K. SHIVASHANKAR BHAT, J. ( 1 ) THIS appeal is by the two sons of the original defendant, who died after the suit was decreed. 1st respondent is the plaintiff; she sought partition andclaimed half share in the properties described in the schedules to the plaint. according to the plaintiff, her husband died as an undivided member of thejoint family which possessed the suit properties and that she was entitled to ashare in respect of which her husband had a right. ( 2 ) BASAPPA was the common ancestor; ramappa and shivappa are his sons; ramappa is the defendant; plaintiff is the widow of shivappa. Ramappa hastwo sons and five daughters. The two sons are the present appellants andrespondents 2 to 6 are the daughters of the said defendant. Plaintiff has adaughter who is not a party to these proceedings. Ramappa died on 27-2-1991. according to the plaint case, the joint family of basappa had a family house andleasehold agricultural lands and his eldest son ramappa was managing thefamily affairs; the family had good income; savings were with the defendantwhich were utilised by him to acquire further properties. Defendants contendedthat except the family house, all the suit properties belonged to him as they arehis self-acquired properties. ( 3 ) THE trial court framed the following issues : (I) does the plaintiff prove that suit properties are the joint familyproperties of plaintiff and defendant? (ii) does the plaintiff prove that suit properties are in joint possessionand enjoyment of plaintiff and defendant? (iii) does the defendant prove that suit properties are the self-acquiredproperties? (iv) whether plaintiff is entitled for any share in suit properly? If so, whatshare? (v) whether plaintiff is entitled for mesne profits? (vi) what order or decree? ( 4 ) THE trial court held that the properties were acquired by ramappa who was the manager of the family and therefore presumption is that the propertiesbelonged to the joint family. Shivappa died on 12-1-1954 leaving behind hiswife, the plaintiff and a daughter. The trial court's decree is datcd 26-2-1991 andthe appeal memo slates that the defendant died on 27-2-1991. ( 5 ) IT was contended before us that in a suit for partition all the co-sharer sought to be impleaded as parties; since the plaintiff failed to implead thechildren of the defendant and the daughter of the plaintiff, suit was notmaintainable. The trial court's decree is datcd 26-2-1991 andthe appeal memo slates that the defendant died on 27-2-1991. ( 5 ) IT was contended before us that in a suit for partition all the co-sharer sought to be impleaded as parties; since the plaintiff failed to implead thechildren of the defendant and the daughter of the plaintiff, suit was notmaintainable. It was further contended that the burden was entirely on theplaintiff to prove that the properties acquired by the defendant belonged to theundivided family of the defendant and his brother and this burden was notdischarged in the instant case. The case as pleaded by the plaintiff has to failbecause the basic facts asserted in the plaint were not proved at all. ( 6 ) IN this appeal two questions arise for our consideration : (1) whether the suit is not maintainable for non-joinder of necessary parlies? And (2) whether the suit properties belong to the undivided family of thedefendant and his brother or they are the self-acquired properties ofthe defendant? ( 7 ) RE. Question No. 1: defendant's children (two sons and five daughters) were not impleaded as defendants. The two sons of the defendants are admittedly co-sharers even onthe basis of plaintiffs case. But no plea is found in the written statement as tothe maintainability of the suit on the ground of non-joinder of necessaryparties; no issue is framed involving this question. Further, on the dcath of thedefendant, the prcsenl appeal was filed by his two sons and the daughters wereimpleaded as respondents 2 to 6. In these circumstances the question whethernon-impleading of the appellants as parties in the trial court would affect themaintainability of the suit need not be considered, especially in the backgroundof our decision on the merits of the plaintiffs claim. ( 8 ) RE. Question No. 2: Sri g. s. visveswara, the learned counsel for the appellant argued that in theabsence of evidence as to any joint family nucleus available with the defendantfrom which he could have acquired, the acquisitions ought to be held as theself-acquired properties of the defendant. Mr. ( 8 ) RE. Question No. 2: Sri g. s. visveswara, the learned counsel for the appellant argued that in theabsence of evidence as to any joint family nucleus available with the defendantfrom which he could have acquired, the acquisitions ought to be held as theself-acquired properties of the defendant. Mr. Umesh malimath, the