Burden of proof on whom to be discharged.

RAMAMURTI, J. :- Defendants 2 to 5 have preferred this appeal against the judgment and decree of the Sub Court, Dindigul decreeing the plaintiff's suit for partition of the properties described in the schedules A to B attached to the plaint and also the moveables and into six shares and allotment of two shares to the plaintiffs 1 and 2, and one share to the first defendant. The second defendant has also been directed to render an account of the income from the properties of the family for a period of one year, September 1957 to September 1958, as claimed in the plaint. The following genealogical tree, shows the relationship between the parties :

Nagayasami, the second defendant and Ayyalu, the first defendant, are brothers. The first defendant's sons are the plaintiffs 1 and 2. The second defendant's son is the third defendant, 4th defendant is the wife of defendant 3 and the 5th defendant minor Renuka is their daughter. The plaintiffs' case is that the 2nd defendant and the members of his branch and the first defendant and the members of his branch are all members of a joint Hindu family, the two branches being each entitled to a half share in all the properties, immoveable and moveable, claimed in the suit. The plaintiffs also claim that all the properties involved in the suit including those standing in the name of defendants 2 to 5 (schedules B to E) are also joint family properties having been acquired by the 2nd defendant with the aid of joint family properties of which he was in possession as manager of the joint family, though the relevant deeds were taken in the individual names of the 2nd defendant and the members of his branch.

2. The main defence of the contesting defendants 2 to 5 is that about the year 1914, the father of the plaintiffs (Ayyalu, the first defendant in the suit) was given away in adoption to one Kochadai Naicker, the brother of the paternal grandfather of defendants 1 and 2, that after the adoption, the first defendant ceased to be a member of his natural family and became both, legally and factually, a member of the family of his adoptive father, with the result that Ayyalu was not entitled to any share in the properties of his natural father, and his sons, the plaintiffs 1 and 2, are therefore equally not entitled to any right or share in, the properties. The further case of defendants 2 to 5 is that the several items claimed by them (schedules B to E) are all their own separate properties and that in any event, the plaintiffs would not be entitled to any claim or share therein. The first defendant sailed with his sons, the plaintiffs, and supported their case.

3. The trial court negatived the contentions of the contesting defendants; it did not accept the defendants' case that the first defendant was given in adoption to Kochadai Naicker. It also found that the several items claimed as separate properties of defendants 2 to 5 were all joint family properties acquired out of and with the aid of ancestral properties. Out of a half share belonging to the first defendant, two-thirds was allotted to plaintiffs 1 and 2 one-third to the first defendant. Hence the appeal by the defeated defendants. As the first defendant is sailing with the plaintiffs, for the sake of convenience, defendants 2 to 5 are referred to as contesting defendants in this judgment and reference to the first defendant is made separately.

4. From the genealogical tree, it will be seen that one Ayyalu Naicker the paternal grand-father of defendants 2 and 1 had two brothers, Thavappa Naicker and Kochadai Naicker. This Ayyalu Naicker, the paternal grandfather of defendants 2 and 1 is the senior most member of his branch and his son one Alagar Naicker is the father of defendants 2 and 1. Ayyalu Naicker died long ago leaving behind him, his son Alagar Naicker and his grandsons, defendants 2 and 1. Thevappa Naicker also died long ago leaving behind him son Alagarswami. The third brother Kochadai Naicker died on 16-2-1946. It is th