The burden of proof lies on the person claiming self-acquisition of property, and failure to establish self-acquisition by cogent evidence may result in the suit being decreed for partition.

JUDGMENT

Nataraj Rangaswamy, J. - This Regular Second Appeal is filed by the defendant No. 2 in OS No. 47/1990 on the file of the Principal Civil Judge (Jr. Dn.) and JMFC., Doddaballapur challenging the Judgment and Decree dated 26.07.2010 passed by the First Appellate Court (Additional District and Sessions Judge, FTC-VII, Doddaballapur) in RA No. 52/2006.

2. The parties shall henceforth be referred to as they were arrayed before the Trial Court.

3. The facts as stated that led to the filing of OS No. 47/1990 are that; the plaintiff and the defendant Nos. 2 to 6 were the children of the defendant No. 1. It is stated that the family of the plaintiff and the defendants were joint and that the suit properties were ancestral properties that were possessed by the defendant No. 1, he having derived it at a partition between he and his brother. Item No. 11 of the suit properties is stated to have been purchased in the name of the defendant No. 2 and out of the joint family funds. Thus, it was contended that the plaintiff is entitled to 1/7th share in the suit schedule properties, which he demanded from the defendants, but not complied. Thus, the plaintiff sought for declaration of his share.

4. The defendant No. 1 filed his written statement and admitted that the suit properties were joint family ancestral properties and the suit item No. 11 was purchased out of the joint family funds in the name of the defendant No. 2 as he was managing the affairs of the family. He also claimed that the loan raised on the security of item No. 11 in the name of the defendant No. 2 was discharged from out of the joint family funds. The defendant No. 1 thus, sought for a decree declaring that the plaintiff and the defendants are entitled to 1/7th share in the suit properties.

5. The defendant Nos. 3, 4 and 6 adopted the written statement filed by the defendant No. 1.

6. The defendant No. 2 filed his written statement and admitted the relationship and also the fact that the suit item Nos. 1 to 10 and 12 were the joint family ancestral properties. He contended that he had studied upto II PUC and out of his own hard work, had purchased the suit item No. 11 from Smt. Subbalakshmamma in terms of a sale deed dated 04.11.1981. He also contended that he had a separate source of income and that the joint family never assisted him in purchasing the suit item No. 11. He also contended that he had raised a loan from Raitha Seva Sahakara Sangha in year 1976 and availed a loan from PLD Bank by hypothecating the suit item No. 11 in the year 1980 and that he had income from selling milk that he used to collect from the villagers and was supplying the same to hotels and private persons in Doddaballapura. He also contended that he had availed loan from the Corporation Bank under the self employment loan scheme. He also claimed that he was doing business in 'Chandrike' since the year 1975 and therefore, he contended that he had purchased the suit item No. 11 out of his self earnings. He specifically conceded that he had no objection for partition of the suit item Nos. 1 to 10 and 12.

7. The defendant No. 5 adopted the written statement filed by the defendant No. 2 based upon which the Trial Court framed the following issues:

1. Whether the plaintiff proves that all the suit properties including item No. 11 are the ancestral and joint family properties of the parties in the suit?

2. Whether the plaintiff proves that he is entitled for 1/7th share in all the suit properties?

3. Whether the 2nd defendant proves that item No. 11 of the suit property is his self-acquired property?

4. Whether the 2nd defendant proves that suit is bad for non joinder of all joint family properties?

5. Whether the plaintiff is entitled for relief of partition and possession?

6. What order and what decree?

8. Plaintiff was examined as PW1 and the defendant No. 1 was examined as PW2 and the vendor of the defendant No. 2 in respect of the suit item No. 11 as PW3 and they marked Exs. P1 to P52.

9.