learnedcounsel for the first respondent-plaintiff, on the other hand contended that thedefendant was the eldest member of the family after the death of his fatherbasappa, and as such, was the manager of the undivided family; therefore, anyproperly acquired by the defendant is presumed to belong to the joint family;the burden of proving that the properly belonged to him exclusively, lies onhim. ( 9 ) THE of referred proposilion in support of Mr. Malimath's contention is, "the case of the manager however is somewhat different from that of anordinary coparcener. Where there is an acquisition by the manager in his ownname and there is no independent source of income the presumplion arises thatthe new acquisition was joint family property. Where the manager claims thatwhat is acquired is his separate property he should prove that he acquired itwith his separate funds. " (i) srinivas krishnarao kongo v narayan devji kango and others, air1954 SC 379; (ii) mallappa girirnallappa betgeri and others v r. Yellappagouda patiland others, AIR 1959 SC 906 ; (iii) mallesappa bandeppa desai and another v desai mallappa alias mailesappaand another, AIR 1961 SC 1268 ; and (iv) mudigowda gowdappa sankh and others v ramachandra revgowdasankh (dead) by his legal representatives and another, AIR 1969 SC 1076 are cited in support of the above proposition. ( 10 ) THEREFORE, can it be said, that in the absence of evidence as to other circumstances, such as the mode of joint living, combined cultivation and anopen treatment of the acquired property as of the joint family, the propertyacquired by a member of a joint family belongs to the joint family, solelybecause, the acquirer was the manager of the joint family, even though, the jointfamily had no income yielding property or any income which could haveconstituted a sufficient nucleus from which the property could have beenacquired?we find no such absolute proposition being laid down by the supremecourt in any one of the decisions cited before us. ( 11 ) THE basic idea is that the benefit of acquisition should go to the joint family, if it was acquired by a person in possession of other joint familyproperties or joint family funds from which he could have acquired the newproperty, unless, he proves that the joint family property or funds were notutilised to acquire the new property. It is the user of the joint family assets (which could have formed a sufficient nucleus to acquire the new property),that makes the acquisition, the joint family property. If the joint family was notpossessed of any sufficient nucleus from which the new property was acquired,the acquirer of the property cannot be denied the benefit of acquisition, solelybecause, the acquirer happened to be the manager of a joint family, in theabsence of proof as to other circumstances, such as, the acquirer treating theacquired property as of the joint family, or other members of the familyconsidering it as a joint family property by participating in its cultivation anddevelopment. ( 12 ) A joint family is, presumably "joint in food, worship and estate". However, such a presumption does not inevitably lead to the conclusion thatevery joint family possesses joint family properties. ( 13 ) IN srinivas krishnarao kango v narayan devji kango and others, AIR 1954 SC 379 siddopant was the eldest member of the branch; he had purchaseda house and lands and constructed substantial houses. Siddopant's youngerbrother died an year prior to the death of siddopant, leaving behind an adoptedson. This adopted son sued for partition, claiming a share in the propertiesacquired by siddopant; evidence on record also proved that the joint family hadwatan lands. The conicnlion of the plaintiff was not aecepied by the supremecourt. At page 382 the Supreme Court observed:"on the question of the nueleus, the only properties which were provedto belong to the joint family were the watan lands of the extent of about 56aeres, bearing an annual assessment of Rs. 49. There is no satisfactoryevidence about the ineome which these lands were yielding at the materialperiod. "as to the nature of evidence required, it wa. s held, at page 383 :" whether the evidence adduecd by the plaintiff was sufficient to shift theburden which initially rested on him of establishing that there was adequatenucleus out of which the acquisitions could have been made is one of factdepending on the nalureand the extent of the nucleus. "as to the nature of evidence required, it wa. s held, at page 383 :" whether the evidence adduecd by the plaintiff was sufficient to shift theburden which initially rested on him of establishing that there was adequatenucleus out of which the acquisitions could have been made is one of factdepending on the nalureand the extent of the nucleus. The important thingto consider is