HARI NATH TILHARI, J. ( 1 ) THE above regular first appeals arise out of the judgment and decree dated 30th June 1997 passed by X Addl. City Civif Judge, mayo hall, Bangalore, in O. S. No. 4156/1980 declaring the plaintiff to be entitled to 1/8th share each in item nos. 1 to 3 of the suit schedule properties and for its separate possession by metes and bounds and further holding that defendants nos. 1 (c), 1 (d), (e), 1 (f), 1 (g), 1 (h) and second defendant are also entitled to 1/8th share each in item nos. I to 3 of the suit schedule properties. It further ordered and decreed that the plaintiff is at liberty to get the business accounts ascertained of the business carried on or done in item no. 1 of the suit schedule property at the time of drawing final decree. So far as the partition of item no. 4 of the plaint schedule property, the Court below held that the claim for partition is rejected or dismissed and further defendants 1 (a) and 1 (b) are not entitled to any share in the ,suit schedule properties. From the above judgment and decree, the plaintiff filed the appeal in R. F. A. No. 695. 1997 and Defendant no. 2 and Defendant no. 1 (e) filed the appeal in R. F. A. No. 720/1997. ( 2 ) ACCORDING to the plaintiff's case, the plaintiff and Defendant-2 have been the sons of P. S. Sadashiva Rao. While the Plaintiff has been the son of Defendant-1 P. E. Sadashiva Rao from his first wife smt Godavari Bai, and Defendant-2 is the son of Defendant-1 from his second wife Smt. Sumitra Bai. The plaintiff and defendants according to the plaint allegations were the member of joint Hindu family which inherited according to the plaintiff's case the premises bearing No. 151 (old No. 35) in Commercial Street, Bangalore and the premises bearing No. 262 Cavelry Road, Bangalore. According to the plaintiff's case under the deed of family arrangement, dated 27-11-1947, the aforesaid properties did fell to the share of defendant-1 i. e. , RE. Sadashiva Rao and his brother P. E. Panduranga Rao. According to the plaintiff's case under the deed of family arrangement, dated 27-11-1947, the aforesaid properties did fell to the share of defendant-1 i. e. , RE. Sadashiva Rao and his brother P. E. Panduranga Rao. According to the plaintiff's case P. S. Panduranga rao had instituted a suit in O. S. No. 56/1961 and compromise was arrived at therein between Defendant-1 and Panduranga Rao and as per the terms of the compromise the property bearing No. 151 of the Commercial Street was allotted to Defendant-1 P. E Sadashiva rao and the property bearing No 262- Cavelry Road, Bangalore, was allotted to Panduranga Rao and to equalise the shares defendant-1 Sadashiva Rao paid a sum of Rs. 8,000/- to Panduranga rao. According to the plaintiff's case Defendant-1 Sadashiva Rao was carrying on the business of Textile and Tailoring in the premises bearing No. 151, Commercial Street, Bangalore, under the name and style M/s Pissey Brothers. The plaintiff according to his own case was assisting Defendant-1 in the carrying on of the business. The plaintiff further alleged that Defendant-1 began to ill-treat the plaintiff and his sisters after having entered into second marriage or to say he took second wife viz. , Sumithra Bai. The plaintiff's mother having died according to the plaintiff. Defendant-1 married Smt. Sumithra Bai as second wife. The plaintiff alleged that on 23-2-1978 defendant-1 executed the deed of settlement settling the shop premises in Commercial Street in favour of the second defendant and therein he described his right to the said property as absolute. ( 3 ) ACCORDING to the plaintiff's case, Defendant-1 was not competent to settle the said property in favour of Defendant-2, as according to the plaintiff the properties in question have been the joint Hindu family properties and as such the plaintiff alleged that the settlement deed not to be valid and binding on him. The plaintiff alleged that after the joint acquisition Defendant-1 acquired other properties viz. , the site bearing No 211, Indiranagar, Site No. 106, Indiranagar, and another site in W. H. Hanumanthappa Layout as has been mentioned in detail in the schedule to the plaint. The plaintiff alleged that after the joint acquisition Defendant-1 acquired other properties viz. , the site bearing No 211, Indiranagar, Site No. 106, Indiranagar, and another site in W. H. Hanumanthappa Layout as has been mentioned in detail in the schedule to the plaint. The plaintiff asserted that all these properties, though the sale deed in relation thereto stand in the name of Defendant-1 i. e. , P. E. Sadashiva Rao, i. e. acquisitions of these properties was out of the income derived from the joint family business and Defendant-1 had no other source of income, as such, according to the plaintiff the plaintiff and defendants have been co-owners and joint owners in the properties and these properties are joint family properties. According to the plaintiff's case, the properties bearing Nos. 259, 260, 261 and 262 "a" Cavelry Road, civil and Military Station, Bangalore, were jointly purchased by 1) P. Krishnoji Rao, 2) P. Eswar Rao, 3) P. Rama Rao S/o P. Lakshman rao, 4) P. R. Dhondu Bai W/o P. Narayana Rao, S) P. Sarada Bai w/o P. Swamy 6) P Hanumantha Rao, Hari Rao, 7) P. Ramaswamy rao, 8) P. Ramachandra Rao, 9), 10) S. Rukmini Bai and 11) Dane deva Maharaj Saptha Charity they were joint land co-owners of the above mentioned properties bearing Nos. 259, 260, 261 and 262-A cavelry Road, Civil and Military Station, Bangalore and these properties were equally divided as it was not feasible to enjoy the. said properties by all of them jointly and the division was made in six equal shares. According to the plaintiff's case, all the aforesaid properties were put to auction interse between the parties and were purchased by P. Eswar Rao, in 1946 who subsequently purchased other properties bearing Nos. 19 and 20 in Narayana Pillai Street. All these items of properties were the self acquired properties of P; eswar Rao and were there in common notch potch. According to the plaintiff, P. Eswar Rao had married thrice. From P. Eswar Rao's first wife Lakshmi Bai they were two issues viz. , Sadashiva Rao and Kaveri Bai from his second wife Rukmini Bai had three sons viz. , P. E. Sadashiva Rao (Defendant-1), Ganoba Rao, and panduranga Rao. From his third wife Gowri Bai Eswar Rao had three sons viz. , SUrendranath, Kashinath and Gangadhar. Godavari bai has been the first wife of Defendant-1 Sadashiva Rao. , Sadashiva Rao and Kaveri Bai from his second wife Rukmini Bai had three sons viz. , P. E. Sadashiva Rao (Defendant-1), Ganoba Rao, and panduranga Rao. From his third wife Gowri Bai Eswar Rao had three sons viz. , SUrendranath, Kashinath and Gangadhar. Godavari bai has been the first wife of Defendant-1 Sadashiva Rao. The plaintiff claimed to be her son the only son. According to the plaintiff, defendant-2 is the only son of Sumithra Bai. Defendants 1 (a), i (b), 1 (c) 1 (d) 1 (f) and 1 (g) are the daughters of P. E. Sadashiva Rao (Defendant-1 ). are all married. According to the plaintiff Eswar Rao and his son the first defendant, Ganoba Rao and Panduranga Rao were members of a joint Hindu family and P. Eswar Rao treated the immovable properties acquired on 14-10-1930, 2-1-1935, and 3-9- 1941 as the, joint family properties of himself and his sons by voluntarily throwing them into the hotich-potch of the joint family. According to the plaintiff's case, there arose certain disputes and differences and so P. E. Eswar Rao, who was the Manager of the joint family made a family arrangement to give quietus to the dispute and under the family arrangement division of joint family properties were made by family arrangement on 29-11:1947. According Jo the plaintiff's case, under the family arrangement P. E. Sadashiva Rao and P. E. Panduranga Rao the properties viz. , the premises bearing no 35, Commercial Street, Civil and Military Station and property bearing no 262, Cavelry Road, Civil and Military Station were jointly allotted to the shares of Defendant-1, P. E Sadashiva Rao. and his brother P. E. Panduranga Rao. Later on a suit was filed in O. S. No 56/1961 by P. E. Panduranga Rao, which was finally compromised in terms of the compromise decree dated 22-1-1963. According to the plaintiff's case the business that was carried on by Defendant-1 of tailoring and sale of textiles in the premises bearing No. 35 commercial Street, Bangalore, was joint family business of p. Sadashiva Rao, the plaintiff and the second defendant and all the properties mentioned in the plaint schedule, according to the plaintiff have been the joint family properties of P. Sadashiva Rao and his two sons the plaintiff and second defendant. According to the plaintiff, item Nos 2 to 4 of the plaint schedule were acquired by Defendant 1 in his own name, but the some were acquired by the joint family nucleus and joint family labour of P. Sadashiva Rao and the plaintiff. Item nos. 2 to 4 of the plaint schedule were treated as joint family properties of P. Sadashiva Rao and his sons i. e. , the plaintiff and defendant-2 by voluntarily vending them to inheritance. The plaintiff claimed that each one of them viz. , Defendant-1, plaintiff and defendant-2 have been entitled to 1/3rd share each in the joint family business its income arid the joint family properties. The plaintiff alleged that P. Sadashiva Rao, Defendant-1 their father as Manager had no right to make the deed of settlement settling the plaint schedule properties exclusively in favour of Defendant-2 and as such the said settlement deed dated 23-2-1978 is illegal, void and is liable to be ignored and in the normal course the plaintiff have been entitled to 1/3rd share in the joint family properties and joint family business as coparceners. ( 4 ) ACCORDING to the plaintiff's case, Defendant-1 died on 18-2-1994 during the pendency of the suit and according to the plaintiff's case the plaintiff, Defendant-2 and Defendants 1 (a) to 1 (g) and each one of them is entitled to equal share in the 1/3rd share of Defendant-1. So, the plaintiff claimed to be entitled to 1/3rd share in the plaint schedule properties in his own right as coparcener as well as to equal share in 1/3rd share of Defendant-1. According to the plaintiff in view the Hindu Succession Act (Karnataka Amendment) Act, 1990 the two unmarried daughters Defendant 1 (c) and Defendant-1 (d) the two married daughters cannot claim any share in the joint family properties, or joint family business. According to the plaintiff, defendant-1 (c) and Defendant-1 (d) i. e. , unmarried sisters and the two married sisters pefendanm (g) and Defendan1 (h) are entitled to 1/7th share plus equal share in 1/7th share of Defendant-1 The plaintiff alleged that the cause of action for the suit would accrue in february 1978 and in January 1979 and the plaintiff prayed for the relief of declaration of his right to 1/7th share in the joint family properties described in item nos. 1 to 4 of the plaint schedule and 1/10th of 1/7th share as well. The plaintiff also prays for a decree declaring that he is entitled to 1/7th share in the joint family properties described as item nos. 1 to 4 in the plaint schedule plus 1/10th of the 1/7th share for which the plaintiff is entitled alternatively if Section 8 of the Hindu Succession Act is applicable. ( 5 ) THE suit properties as mentioned in the plaint schedule are as under: :1. Shop premises bearing no. 151 (old) (New) 35 and bounded as follows : south by Commercial Street, east by Premises No. 34, Commercial Street, and West by premises No. 34-A, Commercial Street. 2. A site bearing No. 211, measuring 80' x 90' first stage,indiranagar, Bangalore. 3. A site in between site No. 1/f and 1/c of W. H. Hanumanthappalayout, Ulsoor Road, Bangalore-8. 4. A site bearing No. 106, measuring 45' x 35', Indiranagarbangalore. 