The burden of proof lies on the defendant to establish independent income when claiming self-acquired properties, and claims of partition require substantial evidence to be upheld.

(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree in A.S.No.104 of 2004 on the file of the Principal District Judge, Villupuram dated 28.02.2005 in reversing the well found out judgment and decree in O.S.No.130 of 1995 on the file of the Additional Sub ordinate Judge, Tindivanam dated 18.03.2004.)

1. Challenge in this second appeal is made to the judgment and decree dated 28.02.2005 passed in A.S.No.104 of 2004, on the file of the Principal District Court, Villupuram, reversing the judgment and decree dated 18.03.2004 passed in O.S.No.130 of 1995 on the file of the Subordinate Court, Tindivanam.

2. The second appeal has been admitted on the following substantial questions of law.

"(a) When the plaintiff has failed to prove that the properties involved are the joint family properties by acceptable evidence, whether the Lower Appellate Court is correct in granting a decree only on the basis of A1 just because the plaintiff and defendant has signed the said document, when there is no mention that the property involved is either ancestral property or joint family property?

(b) Whether the Lower Appellate Court is right in shifting the burden on the defendant to prove that the properties involved are self acquired properties when the plaintiff has not proved by concrete evidence that it is joint family property?

3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.

4. The Parties are referred to as per their rankings in the trial Court for the sake of convenience.

5. The suit has been laid by the plaintiff against the defendant for partition. It is not in dispute that the plaintiff and the defendant are brothers and of them, the defendant is the eldest. Claiming that the suit properties are the joint family properties belonging to the plaintiff and the defendant and also putting forth the case that the suit properties had been acquired out of the income derived from the ancestral properties and also out of the joint exertion of the plaintiff and the defendant and also putting forth the case inasmuch as the defendant was the eldest member, the properties had come to be acquired in the name of the defendant, however, the same had been treated and enjoyed only as the joint family properties belonging to the plaintiff and the defendant and accordingly contending that the defendant cannot lay any claim of exclusive right in the joint family properties and on the other hand, inasmuch as the defendant had refused to part with the share of income in the joint family properties to the plaintiff and deprived the plaintiff of his due share in the properties, according to the plaintiff, he has been necessitated to lay the suit against the defendant for partition.

6. The defendant resisted the plaintiff's suit contending that the suit properties are the separate and self acquired properties of the defendant and according to the defendant, the joint family owned only one acre of land ancestrally and out of the same ½ acre had been alienated for discharging the family debt and the remaining ½ acre is not income yielding land and therefore, the ancestral properties owned by the joint family did not produce any income and therefore, disputed the case of the plaintiff that the suit properties had been acquired out of the income derived from the ancestral properties and according to the defendant, he has been rearing sheep and cattle and also running vehicle and derived income therefrom and also running brick kiln and thus contended that the income derived from the abovesaid sources were utilised for the acquisition of the plaint schedule properties in his own name and also further putforth the case that his son was also doing contract business and out of the income derived therefrom, acquired various properties in his name and accordingly resisted the plaintiff