The burden of proving joint family property and property acquisition lies with the claimant. If the possession of a nucleus of joint family property is proved, any acquisition made by a member of the joint family is presumed to be joint family property.

(Second Appeal against the judgment and decree dated dated 29.10.1993 in A.S.No.178 of 1992 on the file of the Subordinate Judge, Cuddalore confirming the judgment and decree dated 16.3.1992 in O.S.No.679 of 1990 on the file of the Additional District Munsif, Cuddalore.)

The plaintiff in the suit, who lost before both the courts below, is the appellant.

2.The appellant filed the suit for declaration of title and recovery of possession of the suit property with mesne profits and the respondents resisted the suit on various grounds. The trial court having analysed the evidence both oral and documentary and upon hearing the arguments of both sides dismissed the suit with costs. Aggrieved by the said judgment and decree passed by the trial court, the plaintiff preferred the appeal before the Subordinate Judge, Cuddalore. The learned Subordinate Judge after perusing the recorded evidence and upon hearing the arguments of both sides rendered a concurrent finding by dismissing the appeal with costs. Hence, the Second Appeal.

3. The averments in the plaint filed by the appellant/plaintiff are briefly as follows:-

(a) One Ramar Padayachi had one daughter and three sons namely, Dhanabackiyam, Thangavelu (second defendant herein), Kaliyan and Chinnathambi. Kaliyan died while his wife Radha was pregnant and thereafter Radha married her husband's brother, the said Chinnathambi. The child born to Kaliyan and Radha died subsequently. Ramar Padayachi died about 8 years ago and his wife predeceased him.

(b) Ramar Padayachi purchased the suit property out of the joint family funds in the name of his eldest son Thangavelu in 1953. Patta stood in the name of Ramar Padayachi till his life time and thereafter in the name of his sons. After the death of Ramar Padayachei the suit property and other family properties were divided by his heirs. The suit property measuring 23 cents out of the total extent of 35 cents belonged to Chinnathambi and his wife Radha. In the said partition, 12 cents out of 35 cents was allotted to Thangavelu, second defendant herein for his 1/3rd share and the remaining 23 cents, namely, the suit property devolved upon the said Kaliyan and Chinnathambi 11-1/2 cents each.

(c) On 25.11.1988, both Chinnthambi and Radha sold the above 23 cents to the plaintiff for valuable consideration. The plaintiff was in possession and enjoyment of the same. While so, the second defendant herein sold the entire 35 cents under a registered sale deed dated 31.7.1987 to the first defendant herein as if he was entitled to the entire extent. Despite a mediation held in the village, the first defendant took possession of the entire 35 cents and therefore the plaintiff is constrained to file the suit. Since the first defendant is in unlawful possession of the suit property, he has to deliver possession of the same to the plaintiff and also to pay mesne profits.

4. The averments in the written statement filed by the first respondent/first defendant and adopted by the second respondent/second defendant are briefly as follows:-

(a) The relationship between the parties is admitted. However, there was no marriage between Chinnathambi and Radha as alleged in the plaint. Even if there had been a marriage between them, it is invalid in law, since under the provisions of Hindu Marriage Act, brother's widow is within the prohibited degree of relationship. The suit property did not belong to the joint family of Ramar Padayachi and his sons as alleged. In fact the property measuring 35 cents was the separate property of the second defendant herein for the reason that under the registered sale deed dated 8.10.1952 he purchased the property out of the funds provided by his father-in-law at the time of the marriage. The second defendant himself had independent sources of income, he being a weaver by profession. Hence, the property was purchased without any aid from the joint family property.

(b) The second defendant was in exclusive possession and enjoyment of t