The burden of proof with respect to the purchase of the suit property and the use of proceeds from the sale of ancestral properties were central to the judgment.

C.V. KARTHIKEYAN, J.

1. The plaintiff, in O.S.No.70 of 2008 on the file of the District Munsif Court, Uthamapalayam, is the appellant herein.

2. O.S.No.70 of 2008 has been filed by the plaintiff, G.Dharmar, against his brothers, Jeyasekar, Pasupathi and Murugan and sisters Vasantha and Dhanalakshmi, seeking partition and separate possession of the 1/6th undivided share in the suit property and also for future mesne profits. The said suit came up for consideration before the District Munsif Court, at Uthamapalayam and by judgment dated 09.02.2010, the suit was dismissed. As against that judgment, the plaintiff filed A.S.No.2014 of 2010, which came up for consideration before the Sub Court, Uthamapalayam. By judgment dated 31.05.2010, the appeal was also dismissed.

3. Challenging that dismissal, the plaintiff has filed the present second appeal.

4. The second appeal had been admitted on the following substantial questions of law:

"1. Whether the Courts below have failed to note that admission is the best piece of evidence and admitted things need not be proved under Section 58 of the Indian Evidence Act when the second respondent/ second defendant (DW1) had categorically admitted in his cross examination that his father owned ancestral properties in Kallanai Village, Thirumangalam Taluk and that the suit property had been purchased in the year 1969 by his father in his name from the sale proceeds of Ex.A19.

2. Whether the contention of the second respondent/ second defendant that the suit property was purchased as vacant site by Gurusamy is hit by Sections 91 and 92 of the Indian Evidence Act as the recitals in Ex.A3 show that there was superstructure standing in the suit property even at the time of its purchase?

3. When the appellant/plaintiff had discharged the initial burden of proof that the father of the appellant/plaintiff and the respondents/defendants had ancestral nucleus for purchasing the suit property under Exhibit A3, whether the burden of proof shifts to the second respondent/ second defendant to prove that there were antecedent debts through documentary evidence?"

O.S.No.70 of 2008:-

5. The plaintiff, G.Dharmar and the five defendants were all brothers and sisters and children of Late R.S.Gurusamy. It had been stated that the suit property was land and residential building. The family of the plaintiffs were residing in the said property. It was stated that the father/Gurusamy had purchased the property from the sale proceeds of the ancestral family property at Kallanai and Thumbaikulam, in Thirumanglam Taluk. It was, therefore, stated that since the suit property had been purchased from and out of the sale made of the joint family property, in the suit property all the children of Gurusamy inherited an equal share. It was also stated that the second defendant/G.Pasupathi, taking advantage of the fact that the plaintiff and the third and fourth defendants were residing outside, obtained a settlement deed dated 02.05.2002 from the father/Gurusamy. It was further stated that the second defendant stated that he would cancel the said settlement deed. The father/Gurusamy died on 10.03.2004. The plaintiff and the other defendants demanded partition and separate possession of the suit property. The second defendant refused it is under these circumstances, the suit had been filed seeking partition and separate possession of 1/6th undivided share in the suit property.

6. The second defendant filed written statement. In the written statement, it had been stated that the father/Gurursamy voluntarily and out of free consent executed a settlement deed dated 02.05.2002 in his favour. It had been stated that the plaintiff had filed the suit only to grab the property. It had been denied that the plaintiff or other defendants demanded partition of the property. It had been stated that all the family members knew about the settlement deed. It had been stated that the ancestral property was sold only for obtaining job for the plaintif