Joint family properties remain undivided unless proven otherwise; the burden of proof lies on the party claiming partition.

ORDER

The appellants have filed this appeal to set aside the Judgment and decree dated 20.01.2017 in O.S.No.131 of 2011 on the file of III Additional District Court, Salem.

2. Heard Mr. P.Jagadeesan, learned counsel for the appellants and Mr. , learned Counsel for the respondents and perused the materials available on record.

3. For the purpose of convenience, the parties herein are referred to as they were ranked in the suit.

4. The appellants in this case are the defendants 1 and 3 in suit O.S. No. 131 of 2011 on the file of the III Additional District Court, Salem.

5. Before the trial court, the first respondent/plaintiff filed a suit for partition against four defendants in O.S. No. 131 of 2011. The first, third, and fourth defendants contested the suit. After hearing both sides, the learned trial judge granted relief of partition in respect of items 1 to 3 by allotting a one-fifth share to the plaintiff. However, in respect of the fourth item, the suit was dismissed. Challenging the said findings, defendants 1 and 3 have preferred this appeal.

6. Brief Facts of the Case: One Pandian had two wives. Through his first wife, Govindammal, he had one daughter named Dhanam. Through his second wife, Bakkiyam, he had two daughters and two sons, who are the plaintiff and defendants 1 to 3. The plaintiff contends that the properties described in the plaint schedule are joint family properties of the plaintiff and the defendants. The properties originally belonged to their father by way of partition, and no partition has taken place in the family. After the demise of their father, Dhanam (the daughter from the first wife) filed a suit for partition, which ended in a compromise. Dhanam released her share in favour of the plaintiff and the defendants after receiving consideration. Therefore, the plaintiff claims that she is entitled to one-fourth share in the suit properties. Since there was no possibility of an amicable partition, she initiated the present suit.

7. The first and third defendants admitted their relationship and did not dispute the nature of the properties being joint family assets. They further submitted that there was already an oral partition between the plaintiff and the defendants, in which the plaintiff received 11 sovereigns of gold and Rs.50,000/- in cash in the presence of the Panchayatars in the year 1989. Therefore, she has no further right to claim a share in the properties. Additionally, the defendants conducted her marriage after the death of their father by giving all "seervarisai" and jewels, and hence she is not entitled to any further share.

8. With respect to item 4 of the suit property, it is claimed that the property absolutely belongs to the fourth defendant, and neither the plaintiff nor the other defendants have any share in it. It was also submitted that a loan borrowed by the fourth defendant’s husband was discharged by defendants 1 and 2. Subsequently, both defendants constructed a house at their cost, and the plaintiff and the third defendant/daughters were already given sufficient sovereigns of gold. Therefore, the fourth defendant claims the plaintiff has no right to claim any share.

9. Before the trial court, five issues were framed. On the side of the plaintiff, she was examined as P.W.1 and Exhibits A1 to A8 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined, and Exhibits B1 to B18 were marked.

10. Upon considering the oral and documentary evidence, the learned trial judge held that, as per Exhibit B17 (sale deed), the fourth defendant purchased item 4 of the suit property. There was no proof that the said item was purchased with income derived from the joint family properties. Hence, the learned trial judge concluded that it is the absolute property of the fourth defendant, and the plaintiff has no right to claim a share in it; accordingly, the suit was dismissed in respect of that item.

11. Regarding items 1 to 3, the learned judge held that the contesting defendants failed