the income which the nucleus yields. A building in theoccupation of the members of a family and yielding no income could not bea nucleus out of which acquisitions could be made, even thougn it might heof considerable value. On the other hand, a running business in which thecapital invested is comparatively small might conceivably producesubstantial income, which may well form the foundation of the subsequentacquisitions. There are not abstract questions of law, but questions of fact tobe determined on the evidence in the case. "it was further pointed out that if there was a small income from the jointfamily property, that would have gone for the maintenance of the family,without leaving anything to constitute a nucleus from which new propertycould have been acquired. ( 14 ) IN kuppala obul reddy v bonala venkata narayana reddy (dend)through l. rs. , AIR 1984 SC 1171 one of the contentions was that the propertygifted by one thimma reddy, belonged to joint family of which thimma reddywas the manager and therefore, the gift was invalid. The Supreme Court heldthat there was no pleading that property was a joint family property and noissue was framed involving the said question. Thereafter, the Supreme Courtobserved at page 1176:"there may be presumption that there is a hindu joint family bui therecan be no presumption that the joint family possesses joint familyproperties. "several decisions of the Supreme Court relied upon by the learned counselfor the plaintiff, nowhere, lay down any absolute proposition in the mannersubmitted by the learned counsel for the plaintiff. Thereafter, the Supreme Courtobserved at page 1176:"there may be presumption that there is a hindu joint family bui therecan be no presumption that the joint family possesses joint familyproperties. "several decisions of the Supreme Court relied upon by the learned counselfor the plaintiff, nowhere, lay down any absolute proposition in the mannersubmitted by the learned counsel for the plaintiff. ( 15 ) IN mallappa girimallappa bctgeri and others v r. Yellappagoudu patil and others, AIR 1959 SC 906 it was held that where the manager of a jointhindu family acquired certain properties in his own name and there wassufficient nucleus of joint family property out of 'which those properties mighthave been acquired and apart from those properties the manager had no othersource of income, the presumption arises that the newly acquired propertieswere the properties of the joint family, unless the presumption is rebutted. ( 16 ) THEREFORE, two conditions require to be satisfied before holding the newly acquired property by the manager as of the property of the joint family: (i) there was sufficient nucleus of joint family property out of which the newlyproperty could have been acquired and (ii) apart from the said joint familyproperty, the manager had no other source of income, ( 17 ) THE observations in mallesappa bandeppa desai and another v desai mallappa alias mallesappa and another, AIR 1961 SC 1268 in noway advancesthe proposition placed before us by the learned counsel for the plaintiff. Atpage 1273, it was observed :"it is true that both the courts have found that respondent 1 purchased certainproperties for Rs. 600/- in 1925 (ex. B. 4 ). We do not know what the incomeof the said properties was; obviously it could not be of any significantorder; but, in our opinion, there is no doubt that where a manager claimsthat any immovable property has been acquired by him with his ownseparate funds and not with the help of the joint family funds of which hewas in possession and charge, it is for him to prove by clear and satisfactoryevidence his plea that the purchase money proceeded from his separatefund. The onus of proof must in such a case be placed on the manager andnot on his coparceners. The onus of proof must in such a case be placed on the manager andnot on his coparceners. "the onus shifts on the manager, when it is shown that he was in possession andcharge of the joint family funds, which necessarily implies that, the said jointfamily funds could have formed a sufficient nucleus to acquire the new property. finding in the said case, was that the manager possessed joint family fundsand he fought a litigation representing the joint family in which there was adecree in his favour, whereunder the property in question came to him; findingwas that expenses for the litigation were borne by the whole family from its ownfunds. ( 18 ) THE same principle is found in mudigowda gowdappa sankh and othersv ramachandra revgowda sankh (dead) by his legal representatives and another, air 1969 SC 1076 . At page 1080 it was held:"the case of the appellants was that these lands were self-acquisition ofgoudappa, but the respondents contended that they were joint familyproperties. The law on this