The burden of proof lies with the plaintiff to establish that properties acquired were from joint family income, failing which the claim for partition of those properties cannot succeed.

JUDGMENT :

P.B. BALAJI, J.

1. The first defendant in a suit for partition is the appellant in this First Appeal.

II. PLEADINGS:

2.1. PLAINT IN BRIEF:

The plaintiff and the defendants are children of late Kollapuri Reddy. The said Kollapuri Reddy died intestate on 19.06.1995, leaving behind the plaintiff and the defendants as his only surviving legal heirs and thereby, the plaintiff is entitled to a 1/3^rd share in the suit properties. The wife of Kollapuri Reddy, the mother of the parties also died intestate, on 19.06.1995. The suit items 1 to 39 are joint family properties, in which the plaintiff is entitled to a 1/3^rd share. The plaintiff also states that she is an illiterate lady and she used to put her thumb impression without understanding the contents of the documents that she may have signed. The properties continued to be in joint possession and enjoyment and for the purposes of convenient enjoyment, the plaintiff seeks partition and separate possession. Insofar as Items 40 to 50, the plaintiff contends that the first defendant did not have any source of income, except from the income accruing from Items 1 to 36, from and out of which he has purchased Items 40 to 50 in his name. It is therefore, the contention of the plaintiff that even Items 40 to 50 are joint family properties available for partition. The plaintiff also states that the defendants were giving the plaintiff’s due share in the suit properties upto 2011 and on 28.06.2012, there was a mediation between the parties in the presence of Shivanandham, Palayam and Ganeskaran and the first defendant had agreed to receive 1/3^rd share of Rs.6,333/- from and out of value of teakwood saplings and also agreed to divide the suit properties into three. However, since the first defendant did not come forward to any amicable partition or comply with the terms that were agreed upon at the Mediation, the plaintiff issued a notice on 14.08.2012. The first defendant sent a reply to the said notice, claiming that Koorchit has been entered on 17.12.1997 and that the properties 1 to 39 are already in separate possession of the respective parties and the plaintiff is not entitled to seek for partition. Insofar as Items 40 to 50, in the reply notice, the first defendant states that the properties are in his name and the said properties are also not available for partition. In view of the said reply notice issued by the first defendant, the plaintiff has filed the suit seeking partition and separate possession of her 1/3^rd share.

2.2. Written Statement of the first defendant, in brief:

The relationship between the parties and the factum of the death of the parties are admitted. However, the claim that parties is in joint possession of Item Nos.1 to 39 is denied. The plaintiff’s entitlement of 1/3^rd share in the said items 1 to 39 is stoutly denied. Insofar Items 40 to 50, the first defendant contends that the same are the absolute properties of the first defendant and the plaintiff was never in joint possession at any point of time and consequently, she is not entitled to any share in these items. The claim of the plaintiff that the defendants were giving the plaintiff’s share and the profits upto 2011, is denied. The first defendant, referring to the Koorchit dated 17.12.1997, even during the lifetime of the father states that the said Koorchit has already been acted upon and therefore, the plaintiff is not entitled to any relief consequently, the first defendant prayed for dismissal of the suit.

2.3. ISSUES:

Based on the pleadings, the Trial Court framed the following issues.

(i) Whether a partition was effected by the father on 17.12.1997 between the first and second defendants?

(ii) Whether the suit items 40 to 51 ar