In a partition suit, the burden of proving that property standing in an individual's name is joint family property lies upon the party asserting it, requiring proof of a sufficient ancestral nucleus. An appellate court cannot shift this burden or declare properties as joint without supporting pleadings and evidence.

JUDGMENT :

P. Dhanabal, J.

1.This Second Appeal has been preferred against the judgment and decree on the file of the learned I Additional Coimbatore in AS No.118 of 2009 .

2. The appellant are defendants 1 and 6 and the first respondent herein has filed a suit in O.S.No. 51 of 2008 for the relief of partition and for mesne profits. The trial Court dismissed the suit. Aggrieved by the said decree and judgment, the plaintiff has preferred an appeal in A.S.No.118 of 2009. The said appeal was partly decreed. Aggrieved by the said decree and judgment, the defendants 1 and 6 have preferred this second appeal.

3. The gist of the plaint averments are as follows:

The plaintiff is the daughter of the first defendant through his first wife Mrs. Manickam and the mother of the plaintiff died in the year 2003. Even during the life time of the first wife, the first defendant had contact with his own niece namely Prabhavathi and through her, the first defendant has a minor son by name Vignesh. The defendants 2 to 5 are the sisters of the plaintiff. The 6th defendant is the younger brother of the first defendant. defendants 7 and 8 are the sisters of the first defendant. Defendants 9 and 10 are the children of the first defendant's deceased sister by name Thulasimani. The defendants 11 to 13 are the subsequent purchasers of the portions of the suit property, the defendants 1 and 6 along with their father Palaniappa Konar constituted a Hindu undivided family. The said joint family was in possession and enjoyment of the agricultural properties in S.F.Nos.436, 437, 449 and 391 of Kurichi Village. The joint family was always engaged in agricultural operations and there was no other avocation that was practiced by any member of the joint family at any time One of the items of the joint family properties an extent of 3.28 acres was purchased out of the joint family funds in the name of the first defendant under a sale deed dated 5.12.1969. Another item of property to an extent of 4.29 acres in SF No.391 of Kurichi village was purchased in the name of the mother of the first defendant viz. Vallilammal. That property was also joint family property. Even though it was purchased in the name of the mother of the first defendant, all the properties, including the two items were held and enjoyed by the joint family by engaging in cultivation.

3.1. On 3.7 1986, there was a partition, which was partial in nature, between the defendants 1 and 6 along with their father Palaniappa Konar. In the said partition deed, the properties, which were purchased in the name of the defendants 1 and 6 and Palaniappa Konar were excluded and the partition took place in respect of the other items. Separate items were allotted in favour of defendants 1 and 6 in the said partition. The properties allotted to the first defendant through the partition are mentioned as Schedule A in the suit.. The plaintiff, as daughter of the first defendant is entitled to 1/6th share in the 'A' schedule property. The properties purchased in the name of the first defendant, 6th defendant, late Palaniappan Konar, which did not find a place in the earlier partition deed have been mentioned as B to D schedule properties and the property purchased in the name of Valliammal has been mentioned as Schedule E. In the B to D schedule properties, the plaintiff is entitled