The burden of proof regarding joint ownership lies with the party claiming exclusive rights, especially when evidence is not adequately provided.

JUDGMENT

First defendant in a suit for partition has come up with this appeal aggrieved by the judgment and decree in AS No.40/2010 on the files of Additional Sub Court, Irinjalakuda.

2. The brief facts necessary for the disposal of the appeal are as follows:

O.S.No.87/2007 on the files of Munsiff Court, Chalakudy was preferred seeking partition of plaint schedule property. According to the plaintiffs, they were governed by the Cochin Nair Act till the Hindu Succession Act , 1956 came into force. The property was the tharawad property of Pananchikkal @ Manambilly tharawad and was obtained by one Naniyamma by way of registered pattachit No.2632/51 of Chalakudy SRO from Kurayidath Mana. Naniyamma had successors Karthyayani Amma, Kittunni Nair and Krishnan Nair. Parvathi Amma, Karthyayani Amma and Kittunni Nair died in the years 2001, 2003 and 2006 respectively. Till their death the property was in joint possession of the plaintiff and the defendants. The property was later managed by the 1^st defendant and he never rendered any accounts regarding the management of the property nor shared the profit. In the meantime, the 3^rd defendant managed to obtain a purchase certificate in his favour as 1098/1978. The purchase certificate will not confer any exclusive right on the 3^rd defendant whereas the property was obtained by Naniyamma for the benefit of the family. Subsequently the children of Naniyamma executed a release deed in the name of 1^st defendant as document No.4462/81 and thereafter the 1st defendant executed document Nos. 685/82 and 714/82. The said deeds are not binding upon the plaintiffs and thus entitled to the share over the property.

3. The 1^st defendant contested the suit contending that the plaint schedule property did not belong to the Pananchickal tharawad. It was taken as a registered lease deed in the year 1951 from Puthiyedathu Mana and thereafter it became the assets of the tharawad. The agricultural activities were carried on by Naniyamma and thereafter by her son Krishnan Nair who later became a cultivating tenant and hence purchase certificate was obtained. Since other children of Naniyamma had executed release deed in favour of the 1^st defendant, he is in absolute possession of the plaint schedule property and that the plaintiffs had no right.

4. On behalf of plaintiffs Exts.A1 to A20 documents were produced and PW1 was examined. On behalf of the defendants, Ext.B1 was produced and the 3^rd defendant was examined as DW1.

5. The trial court on appreciation of oral and documentary evidence found that the property does not belong to the tharawad and was not in joint possession. The challenge to the release deed on the ground of fraud was rejected. The relief was declined, finding that the property was not a tharawad property on the ground that the plaintiffs had not specifically proved that they were born prior to 1976. That apart, the trial court further found that there is no specific averment regarding the date of birth of the plaintiffs. Aggrieved the plaintiffs preferred AS No.40/2010 which was allowed by judgment dated 30.10.2012 and decreed the suit by passing a preliminary decree which is challenged in the present appeal.

6. Heard Sri.Millu Dandapani, the learned counsel appearing for the appellants and Sri.Mathews K Uthuppachan, the learned counsel appearing for respondent Nos.1 to 6.

7. The learned counsel for the appellants contended that inasmuch as no specific pleadings or proof was produced by the plaintiffs to show that the property was a tharawad property, the judgment of the first appellate court cannot be sustained. The learned c