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4. It is the contention of the plaintiffs that on 28.12.2005, the second defendant, who is the mother of the plaintiffs and first defendant, had executed a registered release deed on receipt of a sum of Rs.25,000/- whereby the second defendant has released her undivided 1/4th share in the suit property in favour of her two daughters i.e., the plaintiffs in the suit. Thus, the plaintiffs became entitled to 3/4 share in the suit property and the first defendant is entitled for 1/4 share thereof. It is the futher case of the plaintiffs that the second defendant has been running a Typewriting institute in the first floor of the house for the past 47 years. After execution of the release deed, the second defendant continued to run the typewriting institute with the permission of the plaintiffs. It is the further case of the plaintiffs that the plaintiffs and the first defendant are in joint possession of the suit property and such possession is deemed to be the joint possession along with the plaintiffs. The second defendant, who is running the typewriting institute, has been in possession of the portion occupied by the typewriting institute with the permission from the plaintiffs after the execution of the release deed. While so, the first defendant exhibited hostile attitude towards the plaintiffs and therefore, finding that the joint ownership of the suit property is no longer possible, the plaintiffs issued a notice dated 09.06.2008 calling upon the first defendant to effect division of the suit property and to handover 3/4 share to them. On receipt of such notice, the first defendant sent a reply notice dated 30.06.2008 containing untrue averments inter alia denied the due share of the plaintiffs in the suit property. In the reply notice dated 30.06.2008, it was falsely contended by the first defendant that he had contributed for the seemanthamm marriage and delivery of the child of the first plaintiff and also spent amount for conducting betrothel, marriage and delivery of the children for the second plaintiff. It was also falsely claimed in the reply notice that the first defendant has been maintaining the second defendant and spending for her medical expenses. Further it is stated in the reply notice that first defendant has no knowledge about the release deed said to have been executed by second defendant in favour of plaintiffs on 28.12.2005. In such circumstances, the plaintiffs have instituted the suit before the trial court for partition and separate possession.

6. It is further stated by the first defendant in the written statement that during the year 2002, the second plaintiff developed serious ailment and was admitted in the hospital. At that time, the first plaintiff was in need of money to take care of the hospital expenses of the second plaintiff and therefore she requested the first defendant to provide money and promised to return the money back. Taking note of the proximity of the relationship, the first defendant has handed over the title deeds relating to the suit property to the second plaintiff to raise a loan by mortgaging the suit property. However, even before the first plaintiff could raise loan, the first defendant paid a sum of Rs.20,000/- to her by pledging the jewels belonging to his wife with the understanding that the plaintiffs will not demand any share in the suit property. As the first defendant has given amount for meeting the hospitalisation expenses of the second plaintiff, the first plaintiff did not mortgage the title deeds to raise money. However, the first plaintiff did not return the title deeds to the first defendant. Furthermore, the first defendant also did not demand for return of the documents from the plaintiffs, taking note of the relationship between them. It is also contended that the first defendant has made two fixed deposits for Rs.10,000/- in the name of the plaintiffs and the amount thereof have been withdrawn by the plaintiffs. Further, the first defendant made deposits in the Post Office Recurring Deposit fund and it was also withdrawn by the first plaintiff and second defendant. Further, the second defendant gave all her jewels, silverware and Rs.50,000/- received by her to the plaintiffs. The plaintiffs, at no point of time, demanded partition of the suit property because of the specific understanding that in lieu of their share, the first defendant had spent money for performance of their marriage, seemandham and delivery of the childen etc., and also maintained the entire family. The amount so received by the plaintiffs is equal to the share in the suit property. The first defendant was under the bonafide impression that the plaintiffs would not claim any share in the suit property and release their share at any time. It is further stated that only after receipt of the notice dated 09.06.2008 sent by the plaintiffs did the first defendant come to know about the release deed dated 28.12.2005 said to have been executed by the second defendant. Further, the second defendant did not receive Rs.25,000/- from the plaintiffs at the time of executing the release deed dated 28.12.2005 and therefore, the release deed dated 28.12.2005 will not bind the first defendant in any manner. If one of the co-sharers release his or her share in the property in favour of the other co-sharers, such benefit must be given to all the co-sharers equally but that was not done in this case. The Plaintiffs are having independent house and other property from their in-laws. They have received money from the first defendant on several occasion to improve their property. The first defendant alone paid property tax, water tax and carried out periodic repair to the suit property and maintained it by spending amount. If the amount received by the plaintiffs from the first defendant at periodic interval is taken into account, it would be equal to the claim for share in the suit property made by the plaintiffs. In other words, the various amount spent by the first defendant for the plaintiffs and also given to the plaintiffs is more than or equal to 1/4 share in the suit property. The Plaintiffs are not in joint possession of the suit property and the question of possession by the first defendant cannot be assumed to be a joint possession for and on behalf of the plaintiffs. According to the first defendant/appellant, the suit ought to have been valued on the market value of the suit property under Section 37 (I) of The Tamil Nadu Court Fee and Suit Valuation Act and the suit has been improperly valued. Therefore, the first defendant prayed for deciding the maintainability of the suit as a preliminary issue under Section 12 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955.

23. Thus, the learned counsel for the plaintiffs/respondents 1 and 2 submitted the scope of passing preliminary decree does not entertain any enquiry regarding ovalties adjustment of shares and money spent.

24. As far as the allegation of the first defendant that the release deed dated 28.12.2005 executed by the mother/second defendant will also enure to the benefit of the first defendant, it is submitted that as per the decision in (Kuppuswami Chettiar vs. A.S.P.A. Arumugam Chettiar and another) reported in AIR 1967 Supreme Court 1395 Section 5 of the Transfer of Property Act stipulates that the word 'transfer' includes conveyance by registered instrument including release deed for consideration and the release deed need not be for all to the benefit of the other sharers and the release of a particular share for consideration is a valid transfer. Therefore, the plea of the first defendant that the release deed executed by the mother on 28.12.2005 in favour of the plaintiffs will also enure to his benefit cannot be countenanced especially when the release deed was executed for a consideration of Rs.25,000/- by the second defendant/mother. When the release deed dated 28.12.2005 was executed by the mother/second defendant afterr receipt of Rs.25,000/-, it will not enure to the benefit of the second defendant.

33. The alternative submission advanced by the learned counsel appearing for the first defendant/appellant is that the second defendant/mother has no right to execute the release deed at all and consequently, the first defendant is also entitled to a share of the second defendant/mother in the suit property. We find that the release deed dated 28.12.2005 was executed by the second defendant and registered before the competent registering authority for a valid consideration. By virtue of such release deed, the plaintiffs become absolute owners of the share, which the second defendant is entitled to in the suit property. Such transfer made by the second defendant in favour of the plaintiffs falls within the meaning of a valid 'transfer' contained in Section 5 of the Transfer of Property Act While so, it is futile on the part of the first defendant to contend that the release deed will also enure to his benefit to get a share in the suit property. In this context, useful reference can be made to the decision of the Honourable Supreme Court in (Kuppuswami Chettiar vs. A.S.P.A. Arumugam Chettiar and another) reported in AIR 1967 Supreme Court 1395 wherein it was held in para No.6 as follows:-