The main legal point established in the judgment is the determination of whether the property in question is a joint family property and the applicability of Section 34 of SARFAESI Act to file a suit for partition.

1. The parties are referred to here under according to their litigative status and ranking before the trial court.

2. A recapitulation and resume of facts which are absolutely necessary and germane for disposal of the second appeal wound run thus:-

(a) The Plaintiff Duraisamy filed the suit in O.S. No. 84 of 2007 before the trial court seeking the following reliefs:-

"(a) To pass a decree and judgment in favour of the plaintiff directing the division of the suit properties into 4 equal shares by metes and bounds with reference to good and bad soil and allot one such share therein to the plaintiff and put the same in his separate possession.

(b) granting a permanent injunction restraining the 4th defendant and his men and agents from taking possession of the 3rd item of the suit properties inclusive of the plaintiff's 1/4th share without permanent partition and convert the same as house site or in any other manner till final partition takes place in the above suit:

(c) appointing a commissioner to effect division of the suit properties in the aforesaid manner;

(d) directing the defendants to pay the cost of the suit to the plaintiff.

(Extracted as such)

(b) Written statement was filed by the second and fourth defendants resisting the suit, while the defendants 1 and 3 remained exparte.

(c) Whereupon, the trial court framed the relevant issues.

(d) The Plaintiff Duraisamy examined himself as PW1 and one Palanisamy as PW2 and Exs. A1 to A15 were marked. On the side of the defendants, the fourth defendant Shanmugasundaram was examined as DW1 and Exs. B1 to B19 were marked.

(e) Ultimately, the trial court decreed the suit in respect of item Nos. 1 and 2 of the suit property and passed a preliminary decree of partition and dismissed the suit in respect of item No.3 holding that the said property is not a joint family property liable to be partitioned as it happens to be the self acquired property of Ramasamy Gounder, the first defendant in the suit. Being aggrieved and dissatisfied with, the plaintiff has filed a first appeal before the first appellate Court for nothing but to be dismissed confirming the judgment and decree of the trial court. Challenging and impugning the decree and judgment of both the courts below, the plaintiff has come forward with this second appeal on various grounds inter alia to the effect that the courts below failed to take into account the factual as well as legal issues.

3. My learned predecessor, at the time of admission of this second appeal, framed the following substantial questions of law:-

(i) Whether the Court is empowered to substitute its assumption and presumption to grant the relief of partition

(ii) Whether an adverse inference could be drawn against the claim of the appellant in the suit filed by the appellant for the simple reason that the second respondent filed an earlier suit of his own and subsequently withdrew the same

(iii) Whether the proof of ancestral nucleus to purchase a property in the name of the Karta of the joint family is sufficient to hold that the said property is also a joint family property

(iv) When the third item of the suit property stands in the name of the Kartha, whether the lower appellate Court is correct in law in holding that it is his absolute property contrary to the axiomatic principle in law that the property standing in the name of Kartha is presumed to be joint family property unless it is proved that the Kartha had surplus income and had not purchased it from the income of joint family property?

(v) Whether the lower appellate Court is correct in law in holding that Section 34 of SARFAESI Act is a bar to file a suit for partition by a co-parcener?

(Extracted as such)

4. Heard both sides. The question of law Nos. 1 to 4 are taken up together for discussion as they are inter-linked and interconnected with each other.

5. The first defendant Ramasamy Gounder is the father of the plaintiff and the defendants 2 and 3. Ramasamy Gounder purchased the third