Plaintiff to prove acquisition the property not from family income.

Defendants 1 and 2 in O.S. No.76 of 1981, on the file of the Sub Judge’s Court, Kancheepuram, are the appellants herein.

.2. Plaintiff filed the suit for partition claiming one-fourth share in the plaint items. There are five schedules A to E. In so far as A Schedule items are concerned, there is no dispute between the parties and, therefore, a decree was granted by the trial court. But in respect of the other Schedules, the suit was dismissed.

3. Plaintiff preferred an appeal, where a decree was granted for C and D Schedule items also. Regarding B Schedule, the suit was dismissed. Regarding E Schedule, the same was given up. Defendants 1 and 2 are challenging the preliminary decree passed by the lower appellate court whereby it granted a share in the C Schedule item also.

.4. Material averments in the plaint are:

.One Kuppusami Naicker, plaintiff and defendants 1 and 2 and the husband of the third defendant constituted a Hindu undivided family. It is the case of the plaintiff that A Schedule items belong to the family and even during the lifetime of his father, he left the village to seek an employment at Madras and thereafter he was helping the members of the family with his meagre income. It is said that with the help of funds supplied by him, properties were purchased in the name of the father and also in the name of defendants 1 and 2 and also the deceased brother (husband of the third defendant). According to him, all these items purchased in the name of the brothers are all family properties and they are available for partition. B Schedule items which are scheduled in the plaint were purchased in the name of the wife of the third defendant and the wife of the first defendant. The case that is put forward is that only to shield those properties, the same were acquired by the brothers in the name of their wives. According to him, the female members have no source of income, and those properties also formed part of the joint family assets.

5. In the written statement filed by the appellants, they contended that except the A Schedule items, the details of which are given in paragraph 6 of the written statement, the family did not possess any other items of properties, and there was no surplus income to acquire other properties. According to them, B and C Schedule properties are the acquisitions either by the family members or the brothers without the aid of income from the family property, and the same are not available for partition.

.6. The trial court, on the above pleadings, came to the conclusion that the plaintiff has not proved that the family had surplus income to purchase the property. For the said purpose, it relied on certain allegations in the plaint whereby the plaintiffs had stated that the family income was meagre and, therefore, he had to leave the family house seeking employment. The trial court also held that the case put forward by the plaintiff that he was helping the members of the family was also not proved since he himself was getting only a meagre income. Therefore, the case put forward by the plaintiff that all the properties are family properties was found against and for admitted properties, a preliminary decree was passed.

7. When the matter was taken in appeal, the lower appellate court reappreciated the entire evidence and came to the conclusion that in respect of B Schedule items, plaintiff cannot have any claim since it stands in the names of the female members of the family. The lower appellate court said that the properties which stand in the name of the family members cannot be treated as joint family properties. But in so far as C Schedule items were concerned, the court below was of the view that defendants 1 and 2 have no other source of income, and the plaintiff, though elder member of the family, was not in management and, therefore, defendants 1 and 2 and husband of the third defendant must be presumed to have taken the income and they are bound to explain how the ot