Only for the property of father’s share will is sustainable.

S. Natarajan, J.

1. The unsuccessful plaintiff in the courts below is the appellant. The suit was for obtaining the reliefs of declaration of title and injunction.

2. The brief facts which require to be noticed are as under: The appellant and respondents 1 to 5 are brothers and the sixth respondent is their sister. All of them are the issues of the deceased Mari Mudaliar and the seventh respondent herein. Mari Mudaliar purchased the suit property of an extent of 4.79 acres under Exhibit A. 2 dated 18.4.51. He executed an unregistered will Exhibit A. 14 on 15.3.1965 bequeathing the suit property in favour of the appellant herein. Mari Mudaliar died in 1970, and after his death, the appellant claimed exclusive title to the suit property on the strength of the will.

3. Respondents 1 to 3 did not concede the genuineness of the will and the appellant's claim of exclusive title over the suit property. Respondents 4, 7 remained ex parte.

4. The principal defence of respondents 1 to 3 was that the suit property had been purchased from out of the income derived from the joint family properties and as such, the suit property constituted an item of joint family property and consequently the father Mari Mudaliar had no right to make the property the subject-matter of a bequest under the will. They also raised the defence that the will itself was not genuine.

5. The trial Court and the lower appellate Court have held that the will is a genuine one. Even so, they have held that the appellant is not entitled to the reliefs asked for by him in the suit because the suit property was joint family property, and not the self-acquired property of Mari Mudaliar as contended by the appellant. Consequently, they have held that the appellant was not entitled to the reliefs asked for by him in the suit. It is as against the concurrent findings of the courts below, the appellant has preferred this appeal.

6. The principal contention of Mr. S. Jagadeesan, learned Counsel for the appellant is that the Courts below have wrongly cast the onus of proof on the appellant by calling upon him to show that the property constituted the self-acquired property of Mari Mudaliar and that the will though valid would not confer any benefit on the appellant, that is, even with regard to the share of Mari Mudaliar.

7.The evidence in this case discloses that Mari Mudaliar originally owned lands in Mettur and those lands were acquired by the Government for the construction of the Mettur Dam. Mari Mudaliar had been paid compensation for the lands. Some evidence was sought to be adduced to prove that Mari Mudaliar was offered substitute lands as compensation and not cash payment. But the question whether alternative land was given or cash payment made is not an important issue in this case. All that has to be noticed is that Mari Mudaliar originally owned some lands and when those lands were taken away by the Government he was given compensation in the shape of cash or lands.

8. Under EX.A. 2 dated 18.4.51 Mari Mudaliar had purchased the suit land from one Venkatammal for Rs. 2,500/. The question for consideration is whether the land was purchased by Mari Mudaliar from out of the joint family funds. According to Mr. Jagadeesan, the burden of proof is on the respondents and it is for them to show that the land was purchased from out of joint family funds. He would say that the respondents have to prove that the joint family owned properties, that the suit properties were capable of generating income and the income so generated was sufficient to leave a surplus in the hands of Mari Mudaliar after meeting the expenses of the joint family for purchasing the suit property. It is the contention of the learned Counsel that the respondents have not at all discharged the onus of proof cast upon them by law. But nevertheless the courts below have rendered' a finding in favour of the respondents because of the wrong approach made by them, namely, placing the burden on the appellant to show