JUDGMENT : K.S. Mudagal, J. This is defendants' appeal arising out of the judgment and decree dated 7.4.2007 passed by the Senior Civil Judge, Kunigal in O.S. No.67/2005. By the impugned judgment, the trial Court has decreed the suit of the plaintiff for partition and separate possession of his one-third share in the suit properties and for mesne profits. 2. The appellants are defendant Nos. 1 and 2 and respondent is the plaintiff before the trial Court. Pending this appeal, appellant No. 1 (defendant No. 1) died and her legal representatives are brought on record. The subject-matter of the suit in all are 12 immovable properties. Out of them, suit schedule item No. 8 is house property and suit schedule item Nos. 10 to 12 are sites and rest of the properties are landed properties. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court. 3. The case of the plaintiff in brief is as follows:- That the defendant No. 1 is the mother and defendant No. 2 is the elder brother of the plaintiff. The plaintiff and defendants constituted joint family. The defendant No. 2 being elder brother, is the 'Karta of the family. The suit schedule item Nos. 2, 8 and 9 are ancestral properties and suit schedule item Nos. 1, 3 to 7 and 10 to 12 are acquired out of the nucleus of joint family properties and the salary income of the plaintiff. Since defendant No. 2 is the 'Karta,- the sale deeds were obtained in his name. The plaintiff was working in the Coffee Board, Bengaluru and substantially contributed for the maintenance of family and acquisition of the suit schedule properties. After the death of his father, the Rarta of the ancestral properties is changed to the name of defendant No. 2. Of late, defendant No. 2 is acting detrimental to the interest of plaintiff in the suit schedule properties. Therefore, the plaintiff demanded for partition and separate possession of his share in the suit properties, which is declined by the defendants. Hence, the suit. 4. The defendants filed the written statement and contested the suit. They admitted the relationship between the parties. It is denied that except, suit schedule item Nos. 2, 8 and 9, the other properties are joint family properties. Hence, the suit. 4. The defendants filed the written statement and contested the suit. They admitted the relationship between the parties. It is denied that except, suit schedule item Nos. 2, 8 and 9, the other properties are joint family properties. Defendant No. 2 is a skilled carpenter and he was also in the trade of jawar, horse gram, millets, paddy and etc., as Commission Agent. Out of the income derived from carpentry work and business, he has purchased the plaint schedule property item Nos. 1, 3 to 7 and 10 to 12. The wife of defendant No. 2 was in poultry business and her father was a commission agent in the trade of food grains and cattle since 1974 and they also contributed for purchasing the properties. He contended that plaintiff was drawing a meagre salary of Rs. 4,000/- per month and had an obligation of maintaining his family consisting of two daughters and educate them. Therefore, he was not capable to contribute anything to acquire any of the properties, as contended by him. It is also contended that he took care of his mother, the suit is barred by time. They sought dismissal of the suit. 5. On the basis of the above pleadings, the trial Court framed the following issues:- "1. Whether the plaintiff proves that the suit schedule item Nos. 2, 8 and 9 are the joint family properties of plaintiff and defendants? 2. Whether the plaintiff further proves that the suit item Nos. 1, 3, 4, 5, 6, 7, 10, 11 and 12 are the properties purchased out of joint family funds and from the salary of the plaintiff? 3. Whether this court has got pecuniary jurisdiction to try this suit? 4. Whether the plaintiff is entitled to the relief sought for? 5. What order or decree?" 6. In support of the case of plaintiff, he examined PWs 1 to 4 and got marked Exhibits P1 to P38. The defendants did not adduce any evidence. The trial Court, after hearing learned counsel for the parties, records the submission of learned counsel for defendants that their arguments may be taken as heard. Further, the trial Court, by the impugned judgment holds that the plaintiff, by his oral and documentary evidence, proved his case. The defendants did not adduce any evidence. The trial Court, after hearing learned counsel for the parties, records the submission of learned counsel for defendants that their arguments may be taken as heard. Further, the trial Court, by the impugned judgment holds that the plaintiff, by his oral and documentary evidence, proved his case. The trial Court, at para-15 of its judgment holds that the defendants have not at all adduced any oral or documentary evidence to prove that the suit schedule properties are self-acquired properties of defendant No. 2 and thus, decrees the suit. 7. Sri. Srinath R.K., learned counsel appearing for Sri. Nagaraj Damodar for appellants/defendants contends that the trial Court has decreed the suit mainly on the ground that the defendants have failed to adduce the evidence. He further contends that the defendants actively participated in the proceedings till the evidence of PW1 was over and thereafter, defendant No. 2 fell sick and therefore, he