JUDGMENT - SHARAD MANOHAR, J.:---This original plaintiff, whose suit for partition and separate possession of his share in the suit property was decreed by the trial Court but was dismissed by the Appeal Court in appeal filed by his brothers, original defendants Nos. 2 and 4, has filed this Second Appeal against the appellate decree dismissing his original suit. 2. The facts relevant for the purpose of appeal are as follows :- One Pandu had two sons, Ramchandra and Supdu. We are not concerned with Supdu in this litigation except for considering as to whether the main item of the suit property was the joint acquisition of Ramchandra and Supdu. Ramchandra is defendant No. 1 in these proceedings and will be hereinafter referred to as such. He died during the pendency of the suit. He had three sons : (i) Murlidhar (present appellant and the original plaintiff), (ii) Dattatraya (original defendant No. 2); (iii) Pandurang (original defendant No. 3); and -- (iv) Vasudeo (original defendant No. 4). He had also a daughter Leelabai who is the original defendant No. 5 in this suit. The suit property consists of Survey No. 21/1....14 acres 3 gunthas, Survey No. 20/2....2 acres 36 gunthas and Survey No. 20/1....3 acres 30 gunthas and two houses situate at Nizampur, Tal. Saaki, District Dhulia. According to the plaintiff, the joint family owned several houses and one Survey No. 71. In the year 1980 there was a partition between Ramchandra, defendant No. 1 and his brother Supadu and in that partition some houses and Survey No. 71 came to the share of Ramchandra. Further, according to the plaintiff, from out of the income of said Survey No. 71 Ramchandra purchased three other lands which are the suit lands mentioned above. Land, Survey No. 21/1 was purchased in the year 1935 and the relevant Sale Deed is Exhibit 52. Land, Survey No. 20/2 was purchased in the year 1940 and the relevant Sale Deed is Exhibit 51. The third land, Survey No. 20/1 was purchased in the year 1951, the relevant Sale Deed being Exhibit 53. According to the plaintiff, in addition to the two houses which had come to the share of Ramchandra in partition between himself and his brother Supadu there were other houses belonging to the joint family which were purchased by Ramchandra from out of the income of the joint family property viz. House Nos. According to the plaintiff, in addition to the two houses which had come to the share of Ramchandra in partition between himself and his brother Supadu there were other houses belonging to the joint family which were purchased by Ramchandra from out of the income of the joint family property viz. House Nos. 182, 234, 576, and 212, 213/1. According to the plaintiff he had 1/5th share in all the suit properties and when that share was denied to him by his father defendant No. 1, he filed the instant suit for partition and separate possession of his 1/5th share in the said lands and houses. The main question in this litigation is as to whether Survey No. 71 was the joint family property or not. The trial Court has held that it was joint family property or not. The trial Court has held that it was joint family property. The Appeal Court has taken the contrary view. The plaintiff has averred in the plaint that it was the joint family property. It is, therefore, of great relevance finding out as to what was the plea of defendant No. 1 as regards the ownership of said Survey No. 71. It will be worthwhile setting out his contention in the written statement with reference to the averments made by the plaintiff in that behalf in his plaint. 3. In paragraph 2 of the plaint the plaintiff has averred that in the year 1980 there was a partition between defendant No. 1 and his brother Supadu and that in that partition, the ancestral property belonging to the two of them was partitioned and, further, that in the said partition Survey No. 71 and the two houses came to the share of defendant No. 1. It is further averred in the said plaint that from out of the income of the said ancestral property, defendant No. 1 purchased Survey No. 21/2 (14 acres 3 gunthas) on 8-7-1935, that from the income of both these properties viz. Survey No. 71 and Survey No. 21/1, defendant No. 1 purchased Survey No. 20/2 on 16-4-1940 for Rs. 100/-. He has also averred that the last land, Survey No. 20/1 was purchased by defendant No. 1 from out of the sale proceeds of Survey No. 71. According to him, all these lands are numbered as Gat No. 40 which admeasures 20 acres 39 gunthas. 