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8. The plaintiff who is unsuccessful in respect of 'B' and 'C' Schedule Properties has filed the Appeal in A.S.No.198 of 2018. Similarly, he has also challenged the decree of permanent injunction passed against him in O.S.No.202 of 2015 by way of Appeal in A.S.No.203 of 2018.

9. Learned counsel for the Appellant would submit that the 'A' Schedule property shown in the plaint is ancestral property which has been established on record. When the plaintiff has established ancestral nucleus, it is for the defendant to show that there was no nucleus available in the ancestral properties for purchase of the other properties. In evidence also it is established that A schedule properties are joint family properties. When the joint family nucleus 8 of 36 https://www.mhc.tn.gov.in/judis  has been established it has to be presumed that all other properties are also joint family properties. It is his further contention that the ancestral properties in the hands of the 1st defendant formed the nucleus, thus the properties in B Schedule were purchased in the name of the defendants also to be treated as joint family properties. It is his further contention that P.W.1 has admitted that he has purchased certain properties in the year 1971 which would clearly indicate that the properties were purchased from the joint family nucleus. It is the further contention of the learned counsel that the plaintiff has also established by way of accounts statement that he had been sending his income periodically to his father for purchase of properties in his name. However, the father of the plaintiff, the 1st defendant had purchased some of the properties in his name while some other properties in the name of the other defendants and therefore, all the properties are to be treated as joint family properties.

20. Nowhere in the entire plaint, it was pleaded by the plaintiff as to the nature of income derived from the suit A-Schedule property which is admittedly an ancestral property, however, a small piece of immovable property. Unless and until the person who asserts that joint family nucleus is sufficient and adequate to purchase the other properties, mere existence of some ancestral property in respect of which adequate income has not been established may not lead to draw presumption that such property produced adequacy of nucleus to purchase the other properties. Be that as it may, it is not the case of the plaintiff that the immovable properties described under B-Schedule were purchased from and out of the funds of the joint family ancestral property. Whereas it is the specific stand of the plaintiff that those properties were purchased from and out of the amounts sent by him from foreign soil. Nowhere in the plaint, the plaintiff pleaded the nature of income from his employment and what are the nature of the amounts sent right from the year 1985, when the 1st defendant had started purchasing properties described under suit B-Schedule in 1985. The very testimony of P.W. 1 (plaintiff) in his cross examination indicate that he had joined job in foreign country only in 1989. Therefore, the averment that he had sent amount for the 18 of 36 https://www.mhc.tn.gov.in/judis  purchase of the property in the name of the 1st defendant in 1985 under Ex.B.16 is highly improbable. Though the plaintiff had stated that he was working as Engineer abroad, the evidence of P.W.2, who is none other than the wife of PW.1 (plaintiff) would go to show that the plaintiff was not graduated in Engineering and was working only in an Engineering Company. To show what was the nature of amount sent by him to purchase the immovable properties covered under Ex.B.17 to Ex.B.36 described under B-Schedule, there was absolutely no evidence let in on behalf of the plaintiff. However, much reliance has been placed on Ex.A.22.

23. The available evidence would clearly show that even before the plaintiff had secured a job abroad , the father of the plaintiff, 1st defendant had started purchasing the properties in his individual name. The other specific contention of the 1st defendant that the other defendants who were abroad had also sent amounts and properties were purchased in their respective names. Therefore, in the absence of nature of income and specific mentioning of quantum of amounts and proof, merely on the basis of Ex.A.22, an unauthenticated document, the plaintiff cannot claim B-Schedule property was joint family properties, particularly, when the defendants had also been employed in foreign countries at the relevant point of time. It is also evident from the evidence of the 1st defendant (D.W.1) that he was also working abroad from 1976 onwards. That apart, his two other sons were also working abroad even during trial. Therefore, any property purchased out of the separate income of the member of the joint family such property at no stretch of imagination could be treated as joint family property unless deliberate abandonment and blending are pleaded and proved. When any property has been acquired by any member of the 22 of 36 https://www.mhc.tn.gov.in/judis  joint family from the income earned by him separately, such property should be held to be a self acquired property. When any member of the family without disturbing the status of the joint family acquired a separate property out of his own income in the absence of proof of throwing into common hotch-pot, such property cannot be treated as joint family property. Admittedly, the 1 st defendant was also working abroad for many years. This was spoken to by the 1st defendant (D.W.1) and not disputed by the plaintiff. The other sons of the 1st defendant were also working abroad. It is the specific defence of the defendants that from their individual income, properties were purchased in their respective name for their individual benefits. Similarly, the amounts sent by the plaintiff were also utilized for the purchase of the properties in the name of the plaintiff and his wife. This has been established on record through Ex.B.48 to Ex.B.56. Such being the position, if any member of the joint family earns income from his employment and acquires any property, such property should be treated as separate property as per Hindu Gains and Learning Act. Such Act provides that no gains of learning to be held, not to be separate property of acquirer merely by reason of his earning having been imparted to him by any member of the family or with aid of the joint funds of his family or with the aid of the funds of any 23 of 36 https://www.mhc.tn.gov.in/judis  member thereof. Therefore, when the properties were purchased by the 1st defendant and other defendants from their own income, such properties cannot be treated as joint family properties merely on the basis of existence of some small piece of joint family property. When the properties purchased by the defendants from and out of their own income are not traceable to joint family nucleus such properties cannot be treated as joint family properties. Admittedly, there is no pleading or evidence on the side of the plaintiff as to the nature of the income yielded from the ancestral property and in the absence of any such proof, it is very difficult for this court to presume that only out of the nucleus the other properties were purchased. As already discussed, it is not the case of the plaintiff that the entire B-Schedule property was purchased from out of the income of the ancestral property. But, it is the specific case of the plaintiff that those properties were acquired from out of the income through his employment. However, the said fact has not been proved by the plaintiff by oral and documentary evidence. Such being the position, the fact that the defendants were also employed and getting income and properties were purchased in their names cannot be held to be the joint family properties as contended by the plaintiff.

33. The learned counsel for the respondents/defendants also relied upon a judgement of this Court in the case of R.Deivanai Ammal (Died) v. G.Meenakshmi Ammal [2004 (4) CTC 208] wherein it has been held that a person alleging that certainly is ancestral property should establish that there was nucleus by means of which property had been acquired by co-parcener member of family in his name and if nucleus is not one which yields income then, it cannot be reasonably lead to a conclusion that property in individual name could have been acquired with such nucleus.