The burden to establish that the properties are joint family in nature is on the person who alleges the same, and the plaintiff proved that the suit properties were joint family properties.

1. The defendants in O.S. No. 69 of 2005 before the Additional District Judge, (Fast Track Court No. I) Salem, are the appellants in A.S. No. 277 of 2007 and the plaintiff, who filed O.S. No. 69 of 2005, has filed Cross Appeal in A.S. No. 938 of 2009 against the judgment and decree dated 30.6.2006.

2. Since the issued involved in these appeals is inter-connected, they are disposed of by this common judgment.

3. For the sake of convenience, the parties will be referred to by their description before the trial Court.

4. This is a case of partition wherein the plaintiff and the second defendant are the brothers. The first defendant and the third defendant are the father and mother respectively. According to the plaintiff, they constituted a Hindu undivided joint family. The case of the plaintiff is that the suit properties were inherited by the joint family from his grand father Dharmalinga Gounder by way of partition among his family members, viz., Dharmalinga Gounder, first defendant and his brother Adhimoolam while the other properties were purchased in the name of the first defendant being the kartha of the joint family and also in the name of the third defendant, who is the mother of the plaintiff and the second defendant. The first item of the suit properties was said to have been purchased out of the joint family income from one Allimuthu in the name of the third defendant under sale deed dated 25.3.1964. Thereafter, another 1/3rdshare of the property was purchased from Adhimoolam under registered sale deed dated 09.02.1974. Another portion of the first item of the suit properties was purchased in the name of the first defendant from one Alamelu Ammal and her son under sale deed dated 12.6.1974. According to the plaintiff, all these purchases were made out of joint family funds. It is stated that there were also two others sales in favour of the third defendant on 05.10.1987 and also on 06.9.1988. Thus, according to the plaintiff, the entire properties were purchased out of joint family nucleus and the suit properties are joint family properties. The further case of the plaintiff is that though some of the properties stand in the name of his mother, viz., third defendant, and a few properties are standing in the name of the second defendant, who is his brother, they cannot claim individual right over the same as they are purchased from and out of the joint family nucleus. The plaintiff had further stated that the family was doing only agricultural operations and excepting the agricultural income, there was no other income. As the third defendant was a house wife not having any individual income to purchase the property, according to the plaintiff, the entire properties are joint family in nature the plaintiff claims 1/3rdshare in the suit properties and the first and second defendants are entitled to remaining 2/3rd share. It is also averred that despite the fact that the properties are joint family properties though purchased in the names of the defendants 2 and 3, they are treating them as their individual property not allotting a share to the plaintiff and that in view of the claim made by the plaintiff, the defendants are taking emergent steps to sell the properties to third parties. The plaintiffs have further contended that there are also jwelleries and cash in the custody of the defendants 2 and 3. Therefore, the plaintiff has sought for partition of 1/3rdof the share of the suit properties and for mesne profits.

5. Denying the facts supporting the cause of action in the plaint, the first defendant had filed the written statement which was adopted by the defendants 2 and 3. The defendants denied the fact that the properties were not partitioned earlier and that they were joint family properties. Most of the properties mentioned in the plaint belonged to the plaintiff's grandfather Dharmalinga Gounder, the first defendant and one Adhimoolam. The other properties mentioned in the plaint were not joint famil