5. Joint family business done in suit item no. 1 in the sate ofreadymade goods and garments with tailoring now having the name and style of "pissey TAILORS". ( 6 ) DEFENDANT-1 along with Defendant-2 filed the written statement denying the plaint allegations. . ( 7 ) IT may be mentioned here that Defendant-1 P. E Sadashiva Rao died during the pendency of the suit in 1984. According to Defendants 1 and 2 the allegation to the effect that item no. 1 of the plaint schedule property is the ancestral property as well as the allegation that item Nos. 2 to 4 were acquired by joint family funds or funds belonging to the joint family is false The defendants deny that the said properties were ancestral properties. They have also denied that item nos. 2 to 4 of the plaint schedule properties were joint family properties. According to Defendant-1 the properties viz. , the premises bearing No. 151 commercial street' and the premises bearinu no. 262 Cavelry Road constituted the self acquired properties of P. Eswar Rao and under the deed dated 29-11-1947 P. Eswar rao transferred the two properties to Defendant-1 P. E. Sadashiva rao and his brother P. E; Panduranga Rao and the two brothers became joint owners of the suit properties, which subsequently under the compromise partition decree item No. 1 i. e. , the premises bearing no. 151 Commercial Street was allotted to the share of Defendant-1 and the same was the exclusive property of Defendant-1 and he became the absolute owner of the same. According to Defendant-1 the plaintiff is not entitled to any share. Defendant-1 died during the pendency of suit. As mentioned earlier the defendants further allege that as the plaintiff has not sought for setting aside the settlement deed dated 23-2-1998. Therefore, the suit was not maintainable. ( 8 ) NO doubt, after the death of Defendant-1, the plaintiff had amended the plaint. The defendants filed the written statement. ( 9 ) IT was asserted that Defendant-1 during his life time had executed a registered will on 29*3-1993 and under the said will he created life Interest in respect of item no. 3 of the plaint schedule properly in favour of Defendant-1 (e) and has created absolute right in favour of defendant-2 and that Defendant-2 has become the absolute owner in possession and enjoyment of the same on the basis of the will dated 29-1-1993. It was further stated that item Nos. 2 to 4 of the plaint schedule properties were separate properties of the deceased defendant-1 and he had already sold item no. 4 long back during his life time. Defendants 1 and 2 stated that Defendants 1 (a) to1 (d) do not have any right or interest in the suit schedule properties. The suit was also alleged to be liable to be dismissed on the ground of bar of limitation as well ( 10 ) BY filing the replication to the additional written statement, the plaintiff asserted that the Will dated 29-1-1993 alleged to have been executed by Defendant-1 is not a genuine document, instead it has been fabricated by Defendant-2 with a view to defeat the plaintiff's right. Thus, the execution of the Will dated 29-1-1693 had been denied and challenged by the plaintiff. The defendants further asserted that Defendant-1 P. E. Sadashiva Rao was not possessed by testamentary capacity to execute such a Will as he was ailing and he did not have necessary mental awareness to execute the will. The defendants further alleged that the properties teing joint family properties of the plaintiff, Defendant-1 and Defendant-2 so defendant-1 had no,. right to execute the Will. As such the defendants allege that the plaintiff is not bound by the said Will. The defendants further alleged that the properties teing joint family properties of the plaintiff, Defendant-1 and Defendant-2 so defendant-1 had no,. right to execute the Will. As such the defendants allege that the plaintiff is not bound by the said Will. ( 11 ) ON the basis of the pleadings of the parties, the trial Court framed the following issues: (1) Whether the plaintiff proves that item No. 1 of plaint schedule is a joint family property? (2) Whether plaintiff proves that there was joint family business and that items 2. to 4 were acquired from the income and funds, of joint family business as alleged ? (3) Whether suit properties are self acquired properties of first defendant ? (4) Whether suit is not maintainable ? (5) What relief ? ( 12 ) ADDITIONAL issue Was also framed on the basis of the additional pleadings which had been made after the death of Defendant-1 and the said additional issue reads as. under: whether defendant No. 1 (e) and second defendant prove that the deceased first defendant executed the Will dated 29-1-1993 bequeathing item No. 3 in favour of the second defendant ? ( 13 ) THE parties to the case examined themselves as P. Ws as well as examined other witnesses, and as D. Ws and filed certain documents. ( 14 ) AFTER consideration of the material on record the trial Court delivered the judgment and decree decreeing the plaintiff's claim for partition and shares of parties as has been indicated in the earlier part of this judgment holding that plaintiff to be entitled to the Share as mentioned earlier i. e. the plaintiff is entitled to 1/8th share each in item Nos. 1 to 3 of the suit schedule properties. It is further ordered and decreed that Qefendants 1 (c), 1 (d), 1 (e), 1 (f), 1 (g) and 1 (h) and defendant-2 are also entitled to 1/8th share each, as in the same way the plaintiff is entitled in item nos. 1 to 3 of the suit schedule properties. It held the plaintiff to be entitled and to be at liberty to get business accounts ascertained of the business carried on or done in item no. 1 of the suit schedule property at the time of drawing final decree. 1 to 3 of the suit schedule properties. It held the plaintiff to be entitled and to be at liberty to get business accounts ascertained of the business carried on or done in item no. 1 of the suit schedule property at the time of drawing final decree. The claim of the plaintiff for partition of item No. 4 of the plaint schedule property had been rejected and Defendants t (a) and 1 (b) were held to be not entitled to any share in the suit properties. Vide the judgment and decree of the trial Court dated 30th June 1997. ( 15 ) THE trial Court held and recorded the following findings; that the plaintiff has beeri able to establish that item no. 1 of the suit schedule property is a joint family property. It is established that as the said property was acquired by Defendant-1 under partition ex. P2. But does not amount to separate property and so item No. 1 of the suit schedule property is a coparcenary property. ( 16 ) THAT as item no. 1 of the suit schedule property was allotted to defendant-1 under a deed of partition Ex. P-2 in 1947 and it has been found to have been a coparcenary property, the business carried therein in the name of Pissey and Sons by Defendant-1 viz. tailoring business and so the income derived from business in shop item no. 1 of suit-schedule property became joint family income. That item nos. 2 to 4 of the suit schedule properties having been acquired by Defendant-1 out of that nucleus has also been found to be joint family property properties. The Court below answered the issue regarding item Nos. 2 to 4 of the suit schedule properties in affirmative. The trial Court rejected the claim of partition of item no. 4 of plaint schedule property as in its opinion item no. 4 was not available for partition on the date of the suit arid had already beer* sold to Smt. Adilakshmi vide Ex-P25 and she had not been made a party to the suit. That the Court below has answered issue no. 3 in the negative by holding that the suit properties were not the self acquired properties of deceased Defendant-1 RE. Sadashiva Rao. The Court below has further held that Defendant-1 could not have. executed the settlement deed dated 23-2-1978 settling item np. That the Court below has answered issue no. 3 in the negative by holding that the suit properties were not the self acquired properties of deceased Defendant-1 RE. Sadashiva Rao. The Court below has further held that Defendant-1 could not have. executed the settlement deed dated 23-2-1978 settling item np. 1 of the suit schedule property in favour of Defendant-2 as according to the trial Court there was a clear bar under Ex. P2 i. e. , family settlement which debarred Defendant-1 from disposing of his share or property of his share in the family arrangement. So, it held that the family settlement Ex. P. 12 dated 23-2-1978 to be illegal-and In operative and not binding on the plaintiff and other share holders. It further the1d that the defendants have failed to prove due execution of the Will Ex. P13 dated 29-1-1993. It further observed that defendant-1 could not device by Will the joint family property, or any part thereof and Ex P-13 as such was ineffective and unenforceable. Having recorded the above findings, the trial Court decreed the suit as mentioned above. ( 17 ) FEELING aggrieved from. the judgment and decree of the Court below, the above mentioned two appeals viz. R. F. A. No. 695/1997 and R. F. A. No. 720/1997 have been filed by the plaintiff and defendants as has been indicated above. ( 18 ) I have heard the learned Counsels appearing for the parties in both the appeals for good length of time. The following questions do arise for consideration from the contentions advanced by the learned Counsels for the parties,1) Whether the properties in dispute mentioned in the suit schedule are joint family properties of the parties viz. , plaintiff and original defendants 1 and 2, or the self acquired properties of defendant No. 1 ? 2) Whether original Defendant No. 1 P. E. Sadashiva Rao, could execute the settlement deed dated 23-2-1978 in favour of Defendant 2 transferring item no. 1 of the suit schedule property i. e. , the premises bearing No. 151, Commercial Street, Bangalore (Ex. P12) and is: it valid or not ? 2 (i) (ii) Whether 1st defendant could execute the settlement deed: in favour of Defendant no. 2 in the suit ? 3 (i) Whether have Defendant no. 1 (e) and Defendant no. 1 of the suit schedule property i. e. , the premises bearing No. 151, Commercial Street, Bangalore (Ex. P12) and is: it valid or not ? 2 (i) (ii) Whether 1st defendant could execute the settlement deed: in favour of Defendant no. 2 in the suit ? 3 (i) Whether have Defendant no. 1 (e) and Defendant no. 2, established that the deceased 1st defendant P. E Sadashiva Rao had executed the Will dated 29-1-1993 bequeathing item no. 1 of the suit schedule property in favour of Defendant-2? 