Judgment : 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. According to the plaintiff he and his father the first defendant constituted a joint family. There was joint family nucleus and with the help of the income from the nucleus the properties were purchased in the name of the defendant. His mother was also employed and the income earned by the mother of the plaintiff was also utilised for purchasing the properties. According to him the first schedule formed part of the joint family property. The second schedule property was purchased in the name of the first defendant, third schedule properties were purchased in the name of the mother of the first defendant, and the fourth schedule properties were movable properties. The mother of the plaintiff died on 24. 1973. The first defendant and the plaintiff were the only heirs. The plaintiff continued to live with the joint family till 1975. The dispute arose between the defendant and the plaintiff in sharing the amounts payable to them by way of provident fund etc. to the deceased mother. Hence, he left the joint family in the year 1975. Since the first defendant attempted to dispose of the properties standing in his name he has filed the suit after sending a notice to the defendant on 11. 1984. .4. The defence was that the alleged joint family nucleus was very small in extent. Out of which, one item of the A schedule property was inherited by the defendants after the death of his brother who died unmarried. The other properties were purchased by his own earnings and not from the joint family nucleus. In item 5 of the A schedule property the defendant has got only a share as it remained undivided by himself and by his brothers. Since all the Schedule properties were self acquired properties, the plaintiff is not entitled to half share. The mother of the plaintiff though employed in a mill she did not earn sufficient income to contribute to the purchase of the properties. Since all the Schedule properties were self acquired properties, the plaintiff is not entitled to half share. The mother of the plaintiff though employed in a mill she did not earn sufficient income to contribute to the purchase of the properties. The plaintiff left the family in the year 1960 itself. He never contributed any amount and the second schedule properties were not purchased out of the income of the plaintiff. The first defendant has dealt with the properties standing in his name independently. The plaintiff has attested the mortgages. Hence, he is estopped from disputing the defendants exclusive right to the properties in the second schedule items. The plaintiff is not entitled to half share in the property. The first defendant married one Annapackiam as his second wife. Three female child and one male child were born to him through his second wife. Hence, they should have been added as parties in the suit. In the fourth schedule properties the plaintiff has no right and the suit is also bad for non-joinder of necessary parties. Another plea was that even though the third schedule property was in the name of the mother she was only a binami for the defendant and the defendant alone paid sale consideration for the purchases in her name. Hence, the plaintiff has no right in the third schedule properties also. 5. The Courts below have concurrently found that there was joint family nucleus and the properties standing in the name of the mother and the defendant were out of the income of the joint family nucleus. Hence, the Courts below decreed the suit as prayed for that is giving the plaintiff half share in the schedule 1 to 3. It appears that after the appeal was disposed of by the lower appellate Court, the first defendant died. The children of the said first defendant born to him through Annapackiam have preferred the second appeal. 6. Learned counsel for the appellants submitted that though the claim of the present appellants as the legal representatives of the deceased defendant is disputed, they can be treated as legal representatives of the first defendant for the purpose of the appeal in view of a Will produced by him in this Court. The xerox copy of the registered will is dated 4. 1984. The xerox copy does not show the registration endorsements. The xerox copy of the registered will is dated 4. 1984. The xerox copy does not show the registration endorsements. However the learned counsel for the appellants produced the original Will and it contained the registration endorsements. 7. 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. .8. Learned counsel for the respondent contended that as he is disputing the genuineness of the Will and he alone is the legal representatives of the deceased defendant, the second appeal cannot be prosecuted by the respondents and it must be dismissed as infructuous. Secondly he contended that as the Courts below have concurrently found that there was joint family nucleus and the properties mentioned in the second and third schedules were purchased from and out of the income of the joint family property, this court ought not to interfere with the findings of the Courts below. 9. As regards the first contention of the learned counsel for the respondent is concerned, as I have indicated above they are treated as parties in the second appeal only for the purpose of disposal of the second appeal. Since the genuineness of the Will is disputed and on the said question evidence is required, I am not expressing any opinion in the second appeal about its genuineness. It is for the appellants to agitate their claims with reference to the Will in appropriate proceedings if they are so advised. Since the genuineness of the Will is disputed and on the said question evidence is required, I am not expressing any opinion in the second appeal about its genuineness. It is for the appellants to agitate their claims with reference to the Will in appropriate proceedings if they are so advised. But as far as the second appeal is concerned, they are treated only as parties for the purpose of the disposal of the appeal since the appeal has been taken on file on the basis of the Will. 10. Now coming to the various contentions of the learned counsel for the appellants, I will take them one by one. As regards the first contention that joint family properties were of small extent in nature and they were