could not contact his advocate and do the needful. He further contends that defendant No. 1 is an aged and ignorant lady and she also could not do anything in the matter and if an opportunity is given, the defendants can establish their case. He further contends that since they had filed the written statement and partly contested the suit, they cannot even invoke Order 9, Rule 13 of C.P.C. Thus, he seeks indulgence of the Court to provide defendants an opportunity. He contends that the sale deeds of plaint schedule item Nos. 1, 3 to 7 and 10 to 12 stand in the name of defendant No. 2 and there is no substantial evidence in proof of contribution of plaintiff for acquiring the properties, therefore the defendants need an opportunity to produce the relevant documents and prove their case. 8. As against that, Sri. Zulfikir Kumar Shafi, learned counsel for the respondent-plaintiff contends that all along, the defendants were interested only in protracting the proceedings. He contends that the medical grounds now urged by defendant No. 2 are only farce, the defendants failed to avail sufficient opportunities provided to them, hence they are not entitled to seek any indulgence at the hands of this Court. He contends that the medical grounds now urged by defendant No. 2 are only farce, the defendants failed to avail sufficient opportunities provided to them, hence they are not entitled to seek any indulgence at the hands of this Court. He further contends that since the defendants did not dispute the status of family and defendant No. 2 being the 'Karta' of the family, obviously, in the absence of any proof of his income to acquire the suit schedules 1, 3 to 7 and 10 to 12 properties, it has to be held that the properties are purchased in the name of 'Karta' out of the joint family income. 9. Heard both the learned counsel and perused the records. The question that arises for consideration of this Court is whether the impugned judgment and decree calls for interference of this Court? 10. Some of the undisputed facts of this case are as follows:- That plaintiff and defendant No. 2 are the sons and defendant No. 1 is the wife of Bettegowda. He died intestate in 1973. The parties are governed by Hindu Law. The plaintiff and defendants are members of the Joint Hindu Family. The suit schedule item Nos. 2, 8 and 9 are ancestral properties of the joint family. There is no division/partition in the joint family. During subsistence of such joint family, the other suit properties are acquired and sale deeds of those properties stand in the name of defendant No. 2. The plaint schedule item No. 8 is the house property and that is in the occupation of defendants. Therefore, that cannot fetch any income. Plaint schedule item No. 2 is the land measuring 2 acres 16 guntas and plaint schedule item No. 9 is the land measuring 2 acres 5 guntas. Exhibits-P3 and P9 are the RTCs of those lands. They show that only plaint schedule item No. 2 alone is the irrigated land. The plaintiff worked as a clerk in the Coffee Board from 1976 to 1997. The sale deeds of plaint schedule item Nos. 1, 3 to 7 and 10 to 12 stand in the name of defendant No. 2. 11. In view of the above said admitted facts, the only question is whether plaint schedule item Nos. 1, 3 to 7 and 10 to 12 are acquired by the funds contributed by the plaintiff? 12. The sale deeds of plaint schedule item Nos. 1, 3 to 7 and 10 to 12 stand in the name of defendant No. 2. 11. In view of the above said admitted facts, the only question is whether plaint schedule item Nos. 1, 3 to 7 and 10 to 12 are acquired by the funds contributed by the plaintiff? 12. The plaintiff contended that the ancestral properties, i.e., suit item properties 2 and 9 were not generating good income, but he was earning handsome salary. He further contended that at the request of defendant No. 2, he contributed substantial amounts to acquire other properties and since defendant No. 2 was 'Karta of the family, the properties were acquired in his name. PW1 in his cross-examination states that the marriage of defendant No. 2 took place even before the plaintiff joined employment in 1976. He further states that immediately after one month of the marriage of defendant No. 2, differences arose between defendant No. 2 and his wife and therefore he stopped visiting the house. The plaintiff did not even produce the copies of title deeds of plaint schedule item Nos. 1, 3 to 7 and 10 to 12 properties. In his cross-examination, he admits that he was not present at the time of registration of none of the aforesaid properties. The trial Court has decreed the suit mainly based on the ground that the defendants have failed to cross-examine PWs-2 to 4 and have not their own evidence. That goes to show that the trial Court has decreed the suit on the basis of the weakness in the evidence on the part of the defendants. 13. Learned counsel for the defendants contends that defendant No. 1 is an old aged and ignorant lady and defendant No. 2 had suffered major health ailments and therefore they could not do the needful before the trial Court. 