The burden of proof lies on the party alleging the existence of joint family property to demonstrate the sufficient joint family nucleus, and the presumption is that property held by the Kartha is joint family property in the absence of proof of separate income or funds.

JUDGMENT

(Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree passed in A.S.No.6 of 2016, dated 23.12.2016, on the file of the District Court, Sivagangai, confirming the judgment and decree passed in O.S.No.77 of 2007, dated 01.02.2016, on the file of the Subordinate Court, Sivagangai.)

1. The appellants 1 & 2 herein are the respondents/ defendants and the respondent herein is the appellant / plaintiff before the trial Court. The appellants 3 & 4 are the legal heirs of the deceased appellants 1 & 2.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. The brief averments of the plaint is as follows:-

The suit schedule property was originally purchased by the plaintiff's father-in-law – Chellam Nadar, vide sale deed, dated 17.02.2003 from one Senthil. Ever since the date of sale deed, he has been in actual physical possession and enjoyment of the property and has also put up construction there on. While being so, through the sale deed, dated 24.09.2007, the plaintiff purchased the suit property from her father-in-law, for due sale consideration. Ever since the date of purchase, the plaintiffs have been in actual physical possession and enjoyment of the same. In such circumstances, the defendant attempted to interfere with the possession by contending that the suit property was the joint family property and has been allotted to him by way of oral partition. Therefore, the plaintiffs filed a suit for injunction for the relief of declaration and injunction and in the alternative for the relief of possession.

4. The brief averments of the written statement is as follows:-

The suit property is not the absolute property of the Chellam Nadar and that he being the Kartha of the joint family, he purchased the suit property by using the joint family nucleus and that there was an oral partition during June 2006. According to the defendant, in the said oral partition, the said property was allotted to him. The defendant submits that he has been doing business such as telephone booth as well as the Chicken meat shop in the suit property. In the meanwhile, he executed a settlement deed in favour of his wife, who is the first respondent herein, vide document dated 21.01.2007. It is the submission of the defendant that the plaintiff has fabricated the tax receipts and other revenue records. Hence, the defendants prayed to dismiss the suit.

5. Before the trial Court, the plaintiff has examined 3 witnesses as P.W.1 to P.W.3 and has marked 24 documents as Ex.A1 to Ex.A24. On behalf of the defendant, 5 witnesses were examined as D.W.1 to D.W.5 and 71 documents were marked as Ex.B1 to Ex.B71. As a Court documents, 20 documents were marked as Ex.C1 to Ex.C20 and as a third party documents, 2 documents were marked as Ex.X1 and Ex.X2.

6. After considering the oral and documentary evidence, and arguments submitted on either side, the trial Court has disbelieved the case of joint family nucleus and the alleged oral partition. Hence, based upon the sale deed, stands in the name of the plaintiff and also based upon the revenue records, the trial Court has declared the rights of the plaintiff. However, considering the fact that the defendant is in possession of the property, the trial Court has granted the alterative relief, directing the defendant to deliver the vacant possession of the property.

7. Aggrieved with the order, the defendant has filed an Appeal in A.S.No.6 of 2016. However, the first appellate Court, after considering the various aspect and re-appreciation of the fact and law, has confirmed the finding of the trial Court and dismissed the appeal on 23.12.2016.

8. Against the concurrent findings of the trial Court as well as the first Appellate Court, the appellants / defendants have come forward with the instant Second Appeal.

9. While filing the Second Appeal, the appellants have proposed following substantial questi