The plaintiff bears the burden of proof in asserting property as joint family assets, and failure to demonstrate the existence of a joint family or common funding negates claims to partition.

JUDGMENT :

K.GOVINDARAJAN THILAKAVADI, J.

The present Second Appeal is preferred against the decree and judgment dated 22.11.2018 passed in A.S. No.7 of 2018, on the file of the IV Additional District Judge, Erode at Bhavani confirming the Judgment and decree dated 07.11.2017 passed in O.S. No. 27 of 2013, on the file of the Sub Judge, Bhavani.

2.The unsuccessful plaintiff preferred this second appeal.

3.The plaintiff has filed the above suit for partition seeking to divide the 1^st item of the suit property into 8 equal shares and to divide the remaining items into 4 equal shares and to one allot such share to the plaintiff and also for permanent injunction against encumbrance.

4.The case of the plaintiff is that she is the daughter of the 1^st defendant and sister of the 2^nd and 3^rd defendants. The 1^st item of the suit schedule property was jointly purchased by the plaintiff’s husband and her father namely S.V.Ramasamy Gounder, under a registered sale deed dated 08.05.1981. Thereafter, her husband sold his undivided half share to the 4^th defendant on 23.11.2006. The rest of the properties are joint family properties of the plaintiff and the defendants 1 to 3. The said S.V.Ramasamy Gounder died intestate on 20.05.2007, leaving behind the plaintiff and the defendants 1 to 3 as his legal heirs. The plaintiff is in joint possession of the suit properties along with the defendants. The 2^nd and 3^rd defendants are not entitled to the entire property. The 4^th defendant is entitled to half share in the 1^st item of the suit properties. The plaintiff and the defendants 1 to 3 are entitled to the remaining half share in the 1^st item. It is further contended that the father had no right to execute the Will in respect of joint family properties. Likewise, the settlement deed executed by the 1^st defendant is invalid. The above documents will not bind the plaintiff in any way. The defendants 2 & 3 have executed various sale deeds in favour of third parties which would not affect the right of the plaintiff in any manner. Since the defendants were not amenable for partition the present suit is filed for partition and permanent injunction.

5.The defendants together resisted the claim of the plaintiff. Their contention is that, the 1^st item was admittedly purchased jointly by the husband and father of the plaintiff, defendants 2 & 3. The half share of the plaintiff's husband was sold in favour of the 4^th defendant. The other half share in the 1^st item and other properties except the 2^nd item and a portion in 3^rd item belong to the 1^st defendant and the other suit properties are the self acquired properties of the father S.V.Ramasamy Gounder, who executed a Will bequeathing his properties in favour of the defendants 2 & 3 respectively. After his demise, the Will came into effect and the defendants 2 & 3 are in possession of the properties as absolute owner. The 2^nd item of the suit property and a portion in 3^rd item belongs to the 1^st defendant. She executed a settlement deed in favour of the defendants 2 & 3 on 28.10.2009. Thus, the entire property belongs to the defendants 2 & 3. At the time of executing the settlement deed, the plaintiff has received Rs.5,00,000/- and a sum of Rs.10,00,000/- was given to the plaintiff for constructing a house and for her daughter. It is further submitted that the defendants 2 & 3 have sold some portion of the suit properties to various persons, prior to the suit. The above fact is known to the plaintiff. However, she had not arrayed them as necessary parties in the suit. Hence, the suit is liable to be dismissed for non-joinder of necessary parties. It is further submitted that the 5^th and 11^thdefendants have constructed houses in the suit property, and the above properties a