This appeal is filed by the 1st defendant in O.S.No.136 of 1988 on the file of the Sub Court, Ottappalam. The suit was for partition. The case of the plaintiffs is that item Nos.1 and 2 of plaint A-schedule belonged to deceased Marakkar. Plaintiffs and defendants 1 to 4 are his children. The 5th defendant is the wife of Veeran, deceased son of Marakkar and defendants 6 to 10 are her children. According to the plaintiffs, items 1 and 2 of the plaint schedule were purchased by Marakkar and items 3 and 4 were purchased by the 1st defendant with the funds obtained by cutting and selling the trees in plaint A-schedule item No.1, for and on behalf of the plaintiffs and defendants. Therefore, plaint A-schedule items 3 and 4 are also liable to be partitioned among the legal heirs of Marakkar. Plaint B-schedule is said to be the sale proceeds to trees cut and sold by defendants 1 to 3 from plaint schedule items 1 and 2. Plaintiffs claimed 2/11 shares in A and B-schedule properties. Plaintiffs also claimed future mesne profits at the rate of Rs.800/- per annum from defendants 1 to 3.

2. The first defendant filed written statement contending that the legal heirs of Marakkar had divided plaint schedule items 1 and 2 orally after the death of Marakkar through mediators. The plaintiffs and 4th defendant agreed to accept the value of their shares instead of property. The particulars of the property allotted is also stated in the written statement. He also contended that the house in the property allotted to the 1st defendant was reconstructed by him spending Rs.10,000/-. He also contended that items 3 and 4 were not purchased by cutting and selling trees in plaint item No.1. No trees were cut from plaint schedule items 1 and 2. These items were purchased by him with his own funds and he was in exclusive possession of these items as his self acquisition and they are not partible. He also contended that if the court finds that plaint A-schedule items 1 and 2 are partible, his reservation for Rs.10,000/- spent for reconstruction may be allowed.

3. Defendants 2 to 10 filed written statement supporting the case of the 1st defendant.

4. The trial court framed necessary issues. The trial court found that the case of oral partition set up by the 1st defendant was not proved and that items 1 and 2 are liable to be partitioned. With regard to items 3 and 4 also, the trial court found that they are liable to be partitioned among the sharers. According to the trial court, the 1st defendant has not explained his source of income for purchasing these items and he has not discharged his burden of showing that they are his self-acquisitions. Regarding the claim for reservations, the trial court found against the 1st defendant and it was held that the parties are co-owners and are entitled to only equitable considerations.

5. The points arising for consideration in this appeal are whether (1) there was an oral partition of items 1 and 2 of plaint A-schedule properties as contended by the 1st defendant and (2) whether items 3 and 4 are liable to be partitioned between the plaintiffs and defendants.

6. With regard to the case of oral partition, there is only the oral evidence of Dw.1. Though it has come out in evidence that separate houses are constructed and some of the children of Marakkar are residing in those houses, there is no conclusive proof for an oral partition. No document is produced to show separate allotment or separate possession of the different plots alleged to have been allotted in the oral partition. In the absence of any clinching evidence to show the case of oral partition, it cannot be said that the finding of the trial court on oral partition is wrong. Therefore, I confirm the finding with regard to the case of oral partition.

7. The more important point elaborately argued by Sri. K.T. Sankaran the learned counsel for the appellant and Sri. T. Sethumadhavan, the learned counsel for the contesting respondents, is with regard to the