3 (ii) Whether Defendant-1 could lawfully execute the Will in respect of item No. 1 of the suit schedule property in favour of defendant-2 ( 19 ) THAT the first question viz. , Whether the properties consisting of item nos. 1 to 4 of trie suit schedule properties are joint family properties consists of two issues viz. , a) Whether item No. 1 of the suit schedule property is a joint family property or joint ancestral property of the parties ? b) Whether item Nos. 2 to 4 of the suit schedule properties which were acquired in the name of P. E. Sadashiva Rao were acquired out of the joint family business and income thereform or out of his self earned income? whether the business carried on by P. E. Sadashiva Rao was joint family business. If yes, whether Item nos. 2 to 4 of the plaint schedule have been established to have been acquired out of the income ,of joint family business? c) Whether P. E. Sadashiva Rao (Defendant-1) treated his earnings to be Joint family income, or did he blend the self acquired property to the joint family and litem No. 2 to 4 of the plaint schedule were treated as joint family properties? the case of the plaintiff in the Court below as per the pleadings has been that item no. 1 of the plaint schedule viz. , the shop premises bearing no-151 (old) New No. 35 situated in Commercial Street, bangalore, and the premises bearing No. 262 Cavelry Road, bangalore, had fallen to the share of the original Defendant-1 RE sadashiva Rao under the deed of partition dated 27-11-1947 vide ex-P2 the deed of settlement. This deed of settlement was made by p. Eswar Rao, settling the properties amongst his children. It is under this deed the premises bearing no. This deed of settlement was made by p. Eswar Rao, settling the properties amongst his children. It is under this deed the premises bearing no. 151 situated in Commercial Street, bangalore i. e. , item no. 1 of the plaint schedule and the premises bearing No. 262 situated in Cavelry Road, Bangalore were given to defendant-1 P. E. Sadashiva Rao and his brother RE. Panduranga rao jointly. According to the plaintiffs case, there was a suit Instituted by P. E. Panduranga Rao in the year 1961 i. e. , Original Suit No. 56/ 1961. In that suit a compromise was arrived at and under the compromise decree the premises bearing No. 151 situated in commercial Street, Bangalore was allotted to Defendant-1 KE. Sadashiva Rao and,the other premises bearing No. 262 situatedln cavery Road, Bangalore, was allotted to his brother P. E. Panduranga rao. According to the plaintiff to equalise the share of Panduranga rao, the Defendant-1 paid a sum of Rs. 6,000/- to Panduranga Rao. According to the plaintiff, Defendant-1 P. E. Sadashiva Rao on 23-2- 1978 executed a settlement deed settling the shop premises No. 151 situated in Commercial Street, Bangalore in favour of Defendant-2 p. S Salram and as it was a joint family property defedant-1 P. E sadashiva Rao could" not execute the aforesaid deed of settlement in respect thereof in favour of Defendant-2. ( 20 ) THE defendants deny, that item no. 1 of the plaint schedule was the joint ancestral property of Defendant-1. The defendants allege that really the properties in dispute are not the joint family properties neither item no. 1 of the plaint schedule, according to the defendants was the ancestral property nor item nos. 2 to 4 of the plaint schedule were acquired out of the joint family funds. According to the defendants 1 there was no joint family business at all, nor item nos. 2 to 4 of the plaint schedule had been acquired by joint family funds or income. The defendants assert that the premises both situatedin commercial Street and Cavelry Road. 2 to 4 of the plaint schedule were acquired out of the joint family funds. According to the defendants 1 there was no joint family business at all, nor item nos. 2 to 4 of the plaint schedule had been acquired by joint family funds or income. The defendants assert that the premises both situatedin commercial Street and Cavelry Road. Bangalore were theself acquired properties of P. Eswar Rao the father of Defendant and the said P. Eswar Rao, the father of Defendant-1 under the deed of family arrangement dated 29-11-1947 transferred the above items of properties to Defendant-1 and his brother Panduranga Rao and by virtue of the said deed Defendant-1 P. E Sadashiva Rao and his brother P. E. Panduranga Rao, became the owners of the two premises. Later on by virtue of the compromise decree passed-in o. S. 56/1961 the first defendant became the absolute owner of the premises no. 151 situated in Commercial Street, Bangalore and it constituted his separate property specially when Defendant-1 had paid a sum of Rs. 8,000/- for the purpose of equalisation of the. shares. ( 21 ) BEFORE proceeding further, it will be appropriate to consider the question as to whether item no. 1 described herein as premises no. 151 situated in Commercial Street, Bangalore, was the joint ancestral property in the hands of P. E. Sadashiva Rao, or the separate property of. P. E. Sadashiva Rao. Cater on acquisition by him under the settlement deed dated 29-11-1947 and the compromise decree referred to above P. E Sadashiva Rao became its absolute owner and it was his separate property. If item no. 1 of the plaint schedule is not shown to be the ancestral property coming to P. Eswar Rao and if it was acquired by P. Eswar Rao as separate property, then in the hands of P. E. Sadashiva Rao and his brother P. E. Panduranga rao, under the settlement deed dated 29-11-1947, no doubt it could be the joint family property of P. E. Sadashiva Rao and P. E. Panduranga Rao. Thereafter, under the compromise decree under which partition happened between the two brethrens viz. . P. E sadashiva Rao and P. E Panduranga Rao and the premises bearing no. 262 of Cavelry Road, Bangalore, having gone to the share of xs p. E Panaduranga Rao and he having received a sum of Rs. Thereafter, under the compromise decree under which partition happened between the two brethrens viz. . P. E sadashiva Rao and P. E Panduranga Rao and the premises bearing no. 262 of Cavelry Road, Bangalore, having gone to the share of xs p. E Panaduranga Rao and he having received a sum of Rs. 8,000/- from P. E. Sadashiva Rao, as equalisation of his share, definitely P. E panduranga Rao, would have cease to have any interest or share in premises no. 151 of Commercial Street, Bangalore, by virtue of the compromise decree among the two brethrens. Ex. P. 30 on record is the deed dated 4/6th October 1930. This is the deed executed by mohammad Haji Esa Sayeed S/o Haji Isa Sayeed described as vendor in favour of P. Eswar Rao, the father of P. E. Sadashiva Rao and P. E. Panduranga Rao, whereby the vendor for the full sale. consideration of Rs. 10,000/- conveyed by sale the property i. e. , premises bearing no 151 (Old No. 35) of Commercial: Slreet, bangalore, as described therein with all interest and full rights in favour of P. Eswar Rao. This property as appears from Ex. P-30 was purchased by the vendor by Haji Isa Sayeed in Court's sate and it was sold on 5-11-1929 and the sale certificate in favour of Haji Isa sayeed was issued on 15-1-1930. The said Haji Isa Sayeed having become the full owner thereof sold the property in favour of P. Eswar rao. There is no evidence on record to the contrary. The sate deed in respect of the property i. e. , premises bearing no, 151 ,of commercial Street, Bangalore, Ex. P-30 being in the name of P. . Eswar Rao ordinarily it is to be deemed and taken that the purchaser i. e. , P. Eswar Rao, in whose name Ex. P-30 stands is ordinarily under the law is to be taken to be the owner of the property. The burden is on the person or party, who claims to be joint ancestral and coparcenary property to prove that fact by evidence that it was acquired by the joint family nucleus earned with the assistance of joint family funds or the family was possessed of sufficient funds or property to provide sufficient means for acquiring of that property by the purchaser. It is well settled principle of law that a Hindu even it be joint may possess separate property and such property belongs exclusively to him and no other male member can acquire any interest by birth and that a father who is joint with his sons may sell his self acquired property including the immoveable property. He can as well dispose it of in his own way. it is also well settled that the property inherited by male Hindu from his father, his fatherts father or so on is ancestral as regards his male issues. As mentioned earlier, if the properties acquired with the aid of the joint family members or joint family funds the ordinary presumption is that it is a joint family property. There may be presumption of joint family, but there is no presumption that because there is joint family or coparcenary property possessed by a member of the joint family is a joint family property. The person alleging and asserting the! property to be joint family property, the burden is on him to prove it and to show that the joint family was possessed of the property which property has furnished sufficient nucleus for acquiring or for prchase of item no. 1 of the plaint schedule property which is alleged to be joint family property. Where it is established or admitted that the joint family was possessed of joint family property which from Its nature and relative value may form the nucleus from which proprty in question may have been acquired, then presumption may arise that the property acquired was joint family property and the burden may shift on the party alleging it to be the self acquisition to establish affirmatively that the property was acquired without the aid of joint family, and that under Law no such presumption would arise in order to give rise to the presumption the nucleus must be such that by its help the property claimed to be joint could have been acquired and this has to be established by evidence to be lead. Mere existence of nucleus is not sufficient and is not the sole criteria to impress the subsequent acquisition with family character. Mere existence of nucleus is not sufficient and is not the sole criteria to impress the subsequent acquisition with family character. What has to be shown is that the family had as a result of nucleus sufficient surplus income from which subsequent acquisition could be made and the burden to establish this is on the person who alleges and asserts acquisition of the property to be joint family property. Reference in this Tegard may be made to the decision of their Lordships of the Supreme court in the case of SHRINIVAS KRISHNARAO KANGO vs narayan DEVJI KANGO AND OTHERS as well as to the decision of the Supreme Court in the case of MUDIGOWDA GOWDAPPA sunidi vs RAMCHANDRA REVGOWDA SANIDI. Their Lordships in paragraph 6 of the said report have observed and laid down as under:"the law on this aspect of the case is well settled of course there is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property, is joint family property, is, therefore in, the first instance upon the person who claims it as coparcenary property. But, if the possession of a nucleus of the joint family, js either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as, with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown; that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. In Appalaswand v. Suryanaray anas wand ILR (1948) Mad. 440 = (AIR 1947 PC 189} Sir John Beanmont observed asfolllows: "the Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item , of property was joint to establish the fact. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item , of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. See Babubhai Girdharlal vs Ujamlal hargovandas ILR (1937) Bom 708 = (AIR 1987 Bom. 448), venkataramayya v. Seshamma ILR 1987 Mad 1012= (AIR 1987 mad. 538) and Vythianatha vs Varadaraja, ILR (1938) Mad. 698 (AIR 1988 Mad 841 ). " ( 22 ) SIMILAR view has also been expressed in the case of SURENDRA kumar vs PHOOLCHAND. Keeping the above principles in view, it has to be examined whether the plaintiff has proved that the property i. e. , premises bearing no. 151 situated in Commercial Street, Bangalore, to be the joint family property of P. Eswar Rao or PE. Sadashiva Rao. The plaintiff has taken the case vide paragraph 7 (d) of the plaint that P. Eswar Rao treated the immoveable properties acquired by him on 14-10-1930, 2-1-1935 and 3-9-1941 as the joint family properties of himself and his sons by voluntarily throwing them into the hotch-potch of the joint family. It does not appear to be the plaintiff's case that item no. 1 of the plaint schedule property was acquired by P. Eswar Rao by joint family necleus. The plaintiff's case as per paragraph 7 (b) of the plaint appears to be that the properties viz,, the premises situated at Commercial Street, bangalore, the premises situated at Cavelry Road, Bangalore and the properties,viz. , 19 and 20, Narayana Pillai Street, which was acquired in the year 1941. The plaintiff in the plaint states that all these three items of properties were self acquired properties of P. Eswar Rao. Therefore, as per the pleadings of the plaintiff as contained in the plaint that the properties situated at commercial street and Cavelry Road, Bangalore, were no doubt the self acquired properties of P. Eswar Rao and were not the ancestral properties in the hands of P. Eswar Rao. Therefore, as per the pleadings of the plaintiff as contained in the plaint that the properties situated at commercial street and Cavelry Road, Bangalore, were no doubt the self acquired properties of P. Eswar Rao and were not the ancestral properties in the hands of P. Eswar Rao. In paragraph 7 (d) of the plaint, no doubt, the plaintiff has taken the plea to the effect that P. Eswar Rao and his son the first defendant Ganoba Rao and Panduranga Rao were members of a joint Hindu family. P. Eswar Rao treated the immoveable properties acquired by him on 14-10-1930, 2-1-1935 and 3-9-1941 as the joint family properties of himself and his sons by voluntarily throwing them into the hotch-potch of the joint family. It is further stated therein that since difference arose between the father and the son in regard to the division of the family property, p. Eswar Rao, who was the Manager of the joint family in order to give quietus to the dispute between himself and his sons in regard to the division of the joint family properties made a family arrangement on 29. 