aspect of the case is well-scaled. Of course thereis no presumption that a hindu family merely because it is joint, possessesany joint property. The burden of proving that any particular property isjoint family property, is, therefore, in the first instance upon the person whoclaims it as coparcencry property. But if the possession of a nucleus of thejoint family property is either admitted or proved, any acquisition made by amember of the joint family is presumed to be joint family properly. This ishowever subject to the limitation that the joint family property must be suchas with its aid the property in question could have been acquired. It is onlyafter the possession of an adequate nucleus is shown, that the onus shifts onto the person who claims the property as self-acquisition to affirmativelymake out that the property was acquired without any aid from the familyestate. In appalaswami v suryanarayanamurti, ILR 1948 mad. 440 : air1947 PC 189 sir john beaumont observed as follows :'the hindu law upon this aspect of the case is well-settled. Proof ofthe existence of a joint family does not lead to the presumption thatproperty held by any member of the family is joint, and the burden restsupon anyone asserting that any item of property was joint to establish thefact. Proof ofthe existence of a joint family does not lead to the presumption thatproperty held by any member of the family is joint, and the burden restsupon anyone asserting that any item of property was joint to establish thefact. But where it is established that the family possessed some jointproperty which from its nature and relative value may have formed thenucleus from which the property in question may have been acquired, theburden shifts to the party alleging self-acquisition to establish affirmativelythat the property was acquired without the aid of the joint familyproperty. See babubhai girdharlal v ujamlal hargovandas, ILR 1937bom. 708 : AIR 1937 bom. 446; venkatramayya v seshamma, ILR 1937mad. 1012 : AIR 1937 mad. 538 ; and vythianatha v varadaraja, ILR 1938mad. 696 : AIR 1938 mad. 841 . '" ( 19 ) EMPHASIS is always on the nucleus to be formed out of joint family property or joint family funds, as the basis to lead to the presumption that thebenefit of acquisition would be for the joint family. ( 20 ) BURDEN is cast on the kartha to prove that property acquired by him is hisself-acquired property, when it is shown that the joint family possessedsufficient nucleus of which he had the control. This is also the indication foundin the decision of m. r. rajasekharappa and others v h. n. siddananjappa andothers, 1990 (4) kar. L. j. 421 (db): ILR 1990 (3) kar. 2303 (db), para 42. 1. ( 21 ) THEREFORE, it cannot be said that in the absence of other circumstances, property acquired by a person belongs to the joint family, solely because, theacquirer was the manager of the family at the relevant point of time. L. j. 421 (db): ILR 1990 (3) kar. 2303 (db), para 42. 1. ( 21 ) THEREFORE, it cannot be said that in the absence of other circumstances, property acquired by a person belongs to the joint family, solely because, theacquirer was the manager of the family at the relevant point of time. In theabsence of any evidence that the family had no sufficient assets or funds andsimilarly, the evidence also is insufficient to trace the source of funds fromwhich the property was acquired by the then manager of a joint family, courtshall have to examine other circumstances such as the way the undividedmembers of the family lived and treated the newly acquired property andwhether there is any indication that the manager conducted himself in such amanner as giving an impression that the acquired property belonged to thefamily; the probability of other members contributing either labour or theirearnings for the acquisition also has to be examined, for which purpose, courtmay have to find out whether other members were in fact earning and handingover their earnings or savings to the manager. ( 22 ) WHILE appreciating the evidence, necessarily the court has to look into the pleadings of the parties, because, the basic facts are to be pleaded by theparties. When a definite case is pleaded by the plaintiff, normally, court will bedisinclined to give relief to the plaintiff on the basis of a different set of facts notpleaded by the plaintiff, unless the plaintiff is entitled to any relief, even on thebasis of the case plesded or proved by the defendant ( 23 ) IN the plaint it is stated that basappa was the common ancestor, andramappa (defendant) and shivappa (husband of the plaintiff) arc his sons. even after the death of basappa, his children were living together and thefamily was joint; suit properties were being cultivated jointly by basappa andhis two sons during the life time of