14. Age of defendant No. 1 is not in dispute. In support of the alleged illness of defendant No. 2, during the course of the hearing, the counsel for the defendants produced the medical certificates. But learned counsel for the plaintiff disputes the veracity of the said document. The said document shows that from January 2007 onwards, the defendant No. 2 suffered cardiac ailment and he was further treated at Jayadeva Institute of Cardiology, Bengaluru. 15. The evidence of PW1 was over on 15.11.2006. But learned counsel for the plaintiff disputes the veracity of the said document. The said document shows that from January 2007 onwards, the defendant No. 2 suffered cardiac ailment and he was further treated at Jayadeva Institute of Cardiology, Bengaluru. 15. The evidence of PW1 was over on 15.11.2006. Thereafter, the defendants have not participated in the proceedings before the trial Court. It is true that the defendants at the stage of final hearing have not produced the discharge summary and other medical records. Learned counsel for the defendants contends that the said medical records are not available. 16. The records show that there was delay of 17 days in filing this appeal. The defendants filed I.A.No.1/2007 for the condonation of delay in filing this appeal. In the affidavit filed in support of I.A.No.1/2007, same medical grounds were set out by the defendants. The defendant No. 2 in his affidavit states that he was treated as inpatient at Adichunchanagiri Hospital and Research Centre from 22.1.2007 to 2.3.2007 and he recovered in the second week of July 2007. 17. The order passed by this Court on I.A.No.1/2007 indicates that the appellant No. 2 had produced the discharge summary before this Court and on perusal of such discharge summary, this Court was satisfied that there was sufficient reason for the defendants in not filing the appeal in time and condoned the delay. Having regard to such recording of this Court regarding production of discharge summary, this Court directed the office to trace the document and place it before the Court, but as per the office note, the same could not be traced. 18. Having regard to such findings, there is no difficulty in accepting the grounds set out by defendant No. 2 and hence, his medical grounds urged are acceptable. It is true that, as contended by learned counsel for the plaintiff, there was four years-delay in filing the written statement and thereafter the plaint was returned for re presenting it before the proper court on the ground of lack of pecuniary jurisdiction, but, that itself does not disentitle the defendants of their right or their opportunity. 19. As already pointed out, the trial Court did not notice that the plaintiff failed to produce the certified copies of sale deeds of the suit schedule properties. Except Exhibit P24, the plaintiff did not produce the certified copies of sale deeds. 19. As already pointed out, the trial Court did not notice that the plaintiff failed to produce the certified copies of sale deeds of the suit schedule properties. Except Exhibit P24, the plaintiff did not produce the certified copies of sale deeds. The trial Court also did not notice the admissions of plaintiff that he was not visiting the house after the marriage of the defendant No. 2. 20. Having regard to the aforesaid facts and circumstances, there is sufficient force in the contention that the trial Court failed to consider the case of the defendants regarding contribution of the plaintiff in purchasing the suit schedule properties. The plaintiff has not even produced the copies of the sale deeds and concrete evidence as to the quantum of his income, at the time of purchasing the properties in question. Having regard to this fact, the Court is satisfied that the judgment is based on insufficient evidence and on the issues. The Court is satisfied that an opportunity has to be given to the defendants to substantiate their defence. Therefore, the matter requires remand. 21. That there is no dispute that suit schedule item Nos. 2, 8 and 9 are joint family properties. Pending this appeal, appellant No. 1 died and her share devolves upon her surviving heirs. Thus, the trial Court is required to reconsider the shares of the plaintiff and defendant No. 2 due to the death of defendant No. 1 and whether the plaint schedule item Nos. 1, 3 to 7 and 10 to 12 are joint family properties of the parties or self-acquired properties of defendant No. 2. 22. Therefore, the appeal is allowed. The judgment and decree of the trial Court is hereby set aside and the matter is remanded to the trial Court to reconsider the shares of parties in respect of plaint schedule item Nos. 2, 8 and 9 due to the death of defendant No. 1 and to consider whether plaint schedule item Nos. 1, 3 to 7 and 10 to 12 are joint family properties of the parties or self-acquired properties of defendant No. 2. 23. As the matter is 17 years old, the trial Court is requested to dispose of the matter as expeditiously as possible and at any rate, within six months from the date of this judgment after giving opportunity to both the parties to lead their evidence. 23. As the matter is 17 years old, the trial Court is requested to dispose of the matter as expeditiously as possible and at any rate, within six months from the date of this judgment after giving opportunity to both the parties to lead their evidence. The parties shall appear before the trial Court on 1.6.2017 without any further notice and shall co-operate for disposal of the matter.