The plaintiff must prove joint family property status to succeed in partition claims; mere assertion is insufficient. The burden of proof emphasizes the need for substantial evidence.

JUDGMENT :

RAVI V HOSMANI, J.

Challenging judgment and decree dated 10.01.2017 passed by IV Addl. District & Sessions Judge, Mandya, in RA no.34/2016 and judgment and decree dated 23.04.2016 passed by Prl. Senior Civil Judge & CJM, Mandya, in OS no.83/2001, this appeal is filed.

2. Brief facts as stated are, appellant was plaintiff in OS no.83/2001 filed for partition and separate possession of his 1/6^th share in suit schedule properties by metes and bounds and to hold separate enquiry for ascertaining mesne profits, etc.

3. In plaint, it was stated, father of plaintiff -Girigowda s/o Papegowda, died leaving behind wife – Chowdamma (defendant no.1) and 7 children i.e. plaintiff, BG Shekar, BG Ramakrishna, Narayana, defendants no.2 to 4 as his legal heirs. It was stated, BG Shekar and BG Ramakrishna died unmarried and since 7 years, whereabouts of Narayana was also not known. Therefore, his wife Smt.Sowbhagya (defendant no.5) was made party to suit.

4. It was stated, defendant no.1 being elder member of joint family was managing joint family affairs under oral arrangement and there was no partition of joint family properties. It was stated, defendant no.1 directed plaintiff to enjoy suit item no.3 for his livelihood, while defendants were receiving rents and other benefits from items no.1 and 2, until partition by metes and bounds. It was stated, defendant no.3 murdered BG Shekara at instigation of defendants no.1 and 4 in January, 2001, as he was demanding partition, and was in judicial custody. In last week of February 2001, when plaintiff demanded defendant no.1 for partition of joint family properties by metes and bounds, panchayat was convened. It was stated, OS no.73/2001 filed by defendant no.1 against plaintiff for permanent injunction in respect of item no.3 of suit properties, was pending before Prl.Civil Judge, Mandya. Hence, suit was filed.

5. On appearance, defendants no.1 to 4 filed written statement denying plaint averments except admitting that BG Shekara and BG Ramakrishna died unmarried and defendant no.1, their mother would be only legal heir. Hence she was absolute owner in lawful possession of suit schedule properties.

It was stated, plaintiff has no manner of right, title or interest over any portion of suit schedule properties. It was denied that at instigation of other defendants, defendant no.3 committed murder of his brother and was in judicial custody. It was stated, when suit schedule properties were not joint family properties, plaintiff had no right to demand partition. It was stated, from income earned by milk vending, defendant no.1 purchased sites under registered sale deeds from one Nanjundaiah and Devaraju and constructed shops and residential houses i.e., items no.1 and 2 and got khata mutated in her name and was paying tax regularly.

6. It was further stated, item no.3 was situated in Ex-Inam village and was in possession of defendant no.1. It came to be vested with State under Karnataka Personal and Miscellaneous Inam Abolition Act and defendant no.1 had applied for its re-grant. It was st