11. 1947 and properties item 'b' to the schedule to Ex. P-2 dated 29-11-1947 were given to Defendant-1 and panduranga Rao. So, it appears that the plaintiff admits that item no. 1 of the plaint schedule property was acquired by P. Eswar Rao the father of P. E. Sadashiva Rao and Panduranga Rao was not acquired by use of any joint family nucleus, nor is there any body's case that there was joint family funds or any joint family property which could have provided nucleus to P. Eswar Rao to acquire the properties under the deeds dated 14-10-1930, 2-1-1935 and 3-9- 1941 and all these properties no doubt were the self acquired properties of P. Eswar Rao. The only case pleaded in paragraph 7 (d) of the plaint has been that P. Eswar Rao blended or voluntarily thrown his properties Into the hotch-potch of the joint family. The question to be considered with respect to item no. 1 of the plaint schedule i. e. , the property situated in Commercial Street, Bangalore, whether the plaintiff has proved his case of blending or of; throwing voluntarily the self acquired properties by P. Eswar Rao to the hotchpotch of the joint family. The question to be considered with respect to item no. 1 of the plaint schedule i. e. , the property situated in Commercial Street, Bangalore, whether the plaintiff has proved his case of blending or of; throwing voluntarily the self acquired properties by P. Eswar Rao to the hotchpotch of the joint family. ( 23 ) AS regards the question of blending, it has been laid down, by their Lordships of the Supreme Court in the case of MALLESAPPA bandappa DESAI vs DESAl MALLAPPA ALIAS MALLESARPA that doctrine of blending has been recognized and has become part of hindu law. Their Lordships of the Supreme Court in paragraph 10 of the said report observed as under:"in Rajanikanta Pal v. Jagmohan Pal 50 Ind App 173; (AIR 1923 PC 57), the Privy Counsel held that "where a member of a joint Hindu family blends his self acquired property with property of the joint family, either by bringing his self acquired property into a joint family account, or by bringing joint family property into his separate account the effect is that all the property so blended becomes a joint family property. . . "further, their Lordships of the Supreme Court in paragraph 11 of the said report observed as under'the rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate. property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes part of the joint family estate; in other words the separate property of a coparcener loses' its separate character by reason of the owner's conduct and get thrown into the common stock of which it becomes a part. The doctrine, therefore, invariably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The doctrine, therefore, invariably postulates that the owner of the separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from ,the said property may not necessarily be enough to justify an inference of blending, but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of, a coparcener. " ( 24 ) IN the case of MADANLAL PHULCHAND JAIN vs. STATE OF maharashtra their lordships of the Supreme Court in paragraph 3 of the said report has laid it down as under:"but the appellant contends that his separate property got blended with his ancestral property and thereby acquired the character of ancestral property in which his major son became entitled to 1/5th share on notional partition. It is true that under the Mitakshara Law each son has in his birth takes an interest equal to that of his father in ancestral property, both moveable and immoveable. This right lis independent of his father. Therefore, if the appellant is liable to establish blending of his separate property with ancestral property, the plea of deduction of 1/5th share of his son on notional partition may perhaps be well founded. It must, therefore, be shown that he had thrown his separate property into the common stock with the intention of abandoning his separate claim thereon. Evidence must be led to show a clear intention on his part to give up separate rights and allow the separate property to be treated as ancestral property and be enjoyed by these coparcener. It must, therefore, be shown that he had thrown his separate property into the common stock with the intention of abandoning his separate claim thereon. Evidence must be led to show a clear intention on his part to give up separate rights and allow the separate property to be treated as ancestral property and be enjoyed by these coparcener. Such an intention has to be proved by tendering evidence, since no such inference can be drawn even from the fact that he had permitted his family members to use it along with him nor can it be proved from the mere fact that the income of the separate property was used for supporting his son or from the fact that he had (ailed to maintain separate accounts of the yield of both sets of properties. " ( 25 ) IN the present case, there appears no evidence ied prove blending at all. P. W. 2 has examined himself as a witness. As per the deposition of P. W. 2 Rama Rao dated 6-1-1997 and contained in paragraph 3 of his statement it is after this partition my grand father eswaf Rao was doing the tailoring and textile business. In the year 1930 Eswar Rao purchased the property bearing No. 35 at commercial Street, the new number is 150. It is the first item of the plaint schedule. I have filed the certified copy of the sale deed. The original sale deed is misplaced and to the best of my efforts, I could not trace the same therefore I filed the certified copy and marked as ex. P-30. Thereafter, at paragraph 4 he has stated that "my grand father Eswar Rao, also treated the suit properties as joint family properties. It is to be taken note of that vide the settlement deed ex. P2 dated 29-11-1947 to avoid the likely disputes among his children Eswar Rao had divided his properties amongst his children and gave item no. 1 of the plaint schedule property i. e. , Commercial street property and Cavelry Road property to Defendant-1 and his brother P. E. Sadashiva Rao and they got possession with rights. The evidence of PW. 2 further reveals that he was born in 1950 i. e. , on 10-5-1950. 1 of the plaint schedule property i. e. , Commercial street property and Cavelry Road property to Defendant-1 and his brother P. E. Sadashiva Rao and they got possession with rights. The evidence of PW. 2 further reveals that he was born in 1950 i. e. , on 10-5-1950. Therefore, he could not state about the blending because at that time the properties situated in Commercial Street and Cavelry Road Bangalore were given by Eswar Rao to his sons viz. , P. E Sadashiva Rao and P. E Panduranga Rao. There is no evidence on record to shbw that Eswar Rao treated the properties purchased by him in the year 1930 or in 1941 as joint family properties or joint ancestral properties perusal of Ex. P2 the settlement deed dated 29th November 1947 per se reads as under:"and Whereas the party of the first part the said Pissey Eswar rao inherited little or no property from his ancestors and having received for his share a sum of Rs. 1000/- in cash in course of the partition between himself and his brothers under a deed of partition dated 19-9-1927. "ex. P-29 is the partition deed amongst the children of Lakshman rao, partition amongst Eswar Rao and his brothers. From that deed it appears that Eswar Rao had only received a sum of Rs. 1000/- towards his share in the properties scheduled in that deed and relinquished his right in favour of P. Rama Rao. Really others also received the money in lieu of their respective shares and immoveabie properties coming from Lakshman Rao had been given to P. Rama rao therein Ex. P-29 read with Ex. P-2 reveals that Eswar Rao did not receive any ancestral property except a sum of Rs. 1,000/- in cash and Eswar Rao has clearly mentioned in the deed that in the year 1947 the said amount of Rs. 1,000/- was utilised for family necessity and its maintenance. Ex. P-2 shows that Eswar Rao treated his properties under Schedule 'b' of that deed to be his self acquired properties. Thus, I am of the considered view from the evidence on record it appears that the property situated at Commercial Street i. e. , item no. 1 of the plaint schedule has been the self acquired property of P. Eswar Rao and it is held that Commercial Street property referred to above as item no. Thus, I am of the considered view from the evidence on record it appears that the property situated at Commercial Street i. e. , item no. 1 of the plaint schedule has been the self acquired property of P. Eswar Rao and it is held that Commercial Street property referred to above as item no. 1 of the plaint schedule has been the self acquired property of P. Eswar Rao. ( 26 ) IN this connection, another question crops up. to be answered to give a final finding. As regards issue no. 1, in the plaint and that is to the effect when P. E. Sadashiva Rao got item no. 1 of the plaint schedule property from his father not by inheritance but, under the deed Ex. P2 dated 29-11-1947 can that property be said to have acquired the character of ancestral property or joint family property between Defendant-1 and his children or did to the hands of defendant no. 1 continued to be Defendant-1's separate property. Before I proceed with this question, it will be appropriate at this juncture to state that there has been difference of opinion pn the high Courts on such issue. But, later on in the case of c. M. ARUNACHALA MUDALIAR vs C. A. MURUGANAJHA mudaliar and ANOTHER the law has been laid down to the effect that where the father has absolute right of disposition of his self acquired property, it would not be possible to hold that such property in which the father had absolute right of disposition as self acquired property if such property is bequeathed or gifted or given by the father to his son in all circumstances be ranked as ancestral property in the hands of donee in which his sons would acquire coordinate interest. It will be appropriate to quote the following observations in paragraph 11 in C. N. ARUNACHALA MUDALIAR vs C. A. MURUGANATHA MUDALIAR"in view of the settled law that a Mitakshara father has absolute right of disposition over the self acquired property to which no exception can be taken by his male descendants it is in our opinion not possible to laid that such property bequeathed or gifted to a son must necessarily and under all circumstances rank as ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest. Their Lordships further laid it down in the same paragraph as under; "it is undoubtedly true that according to Mitakshara the son has a right by birth both in his fathers and grandfathers estate, but as has been pointed out before a distinction is made in this respect by Mitakshara itself. In the ancestral or grandfathers property in the hands the father the son has equal rights