100/-. He has also averred that the last land, Survey No. 20/1 was purchased by defendant No. 1 from out of the sale proceeds of Survey No. 71. According to him, all these lands are numbered as Gat No. 40 which admeasures 20 acres 39 gunthas. According to the averments made by him in the said paragraph 2 of the plaint, four new houses have been purchased by defendant No. 1 from out of the income of the ancestral property as also from the sale thereof. He has also referred to the movable properties purchased from out of the income of the joint family property. As a reply to this plea of the plaintiff, in paragraph 2 of the plaint, what is stated in paragraphs 3 and 4 of the Written Statement, Exhibit 16 filed by defendant No. 1 Ramchandra is as follows :- "3. It is true that this defendant had a brother by name Supadu and that there was a partition between them but year of the partition viz. 1918 is not correct and the defendant cannot give the correct year of the partition. In the said partition, this defendant got the land, Survey No. 71 as also the two houses at Bijapur....." It will be thus seen that the fact that Survey No. 71 was a joint family property in the hands of Ramchandra and Supadu and that they got the same partitioned and that in the said partition, Survey No. 71 came to the share of Ramchandra and the other land of the joint family went to the share of Supadu are all admitted facts. The averments made in the said written statement leaves no room for doubt as regards the above position. So far as the other defendants Nos. 2 and 4 were concerned, they adopted the written statement of the defendant No. 1. So far as defendant No. 3 is concerned, he has supported the plaintiff both in the trial Court as well as in this Court. 4. On these pleadings, issues were framed by the Court and the parties went to trial. 2 and 4 were concerned, they adopted the written statement of the defendant No. 1. So far as defendant No. 3 is concerned, he has supported the plaintiff both in the trial Court as well as in this Court. 4. On these pleadings, issues were framed by the Court and the parties went to trial. I am not happy about the way in which the issues were framed by the learned Judge but no grievance was made by either of the parties, either before the trial Court issue or in the lower Appellate Court as regards the absence of any specific issue on the question as to whether the three land and five houses which were the subject matter of the suit were purchased by defendant No. 2 out of the income from the joint family property or not. An unambiguous issue on this point does appear to have been framed by the learned Judge. But the learned Judge has framed Issue No. 4 on the question whether the suit properties were the self acquired properties of defendant No. 1. This was evidently in pursuance of the contention of the defendant No. 1 that these suit properties which were purchased by him after the partition from his brother Supadu were his personal acquisitions made from his business of goldsmith. Whatever that may be, on these issues parties went to trial and after examination of the evidence, the trial Court came to the conclusion that the defendant No. 1 had failed to prove that the suit properties were his personal acquisitions. He held that they were acquired with the income of the joint family property. 5. However, during the pendency of the suit defendant No. 1 died. His heirs were already on the record. Therefore, plaintiff made an application for bringing the defendant on record as the heirs and legal representatives of the deceased defendant No. 1. The other contesting defendant did not object to this course of action and hence an order to that effect was passed by the trial Court for bringing them on record as the heirs of deceased, defendant No. 1. The other contesting defendant did not object to this course of action and hence an order to that effect was passed by the trial Court for bringing them on record as the heirs of deceased, defendant No. 1. However, by mistake, the actual amendment was not carried out by the plaintiff and the names of the contesting defendants were not shown on the record in the double capacity : (a) in their own right; (b) in their rights as heirs and legal representatives of deceased defendant No. 1. As will be presently pointed out, quite an ado is made by the contesting defendants on the question of default committed by the plaintiff in this behalf. The Appeal Court has accepted this contention and I shall examine the correctness the view taken by the Appeal Court in this connection. At this stage, it is relevant to state that the trial Court accepted the plaintiff's contention as regards the fact that Survey No. 71 was the ancestral property in the hands of Ramchandra holding, therefore, that the income from the said Survey No. 71 was enough for the purpose of providing a nucleus with which the suit properties could be acquired by defendant No. 1. He held that those properties were joint family properties and, hence, the plaintiff was entitled to his 1/5 the share in the same. 6. In appeal filed by defendants Nos. 1 and 2, the Appeal Court has taken the contrary but some what anamalous view. He has held that Survey No. 71 could not be said to be property of the joint family at all. According to him the evidence of defendant No. 1 shows that this piece of land was not the joint family property in the hands of defendant No. 1 but that is was purchased by defendant No. 1 with the monies of himself and that of Supadu and that, hence, the said land, Survey No. 71 was the