The burden of proof lies with the party claiming an oral partition or self-acquired properties, and the court will scrutinize the evidence presented to establish such claims.

JUDGMENT

N.S. Sanjay Gowda, J. - The plaintiffs are in second appeal.

2. The genealogy, which is not in dispute is as fol lows:

3. Chinnawwa, the wife and her daughter Neelawwa, representing the branch of Kalakappa (the first son of Sangappa) filed a suit for partition against Kalakappa's brother Shankarappa (defendant No.1) and his son Sangappa (defendant No.2).

4. It was their case that item No.2A properties were joint family properties and they were entitled to half a share. They contended that item No.2B i.e., house properties had been separated from VPC Nos.422, 423 and 493 and after the division, VPC Nos.422/A, 423/A and 693/A were entered in the name of the f irst defendant and in respect of VPC Nos.422/B, 423/B and 693/B, the names of the plaintif fs and third defendant had been entered. They therefore contended that in respect of suit 2B properties, it was only the plaintif fs and third defendant, who had 1/3rd share each.

5. Their contention was that despite several requests, the defendants had refused to partition the properties and hence, they were constrained to f ile the suit.

6. The defendants, on appearance, did not dispute the relationship of the parties but they denied that the plaintiffs had half a share in al l the suit 2A properties. They contended that item No.6 of 2A schedule properties were purchased by second defendant out of his own savings and similarly, the 1st defendant had purchased item No.7 of 2A.

7. They also contended that the f irst defendant had out of his earnings, celebrated the marriages of the first plaintif f and third defendant and thereafter in the year 1994, in the presence of elders, oral partition of the joint family properties took place and allotted item No.4 of para 2A properties. It was contend that after the death of second plaintif f, the same would devolve on the f irst plaintif f and the third defendant.

8. In other words, the defendants contended that they had already oral ly partitioned the joint family properties and in the said oral partition, item No.4 had been al lotted to second plaintif f and they set up the further plea that two suit properties i.e., item Nos.6 and 7 were purchased out of their own earnings.

9. The Trial Court, on consideration of the evidence adduced before it, came to the conclusion that the plaintiffs had been able to establ ish that al l the suit 2A properties were the joint family properties and the defendants had failed to establ ish that item Nos.6 and 7 were the properties acquired by them out of their own income. The Trial Court, accordingly, granted half a share in 2A properties and 1/3rd share each to the plaintif fs No.1 and 2 and the third defendant.

10. The defendants No.1 and 2, being aggrieved, preferred an appeal.

11. The Appel late Court, on re-appreciation of the evidence, came to the conclusion that the plaintif fs had failed to establish that the suit properties were joint family properties and it held that there was already an oral partition and hence, the suit was required to be dismissed. It accordingly al lowed the appeal and dismissed the suit.

12. It is against this judgment of this lower Appellate Court, this second appeal has been preferred.

13. The substantial question of law which arises for consideration in this second appeal is,

1) Whether the Appel late Court could have dismissed the suit for partition when the defendants No.1 and 2 had failed to establ ish that there was an oral partition in the year 1994?

2) Whether the Appel late Court could have come to the conclusion that the oral partition set up by the defendants in the year 1994 had been establ ished on the basis of Exs.P-9 and P-13?

3) Whether the Appel late Court could have come to the conclusion that Item No 6 and 7 of 2A suit properties were the self acquired properties of the defendants 1 and 2?

14. As stated above, it is not in dispute that even according to the plaintif fs, the suit properties (barring item No.6 and 7) were joint family properties. It