The burden of proof lies with the appellant to establish unfair allotment and unsound mind, and legal necessity for the sale of the property.

Harilal, J.

The appellant is the plaintiff in O.S.120 of 1982 on the files of the Subordinate Judge's Court, Kasaragod. The said suit was one for partition, after setting aside Ext.A1 partition deed entered into between the 1st defendant and others and Ext.A2 sale deed executed by the 4th defendant in favour of defendants 7 to 13. The plaintiff is the son of the 4th defendant. The 'B' Schedule property originally belonged to Shankaranarayana Bhatta, the father of the 1st and 4th defendants and grandfather of the plaintiff. Defendants 2 and 3 are the wife and son of the 1st defendant and defendants 5 and 6 are the wife and son of the 4th defendant. Defendants 7 to 14 are the persons who had purchased the property allotted to the 4th defendant and others under Ext.A1 partition deed, by Ext.A2 sale deed.

2. The plaintiff and defendants 1 to 6 belonged to a joint Hindu undivided family governed by Hindu Mithakshara Law of Inheritance, till the passing of Act 30 of 1976 and thereafter, the property was held as tenants in common. Subsequently, they have partitioned the property by partition deed dated 22/06/1962 between defendants 1 and 4 on the one hand and one Erippady Bapunhi Haji on the other side. According to the plaintiff, after the said partition, the 1st defendant was managing the family, as the 4th defendant, the father of the plaintiff, was a man of poor intellect and not in a sound and disposing state of mind. Subsequently, the 1st defendant had brought about Ext.A1 partition deed, incorporating false and self-serving recitals and managed to clandestinely obtain the signature of the 4th defendant, exploiting his unsound mind. The plaintiff and the 6th defendant were minors on the date of Exts.A1 and A2. The 1st defendant's branch is allotted with 2/3rd share, instead of 1/2 share. The classification of property is false and division is unequal. Various debts shown in Ext.A1 partition deed are false and bogus. Ext.A2 sale deed executed in favour of defendants 7 to 13 is not true and genuine and is not supported by consideration. Thus, the partition brought about under Ext.A1 partition deed is unjust, unequal and inequitable. Hence, 'B' Schedule property is liable to be partitioned again after setting aside Exts.A1 and A2, for the reasons stated above, the appellant pleaded.

3. The 1st defendant contended that the claim for fresh partition is one without any bona fides. It is denied that the 4th defendant was a man of poor intellect and unsound mind. He was not a man of unsound mind from 1973 to 1979, as alleged by the plaintiff. He denied the entire allegations about the mismanagement of property. At the same time, he admitted the relationship and the law governing them in the matter of the disposition of property. Defendants 2 and 3 also endorsed the contention raised by the 1st defendant. The 4th defendant was set ex parte. Defendants 7 to 13 also denied the plaint allegations and contended that they are bona fide purchasers who had purchased the property, by Ext.A2 sale deed, for adequate consideration.

4. The prime question to be considered is, whether the trial court is justified in arriving at such a finding that Exts.A1 and A2 are not liable to be set aside as the plaintiff had failed to prove the alleged unequal and inequitable allotment of property under Ext.A1 partition deed and the alleged unsound mind of the 4th defendant at the time of execution of Exts.A1 and A2.

5. The basic contention on which the appellant had sought for setting aside Ext.A1 partition deed and Ext.A2 sale deed is that the appellant was a minor at the time of execution of Exts.A1 and A2 and his father, the 4th defendant, was inherently a man of poor intellect and weak mind and Ext.A1 partition deed was brought about exploiting that situation. Similarly, the 4th defendant was a man of unsound mind during the period from 1973 to 1979 and Ext.A2 sale deed was brought about during this period exploiting, the unsound mind of the 4th defend