joint property of himself and Supadu at the time of its purchase and no joint family property in their hands. As a sequel to this reasoning, he held that when the partition took place in the year 1918 between Ramchandra on the one hand and Supadu on the other, what came to the share of the formal in the partition was Survey No. 71, not because it was joint family property but because it was property jointly acquired by the plaintiff and Supadu. In other words, he had held that the plaintiff had no interest in the said land, Survey No. 71 from the date of his birth. He further held that the fact that this must not have been joint family property in the hands of defendant No. 1 was evidenced by the fact that when the property was sold by defendant No. 1 in the year 1952 not as much as any objection was raised by any of the defendants to the said sale. According to the learned Judge, these were circumstances sufficient for the purpose of giving rise to the inference that the land, Survey No. 71 was not the joint family property in the hands of Ramchandra when it came to his share in the partition in the year 1918. Once the land was kept out of consideration for computing the income of the joint family property, the learned Judge had no difficulty in holding that in the absence of the income being available from Survey No. 71 to form the nucleus to purchase the other property, it must be held that the three lands which were the subject matter of the suit, could not be said to be the properties purchased by the Karta, defendant No. 1 with the help of the nucleus of the joint family property. He, therefore, held that none of the suit properties were proved to be the acquisitions made from the income of the joint family property. As such, he held that they were the separate and self-acquired properties of defendant No. 1 and that, further, the plaintiff had no right to claim partition and separate possession of any part of the said property. 7. In this appeal, Mr. Agarwal has rightly and quite justifiable pointed out that the pleadings as they go do not at all show that the factum of Survey No. 71 being the ancestral or joint family property in the hands of defendant No. 1 was disputed by him in his written statement at all. 7. In this appeal, Mr. Agarwal has rightly and quite justifiable pointed out that the pleadings as they go do not at all show that the factum of Survey No. 71 being the ancestral or joint family property in the hands of defendant No. 1 was disputed by him in his written statement at all. The averments in that behalf are found in paragraphs 2 and 3 of the written statement, the relevant portion of which is already reproduced hereinabove by me. The extracted portion of the written statement clearly shows that it was not the case of defendant No. 1 that Survey No. 71 was not a property belonging to the joint family constituted by himself and his four sons. No doubt, elsewhere he has stated that all the properties were purchased by him from out of the income of his gold smith's business. But the specific averment made in the plaint to the effect that Survey No. 71 was the joint family property received by defendant No. 1 as ancestral property has not been controverted by defendant No. 1 in the relevant paragraph of the written statement at all. 8. Inspite of this position of the pleadings, the trial Court allowed defendant No. 1 to lead evidence to show that Survey No. 71 was not the ancestral property in his hands. He stated in his evidence that, that Survey No. 71 was acquired by him and his brother Supadu but he has also stated that he acquired it with the help of his earnings from the business of gold-smith. In his evidence he stated that there was a document for the purchase of the land, Survey No. 71 by himself and his brother Supadu but he has stated that he was not producing the Sale Deed. Similarly, there was a document evidencing partition effected between himself and Supadu in the year 1980 but he did not produce the said document. Those documents would show the reason why the Survey No. 71 came to the share of defendant No. 1 in partition between himself and his brother. It is not disputed by defendant No. 1 that the joint family of himself and his brother had several houses which were admittedly joint family property. The partition that took place in the year 1980 purports to partition those properties. It is not disputed by defendant No. 1 that the joint family of himself and his brother had several houses which were admittedly joint family property. The partition that took place in the year 1980 purports to partition those properties. But what is significant is that in that very partition this Survey No. 71 has come to the share of defendant No. 1 whereas another land has gone to the share of Supadu. It is difficult to understand as to how in a general partition of the joint family between defendant No. 1 and his brother Supadu, the land, Survey No. 71 was made the subject matter of the partition if its was not an item of property belonging to the