with his father while in the self acquired property of the father his rights are unequal by reason of the father having an independent power over or predominant interest in the same vide Mayne's Hindu law 11th Edition page 336. It is obvious however that the son can assert this equal right with the father only when the. grandfather's property has devolved upon his father and has become ancestral property in his hands The Property of the grandfather can normally vest in the father as ancestral property (a) if and when the father inherits such property on the death of the Grand father or (b) receives it by partition, made bv the grand father himself during his life time. On both these occasions the. grand father's property comes to the father bv virtue of the lattert's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands. But when the father obtains the grand father's property by way of gift he receives it not because he is a son or has any legal right to such property 'but because his father chose to bestpw a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend pun the will of the grantor. A good deal of confusion, we think, has arisen by not keeping this distinction in mind to find out whether a property is or is not ancestral in the hands of a particularly person, not merely the relationship between the original and present holder but the mode of transmission also must be looked to ; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. " ( 27 ) THE same principle and same view on this subject has also been laid down in another decision of the Supreme Court viz. , M. P. PERIA karuppan CHETTIAR vs COMMISSIONER OF INCOME TAX, wealth TAX, GIFT TAX, MADRAS. In the case of commissioner OF IN. COME TAX, MADHYA PRADESH vs maharaja BAHADUR SINGH and OTHERS their lordships of the supreme Court at page 521 laid it down as under: the question whether a gift of self-acquired or separate property by a father to his son results in the son holding ft as ancestral property was considered by this Court in C,n. , arunachala Mudaliar v. C. A Muruganatha Mudaliar 1954 SCR 243 ; ( AIR 1953 SC 495 ) and it was laid down that it was perfectly competent for the father, when he makes a gift, to provide expressly either that the donee would take it exclusively for himself or that the gift would be for the benefit of the branch of his family, and if there are express provisions to that effect in the deed of gift or will, the interest which the son would take in such. . property would depend upon the terms of the grant. Where the document contains no clear words describing the kind of Interest which the donee is to take, the question is one of construction and the Court must collect the intention of the donor from the language of the document taken along with the surrounding circumstances. There is no presumption one way or the other," in view of the above principles of law as laid down by the supreme Court, it is necessary to consider Ex. P2 whereunder and whereby item no. There is no presumption one way or the other," in view of the above principles of law as laid down by the supreme Court, it is necessary to consider Ex. P2 whereunder and whereby item no. 1 of the plaint schedule property i. e. , Commercial street property tame to the possession and control of Defendant-1 p. E. Sadashiva Rao, P. Eswar Rao the father of Defendant-1 as per the deed indicates that" And whereas the party of the first part the said Pissey Eswar Rao had thought fit and deemed expedient and necessary to divide properties amongst his children during his life time in order to set at rest atl existing future disputes and differences of whatsoever nature the parties hereto have agreed that the said items of property shall as from the date hereof be held enjoyed and regulated and devolved in manner herein appearing and whereas for the purpose of more effectively said items of property in accordance with the disposition herein contained it has been agreed that such of the properties hereunto as have the apparent legal or beneficial title or interest in the various pieces or parcels or property shall release and relinquish all such legal and beneficial ownership in favour of and for the benefit of the person and persons to be named hereinafter" The deed indicates that under the deed it has been very clearly mentioned that notwithstanding the dispositions inter vivos hereby effected or intended he the said Piseey. Eswar rao the father of Defendant-1 was to continue during all his life time have the sole right to collect the rents of the properties mentioned in Schedule A and D and to pay taxes. The properties of schedule B to Ex. P2 so far are concerned, it is mentioned "in the deed as under:"the properties described of in the Schedule B hereunder shall likewise be vested and be deemed vested in the said P. E sadashiva Rao. P. E Panduranaa Rao, the party of the 8th and 7th part and their respective issues. " ( 28 ) IT is further mentioned in the deed Ex. P2 that the above said parties shall not be bound to give any account of the rents and profits of their properties either to their respective issue or any of the other parties to the deed of arrangement. " ( 28 ) IT is further mentioned in the deed Ex. P2 that the above said parties shall not be bound to give any account of the rents and profits of their properties either to their respective issue or any of the other parties to the deed of arrangement. There is another important clause in the deed that the above said parties shall have a life interest in the properties described in the Schedule A, B, C, and D. Ex. P2 further provides as under : "it is further agreed that notwithstanding anything to the contrary else where herein contained that the party of the 3rd 4th, 5th, 6th 7th. 8th, 9th, 10th, 11th, 12th and 13th part shall not have anv right to sell, mortgage makes a gift of or otherwise alienate or change or encumbrances of the properties of their share hereby allotted to them and their respective stock they and each of them shall have the right only to enjoy the usufructs of the property during their respective life so that the corphus of the property may descend to their progeny in that subject" a perusal of the deed Ex. P2 and the tenor of it quoted above and in particular the expression mainly with reference to the part 6th and 7th, it has been mentioned that the schedule properties deemed to have vested in P. E Sadashiva Rao and P. E. Pandiifanga rao and their respective, issues coupled with the fact that really P. Eswar Rao during his Life time has made partition of the parties like the family arrangement among his children and by this partition the properties mentioned in 'b' Schedule were given to P. E. Sadashiva rao and P. E. Panduranga Rao of the 6th and 7th part and to their respective issues. The deed further reveals that intention of the donor to allot the properties to the respective donees not in their individual capacity, but allotted it to the donees such as P. E. Sadashiva Rao and P. E Panduranga Rao the 6th and 7th part and to their respective stocks means to their Issues or to their respective stocks and the right was given to make use of the properties during their life time that is the indication of the intention by use of expression, so that the corphus of the property descend to their progeny in that subject. When I test it with the yardstick laid by their lordships of the Supreme court in the cases referred to above, in my opinion the properties specifically item no. 1 of the plaint schedule no doubt did come down in the hands of P. E. Sadashiva Rao and P. E. Pamduranga rao by virtue of the partition of the self acquired properties of Eawar rao by him and by virtue of allotment thereof not to the sons In their individual capacity, but to the sons and their issues, stocks or progeny. Therefore. even this property item no. 1 of plaint schedule did not come by inheritance, but it acquired the character of ancestral property in the hands of P. E. Sadashiva Rao and P. E Panduranga rao and the sons of P. E. Sadashiva Rao, became entitled to a Share as co-sharer with him as it was for the benefit of the branch Of RE. Sadashiva Rao's family. Thus, considered in my opinion, the finding of the trial Court with respect to item no. 1 of the plaint schedule property recorded under Issue no. 1 is correct Item no. 1 of the plaint schedule property cannot be held to be a separate property of P. E. Sadashiva Rao and as such I do confirm the finding of the trial court with reference to issue no. 1 and hold that the plaintiff, who is respondent in the appeal R. F. A. No. 720/1997 and the appellant in r. F. A. No. 695/1997 has established that litem no. 1 of the plaint schedule property was and has been the joint family property in between the first defendant and his stock the sons. ( 29 ) THE second question now to be considered is whether the plaintiff had proved the tailoring business carried on by Defendant-1 was joint family business and whether item nos. 2, 3 and 4 of the plaint schedule which were acquired by Defendant-1 from the income of the said business were joint family properties or not. The trial Court has recorded the finding on fhis point in the affirmative. It has to be examined whether the finding recorded by the trial Court on this issue is correct. ( 30 ) THERE is no dispute as regards one fact that item nos. 2, 3 and 4 of the plaint schedule properties have been acquired during the period 1964 to 1971. It has to be examined whether the finding recorded by the trial Court on this issue is correct. ( 30 ) THERE is no dispute as regards one fact that item nos. 2, 3 and 4 of the plaint schedule properties have been acquired during the period 1964 to 1971. Item no. 2 of the plaint schedule property was purchased vice Ex. D1 dated 15-11-1968 registered on 2-6-1969 for a sum of Rs. 18,000/ -. Item no. 3 of the plaint schedule property was purchased under a sate deed Ex. D2 dated 17-5-1971 for a sum of rs. 16,0007- item no. 4 of the plaint schedule property was purchased sometimes in 1964-65 for a sum of Rs. 8,000/ -. All these transfer deeds i. e. , purchase deeds are no doubt in the name of Defendant 1 i. e. P. E Sadashiva Rao. A perusal of the deeds per se reveal that all the deeds have been executed in favour of P. E. Sadashiva Rao - Defendant-1 (now deceased ). Prima facie, no doubt, the deeds show that P. E. Sadashiva Rao had purchased these properties. The case of. the plaintiff as per the plaint allegations is and has been that these properties are also the joint family properties. According to the plaint allegations these properties were acquired by P. E. Sadashiva Rao from the joint family nucleus and with joint labour of himself the plaintiff and Defendant-2, but the second defendant was not born to them According to the plaintiff, the business Of tailoring and textiles which Defendant-1 was carrying on premises of property item no. 1. That business was also the joint family business. The plaintiff's case is that Defendant-1 was carrying on the business of textiles and tailoring in the premises bearing no. 151 of Commercial street, Bangalore, in the name and style M/s Pissey and Brothers and after the partition the name of business was changed to M/s Pissey and Sons and that the plaintiff was looking after the business and was assisting Defendant-1 in carrying on the business According to the plaintiff, these properties were acquired by Defendant-1 but beyond doubt Item nos. 2, 3 and 4 of the plaint schedule properties were acquired out of the income derived from the joint family business and Defendant-1 had no other source of income as per the allegations contained in paragraph 5 of the plaint. 