basappa; after his death, the two sonscontinued to cultivate the suit properties jointly. During the life time ofbasappa, his eldest son, the defendant, was functioning as the manager. Therewas sufficient income left with the family even after meeting the familyexpenses; this continued even after basappa's death. The income saved duringthe life time of basappa from the suit lands and the savings till the death ofshivappa, were with the defendant. During the life time ofbasappa, his eldest son, the defendant, was functioning as the manager. Therewas sufficient income left with the family even after meeting the familyexpenses; this continued even after basappa's death. The income saved duringthe life time of basappa from the suit lands and the savings till the death ofshivappa, were with the defendant. After the death of shivappa, defendant andhis children continued to cultivate the lands, paying the rents. Thereafter, thedefendant purchased sy. Nos. 185/1, 185/2, 510/1, 11/1 and 194/2; these werepurchased by the defendant out of the savings with him; the savings during thelife-time of basappa and the savings earned jointly by basappa and shivappa. the two houses acquired in the name of the defendant were also similarlyacquired out of such savings with the defendant; one of the suit houses was withthe family even during the life-time of basuppa. In may 1988, plaintiff soughther half share in the family properties, but he failed to effect the partition. ( 24 ) THE substance of the above pleading is to emphasise that the family had properties held on lease even during the life-time of basappa and there wassurplus income and that the entire savings of the family were with thedefendant. ( 25 ) EVIDENCE discloses that during the life-time of basappa, there was only one house with him, and the said house did not yield any income; obviouslybasappa was living in the said house tmc No. 1228. The lands described inschedule 'a' to the plaint were obtained on lease long after the death ofbasappa and the earliest evidence on this aspect shows that lease was obtainedby the defendant in the year 1949. Shivappa died on 12-1-1954. The leaseholdswere purchased in the name of the defendant on different dates in the year 1960;1972 and 1973 ; one item was registered in the name of the defendant as anoccupant under the Provisions of the Karnataka Land Reforms Act, by theland tribunal; this could have been only after the year 1974. ( 26 ) THEREFORE, the assertion of the plaintiff that these lands were held on lease by the family even during the life-lime of basappa, is on the face of it, notcorrect. One house was purchased by the defendant in the year 1962 as per ex. d. 5 for rs. 800/- and another in the year 1982 as per ex. D. 4 for Rs. 80,000/ -. One house was purchased by the defendant in the year 1962 as per ex. d. 5 for rs. 800/- and another in the year 1982 as per ex. D. 4 for Rs. 80,000/ -. the agricultural lands purchased by the defendant were: (i) ex. D. 1 of the year 1960 for Rs. 8,000,'- (ii) ex. D. 2 of the year 1972 for Rs. 8,000,'- and (iii) ex. D. 3 of the year 1973 for Rs. 10. 000/ -. ( 27 ) PLAINTIFF examined herself as P. W. 1. She asserted that suit lands were the leasehold of the family and there was excess income and according to her :"during the life-lime of basappa also these lands were being cultivated byour family; out of the family funds, the defendant purchased the house aswell as the landed properties. "in para 3 of the deposition, she said that she was cultivating the suit land andwas staying with the defendant till the date of filing the suit. She admitted thather husband died in the house of his sister (at a different village ). She had casther voie in the suit village, kundalgad and produced the voters' list of the years1970 and 1983. She denied the suggestion that her husband was living in thehouse of her parents. As per para 9 of her deposition she stated that it was "falseto suggest all the documents produced in this case stand in the name of ramappabut not in the name of my husband"; she was not aware of the amount forwhich lands were purchased. She is being assisted by here son-in-law in this caseand his name is given as shankarappa, according to her she had produceddocuments to show that suit lands stood in the name of her father-in-law. again, she said;"the defendant has taken the land for cultivating from others. . . . . . . . ido not know how these lands were acquired by ramappa from whom andhow much amount he acquired. It is true 10 or 12 years after the death of myhusband ramappa acquired those lands. I again say they were acquiredthree years after the death of my husband. I do not know after how manyyears of the death of my husband another land were purchased. I do notknow for how much amount the lands were purchased. I