The burden of proof lies with the plaintiffs to establish that properties claimed in a partition suit are joint family properties; mere assertions without evidence are insufficient.

JUDGMENT :

(S.G. PANDIT, J.)

Plaintiffs No.2 and 3 in O.S.No.1043/1991 on the file of the XVIII Additional City Civil Judge at Bengaluru are before this Court in this first appeal filed under Section 96 of the Code of Civil Procedure , 1908, challenging the judgment and decree dated 14.12.2006 insofar as dismissing the suit in respect of items No.2, 6, 9, 9(a) and 9(b) of suit ‘D’ schedule properties and consequently praying to decree the suit as prayed.

2. The brief facts of the case are that, Originally, the first plaintiff, sister of defendants No.1 to 3 filed a suit for partition of suit schedule A to D properties. Defendant No.1 filed his written statement and defendants No.2 and 3 filed their written statement separately. Subsequently, defendants No.2 and 3, the other sisters of defendant No.1 transposed themselves as plaintiffs No.2 and 3.

3. The plaint averments would indicate that plaintiffs and defendants are the children of Late G.Hanumanthappa and Late Smt.G.Rangamma. The father and mother of the plaintiffs and defendant died intestate. It is averred in the plaint that the suit schedule properties are in joint possession and enjoyment of the plaintiffs and defendant. Further, it is stated that the properties described in the suit schedule are joint family properties of the plaintiffs and defendant. The plaintiffs and defendants have succeeded to the properties left behind by their father Hanumanthappa and mother Rangamma. Further, the plaint averments would state that though item Nos. 9(a) and 9(b) of the suit schedule ‘D’ properties nominally stand in the name of the first defendant Sri.Gurunath, the plaintiffs and defendant No.1 have 1/4^th share each, since the properties are purchased out of the income of the joint family, as defendant No.1 had no source of income much less independent source of income. Defendant No.1 in his written statement denied the allegations and contended that self-earned properties of defendant No.1 are also included in the partition to which the plaintiffs are not entitled. It is also averred in the written statement of defendant No.1 that plaintiff No.1 has no share in the suit schedule properties and she has no right to claim partition and separate possession of her alleged 1/4^th share in the schedule properties particularly schedule ‘D’ properties.

4. Plaintiff No.1 got examined herself as P.W.1, plaintiff No.3 examined herself as P.W.2 apart from marking Ex.P1 to Ex.P52. Whereas, on behalf of defendant, D.W.1 to D.W.5 were examined and Ex.D1 to Ex.D9 were marked.

5. The trial Court after appreciation of material on record, decreed the suit partly in the following manner:

(a) There shall be a partition and separate possession of plaintiff’s share in respect of the properties described in plaint ‘A’ schedule, ‘C’ schedule and items No.1, 3, 4, 5, 7 and 8 in plaint ‘D’ Schedule.

(b) Each plaintiff shall be entitled for 1/4^th share in the above mentioned properties.

(c) The partition and separate possession shall be effected in the manner provided under Order 26 Rule 13 of CPC.

(d) The first plaintiff shall be entitled for recovery of mesne profits from the date of the institution of the suit on 15.02.1991 till the delivery of possession.

(e) The transposed plaintiffs 2 and 3 shall be entitled to recover mesne profits from the date of filing their claim in the suit on 01.07.1992 till delivery of possession of their share.

(f) There will be a separate enquiry for mesne profits payable as provided under Order 20 Rule 12 of CPC.

(g) The first plaintiff shall be entitled to recover costs in the suit from the first defendant.

(h) The first plaintiff shall also be entitled to recover compensatory costs of Rs.3,000/- fr