IMPORTANT POINT
The presumption of joint family property applies unless proven otherwise, and the burden of proof lies on the party asserting separation.

JUDGMENT :

M.A.ABDUL HAKHIM, J.

1. These appeals arise from O.S No.345/2004 of the Principal Sub Court Palakkad, which was filed for partition of A & B schedule properties. The plaintiff is the appellant in both the appeals. Even though partition is sought with respect to plaint A and B Schedule properties, B schedule property was later deleted with leave to institute a fresh suit for the same. The properties included in Plaint A Schedule are the properties included in the C schedule of Ext.A11 Partition Deed dt. 10.02.1973.

2. Admitted facts are that the parties belonged to Hindu Ezhava community. Raman, grandfather of the plaintiff, had three sons- Rakkandi, Kittu, and Theethan (1^st defendant). His wife was Nagunni. Raman died around 1952. The plaintiff is the son of 1^st defendant. The plaintiff and his sisters, who are the defendants 6 to 8, are the children of the 1^st defendant in his first marriage with Janaki. On the death of Janaki, the 1st defendant married the 2nd defendant, and the defendants 3 to 5 are the sons born in that wedlock. The aforesaid children and wife of Raman executed Ext.A11 Partition Deed in the year 1973, partitioning the properties among them in which C schedule properties were allotted to the 1^st defendant. The 1^st defendant executed Ext.B1 to B5 Settlement Deeds of the years 2003 and 2004 with respect to the Plaint schedule properties in favour of the defendants 2 to 5. The 1^st defendant had executed Exts.B6 and B7 registered Wills bequeathing his estate in favour of defendants 2 to 5. The 1^st defendant died on 08.05.2005 during the pendency of the suit after filing Written Statement. The defendants 6 to 8 were impleaded as the remaining legal heirs of the 1^st defendant as other legal heirs are already in the party array. There ends the admitted facts.

3. The suit is filed by the plaintiff on the claim that the Plaint A Schedule properties are the ancestral properties of the Joint Family headed by Raman. Plaint B schedule property is acquired by the 1^st defendant and his brothers out of the profits from Plaint A schedule properties. Since the Plaint Schedule properties are allotted to the branch of the 1^st defendant as per Ext.A11 of the year 1973, it has the character of joint family property consisting of the plaintiffs and the defendants 2 to 5. The plaintiff is having birth right in the plaint schedule properties. On the abolition of joint family as on 1.12.1976, the plaintiff became a co-owner having 1/5 share in the plaint schedule properties. The 1^st defendant had only 1/5 share in the plaint schedule properties. The 1^st defendant did not have a sound disposing mind to execute Ext.B1 to B5 settlement deeds. Those documents are executed exerting undue influence, coercion, misrepresentation, and fraud on the 1^st defendant, and hence, those documents are null and void. On the death of the 1^st defendant, his 1/5 share is liable to be divided among the plaintiff and the defendants 2 to 8. Thus, as per the amended Plaint, the plaintiff claims 1/5 share as a coparcener and 1/8 share out of the 1/5 share of the 1^st defendant as the legal heir of the 1^st defendant calculating the total share as 9/40.

4. The defendants 1 to 3 opposed the suit prayers, contending that plaint A schedule properties are not ancestral properties. Raman had only a homestead held on Kudiyiruppa. Raman was a toddy tapper. Raman had no other property or source of income. Three sons of Raman had set up separate hearths and homes with separate living. They had taken lease of cultivable lands. The first defendant, in addition, pursued other avocations such as Paddy Procuring Agency, Abkari, fertilizer business, Etc. There was no jointness in food, worship, and estate. The three brothers purchased properties in their joint names, pooling their earnings, and they never intended to treat it as belonging to the group consisting of them as their progeny. The division as per Ext.A11 was not on per stripes. The properties allotted to each