not earning any income, I do not find any issue raised before the trial Court on this said question. Before the lower appellate Court also the point No.2 was whether the second and third schedule properties were purchased from the income of the joint family members. After considering the evidence, the lower appellate Court has given a findings that the second schedule properties were purchased from and out of the income from the joint family members and the plaintiff has got half share in the same. 11. The main contention urged by the learned counsel for the appellants is that the lower appellate Court has simply inferred that as there was joint family nucleus the second and third schedule properties ought to have been purchased from the income of the first schedule properties. According to him the Courts below have not considered whether the joint family properties were yielding sufficient income to purchase other schedule mentioned properties. .12. The lower appellate Court has stated that the plaintiff’s mother was employed in Lakshmi Mills from 1954 onwards. She has contributed her income to the joint family. Further the plaintiff has stated that the kist and property tax were paid to the properties from the income of himself and his mother. Under Ex.P.16 the properties belonging to the mother were mortgaged by the plaintiff and the defendant and Ex.P.17 loans were raised from the mothers property from 1968 onwards. Further the lower appellate Court has also found that the second schedule properties were purchased in the name of the mother who was earning her own income. Under Ex.P.16 the properties belonging to the mother were mortgaged by the plaintiff and the defendant and Ex.P.17 loans were raised from the mothers property from 1968 onwards. Further the lower appellate Court has also found that the second schedule properties were purchased in the name of the mother who was earning her own income. Eventhough there is no specific findings that the joint family properties were yielding sufficient income, the lower appellate Court has taken into account the income from the properties standing in the name of his mother Deivayanai and the income contributed by the plaintiff himself to the family from 1954. Only on the consideration of the aforesaid circumstance, the lower appellate Court has found that the second schedule properties must have been purchased in the name of the defendant from the income above mentioned. There is no finding that only from the income of the joint family nucleus the second schedule properties have been purchased. Therefore, the contention of the learned counsel for the appellants that when there is no proof that the joint family properties were yielding sufficient income, it should not be assumed that the second schedule properties were purchased from the income of the said joint family nucleus is untenable. 13. With regard to the second contention that mere possession of some joint family members would not lead to a presumption that the properties purchased by the coparceners were from the income of the joint family nucleus. He has cited the following decisions in support of this contention: Srinivasan v. Sundaramurthi, 1972 (I) MLJ. 141 , Ranganayaki v. Srinivasan, 1978 (I) MLJ 56 and Kamakshi Ammal v. P. Venkatesan, 1986 (I) MLJ 436. It is true that in this case mere possession of the joint family, some nucleus would not lead to the presumption that the properties purchased by the coparceners were from the income of the joint family nucleus. The burden is upon the person who claims that the properties were purchased from the joint family nucleus. As we have seen above the findings of the lower appellate Court is that the purchases were made in the name of the said Deivayanai Ammal and the first defendant were not only from the joint family nucleus but also from the income contributed by the deceased Deivayanai and the plaintiff. Therefore, the cases cited by the learned learned counsel for the appellants are distinguishable. Therefore, the cases cited by the learned learned counsel for the appellants are distinguishable. 14. Learned counsel for the appellants also relied upon Section 102 of the Evidence Act and cited a decision reported in Damodaran v. Leellavathi, AIR 1975 Mad. 278 and contended that since the plaintiff has failed to prove that the joint family nucleus was yielding sufficient income he should fail for the reasons mentioned above, this contention also must fail. 15. Another contention raised by the counsel is that the plaintiff is estopped in claiming half share in the second schedule properties. According to the counsel, the defendant mortgaged the second schedule properties in favour of third parties, under Exx.B.2 and 13.B.3. The plaintiff has also signed in Exx.B.2 and B.3 as a witness. Therefore, he is estopped from contending that the properties covered under Ex.B.2 and B.3 are joint family properties. 16. Learned counsel has cited the decision reported in Damodaran v. Leelavathi Ammal and others, AIR 1975 Mad. 278 wherein the wife has executed a mortgage as the owner of the house and the husband has attested the mortgage. Hence, learned single Judge of this Court has held that the husband is estopped from denying the title of the wife since mortgage deed executed by his wife was attested by him. In the case cited supra, the husband has attested the mortgage executed by the wife. When the wife executes a mortgage, the husband takes a leading role in it. Normally, when the wife deals with the property she used to be only as a signatory and the actual dealing will be only by the husband, Negotiations and other aspects relating to the mortgage would be only on the husband. In such a circumstance, when a person takes a leading role in execution of a document, he is the person who deals with the property. But in the case on hand there is no presumption of leading role played by son when his father executed the mortgage. Therefore, the principle laid down in the said case cannot be applied to the facts of the present case. 17. For the foregoing reasons, I am of the view that there is no necessity for interference in the concurrent findings of the Courts below. Therefore, the second appeal is dismissed. No costs. Consequently, C.M.Ps.No.14189 of 1995, 6293 of 1997 and 12042 of 1997 are dismissed.