joint family. It is not his contention that in addition to this land Survey No. 71, some other land of equal value has been purchased by himself and Supadu and that, that other land went to the share of Supadu, whereas the land, Survey No. 71 came to the share of defendant No. 1. He has stated that he had purchased Survey No. 71 with the help of income that he earned from the business of gold-smith; but in the first instance, it is an admitted fact that the business of gold-smith is the ancestral business of the family. Secondly, he has not stated as to how Supadu got share in that house if he had purchased the said house with his own earning from the said business of gold smith. This averment coupled the averments in the written statement referred to above leaves no room for doubt that Survey No. 71 was the ancestral property in the hands of both defendant No. 1 and Supadu which was the reason why it was made the subject matter of the partition between the two brothers in the year 1918. If this it the position, then it follows that the said Survey No. 71 was the joint family property of defendant No. 1 as also of plaintiff and all other defendants. 9. The real question in this case is as to whether the three lands and the five houses purchased by defendant No. 1 after the year 1918 were the joint family properties or not. It is nobody's case that they were ancestral properties or that defendant No. 1 inherited them from his father Pandu. 9. The real question in this case is as to whether the three lands and the five houses purchased by defendant No. 1 after the year 1918 were the joint family properties or not. It is nobody's case that they were ancestral properties or that defendant No. 1 inherited them from his father Pandu. It is not at all disputed that all these lands and houses were purchased by defendant No. 1 after his partition from Supadu in the year 1918; but the question is as to whether there was sufficient nucleus of the joint family with the help of which the properties could be purchased by defendant No. 1. It is this aspect of the legal question for which the above question as to whether Survey No. 71 was the joint family property or not becomes crucial. Once it is held that Survey No. 71 was the joint family property, it follows that the income from Survey No. 71 would also from income of the joint family. Now in the instant case, it is seen that Survey No. 71 admeasured nearly 14 acres. It must be, therefore, giving some income, Survey No. 21/1 was purchased by defendant No. 1 in the year 1935 for a sum of Rs. 875/-. At that time the plaintiff was just 10 years of age. Contention of defendant No. 1 is that he purchased this survey number with his earnings from the business of gold-smith. But as stated above, in the first place, the business of gold-smith itself was an ancestral business. Secondly, defendant No. 1 has not kept the income from the gold-smith's business separate from his income from Survey No. 71. Moreover, there were houses which are admittedly joint family properties which had come to his share. He has not stated as to whether they were fetching any rent or not. In other words, he has not given any account in respect of the income received by him from the joint family properties. The facts were exclusively within his knowledge. He was himself the Karta of the joint family. These parties are Sonars which means that business of gold-smith is their ancestral business. In other words, he has not given any account in respect of the income received by him from the joint family properties. The facts were exclusively within his knowledge. He was himself the Karta of the joint family. These parties are Sonars which means that business of gold-smith is their ancestral business. Normally, it would not be open for him to contend that the ancestral business of gold-smith was his personal business vis-a-vis his own sons; but assuming that it is open for him to take such plea, it would be incumbent upon him to lead independent evidence in that behalf. Beyond his bare words that these properties were acquired by him from out of the income of the business of gold-smith, no evidence is led by him to prove that no part of the income from joint family property viz. Survey No. 71 or that the income from the houses was not utilised for the purpose of purchase of the said land, Survey No. 21/1, in the year 1935. But what is more significant is that he has not uttered ever a word in his entire evidence that the business of gold-smith was his personal business and not the joint family business. The fact that the business of gold-smith was joint family business cannot be disputed at all because this family is a Sonar family. All the same if assuming that he had a separate business of gold-smith apart from the ancestral business of gold-smith, he had to plead it and prove it. He has done neither. Even assuming therefore, that the entire consideration for land, Survey No. 21/1 purchased in the year 1935 was brought from the gold-smith's business, the property would