am staying in myparents house. My brother and his sons are living there. I again say they were acquiredthree years after the death of my husband. I do not know after how manyyears of the death of my husband another land were purchased. I do notknow for how much amount the lands were purchased. I am staying in myparents house. My brother and his sons are living there. I do not know forhow much amount and when two houses were purchased. After the death ofmy husband i demanded for maintenance, but I have not received anyamount. I demanded my share in the property and they told that they willgive my share. Before filing the suit i demanded my share. After the disputearose 1 started to live in my brother's house. "this deposition of P. W. 1 in noway advances her case. At one stage sheslated that she demanded maintenance after her husband's death; but it was notpaid. If so, between 1954 and 1988, she did not assert her right at all; in spite ofan adverse reaction from the defendant; she did not lake action to seek hershare, all these years. if actually her husband was living with the defendant, there must be somedocumentary evidence to prove the same; admittedly he died in his sister'shouse at a different village. Defendant was able to show her name in the voter'slist, in the suit village, only during 1970 and 1983. No clinching evidence isforthcoming to show that she was living in the family house all along. ( 28 ) P. W. 2 is a daughter of the defendant. She was married to the family of the plaintiffs parents. In her evidence recorded in November 1990 she gave herage as 35 years, which means, she was born in or about the year 1955 shivappadied in January 1954. This witness cannot speak from her personal knowledge;obviously she was persuaded to depose against her father, in view of hermarriage into the family of the plaintiffs parents. She admitted that she was notaware whether suit lands were leasehold or of ownership of the family. She,quite strangely, says, both ramappa and shivappa were doing coolie work. ( 29 ) P. W. 3 seems to be the son of plaintiffs brother; he calls plaintiff as his paternal aunt. His age was only 30 years in the year 1990, which means, he wasborn in or about the year 1960. He is also the son-in-law of the defendant. She,quite strangely, says, both ramappa and shivappa were doing coolie work. ( 29 ) P. W. 3 seems to be the son of plaintiffs brother; he calls plaintiff as his paternal aunt. His age was only 30 years in the year 1990, which means, he wasborn in or about the year 1960. He is also the son-in-law of the defendant. according to him, plaintiff was residing, earlier, with the defendant and shiftedto shuda shettikoppa and allapur about 3 years prior to the date of deposition. p. w. 2 is the wife of the brother of this witness. P. W. 3 was married in the year1972 and he had not seen shivappa. His evidence does not help plaintiff in anymanner, except to indicate that both p. ws. 2 and 3 were obliged to favour theplaintiff in view of their close connection with her. ( 30 ) DEFENDANT's son was examined as d. w. 1. D. w. 1 himself was aged 61 years at the time of evidence. In view of the old age and ill-health, defendant wasnot examined. D. w. 1 must have been born in or about the year 1929 andtherefore his knowledge of the family affairs would not be mere hearsay. Hesays that after basappa's death, shivappa went to reside at shuda shettikoppa. d. w. 1 was doing cooli work earlier; his father was also doing coolie work;d. w. 1 was earning by jeetha and so was his younger brother. He speaks to theleasehold cultivated by the defendant. The leases were taken in the year 1951 or1952. ( 31 ) ORAL evidence in this case is not at all helpful to conclude that the family had lands at the time of basappa. It is also not helpful to find out as to how thelands were being cultivated after defendant obtained them on lease. No definiteevidence is forthcoming to hold that shivappa was living with the defendantand was helping him in the cultivation of the lands. It is also not helpful to find out as to how thelands were being cultivated after defendant obtained them on lease. No definiteevidence is forthcoming to hold that shivappa was living with the defendantand was helping him in the cultivation of the lands. ( 32 ) IN the written statement, the defendant had stated that during basappa's life-time the family had only one house and no land was being cultivated andthat shivappa and defendant were doing coolie work in the lands of others andthat shivappa was residing in the parental house of his wife at shudashettikoppa; he gave the details of his purchases after the death of shivappaand asserted that he acquired them out of his own earnings. ( 33 ) THE trial court assumes that the lands were taken on lease by the defendant