The court affirmed that items 1 and 2 of suit properties are ancestral, and items 3 to 11 are self-acquired, highlighting the plaintiffs' burden to prove family property claims.

JUDGMENT :

P. DHANABAL, J.

1. This Second Appeal has been preferred as against the Decree and Judgment passed in A.S.No.16 of 2006 on the file of the learned Principal District Judge, Villupuram dated 28.08.2014, wherein the respondents 1 and 2 herein have filed a suit in O.S.No.316 of 1996 as against the appellant and others for the relief of partition and the same was decreed on 25.08.2005. Aggrieved by the said Decree and Judgment, the appellant herein filed the First Appeal before the learned Principal District Judge, Villupuram. The First Appellate Court dismissed the appeal by confirming the Decree and Judgment passed by the trial Court.

2. For the sake of convenience and brevity, the parties are ranked as plaintiffs and defendants as ranked before the trial court.

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

(i) The suit properties are joint family properties of the first plaintiff and the defendants. The first plaintiff and the second defendant are the sons of 1^st defendant and 3^rd defendant. The properties are Hindu undivided properties of 1^st plaintiff and the defendants 1 and 2. The 1^st defendant along with his brothers and father entered into registered partition deed dated 23.09.1975 and based on the income derived from the said properties allotted through partition and the hard earned money of the 1^st plaintiff and the 2^nd defendant, the other properties were purchased in the name of 1^st and 3^rd defendants. All the properties were treated as joint family properties. The suit 10^th item of the property was purchased in the name of the 3^rd defendant and in the suit properties buildings were constructed through joint family income. The properties are joint family properties of the 1^st plaintiff and the defendants 1 and 2. Therefore, the 1^st plaintiff and defendants 1 and 2 each are entitled to 1/3rd share over the suit properties. When the 1^st plaintiff demanded the 1^st defendant for partition, he refused and thereby filed the suit.

(ii) The 2^nd plaintiff was already impleaded as 4^th defendant and thereafter, she was transposed as 2^nd plaintiff, therefore, the 1^st plaintiff is entitled to 1/3rd share. The 2^nd plaintiff is entitled to 1/12th share of Items 1 and 2 of suit properties and from Items 3 to 12, the 2^nd plaintiff is entitled to 1/4th share over the properties.

4. The brief averments of the written statement filed by the 1^st defendant are as follows:-

The suit is not maintainable either in law or on facts. The 1^st and the 3^rd defendants had another son, namely, Pachiappan and he died as bachelor in the year 1976. Therefore, the 3^rd defendant is entitled to the share of the said Pachiappan. The 1^st defendant purchased properties through sale deeds and those properties are self acquired properties, through partition deed dated 23.09.1975, only meagre portions are allotted to him. There is no surplus income from those properties. The eight bags of Paddy harvested from the property derived through partition is not even sufficient for the livelihood. The 1^st defendant engaged in sale of agricultural goods and thereby he earned money and purchased other properties. There was a partition between the 1^st plaintiff and the defendants 1 and 2 dated 04.03.1993, as per the said partition, a property in A.Pandalam village was allotted to the 1^st plaintiff and in the remaining properties, he has no right over the properties. Therefore, the share sought for in the plaint are unsustainable and the suit is liable to be dismissed.

5. The brief averments of the written statement filed by the 2^nd defendant are as follows:-

The suit is not maintainable, after demise of Kumar