Ancestral properties must be proven to remain joint family properties post-partition; otherwise, they are deemed separate and not subject to partition claims.

JUDGMENT :

P. DHANABAL, J.

This Second Appeal has been preferred as against the Decree and Judgment dated 31.10.2014 passed by First Additional District Court, Thirupur in A.S.No.13 of 2013.

2. The appellant is the plaintiff in the main suit filed in O.S.No.29 of 2011 on the file of the Subordinate Court, Udumalaipet, which was filed for the relief of partition and separate possession. The said suit was decreed by granting preliminary decree for 1/4th share to the plaintiff and aggrieved by the said decree and judgment, the 3^rd defendant has preferred the Appeal Suit No.13 of 2013 on the file of the Additional District Court, Thirupur and the First Appellate Court allowed the appeal by setting aside the decree and judgment of the trial Court. Aggrieved by the said Decree and Judgment, the plaintiff has preferred this Second Appeal.

3. For the sake of convenience and brevity, the parties herein are referred to as plaintiff and defendants, as referred before the trial court.

4. The brief averment of the plaint are as follows:-

4.1. The suit 1 and 2 Items of the schedule properties are ancestral joint family properties of the plaintiff and defendants. The 1^st defendant is the husband of the 2^nd defendant and the 3^rd defendant is the son of defendants 1 and 2, 4^th defendant is the wife of 3^rd defendant and 5^th defendant is the daughter of defendants 1 and 2. There were ancestral joint family properties, which belongs to the plaintiff and 1 and 3 defendants and the ancestral joint family properties were partitioned between the 1^st defendant and his father and brothers through partition deed dated 26.03.1973. In that partition, ‘C’ schedule property was allotted to the 1^st defendant and further, in that partition, they only partitioned the lands and there was a common house and the said common house was partitioned through partition deed dated 16.04.1979. From the date of partition, the property allotted to the 1^st defendant were enjoyed by the plaintiff and defendants 1 and 3 through the income derived from the properties allotted through partition, the 1^st defendant and his brothers, purchased the properties in the year 1975-1976 in their name and in the name of their wives respectively.

4.2. The 1^st defendant only depending on the income of the agriculture and the defendants 1 and 2, purchased the properties in their name through the income derived from the ancestral properties and brothers of the 1^st defendant also purchased the properties in their wives names and thereafter in respect of those properties, they entered into partition through partition deed dated 16.04.1979 through that partition, ‘B’ schedule was allotted to the 1^st defendant and ‘E’ schedule was allotted to the 2^nd defendant. Therefore, both the properties allotted through partition are joint family properties of the plaintiff, defendants 1 and 3. Since the 1^st defendant agreed for partition in respect of some properties, the suit filed in O.S.No.22 of 2004 was amicably settled and the other properties were not included in the suit.

4.3. While so, the 1^st defendant sold the property to the 4^th defendant through sale deed dated 02.12.2010 and the 2^nd defendant executed settlement deed dated 02.12.2010 in favour of the 3^rd defendant. The above said sale deed as well as the settlement deed came to the knowledge of the plaintiff recently. The defendants 1 and 2 ha