as manager of the family, because, admittedly, the family owned onehouse and there was no partition between the two brothers. Since defendant'sname is found in the voters list of the years 1970 and 1983 and she voted atkundgol, she was residing all along with the defendant. Without noting the ageof P. W. 2, trial court infers that her evidence supports the case of plaintiff;evidence of d. w. 1 was discarded on the ground that he had no personalknowledge, ignoring the fact that his age was almost the same as that of theplaintiff. Trial court's assumption that because the family was joint, allacquisitions by the eldest member also belonged to the family, cannot beaccepted as a correct proposition of law. If defendant and his sons were earningthrough 'jectha', said earnings cannot be considered as the earnings of the jointfamily of shivappa and of the defendant. Independent evidence as to the jointliving and earnings by the defendant and his brother, could have been adducedby the plaintiff, if that was the true fact; some villagers could have beenexamined; old documents, including voters' list of the year 1951 and censusdetails could have added strength to the plaintiffs case; at least thosedocuments would have paved the way for the court to appreciate the facts. shivappa died in the year 1954; till the year 1988 plaintiff did not make anyclaim, though at one stage of her deposition P. W. 1 stated that she demandedmaintenance immediately on the death of her husband. shivappa died in the year 1954; till the year 1988 plaintiff did not make anyclaim, though at one stage of her deposition P. W. 1 stated that she demandedmaintenance immediately on the death of her husband. It was not the casepleaded in the plaint that lands were obtained on lease after basappa's death,and that leases were obtained by the efforts of the two brothers. In thecircumstances, it is impossible to hold that the plaintiff has made out a case fora share in the properties described in the plaint (except the one family house ). absolutely no evidence is forthcoming to show the assets or funds of the jointfamily available with the defendant from which he could have acquired theproperties. If leases were obtained by paying premiums, sufficient joint familynucleus from which premiums must have been paid, ought to be proved. If nopremium was paid, it will be a case, where, initial assets were acquired withoutexpending any funds. There is no acceptable evidence justifying the conclusionthat shivappa lived with his brother, assisting him in the cultivation of theleasehold; nothing on record to indicate that defendant held out the propertiespossessed by him belong to the joint family of himself and of his brother. passivity of the defendant all those years, till the year 1988, is a pointer to herearlier understanding that she had no claim over these properties. ( 34 ) IN these circumstances, we disagree with the view taken by the trial court and reverse its finding. However, plaintiff is entitled to a share in the familyhouse. Mr. Visveswara, the learned counsel for the appellants stated before usthat the entire family house could be given to the plaintiff without dividing itand the appellants would not claim any share in it; this submission is recordedand it is ordered that the appellants shall handover possession of the said housetmc No. 1228 to the plaintiff without reserving any right in themselves. ( 35 ) IN the result, this appeal is allowed; however, there shall be a decree in favour of the plaintiff, directing the appellants to handover possession of thehouse tmc No. 1228 in kundgol, to the plaintiff. parties to bear their respective costs throughout. The matter was placed before us for clarification to facilitate the drawing up the decree. ( 35 ) IN the result, this appeal is allowed; however, there shall be a decree in favour of the plaintiff, directing the appellants to handover possession of thehouse tmc No. 1228 in kundgol, to the plaintiff. parties to bear their respective costs throughout. The matter was placed before us for clarification to facilitate the drawing up the decree. We have reversed the finding of the trial court and held that the plaintiff is not entitled to any share in the properties described in the plaint. however, the family house was agreed to be given to the plaintiff without the defendants claiming any share in it. It is the only family property available for partition. The decree shall be accordingly framed stating that the suit for partition is dismissed except regarding the family house bearing No. Tmc 1228. The decree shall direct the defendants 10 hand over the aforesaid house tmc 1228 to the plaintiff, absolutely. The name of the counsel for the appellants is wrongly typed. The same shall be corrected as Sri S. C. Angadi. --- *** --- .