The burden of proof lies with the plaintiff to establish that the properties are ancestral, and evidence must be pleaded and proved through evidence.

JUDGMENT

(Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree of the learned Subordinate Judge, Namakkal dated 31.03.2011 made in A.S.No.23/2008 reversing that of the learned Additional District Munsif, Namakkal dated 23.01.2007 made in O.S.No.1078/1989.)

1. The defendant in the suit was the appellant in this Second Appeal. On his demise, his second wife and two children born through her have been substituted as appellants.

2. The respondent/ plaintiff filed the suit seeking for the relief of partition and for allotment of half share in the suit properties. She died during the pendency of this Second Appeal and her daughters born through the appellant have been impleaded as the legal representatives of the deceased respondent.

3. The case of the plaintiff was that she was the legally wedded wife of the defendant and out of the said wedlock, one son and two daughters were born. The son named Annadurai alias Mathiazhagan predeceased them. The further case of the plaintiff was that the suit properties are ancestral properties in which the defendant and the predeceased son were entitled for half share. It is further alleged that the defendant left the plaintiff and her daughters in lurch and started living with one Muthammal and two children were also born to the defendant through the said Muthammal. The daughters of the plaintiff born through the defendant got married and are living in their respective matrimonial homes.

4. The grievance of the plaintiff was that she was calling upon the defendant to partition the suit properties and give half share to the plaintiff to which she was entitled as the Class-I legal heir of her deceased son. Since the defendant was not coming forward to give the share of the plaintiff, legal notice was issued to the defendant through Ex.A1. The same was not acted upon and hence the suit came to be filed seeking for the relief of partition.

5. The defendant filed a written statement in the year 1990. In the said written statement, he had taken a stand that the entire suit properties are his absolute properties and therefore the plaintiff was not entitled for any share in the properties. The defendant also denied the second marriage. Thereafter, an additional written statement came to be filed in the year 2006. In the additional written statement, the defendant referred to all the documents pertaining to the suit properties and explained as to how he is absolutely entitled to the suit properties. Thereby, the defendant once again reiterated that his predeceased son did not have any share in the suit properties and consequently, the plaintiff is also not entitled for any share in the suit properties.

6. The trial Court, on appreciation of oral and documentary evidence and after considering the facts and circumstances of the case, dismissed the suit, through Judgment and Decree dated 23.1.2007. Aggrieved by the same, the plaintiff filed an appeal before the Sub Court, Namakkal in A.S. No. 23 of 2008. The lower Appellate Court on re-appreciation of the oral and documentary evidence and after considering the findings of the trial Court, was pleased to allow the appeal through Judgment and Decree dated 31.3.2011 and thereby, the Judgment and Decree passed by the trial Court was set aside. Consequently, a preliminary decree was passed in favour of the plaintiff declaring her to be entitled for half share in the suit properties. Aggrieved by the same, the defendant filed the present Second Appeal.

7. When the Second Appeal was admitted, the following substantial questions of law were framed:

a) Whether the lower appellate Court while reversing the findings of the trial Court had assigned cogent reasons for differing with the findings of the trial Court as mandated under Order 41 Rule 31 of C.P.C.?

b) Whether the lower appellate Court was right in shifting the burden on the defendant when the plaintiff had not discharged her burden to show that the suit pr