In partition suits, the burden of proof lies on the party claiming properties as joint family properties, not the plaintiff, who asserts they are separate.

JUDGMENT :

G.R.SWAMINATHAN, J.

The first defendant in O.S No.24 of 2012 on the file of the Principal District Court, Pudukkottai is the appellant herein. The first respondent herein / Valarmathi filed the said suit for partition. The suit schedule contained as many as four items. The first item is comprised in Kothamangalam south village. The second item is comprised in Kothamangalam north village. The third item is comprised in Chennai. The fourth item is comprised in Pudukkottai.

2.The case of the plaintiff is that the suit schedule properties belonged to his father / Karuppaiah @ Thirumaran. Karuppaiah @ Thirumaran got married to Rasammal and through the said wedlock, four sons and two daughters were born. The plaintiff was the eldest son. One of the sons, namely, Veeramani had passed away. The defendants 1 and 2 are brothers of the plaintiff while the defendants 3 to 9 are the legal heirs of the deceased two sisters of the plaintiff. The plaintiff sought 1/3^rd share in the suit schedule properties. Though all the defendants contested the suit, it is only the first defendant who has filed this appeal.

3.The first defendant raised two fold defences in his written statement. The first was that two of the items, namely items 3 and 4 are his absolute properties and not amenable to partition. He also pleaded that the suit was bad for partial partition. The plaintiff examined himself as P.W.1 and marked Exs.A1 to A10. The first defendant examined himself as D.W.1 and four other witnesses were also examined on the side of the defendants and Exs.B1 to B10 were marked.

4.After consideration of the evidence on record, the trial Court granted 1/5^th share in favour of the plaintiff in respect of items 1 and 2 of the suit schedule properties and the suit was dismissed in respect of items 3 and 4. The defendants 2 to 9 appear to have accepted the decree and have not filed any appeal. The first defendant / Pandian alone filed this appeal. The appellant had also filed C.M.P.(MD)No.3263 of 2025 under Order 41 Rule 27 of the Civil Procedure Code for reception of additional evidence.

5.The learned Senior Counsel for the appellant reiterated all the contentions set out in the memorandum of grounds of appeal. He strongly emphasized that the Court below ought to have dismissed the suit on the ground that it is bad for partial partition. He drew our attention to Paragraph Nos.9 and 10 of the written statement. The particulars regarding a number of properties had been set out in those two paragraphs. According to the appellant, those items, though standing in the name of the plaintiff and his wife, were actually purchased by selling ancestral properties. In support of his contentions, he placed reliance on the following case laws:-

(1994) 4 SCC 294 (Kenchegowda Vs. Siddegowda @ Motegowda)

2006 (1) CTC 764 or 267 (Gandhi Vs. Saminatha Gounder)

2024-2-L.W. 469 (M.S.S.Jabar V. S.Sheik Ussaim Rawuthar (Died)

He called upon this Court to set aside the impugned preliminary decree and remand the matter for fresh consideration so that the appellant can be given one more opportunity.

6.Per contra, the learned Senior Counsel for the first respondent / plaintiff submitted that this appeal itself is not competent. She submitted that as per Section 96 of the Civil Procedure Code, only a person aggrieved can maintain an appeal against a decree. She also submitted that the appellant had not adduced any evidence in support of his claim that the properties set out in Paragraph Nos.9 and 10 in the written statement were purchased out of ancestral nucleus. She called upon this Court to dismiss the appeal.

7.We carefully considered the rival contentions. The point that arises for determination is whether the Court below was justified in rejecting the appellant's plea that the suit is bad for partial partition.

8.It is true that the appellant had put forth a specific plea that the plaintiff had left out a number of properties. It is not in dispute that those properties catalogued