Burden of proof is on the person claiming property as his personal property.

AR .Lakshmanan, J.

The unsuccessful plaintiff in O.S.No.156 of 1983 on the file of Sub Court, Namakkal, is the appellant in the above appeal. He died during the pendency of the appeal and his legal representatives have come on record. The plaintiff as also defendants 1 to 5, are the children of one Kali Gounder, who died on 7. 1981. The 6th defendant is the son of the 1st defendant and was a minor at the date on which he was impleaded. He is represented by a court guardian. The plaintiff and 1st defendant are brothers and defendants 2, 3 and 4 are sisters. The 5th defendant is their step sister of Kaliappa through his second wife. The plaintiff’s mother is said to have passed away, quite early and the 5th defendant’s mother, Kali Gounder’s second wife and her three other children as also a daughter of the plaintiff are stated to have died in a car accident on 25. 1967.

2. The appellant/ plaintiff laid the suit for partition and award of separate possession of a 7/18th share in plaint A Schedule properties which were claimed by the plaintiff to be the properties belonging to a Hindu undivided family of which his father, late Kali Gounder was Kartha, besides making adequate provision for certain debts of the Kartha, which the plaintiff claimed to have himself discharged, amounting in the aggregate to Rs.73,000 and also to provide for the discharge of certain other debts of the Kartha, amounting to Rs.1,32,500 in the aggregate, which sums, it was claimed, were due to certain named persons, as seen from the C Schedule.

3. The case of the plaintiff was that the properties listed by him in the plaint A Schedule belonged to an undivided Hindu family, consisting of the Kartha late Kali Gounder, the father and his undivided sons namely the plaintiff and 1st defendant. It is stated in paragraph 5 of the plaint that Kali Gounder had ancestral properties and he utilised the income therefrom for acquiring the properties mentioned in the A Schedule. Thus the properties purchased in his name also are joint family properties and in any event all the properties were treated by him as joint family properties only. The plaintiff in paragraph 7 of the plaint, averred that Kali Gounder, as already stated, had sufficient means and income from the joint family nucleus. He augmented the income by utilising it for taking on lease profitable rice mill business and other businesses. Joint family income was used for acquiring properties and constructing buildings. In para.6 of the plaint, the plaintiff has averred as follows:

“Kali Gounder while alive appears to have executed three gift settlement deeds. One such gift deed was made by him to the first defendant another was to the 3rd defendant. While yet another gift was made to 5th defendant. Plaintiff submits that the gifts are not valid and they are not enforceable against plaintiff or the other sharers. Also they have not been given effect to. Plaintiff is entitled to a 7/18th share in these items also. Plaintiff is not a party to these deeds. He is entitled to ignore them. He need not sue to set them aside. These are items 8 and 9 in the A Schedule.” Since the plaintiff’s demand for partition was turned down by the 1st defendant, the plaintiff filed the above suit for partition of all assets and liabilities of the family.

4. Defendants 1, 5 and 6 filed their separate written statements and the 1st defendant filed an additional written statement as well. The 1st defendant contested the claim in the main that the A Schedule properties belonged to an undivided Hindu family. According to him, all the properties were the self-acquisitions of late Kali Gounder and that the settlements referred to in the 6th paragraph of the plaint were beyond challenge. He also disputed the claim that the father late Kali Gounder left any debts to be discharged, as also the claim that the plaintiff had discharged any such debts. It was also contended that there was a car, MDA.5216, which belonged to the father