The plaintiff must prove the availability of joint family nucleus to establish the properties as joint family properties.

JUDGMENT

(Prayer: Appeal Suit filed under Section 96 of C.P.C against the Judgment and Decree of the Principal District Judge, Namakkal in O.S.No.116 of 2011, dated 26.09.2012.)

1. The unsuccessful 1st and 2nd defendants are the appellants in the Appeal Suit.

2. For the sake of convenience, the parties are referred to as per their array of parties in the suit.

3. The plaintiff is the daughter of the 1st defendant, the 2nd defendant is the son of the 1st plaintiff, the 3rd defendant is the co-brother of the 1st defendant. While so, the daughter/plaintiff filed a suit for partition claiming a 1/6th share in Item No.1 of the suit schedule property and 1/3rd share in Item No.2 of the suit schedule property and for an injunction not to disturb her possession and enjoyment in respect of Item No.2 of the suit schedule property.

4. The case of the plaintiff is that the 1st defendant's father being the Kartha of the family had sold joint family properties in the year 1971. Out of the funds received from the said sale, had purchased Item No.1 of the suit schedule property jointly by a sale deed dated 23.10.1973. Thereafter, again from the income arising out of the joint family property, he purchased Item No.2 of the suit schedule property on 25.06.1993. Even though the plaintiff is the daughter entitled for a share, without partitioning and giving her due share, the 1st and 2nd defendants being the father and brother of the plaintiff attempted to alienate the property without giving any share to the plaintiff and therefore, the plaintiff filed the present suit.

5. A written statement was filed by the 2nd defendant, namely the brother of the plaintiff. The said written statement was adopted by the 1st defendant/father. The contention of the defendants 1 and 2 is that the property in Item No.1 of the schedule was purchased out of the self-earned money along with the 3rd defendant, who was the co-brother of the 1st defendant and therefore, was not a joint family property. Item No.2 of the suit schedule property was alloted to the 1st defendant being the Ex-Serviceman and the same was purchased by him by his own earning and therefore, it was also not a joint family property and therefore, they prayed for dismissal of the suit.

6. The 3rd defendant filed a separate written statement, in which, he claimed that as far as second Survey No.57/2 mentioned in Item No.1 of the suit schedule property is concerned, though the said two properties along with other properties were brought jointly by himself and the 1st defendant, after selling a few items of the properties purchased by them in the year 1973, two items i.e., S.Nos.105 & 57/2 remained. Since they could not jointly enjoy the property, initially S.No.105/2 was alloted to the 3rd defendant by way of oral arrangement and S.No.57/2 was alloted to the 1st defendant. Since there were difficulties in enjoying the property thereafter also they exchanged both the items and therefore, S.No.57/2 belongs exclusively to him. He is in enjoyment and possession of the same. On the said pleadings, the Trial Court framed the following issues :-

“1. Whether the Plaintiff is entitled to 1/6th share in item 1 of the property and 1/3rd share in the 2nd item properties ?

2. Whether the properties are joint family properties of the 1st defendant ?

3. Whether the properties are self acquired properties to the 1st defendant ?

4. To what relief if any the plaintiff is entitled to ?”

7. On the said issues, the parties let in evidence. The plaintiff examined herself as P.W.1. The sale deed dated 07.06.1971 selling the joint family properties was marked as Ex.A1. The sale deed for purchase of Item No.1 of the suit schedule property dated 23.10.1973 was marked as Ex.A2. The sale deed dated 25.06.1993 for purchase of Item No.2 of the suit schedule property was marked as Ex.A3. The sale deed by which, the 1st and 3rd defendant sold part of the properties purchased by them in the year 1973 dated 09.10.2000 was marked a