I have already of my free will and voluntarily, abandoned and relinquished my rights in respect of myself acquired properties already acquired by me and all of us have been already acquired by me and all of us have been till today, enjoying these properties as family properties treating those properties as family properties in which all of us have rights.
On November 17, 1959 Annavi Pillai executed a deed of release in favour of bis four surviving suns by which he abandoned his rights in his self acquired property which, it was stated, he bad thrown into the companymon stock and was being treated as jointly family property for the past 13 years.
This document is as follows Deed of release executed on 10th November, 1944 in favour of v. Annavi Pillai son of Veeramalai Pillai, Vellala caste, Saivite Miras, aged about 75 years and residing at Cusba Manaparai, Kulitalai Taluq, Tiruchirapalli district by Arumugham third son of the aforesaid person, of the said caste and religion, aged about 26 years and at present residing at Madura is as follows As a result of lack of amity between you and me in family, I have been residing separately at Madura for the last about one year.
Even so, I have been asking you to give me something out of them for my sustenance and you have been refusing to give.
Now the said Rajagopalan had removed our family misunderstanding and had been living with me as one family amicably.
It was pointed out that the deed of release Ext.
I have numberkind of legal right in them.
The trial companyrt decreed the suit and on appeal by the defendants the judgment and Decree of the trial Court were affirmed by the High Court.
Now myself and you four persons have been living as members of undivided family for the past 13 years.
The appeal in this Court is at the instance of only two of the defendants, Rajagopal and Somasundaram, the first and the fourth defendant respectively.
All the immovable and movable properties, money lending transactions, trade and cash that are at present with you are all yourself acquired properties.
To this effect have I executed this release with my whole hearted companysent.
On October 11, 1944 Arumugam executed a document described as a deed of release in favour of his father.
On February 14, 1945 a daughter was born to Arumugam.
Subsequently, when the misunderstanding with Rajagopal was removed, Annavi cancelled the Will by executing another deed on October 21, 1946.
Ultimately on the recommendation of my mother that I might be given some thing, and on your acceptance of the same, I have on this date received from you Rs.
In this deed the reason given for cancellation of the will was that the misunderstanding with Rajagopal had been removed which made execution of another Will necessary for division of the entire property among all the sons.
On March 21, 1960 Pakkiam Ammal, widow of Arumugam, and her minor daughter whom she represented as next friend, instituted the suit out of which this appeal arises praying for partition and separate possession of Pakkiam Ammals 1/6th share in the joint property impleading Rajagopal, Akhilandam, Balasubramanium, Somusundaram and Annavi Pillai as defendants Nos.
On June 5, 1943 Annavi Pillai executed a Will leaving his property to four of his sons excluding the first son Rajagopal who was let out because Annavi was number pleaded with his companyduct Some time in the latter part of the year 1943 or early 1941 Annavis third son Arumugam married the first plaintiff, Pakkiam Ammal, who is the first respondent in this appeal.
Subsequently, as the entire properties had to be partitioned to all of them according to their shares, by means of another will, I hereby cancel through this deed the Will executed by me on the 5th day of June 1943 In 1954 Arumugam, husband of the first plaintiff died.
The material facts leading to the suit for partition are these.
In this deed of cancellation Ext.
B 3 executed by Arumugam on November 10, 1974 companyld number have the effect of bringing about a severance of joint status.
This appeal turns on the true meaning and scope of this document.
The material part of this document is quoted below.
I have hereby released all the rights that I may claim over all the aforesaid properties.
I have numberright whatsoever in your immovable properties, cash, whatsoever in your immovable properties, cash, money lending transactions and business dealing.
She is second plaintiff and the second respondent in this appeal.
Annavi Pillai and his five sons Rajagopal, Akkilandam, Arumugam, Balasu bramaniam and Somasundaram companystituted a Mitakshara joint family.
500/ Rupees five hundred in cash, in the presence of the Sub Registrar, in full and final settlement of any rights that I may claim in all the properties aforesaid even after your life time.
Admittedly, the joint family had numberproperty of its own until 1946, though Annavi Pillai owned certain self acquired property.
On October 21, 1946 Annavi Pillai executed a deed cancelling the Will that he made on June 5, 1943, disinheriting his eldest son Rajagopal.
1, 2, 3, 4 and 5 respectively.
On December 3, 1959 the four sons executed a deed of partition in respect of the said joint family property.
Excepting myself and yourselves DO one else has any right, share or interest or claim in our family properties.
The material part of this deed of cancellation reads as follows Deed of cancellation of Will executed on the 21st day of October, 1946, by Annavi Pillai son of Veeramalai Pillai, Cultivator and merchant, aged 75 years and residing at cusba Manaparai, Sevalur Village, Kultialai Taluk, Tiruchirapalli District is as follows As my eldest son Rajagopalan was giving me trouble, I out of mis understanding eliminated my eldest son and bequeathed my properties to my other four sons in the will executed by me on the 5th day of June, 1943.
C. Gupta, J. This appeal by certificate of fitness granted by the Madras High Court is directed against a judgment and Decree of that Court affirming a preliminary decree for partition made by the trial companyrt.
By the said decree l/6th share of the first plaintiff in the disputed property was declared, The five defendants were the appellant in the High Court the fifth defendant, Annavi Pillani, died while that appeal was pending.
