. It would mean an alienation of it. It is well settled law that there cannot be such a gift to a stranger and it is now clear that there cannot be a gift to a fellow coparcener if the family is to remain undivided.” 13. On the other hand, the learned counsel for the Respondents disputing the said contentions relied on the decision of the Honourable Supreme Court reported in AIR 1967 SC 1395 (Kuppuswami Chettiar Vs. ASPA Arumugam Chettiar and another), wherein in paragraph 4 it was held as follows:- “4. The question is whether Ex.B1 on its true construction conveyed properties to the Respondents. In T. Mammo V. K. Ramuni, AIR 1966 SC 337 at p.340 this court held:- “a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the release for valuable consideration may operate as a conveyance, if the document clearly discloses an intention to effect a transfer”. In the present case, the release was without any consideration. But property may be transferred without consideration. Such a transfer is a gift. Under Section 123 of the Transfer of Property Act, 1882, a gift may be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. In the present case, the release was without any consideration. But property may be transferred without consideration. Such a transfer is a gift. Under Section 123 of the Transfer of Property Act, 1882, a gift may be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Consequently, a registered instrument releasing the right, title and interest of the releasor without consideration may operate as transfer by way of a gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by at least two witness. Ex.B1 stated that the releasor was the owner of the properties. It showed an intention to transfer his title and its operative words sufficiently conveyed the title. The instrument, on its true construction, took effect as a gift. The gift was effectively made by a registered instrument signed by the donor and attested by more than two witnesses.” 14. I have carefully considered the rival arguments. 15. In this case, the title of the property has to be first traced out to determine whether it is an ancestral or otherwise. The suit property originally belonged to Natesa Gurukkal. He was a Gurukkal at Swamimalai Temple. He died in 1950. He wrote a Will dated 13.6.1946. The said Will has not been produced either before this court or during the trial. In the said Will, he had bequeathed the property to a stranger to his family although a distant relative by name Ammalu @ Rajammal. She was the daughter of Natesa Gurukkal's sister in law and wife of Gnanaskanda Gurukkal. She died. Thereafter, the suit property came to the sons of Gnanaskanda Gurukkal. There were six sons. 16. The Plaintiff and the Defendant are two of the six sons. There were four other sons. The property, which was inherited by the sons of Gnanaskanda Gurukkal, cannot be termed as ancestral in nature. They obtained the same because of death of their mother. They were natural successors to the property through a bequeath. In their hands, it is self acquired. They did not partition the property among themselves. But, it is also to be mentioned that there were two other daughters who were not joined as parties to the suit. They obtained the same because of death of their mother. They were natural successors to the property through a bequeath. In their hands, it is self acquired. They did not partition the property among themselves. But, it is also to be mentioned that there were two other daughters who were not joined as parties to the suit. With respect to non joinder of two sisters, the court below had held that since the property was not bequeathed to them through the Will by Natesa Gurukkal, it was not necessary that they should be added as parties. However, as stated above, the Will has not been produced. Even otherwise, the property does not have the character of an ancestral property. It is the property which had devolved on to six sons of Ammalu @ Rajammal, who was the wife of Gnanaskanda Gurukkal. Ex.A1 which is the release deed by the other brothers in favour of the deceased 1st Respondent, who was the Plaintiff in the original suit, is dated 18.7.1996. It is seen from Ex.A1 that Ammalu @ Rajammal died in 1983. It is also seen that towards release of undivided 1/6th share, each of the releasor was paid a consideration of Rs.80,000/-. Ex.A1 is also a registered document. Ex.A1 is binding. It has transferred title in favour of the Plaintiff to an extent of 4/6th undivided share. This added with its existing undivided 1/6th share brought his holdings to an undivided 5/6th share. The recitals in Ex.A1 reveal that the daughters of Ammalu @ Rajammal were not granted any title in the suit property through the Will of Natesa Gurukkal. In the said circumstances, the contention that the suit property is an ancestral property and a release deed would act as increasing the existing share of all the surviving coparceners, cannot be accepted. Such contentino would apply only to ancestral property. This property in the hands of the deceased plaintiff and the deceased Defendant in the suit was not an ancestral property. They inherited the property by survivorship and through a Will of Natesa Gurukkal, who had actually bequeathed the property to their mother, Ammalu @ Rajammal. They obtained right, title and interest only on the death of their mother and not by birth. They inherited the property by survivorship and through a Will of Natesa Gurukkal, who had actually bequeathed the property to their mother, Ammalu @ Rajammal. They obtained right, title and interest only on the death of their mother and not by birth. The property devolved on to the sons of Ammalu @ Rajammal by pure chance and only owing to the bequeath of Natesa Gurukkal who was not a direct ancestor. Consequently, I hold that Ex.A1 release deed is a valid document and according to which, the original Plaintiff, who is the deceased 1st Respondent herein, was entitled to 5/6th share. I find no infirmity or illegality in the impugned judgment of the court below. 17. In the result, this appeal suit is dismissed. In view of the relationship among the parties, there will be no order as to costs.