2, 3 and 4 of the plaint schedule properties were acquired out of the income derived from the joint family business and Defendant-1 had no other source of income as per the allegations contained in paragraph 5 of the plaint. The case' of the defendants 1 and 2 has been that item nos 2,3 and of the plaint schedule properties were not the joint family properties instead these items of properties have been the self acquired properties of defendant-1 and were acquired by him out of the earnings made by him. ( 31 ) AS mentioned earlier, it is well settled principle of law that there is a presumption that Hindu families ordinarily joint families, but there is no presumption about the joint family property. There is no such presumption that because there is a joint family, so it must be possessed of joint family property, or I may say there is no presumption that because the family is joint it must possess joint family property. Even a coparcener or Manager of the Hindu joint family can possess his separate property. In the present case, Item nos. 2, 3 and 4 were acquired during 1964 to 1971 vide the sale deeds as mentioned earlier and the sale deeds reveal that Defendant- 1 to be the purchaser for consideration. The ordinary presumption of law would be that the real purchaser and owner is one in whose name title deed stands. A person who alleges or claims a property to be joint family property, the burden is on him to establish that there was joint family nucleus or joint family fund or joint family estate or joint family property the income of which provided sufficient nucleus for the property in question being acquired there from If that is shown and established, then onus may shift on the person who claims the same to be his separate property to show that the property in question was acquired by his own income without any user or assistance from the joint family funds, or joint family estate. However, no such presumption would arise if the nucleus Is such that with itself the property claimed to be joint could not have been acquired thereby. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. However, no such presumption would arise if the nucleus Is such that with itself the property claimed to be joint could not have been acquired thereby. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. A family house in occupation of the family or properties yielding no income could not be a nucleus out of which the acquisitions could be made, even though that house must be of considerable value, but if on the other hand there is running business in which the capital invested might be small, but it might conceivable produce substantial income which may form the foundation of the subsequent acquisition. A Member of joint Hindu family who engages himself in a trade or business or profession can make separate acquisitions of property for his own benefit, unless it is shown that business grew from the nucleus of joint family or earnings were blended with joint family estate. In the case of G. NARAYANA RAJU (dead) by his legal representative vs G. CHANNARAJU AND others their Lordships of the Supreme Court laid it down as under:"it is well established that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family Property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was began or carried on with the assistance of joint family property or joint family funds as a family business is a question of fact. " ( 32 ) THE plaintiff as PW. 2 has stated that item nos 2, 3 and 4 of the plaint schedule properties were purchased out of the funds from the family business Pissey and Sons, as per his statement in the examination-in-chief at paragraph 6. In paragraph 11 he deposed as follows "our business both in tailoring and textile was flourishing and we were leading businessmen in Bangalore. Our business was improving every year from 1964. In paragraph 11 he deposed as follows "our business both in tailoring and textile was flourishing and we were leading businessmen in Bangalore. Our business was improving every year from 1964. Except tailoring and textile land to some extent money lending business my father does not have "any other source of income. From out of this business, we acquired 3 sites in Bangalore City as stated earlier. " in paragraph 16, he has deposed that "it is true that my fatter was the sole proprietor of his tailoring business. " To paragraph 17 he has deposed that "item nos. 2 and 3 of the schedule property were acquired by the first defendant during the life time of my brother. These sites were purchased somewhere in 1967 or 1968 through b. D. A. auction. In the course of his deposition dated 20-2-1997 contained at page 84 of the paper book P. W. 2 has stated that "i do not remember the date and year in which item nos 2 to 4 were purchased. At page 85 of the paper book in the course of the further cross-examination P. W. 2 has stated that item nos. 2 to 4 of the plaint schedule were acquired out of the income derived from item no. 1 of the plaint schedule. Later on P. W. 2 stated that it is not true to suggest that these properties were acquired out of the self earnings of his father. Regarding the business of tailoring and textile the base of the plaintiff and the deposition of the plaintiff as P. W. 2 is as under "my grand father was running his tailoring shop in 151, commercial Street prior to 1948 thereafter my father continued the tailoring business in the same premises. My father was also dealing with textiles there. This tailoring shop was run till 1961, under the name land style Pissey Brothers. After partition, defendant-1 changed the name of the shop as Pissey and Sons. " at page 37 of the paper book vide paragraph 4 of the deposition made on 24-9-1985 P. W. 2 has stated my father's business was very flourishing one. He further stated that our business was improving every year from 1964. Except tailoring and textile and to some extent money lending business, my father does not have any other source of income. He further stated that our business was improving every year from 1964. Except tailoring and textile and to some extent money lending business, my father does not have any other source of income. The defendant used to collect the interest on the loan advanced by him. My father has collected the interest from the borrowers and issued receipts. At one stage in the course of the deposition dated 6-1-1997 P. W. 2 has stated that after the partition of 1927 between Eswar Rao, Krishnoji Rao and Narayana Rao, eswar Rao was doing tailoring and textile business. In the year t930 eswar Rao purchased the premises bearing no. 35, Commercial street, Bangalore. P. W. 1 has deposed that after the purchase my grand father started tailoring and textile business in that premises. The two statements by themselves are conflicting. P. W. 2 further stated at page 64 of the paper book that my grand father was doing tailoring and textile business right from the beginning and I was assisting him. At page 64 of the paper book P. W. 2 has deposed that my father was doing business in the suit property item no. 1 under the name and style of Pissey and Sons. . . . I was assisting my father in his business right from my childhood. This business was inherited by my father. Our family profession itself is tailoring. At page 65 of the paper book, P. W. 2 has deposed about the purchase of item nos. 2 to 4 of the plaint schedule and it was purchased through the income derived from item no. 1. ( 33 ) THE plaintiff -appellant's case is that item nos. 2, 3 and 4 of the suit schedule properties were purchased out of the income derived from the tailoring and textile business and to some extend the money lending business which was carried on by his father i. e. , Defendant 1. His case is that tailoring business was carried at Commercial street property. As mentioned earlier, P. W. 2 has deposed that it was the sole proprietary business of Defendant-1 i. e. , father of P. W. 2. At other stages he states that his grand father P. Eswar Rao was earlier doing tailoring business and then he says that tailorings business carried on by his grand father at item no. As mentioned earlier, P. W. 2 has deposed that it was the sole proprietary business of Defendant-1 i. e. , father of P. W. 2. At other stages he states that his grand father P. Eswar Rao was earlier doing tailoring business and then he says that tailorings business carried on by his grand father at item no. 1 of the plaint schedule property i. e. , Commercial Street property. He states that the plaintiff was also assisting his father. He further states at page 44 6f the paper book that P. W. 1 himself was born in the month of January 1950. He states that it is false to suggest that even prior to my birth are not my imagination I carried to know of these events from my close relatives which occurred prior to my birth. Even at page 45 of the paper book the witness volunteers that he came to know through his relatives that the grand father was running tailoring arid textile business in that premises. He has not examined those relatives from whom he alleges to have heard that tailoring business was carried on by his grand father P. Eswar Rao. As mentioned earlier, later on he states that his father-Defendant-1 was the sole proprietor of the tailoring business and his father employed tailors. It has also pome in evidence that P. W. 1 had separated from his father and he admits that from the time of his separation from his father he started his business in the name and style. Venkateswara and Company, He stated at page 53 of the paper book that it is true my father had taken up Madura Coats agency though he states that he does not know whether his father is getting commission from it It is the admission of P. W. 2 that he learnt that his father i. e. , Defefendant-1 received Rs. 2,50,000/- from Mohamad Husman with reference to the partnership transaction. The deposition of P. W. 2 further reveals that defendant-1 was doing the business in the name of Pissey and sons in item no. 1 of the suit schedule property, but his evidence fails to establish that the business of tailoring was inherited by his father from P. Eswar Rao. Whatever P. W. 1 has stated was based on hear say evidence. 1 of the suit schedule property, but his evidence fails to establish that the business of tailoring was inherited by his father from P. Eswar Rao. Whatever P. W. 1 has stated was based on hear say evidence. At page 72 of the paper book he with reference to the tailoring and textile business carried on by his father states that the joint family business was carried at item no. 1 of the plaint schedule property. He further stated at page 73 of the paper book that it is true that my father did not receive any money from my grand father Eswar Rao. He states that there is no document except Ex. P-30 to show that Defendant-1 inherited any business from his father Eswar Rao. According to P. W. 2's statement at page 76 of the paper book P. W. 2 the father of the plaintiff was the sole earning member. He admits that there is no reference in Ex. P2 With regard to his grand father's business. ( 34 ) FROM the perusal of the statement of P. W. 2, it is not proved that the tailoring, textile and money lending business carried on by defendant-1 was the ancestral business or it was being carried on by his grand father and then inherited by his father. He also admits that his father did not get any money in the partition made by his father of his properties amongst his children. The plank of the plaintiff's case is that the properties viz. , item nos. 2, 1, 3 and 4 of the plaint schedule properties were acquired or purchased by defendant-1 in his own name out of the business of tailoring textile and money lending business carried on by Defendant-1 which according to the plaintiff's case was carried on in the shop i. e. , item no. 1 of the plaint schedule property. But, the plaintiff has not been able to prove from his own statement that this business was inherited by his father Defendant-1. Defendant-1 as D. W. 2 has denied the allegations made by P. W. 2 in this regard and has stated that the business that was carried on in the premises bearing no. 1 of the plaint schedule property. But, the