Joint ownership claims require substantiated documentation and evidence; prior agreements affect parties' standing to contest property distributions in court.

JUDGMENT :

T.V. Thamilselvi, J.

The above Second Appeal arises against the Judgment and Decree dated 31.08.2005 in A.S.No.139 of 2001 on the file of the learned I Additional District Judge, Coimbatore against the Judgment and Decree dated 29.06.2001 in I.A.No.893 of 1992 in O.S.No.262 of 1988 on the file of the learned Subordinate Judge, Tiruppur.

2.Challenging the Final Decree passed in A.S.No.139 of 2001 on the file of the learned I Additional District Judge, Coimbatore, the 2 defendant preferred this Second Appeal.

3.The parties are referred to in the same rank and array as before the Trial Court.

4.The 2^nd respondent herein is the plaintiff. He filed a suit in O.S.No.262 of 1988 on the file of the learned Subordinate Judge, Tiruppur for partition against the four defendants who are his father, his two brothers and his mother. The 3 defendant was unmarried living with his father at the time of filing of the suit.

5.Before the Trial Court, the 1^st defendant contested the suit through his Counsel and the defendants 2 to 4 also contested the suit by engaging a separate Counsel.

6.The plaintiff claimed 1/5 share in the entire suit properties, namely, Schedules A, B and C, as descried in the Plaint schedule.

7.The case of the plaintiff is that the entire suit properties are his joint family properties. His father/1 defendant is the Kartha of the family. They had a joint family business and also allotted with the ancestral house to the family. The front portion was leased out for tenants. There is a rental income from the ancestral building and with the help of joint family income, other properties were purchased by the father in the name of his sons. One of his sons Devarajan died as a bachelor. Therefore, as his legal heir, the 4 defendant is entitled to his share.

8.Considering the submissions made on either side, the Trial Court passed Preliminary Decree by allotting 1/5 share in the entire suit properties to the plaintiff. The plaintiff filed an Interlocutory Application in I.A.No.893 of 1992 in O.S.No.262 of 1988 on the file of the learned Subordinate Judge, Tiruppur to pass a Final Decree. The Advocate Commissioner was appointed. While so, the 1 defendant/father died. As his legal heirs, his daughters were impleaded. The Advocate Commissioner visited the suit properties and submitted his Report. Objections have been filed by the plaintiff and the 3 defendant. Considering the suggestions made by the Advocate Commissioner, the Trial Court passed Final Decree allotting the entire “A” schedule of the property in favour of the plaintiff. Aggrieved that, the 3 defendant filed an appeal in A.S.No.139 of 2001 on the file of the learned I Additional District Judge, Coimbatore. The First Appellate Judge has framed eight points for consideration. In the meanwhile, he also filed I.A.No.33 of 2002 seeking permission to pay necessary Court Fee for allotment of his share. The plaintiff contested the said Interlocutory Application. The First Appellate Court dismissed the said application and ordered to remit the application filed for Final Decree for fresh disposal.

9.As against the same, the plaintiff preferred C.M.A.No.2407 of 2003 before this Court, wherein the order of remittance was set aside and the appeal was directed to be disposed of. The learned First Appellate Judge, on considering the separate memo of instructions in respect of allotting the shares and also considering the Commissioner's Report and Plan received as Ex.C.1 to Ex.C.11 with the suggestions given by the Advocate Commissioner, finally held that the appellant/3 respondent has not made any specific claim. The 3 respondent has not file