The burden of proving that a certain acquisition was made from the sale proceeds is upon the person who alleges. Evidence cannot be admitted to vary the provisions of the sale. Properties acquired with the aid of joint family nucleus or from the income derived from the properties inherited from forefathers are to be treated as joint family properties.

R. BANUMATHI, J.

1. This Appeal arises out of the Decree and Judgment in O.S.No.8 of 2002 dated 22.1.2003 decreeing Plaintiffs suit for partition in respect of plaint C schedule [item No.3] and passing preliminary decree for partition of 2nd and 3rd Plaintiffs 1/3rd share each. Unsuccessful 4th Defendant is the Appellant.

2. 1st Defendant-Muthusamy Gounder is the husband of 1st Plaintiff-Nagammal. Plaintiffs 2 and 3 [Kasthuri & Kavitha] are the daughters of 1st Plaintiff and 1st Defendant. Suit property relates to three items of properties. Briefly stated plaint averments are that 1st Defendant owned 4 acres of ancestral property at Sungakkaranpalayam village which was sold in the year 1974 and from out of the sale proceeds of the said 4 acres, the suit properties and other properties were purchased in the name of 1st Defendant as he was Karta of the family. Subsequently, Plaintiffs and 1st Defendant were in enjoyment of the suit properties as their joint family properties and they had been in the suit properties since 1975. From out of the income of joint family properties, Plaintiffs and 1st Defendant jointly purchased item No.3 of suit property under sale deed dated 29.11.1973. Item No.3 was purchased in the name of 1st Defendant and patta was also issued in his name as he was the Karta of joint family. 1st Defendant never enjoyed the suit properties and other properties as his separate properties. Even though kist was paid in the name of 1st Defendant, the suit properties are the joint family properties of Plaintiffs and 1st Defendant. 1st Plaintiff and 1st Defendant executed Panchayat Muchalika [Ex.A1] on 04.11.1987 treating the suit properties as joint family properties.

3. Further case of Plaintiffs is that 1st Plaintiff and 1st Defendant jointly conducted the marriage of 2nd Plaintiff-Kasthuri and husband of 2nd Plaintiff [Muthusamy] was known to the family since 1975. Even after the marriage, Plaintiffs 2 and 3 have been participating in the agricultural operations along with their parents and Plaintiffs are entitled to 3/4th share and the 1st Defendant is entitled to 1/4th share in the suit properties. After the marriage of 2nd Plaintiff, 1st Defendant started acting on his own without consulting the Plaintiffs. On 15.12.2000 misunderstanding arose between the 1st Plaintiff and 1st Defendant and since then Plaintiffs 1 to 3 have been separately residing at Nehru Nagar and 1st Defendant at Salai house in item No.1. Further case of Plaintiffs is that one Ponnappan, former village Munsif of Shenbagapudur came to the Plaintiffs house and informed them about the sale deeds fraudulently obtained by Defendants 2 to 4 from 1st Defendant by cheating him. Immediately, Plaintiffs approached their Advocate at Gobichettipalayam and only on 02.1.2001, they came to know about the filing of suit O.S.No.194/1992 by the 2nd Defendant for Specific Performance and the consequent Appeals in A.S.No.229/1997 and S.A.No.1542/2000. On 03.1.2001, Plaintiffs demanded the 1st Defendant to divide the suit properties, but 1st Defendant did not respond. According to Plaintiffs, the sale deeds executed by the 1st Defendant are not binding upon the Plaintiffs. Since Plaintiffs are not parties in O.S.No.194/1992 and the consequential Appeals in A.S.No.229/1997 and S.A.No.1542/2000, the Judgment thereon are not binding upon the Plaintiffs. Stating that 1st Defendant is entitled to 1/4th share in the suit properties, Plaintiffs have filed the suit for partition claiming their 3/4th share in the suit properties.

4. Denying the plaint allegations, Defendants 2 and 4 have filed written statement contending that Plaintiffs 1 and 3 and 1st Defendant were living together at Sevurkarar Thottam at Nehru Nagar and the suit properties were sold by the 1st Defendant with the knowledge and consent of Plaintiffs. According to Defendants 2 and 4, 1st Defendant owned total extent of 1.87 acres of land in item No.3 – S.F.No.74. Under Ex.B4-sale deed [11.9.1