S MARIAPPAN DIED Vs. M MADASAMY

JUDGEMENT

(1.) THE unsuccessful defendant is the appellant in this second appeal.

(2.) THE suit O. S. No. 209 of 1984 on the file of subordinate Judge, Tuticorin was filed by the plaintiff who claims to be the son of the deceased defendant, Mariappan, who died after the disposal of the first appeal A. S. No. 120 of 1989 and before the filing of the Second appeal before this Court.

(3.) AS far as this second appeal is concerned, the appellants can be treated as parties for the purpose of the disposal of the second appeal. AS regards the merits in the second appeal, learned counsel for the appellants raised the following contentions: The Courts below have erred in not noticing that the joint family nucleus was not sufficient to lead to a presumption that other properties were purchased from the income of the joint family nucleus. Secondly he contended that as regards the second schedule of the properties they are self acquired properties. The respondent is estopped from disputing the same since he has attested Exs. P. 2 and P. 3 under which the deceased - defendant mortgaged the second schedule properties to third parties. Thirdly, he has contended that since the plaintiff has failed to prove that the nucleus was getting sufficient income for the acquisition of the other items of the properties mentioned in the second and third schedules, he should fail in his claim for partition for those items of properties.