No presumption that joint family possess joint family properties.

M. Thanikachalam, J.

Defendants 1, 2, 3, 5, 6 and 7, aggrieved by the judgment and decree passed by the trial Court in O.S.No.302 of 1986 on the file of the learned Subordinate Judge, Erode, have preferred this appeal.

2.1. Respondents 1 and 2 in this appeal, as plaintiffs, have filed a suit for partition and separate possession of their 2/9th shares in the suit properties.

2.2. According to the plaintiffs/respondents 1 and 2, all the suit properties belonged to their father Veeran, son of Siddhan. It is the further case of the plaintiffs that Veeran having acquired the properties, enjoyed the same and died in the year 1984 intestate, leaving behind him the plaintiffs and defendants 1 to 7 as his Class-I heirs, who are entitled to inherit the properties in equal shares. On that basis, according to the plaintiffs, when they demanded division of properties to their brothers and other sisters, it was refused, resulting in the filing of the suit for partition to declare their share of 2/9 in all the suit properties with other consequential reliefs.

2.3. The appellants/defendants 1, 2, 3, 5, 6, and 7, opposed the claim, contending that all the properties standing in the name of Veeran have been acquired out of joint exertion by all the joint family members and on acquisition, they have been treated as joint family properties, in which case, the plaintiffs are entitled to 1/45th share; that as far as the third item is concerned, the second defendant alone is entitled to 1/2 share, since this property was acquired by the second defendant and Veeran jointly, and that only in the remaining 1/2 share, the plaintiffs and other defendants are entitled to some shares.

2.4. On the above pleadings, the parties went on trial before the trial Court framing as many as five issues. In support of the plaintiffs' claim, six documents have been exhibited, seeking aid from the oral evidence of PW1, the first plaintiff and PW2, the fourth defendant. In order to nullify the effect of the above evidence and to substantiate the defence, the second defendant has been examined as DW1 and one third party by name Perumal has been examined as DW2. To buttress the oral testimony on behalf of the contesting defendants/appellants, eight documents have been produced and exhibited.

2.5. The learned II Additional Subordinate Judge, Erode, after scanning the above materials and applying the legal provision, came to the conclusion that items 1 and 2 belonged to Veeran as his self-acquired properties; that the third item had been purchased by Veeran and Krishnan, who is the second defendant, jointly contributing equal funds and in this view, both are entitled to equal shares, that the plaintiffs are entitled to a share only in 1/2 share in the third item and that the daughters, viz., the plaintiffs, are entitled to have the division in the family house also, since that property belonged to their father as his self- acquired property. Thus declaring the share of the parties, granted a preliminary decree in favour of the plaintiffs, in order to demarcate 2/9th shares in items 1 and 2 and 2/18th shares in the third item, which is under challenge in this appeal.

3. Heard Mr.A.K.Kumarasamy and Mr.M.M.Sundaresh, learned counsel appearing for the appellants and respondents respectively.

4.1. The main thrust of Mr.A.K.Kumarasamy, learned counsel appearing for the appellants is that items 1 and 2 belonged to the family as joint family properties, since they have been purchased by the members of the joint family by their joint exertion and in fact, the properties were so treated and in that view, the conclusion of the trial Court that items 1 and 2 are the self-acquired properties of Veeran, is unsustainable.

4.2. It is the further submission of the learned counsel for the appellants, that since the first item is the joint family dwelling house, since the male heirs have not taken any step to divide the dwelling house; under Section 23 of the Hindu Succession Act, 1956, th