plaintiff has not been able to prove from his own statement that this business was inherited by his father Defendant-1. Defendant-1 as D. W. 2 has denied the allegations made by P. W. 2 in this regard and has stated that the business that was carried on in the premises bearing no. 151 commercial Street, Bangalore, was his own business and that defendant-1's father P. Eswar Rao was not doing any tailoring work and that his father i. e. , father of Defendant-1 was only running petty cloth shop in the Commercial Street property according to D. W. 1 sadashiva Rao, he had purchased second hand sewing machines and started tailoring work and was earning Rs. 12/- per day. Later on he purchased more machines and carried on the tailoring business in the entire premises. His business was moderate one and later he employed some persons. D. W. 1 claimed that tailoring business was his sole concern and no one else had any right over it and that was the only source of income D. W. 1 very clearly denied at page 102 of the paper book that the plaintiff ever helped him in his business. He deposed that his saving from his earning is Rs. 300/- per month He further stated at page 116 of the paper book that he was running tailoring business in premises bearing no. 151 Commercial Street and he had also employed three tailors who were working under him. He also states that he was getting Rs. 1500/ as Commission from Madura Coats. He states that the business run by him Is not the joint family business, but it was his separate business p. W. 2 deposed about the business carried on by his father at page 34 of the paper book i. e. , in paragraph 2 of his deposition in examination in-chief as under:"tailoring is our hereditary business. My grand father was running his tailoring shop in 151, Commercial Street prior to 1948. Thereafter, my father continued the tailoring business in the same:, premises. My father was also dealing with textiles there. This tailoring shop was run till 1961 under the name and style PISSEY brothers. My grand father was running his tailoring shop in 151, Commercial Street prior to 1948. Thereafter, my father continued the tailoring business in the same:, premises. My father was also dealing with textiles there. This tailoring shop was run till 1961 under the name and style PISSEY brothers. After partition, D-1 changed the name of the shop as Pissey and Sons," ( 35 ) HE further states that "i was also doing the tailoring work along with my father and was attending the night college P. W. 2 farther states that "due to the misunderstandings, was forced to start" a separate business there under Venkateshwara and Company C/o pissey and Sons 151 Commercial Street. At page 37 of the paper book P. W. 2 states that my father's business was very flourishing, one. At page 41 of the paper book P. W. 2 has deposed that "except tailoring and textile and to some extent money lending business, my father does not have any other source of income. It is to be taken note of as mentioned earlier about the events earlier to his birth p. W. 2 states that "i came to know of these events from my close relatives which occurred prior to my birth. At page 45 of the paper book PW, 2 volunteers that he came to know through his relatives that his grand father was running a tailoring shop and textile business in that premises. So, this statement about the tailoring shop land textile business alleged to have been carried on by his grand father is nothing more than hear say and none of the relatives have been examined. There is no evidence to prove that P. Eswar Rao the grand father of the plaintiff was carrying on textile and tailoring business etc. . as hear say evidence is no evidence. At page 49 of the paper book P. W. 2 has stated it is true that my father was the sole proprietor of his tailoring business. P. W. 2 admits in para 21 at page 53 of the paper book that "it is true my father had taken up madura Coats Agency which was later on closed. In paragraph 2 at page 64 of the paper book P. W. 2 has deposed that my father was doing business in the suit property item no -1 under the name and style of Pissey and Sons. In paragraph 2 at page 64 of the paper book P. W. 2 has deposed that my father was doing business in the suit property item no -1 under the name and style of Pissey and Sons. According to P. W. 2 he was assisting his father Defendant-1 from his childhood. At page 73 of the paper book p. W. 2 admits and states "it is true that my father did not receive any money from my grand father Eswar Rao. He further states that there is no document to show that my father inherited the business. ( 36 ) FROM a perusal of the above statement of P. W. 2, it is quite clear that there were no joint family funds which could said to have been utilised either for starting the business or for carrying on the same. Further, as to whether earlier to 1948 or earlier to the plaintiffs father had started and carrying on the business of tailoring and textile the grand father of the plaintiff father of Defendant-1 was carrying on the business of tailoring or not, there is no reliable evidence on record to establish this fact and P. W. 2's statement in that regard is based on hear say evidence as such no reliance can be placed thereon as hearsay evidence is no evidence. ( 37 ) IT has been laid down by the Division Bench of this Court in sidaramappa VEERABHADRAPPA AND ANOTHER vs barajeppa BALAPPA AND OTHERS at page 354 that there is no presumption that a business carried on by a member of a joint family is joint family business, nor is there a presumption that a business standing in the name or started by even a manager is a joint family business. In this case, we have earlier come to the conclusion that no joint family funds were utilised either for the starting of the business or for carrying on of the same. The Division bench followed with the approval the following observations of the allahabad High Court in the case of KAILASHI vs SHANKAR11. In this case, we have earlier come to the conclusion that no joint family funds were utilised either for the starting of the business or for carrying on of the same. The Division bench followed with the approval the following observations of the allahabad High Court in the case of KAILASHI vs SHANKAR11. The observations reads that "if a business is started by an adult member of the family separately the mere fact that his sons who are dependent on him and are being maintained by him gave him some help in the carrying on of that business would not necessarily make the business cease, to be his own business and make it the joint business of himself and his sons. No doubt when the sons grow up the father and the sons may so conduct themselves that from their conduct it may be apparent that it was either expressly or impliedly agreed that the business which at its start was a separate business of the father became the joint business of the father and the sons by some arrangement between them. " In the present case, P. W. I's statement discloses that when the plaintiff became of age and there was difference of opinion between the father and sons and the son was turned out and he started his own business as per the deposition of P. W. 2. Therefore from the mere fact that from his childhood to attain the age of majority, the plaintiff rendered some assistance to his father Defendant-1. P. E. Sadashiva Rao would not make or could not be a circumstance to infer that a separate business was started by, the father P. E. Sadashiva Rao became join! business of the father and sons. As mentioned earlier no joint family or ancestral funds were available, nor were shown to have been utilised by Defendant- 1 to start or to carry on his business of tailoring and textile. Even the evidence that Sadashiva Rao did not get any money from his father P. Eswar Rao. In the case of PEAREY LAL vs NANAK chand what has been laid down is material for the purpose of the present case. Even the evidence that Sadashiva Rao did not get any money from his father P. Eswar Rao. In the case of PEAREY LAL vs NANAK chand what has been laid down is material for the purpose of the present case. Whereat is shown that in a joint family consisting of the father and the son; the father inherited nothing and that there was no nucleus of ancestral property the onus is on the son to show that he was associated in the business started by the father's initiative and carried on mainly and wholly under the father's direction, in such a manner as to raise a reasonable inference that the father intended to make and did make the business a joint family business. Their lordships further observed that this formulation lays the onus on the respondent and in a case in which there is no ancestral property the onus is heavy. If it is proved that the business had at some time been made out to be a join! family business, no subsequent change of intention on the part of the father and no unilateral act of his could undo what had once been done. ( 38 ) A similar principle has been laid down in the case of LALA raghbir SINGH vs SETH RAM RATTAN, where it has been laid down that there is no presumption that a now business carried on by a member of the joint. family in partnership with a stranger is joint family business. It is a matter for evidence in each particular case. In the present case it is clear that the business was not financed from the family funds. As mentioned earlier there is no evidence that P. Eswar Rao had received any funds or money from his father as part of joint family funds. It is also clear that business was started by P. E. Sadashiva Rao long before the birth of P. W. 1 and P. W. 3 admits that it was the business of his father P. E. Sadashiva Rao, who was the sole proprietor thereof It is not proved by any cogent evidence that tailoring and textiles were carried on by the father of defendant-1 and was thereafter inherited. To the contrary the evidence of D. W. 1 coupled with the circumstance emerging, from the statement of P. W. 2 clearly establishes that tailoring and textiles business had been started by P. E Sadashiva Rao by his own labour and efforts. No money from the joint family funds was invested, instead there did not exist any joint family funds cr ancestral money in the hands of Defendant-i. The evidence produced clearly reveals that machines etc. , were purchased by Defendant-1 from his own funds. But the fact that the business was started and carried on at premises bearing no. 151, Commercial Street and the assistance of that building was taken in carrying on the business which property was and has been held to be a joint family property. So, it can well be said that assistance of joint family asset was taken in starting and carrying on the business and the continuance of that business therein rendered the business carried on by Defendant-1 to be joint family business as per the principles iaid down in the case of G. NARAYANA RAJU vs G. CHAMARAJU wherein their lordships of the Supreme Court have laid it down as under:"it is well established that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact -and in Pearey Lal v Nanak Chand (AIR 1948 P. C. 100) and of this Court in Chattanatha v. Ramachandra Iyer (AIR 1966. S. C 799 ). " ( 39 ) IN view of the admitted fact that the business of tailoring was carried on by original Defendant-1 with the assistance of item no. 1 of the plaint schedule property which has been found to be joint family property. S. C 799 ). " ( 39 ) IN view of the admitted fact that the business of tailoring was carried on by original Defendant-1 with the assistance of item no. 1 of the plaint schedule property which has been found to be joint family property. The circumstance and admitted position establishes that the business was started and carried on with the assistance of the joint family asset or joint family immoveable property. Though no other sum was used but because the joint family asset i. e. , item no. 