all the same become joint family property. But in the instant case, there is no such evidence at all because defendant No. 1 has not kept his income from the gold-smith's business separate from Survey No. 71 or for the matter of that income from the other houses admittedly inherited by him from his father. Land, Survey No. 21/1 admeasures 14 acres 3 gunthas. This means that by the year 1940 when the land, Survey No. 20/2 was purchased by him, defendant No. 1 had income not only from Survey No. 71 but also from Survey No. 21/1. He has not mentioned as to how much that income was. Land, Survey No. 21/1 admeasures 14 acres 3 gunthas. This means that by the year 1940 when the land, Survey No. 20/2 was purchased by him, defendant No. 1 had income not only from Survey No. 71 but also from Survey No. 21/1. He has not mentioned as to how much that income was. The burden was entirely upon him because he was the karta and all facts were within his exclusive knowledge. The plaintiff was born in the year 1925. In the year 1940 at the most he was of 15 years of age. He could not have any knowledge about the income from Survey No. 71 and 21/1. But in the absence of evidence being led by defendant No. 1 the Court could be justified inferring that both the lands would give sufficient income for the purpose of enabling defendant No. 1 to purchase the second parcel of land, i.e. Survey No. 20/2. This second parcel of land, Survey No. 20/2 admeasures 2 acres 36 gunthas. It was purchased just for Rs. 100/- It is inconceivable that this amount of Rs. 100/-. could not have been paid from out of the income of both the Survey Nos. 71 and 21/1. The third parcel of land is Survey No. 21/1 admeasuring 3 acres 30 gunthas. It was purchased for a sum of Rs. 870/- and that was in the year 1950. By that time the joint family had three lands, Survey No. 71 admeasuring about 14 acres, Survey No. 21/1, admeasuring about 14 acres 3 gunthas and Survey No. 20/2 admeasuring 2 acres 36 gunthas. The income from all these lands would certainly have been sufficient for purchase of this land, Survey No. 20/1, sale price of which was just Rs. 870/-. This is apart from the income of the ancestral business of gold-smith, because I am assuming that, that income is to be treated as not to be the joint family income. Even on the assumption there exists sufficient nucleus for purchase of all these three properties. All these aspects have been completely lost sight of by the learned Judge and the learned Judge has held that because Survey No. 71 was sold as late as in the year 1952 the sale proceeds of the same could not be utilised for the purchase of the suit lands. All these aspects have been completely lost sight of by the learned Judge and the learned Judge has held that because Survey No. 71 was sold as late as in the year 1952 the sale proceeds of the same could not be utilised for the purchase of the suit lands. No doubt, the plaintiff has stated in the plaint that the last parcel of land, Survey No. 20/1 was purchased from out of the said nucleus of Survey No. 71; but that statement was evidently an erroneous statement. The Court cannot lose sight of the fact that there existed enough nucleus resulting from income from all these three lands, Survey No. 71 Survey No. 21/1 and 20/2, with the help of which the last parcel Survey No. 20/1 could be purchased. A wrong averment made in the plaint could not enable the Court to turn a blind eye to the direct inference emanating from, the evidence. Moreover, what the Court has lost sight of is that very strong adverse inference has got to be raised against defendant No. 1 on account of his failure to produce the most important documents viz. the Partition Deed of the year 1918 and the Sale Deed in respect of Survey No. 71 allegedly taken jointly by himself and his brother Supadu, Defendant No. 1 has said in his evidence in so many words that he had got the document with him and still he has refused to produce the same in the Court. The evidence on record coupled with the abovementioned adverse inference must give rise to the inference that these three suit lands were purchased by defendant No. 1 with the help of the joint family income. 10. The position about the houses is in no way different. It was not disputed before me that if the three suit lands can be purchased with the joint family income, the suit houses could as well be purchased from out of the said income. 11. Mr. 10. The position about the houses is in no way different. It was not disputed before me that if the three suit lands can be purchased with the joint family income, the suit houses could as well be purchased from out of the said income. 