Plaintiff in partition suit must plead and prove specific link between admitted ancestral nucleus and subsequent acquisitions; general admissions on income sources insufficient to shift onus to defendant proving self-acquisition.

JUDGMENT :

P.B. BALAJI, J.

The plaintiff in a suit for partition is the appellant herein. The plaintiff filed a suit for partition claiming right in six items of properties being agricultural lands and a residential house. The plaintiffs were originally two in number, viz., the appellant herein and the fourth respondent herein, her sister. Pending the suit, the fourth respondent /sister was transposed as the fourth defendant as according to the appellant, she colluded with the father of the first respondent. However, neither the fourth respondent nor the respondents 2 and 3, contested the suit, it was only the father of the plaintiff / appellant, the first respondent, who contested the suit by filing a written statement.

2. I have heard Mr.C.Jeyaprakash, learned counsel for the appellant and Mr.D.Shanmugaraja Sethupathy, learned counsel for the first respondent. The second appeal is yet to be admitted.

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

4. The learned counsel for the appellant would firstly contend that the father of the appellant had admitted to the fact that the item Nos. 1 and 2 are ancestral properties. However, without noticing the said admission of the first defendant, the trial Court dismissed the suit in toto. As against the same, the plaintiff, preferred an appeal in A.S.No.7 of 2021. The first appellate Court partly allowed the appeal, by granting partition in respect of item Nos.1 and 2 alone, while rejecting the appeal insofar as the remaining items of lands as well as the house properties.

5. The learned counsel for the appellant would specifically invite my attention to the evidence of D.W.1 and D.W.2, where the witnesses have admitted that they did not have any independent source of income, excepting the income from the agricultural lands. The learned counsel would therefore state that in the teeth of such admission, it is clear that all the items of properties had been purchased by the father only from and out of the property income acquired from item No.2 and in such circumstances, the first appellate Court ought to have granted a decree for partition in respect of all items. The learned counsel would further state that D.W.2-paternal uncle of the father of the appellant for the first time during trial, put forth a contention that the paternal aunt had executed the Will in 1948, in favour of the father of the first defendant and the first defendant has inherited the said property and therefore it is his self acquired property.

6. It is the contention of the learned counsel for the appellant that there was no such pleadings in the written statement filed by the first defendant and in any event, the Will had not been proved, by examining the witnesses in the said Will. In that regard, the learned counsel also took me through the evidence of D.W.1, who admitted that he does not know about the witnesses, who attested the Will. The learned counsel for the appellant would therefore state that the defendants had not established that the item Nos.3 to 6 properties were self acquired properties of the first defendant and consequently, the plaintiff / appellant was entitled to a share in these items as well.

7. Insofar as the house property, it is the contention of the learned counsel for the appellant that the patta was mutated in the name of grandfather and in a portion of the said property, a residential house was constructed from and out of the income accruing through from and therefore, this item of the property is also available for partition. Th