11. Mr. Agarwal relied upon the judgment of the Supreme Court in the case of (Mallappa Girimallappa Batgeri others v. R. Yellappa Gouda Patil and others)1, A.I.R. 1959 Supreme Court 906 where it has been held as follows :- "Where the manager of a joint Hindu family acquired certain properties in his own name and there was sufficient nucleus of joint family property out of which those properties might have been acquired and part from those properties the manager had no other source of income, the presumption arises that the newly acquired properties were the properties of the joint family. Unless that presumption were rebutted, it must prevail." It is true that in the instant case there is the contention that defendant No. 1 was having his separate source of income from the business of gold-smith. But in the first place, it is not shown that it was his separate business. Admittedly, the family is a Sonar family and the business of gold-smith was the ancestral business. Moreover there is nothing to show that the karta, defendant No. 1 had kept the income from the gold-smith business separate from the income of the joint family business properties. The above authority therefore, goes a long way to help the plaintiff's case. The next authority relied upon by Mr. Agarwal is the judgment of the Supreme Court in the case of (Mallesappa Bandeppa Desai and another v. Desai mallappa alias Mallesappa and another)2, A.I.R. 1961 Supreme Court page 1268. The effect of blending the separate income of a co-parcenar with the income of the joint family is considered by the Supreme Court in that case. The Supreme Court has held that if the income was blended by the karta then the entire income become income of the joint family. But that apart the important question decided by the Supreme Court in that authority is the question of onus of proof. The Supreme Court has held that if the income was blended by the karta then the entire income become income of the joint family. But that apart the important question decided by the Supreme Court in that authority is the question of onus of proof. This is what the Supreme Court lies observed in paragraph 15 of is judgment :- "In our opinion, there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manger and not on his coparceners." To my mind, the in instant case the onus of proving that the suit properties were purchased by defendant No. 1 from his separate income was heavily upon defendant No. 1 because he was the Karta of the family at all the relevant times. He has not at all discharged that onus. This important aspect of the question of onus of proof has been wholly lost sight by the lower Appellate Court which fact is enough, all by itself, to vitiate the view taken by the lower Court. 12. It is stated above that defendant No. 1 died during the pendency of the suit. Mr. Karlekar stated that he has left being him a registered Will dated 21-1-1973 and according to Mr. Karlekar by the said will he had bequeathed the three suit lands upon his client, defendant No. 2 and upon defendant No. 4 for whom Mr. Shah appears. This fact is relevant only vis-a-vis the point raised by Mr. Agarwal viz. that even assuming that the suit lands were the separate properties of defendant No. 1, the plaintiff would be entitled to 1/5th share in the same upon the death of his father defendant No. 1. Mr. Karlekar argued that since there was a Will left by the deceased, defendant No. 1 bequeathing all the suit lands upon defendant Nos. 2 and 4, the plaintiff could not claim any share in the said land even alternatively. To my mind, this question is wholly academic. Mr. Karlekar argued that since there was a Will left by the deceased, defendant No. 1 bequeathing all the suit lands upon defendant Nos. 2 and 4, the plaintiff could not claim any share in the said land even alternatively. To my mind, this question is wholly academic. Once it is held that the suit land was the ancestral land in the hands of defendant No. 1, all that he could bequeath by Will would be his 1/5th share in the same. The plaintiff has asked only for 1/5th share in the suit property. In addition, if there was no Will left by defendant No. 1 he would entitled to additional 1/25th share in the suit property because defendant No. 1's 1/5th share would go by inheritance to his four sons and one daughter. But I am saved of deciding the question because the plaintiff as well as defendant No. 3 have filed a precipe in this Court stated that they do not claim any share in the 1/5th share of deceased, defendant No. 1 in the suit property. They claim only their 1/5th share on the basis that the entire suit property was the joint family property. 12. The appeal, therefore, succeeds. The decree passed by the lower Court is set aside and the decree passed by the lower Court is substantially restored. However, the trial Court has granted 6/25th share (1/5th + 1/25th) to the plaintiff. The part of the decree of the trial Court would have to be modified. Accordingly, it is ordered that the plaintiff and defendant No. 3 shall be entitled to a decree for partition and separate possession of their 1/5th share in the entire suit property from defendant Nos. 2 and 4. 13. The plaintiff, as well as defendant No. 3 shall be entitled to the costs of this appeal as well as that of the lower Appellate Court. The decree for costs passed by the trial Court remains uneffected. Appeal allowed. -----