1 of the plaint schedule property was made use in starting and carrying on the business and the business was started by Defendant- 1 at premises no. 151, Commercial Street, Bangalore, it has to. be held that tailoring and textile business acquired the character of joint family business as the assistance of joint family immoveable property was taken for starting and carrying of the said business. Therefore, the income from that business can be said and held to be the joint family property or asset and when this income was the joint family income in the sense of income earned out of the joint family business assets and the properties purchased out cf that income viz. , item nos. 2,1 3 and 4 of the plaint schedule properties, though the deeds of transfer in regard thereto stand in the name of Defendant-1 acquired the character of joint family properties. Thus considered in my view, item nos. 2, 3 and 4 of the plaint schedule properties can be said to have been established to be the joint family properties of the plaintiff, Defendant-1 and Defendant-2. The next question to be considered is whether the deed of settlement or the will executed by Defendant-1 in favour of Defendant- 2 has been proved and could it be validly executed by the original defendant-1 P. E. Sadashiva Rao. Ex. P2 whereunder the premises bearing no. 151, Commercial street, Bangalore and the premises bearing no. 282, Cavelry Road, bangalore, were given to P. Eswar Rao by way of family, partition and arrangement, it has been provided in the deed Ex. P2 that the properties described in Schedule 'b' to the deed Ex. Ex. P2 whereunder the premises bearing no. 151, Commercial street, Bangalore and the premises bearing no. 282, Cavelry Road, bangalore, were given to P. Eswar Rao by way of family, partition and arrangement, it has been provided in the deed Ex. P2 that the properties described in Schedule 'b' to the deed Ex. P2 shall likewise be vested and be deemed to have vested in P. E. Sadashiva Rao and P. E. Panduranga Rao the parties of 6th and 7th part and their respective issues meaning thereby that the properties viz Commercial street and Cavelry Road properties were given jointly to Defendant- 1 his brother P. E. Panduranga Rao and their respective issues together meaning thereby that Defendant-1 got item no. 1 of the suit schedule property in a representative capacity for himself and his issues. Further, in the deed Ex. P21 it has been clearly mentioned by use of the expression shall not have any right to sell, mortgage, make gift or otherwise alienate or change or; encumbrance the properties allotted to; them and their respective stocks and they shall have only the right to enjoy the usufruct during their respective life, so that the corpus of the property may descend to the progeny clearly reveals that the property was given to P. E. Sadashiva Rao under ex. P2 not in his separate or individual capacity, but it was given to him and to his progeny or his children jointly. So, the property as has been held earlier has been the joint family property in between defendant-1 P. E. Sadashiva Rao and his sons born or to be born at that time. That being the position and in view of the above finding and the terms of the deed of partition Ex. P2 wherein right to make alienation had been prohibited, in my opinion as such the original defendant-1 P. E Sadashiva Rao could not execute the deed of settlement Ex. P12 dated 23-2-1978 settling item no. 1 of the plaint schedule property in 'favour of Defendant-1. So, it has to be held that the deed of settlement Ex. P. 12 dated 23/2/1978 was invalid as p. E Sadashiva Rao could not alienate property item no. 1 and was not binding either on the plaintiff or on the other sharers. ( 40 ) FURTHER, as regards the will Ex. So, it has to be held that the deed of settlement Ex. P. 12 dated 23/2/1978 was invalid as p. E Sadashiva Rao could not alienate property item no. 1 and was not binding either on the plaintiff or on the other sharers. ( 40 ) FURTHER, as regards the will Ex. D13 dated 29-1-1993 on which defendants respondents placed reliance, wherein item no. 3 of the plaint schedule property has been shown to have been bequeathed infavour of Defendant-He) add Defendant-2. The said will also could not be effective and could not be binding on the plaintiff or other heirs. Since it has been found that item nos 2, 3 and 4 of the plaint schedule properties have been the joint family properties as found earlier, Defendant-1 had no right to bequeath the said property on account of its being joint family property. No doubt, Defendant-1 could only bequeath his interest or share in the said property and the will found to have been executed may operale only over the interest or share. But, so far as the interest of other is concerned, it could not affect their interest. It mean to say the plaintiff's interest would not be affected by the will. ( 41 ) IT has to be examined whether Defendants have been able to prove the will Efsx. D13 dated 29-1-1993. It is well settled principle of law that burden to prove the will is on the party who sets the will i. e. , the propounder of the will to prove it. A party propounding or otherwise making the claim under the will has to prove the document and as to how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of the document and sections 67 and 68 of Evidence Act are relevant. Under Section 67 of the Evidence Act, if a document is alleged to be signed by any person the signature of the said person must be proved to be in his handwriting and for proving the handwriting under Sections 45 and 47 of the Evidence Act, the opinion of the expert and the evidence of the person acquainted with the handwriting of the person concerned are relevant. Section 68 of Indian Evidence Act, deals with the proof of execution of the document required by law to be attested and it provides that such a document shall not be used in evidence until atieasl one of the attesting witnesses has been called and examined to prove the execution. In the case of H. VENKATACHALA IYENGAR vs B. N. THIMMAJAMMA AND OTHERS their Lordships of the Supreme Court laid it down as under:"it would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian succession Act. As in the case of proof of other documents, so in the case of proof of wills it would be idle to expect proof with mathemalical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. (10) however, there is one important feature which distinguishes wills from other documents Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or note, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even 50a in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind that he understood the nature and effect of the disposition, and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. (20) There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The. alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounded case that the signature in question is the signature of the testator may hot remove the doubt created by the appearance of the signature, the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the disposition made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testators free will and mind. In such cases, the Court would naturally expect that all legitimate suspicious sho. uld be completely removed before the document is accepted as the last will of the testator The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whethwr ths testator was acting of his own free will in executing the will and in such circumstances, it would be a part of the initial onus, to remove any such legitimate doubts in the matter (21) Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. (22) It is obvious that for deciding material question of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may however, be stated generally that a propounder of the will has to be prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. " ( 42 ) IN order to prove the execution of the will, the defendants examined D. W. 3 - K. S. Panduranga Rao, who is one of the attesting witnesses of the will. " ( 42 ) IN order to prove the execution of the will, the defendants examined D. W. 3 - K. S. Panduranga Rao, who is one of the attesting witnesses of the will. Examining of even one attesting witness may be sufficient, if his evidence is reliable and properly and duly proves the execution of the will. D. W. 3 during the course of his examination in-chief has stated that I had been to the Sub Registrar's Office and present at the time of registration of the will Ex. D13. I. identified the ltm of Late Pissey Sadashiva Rao made before the Sub Registrar as Ex. D13 (n) I have identified this LTM before the Sub Registrar and put my signature at Ex. D13 (p ). He further states that after reading over of the contents of the will my lawyer late Sadashiva Rao put his LTM on each page of the will Ex. D13. At that time late Sadashiva rao two witnesses and Advocates were all present. The same members were-present when the attestors signed the will. He further states that I read over the will. The lawyer read over the contents of the will. It has no where been stated by D. W. 3 as to what, was the, mental state of Sadashiva Rao when he is alleged to have put his ltm on Ex!d13. It has no where been stated that the contents of the will were explained to Sadashiva Rao and he understood the contents thereof. He further states that when he reached the Office of Sri Keshavanarayan, Advocate, who had drafted and written the will and in whose office the will was typed, and it was kept ready at the time when D. W. 3 along with Sadashiva Rao reached the office of Sri Keshavanarayan, Advocate. He states that he does, not know who had instructed the lawyer to prepare the will. D. W. 3 states that sadashiva Rao was addicted to alcohol. No doubt, he states that on that day the will was executed. Sadashiva Rao was not drunk but he says that he did not smell the mouth of Sadashiva Rao at that time. He states that do not know who instructed about the contents of the will. ! do not know the Advocate himself by seeing the earlier records prepared the will. Sadashiva Rao was not drunk but he says that he did not smell the mouth of Sadashiva Rao at that time. He states that do not know who instructed about the contents of the will. ! do not know the Advocate himself by seeing the earlier records prepared the will. No doubt, at one stage he states that Sadashiva Rao told us that the contents of the willl EX. D13 were true and correct after the lawyer read over. This statement 'does not inspire much confidence in view of the fact that there Is no evidence on record regarding the mental condition of Sadashiva Rao at the time he is alleged to have executed the wili. The evidence does not prove that the alleged execution of the will was independent and free mental and physical act of Defendant-1. In View of the above, I agree with the trial Court's finding that the defendants have fail to prove the due execution of the will by Sadashiva Rao. Thus considered, I hold and record the following findings; that item nos 1, 2, 3 and 4 of the plaint schedule properties have been the joint family properties of Sadashiva Rao and Ms sons and they were entitled therein as co-owners and coparceners, but item no. 4 has been rightly held to have been available as it had already been transferred vide Ex. P 15 to one Smt. Adilakshmi and she had not been impleaded as party, so the trial Court rightly rejected the claim for partition thereof. ( 43 ) THAT the deed of settlement Ex. P12 dated 23-2-1978 settling item no. 1 of the plaint schedule property in favour of Defendant-2 has been illegal as Defendant P. E Sadashiva Rao could not execute the same and it has not been binding on the plaintiff and other sharers. It is further held that defendants have failed to prove the due execution of the will Ex,d13 dated 29-1-1993. This being the position, now the question is what Is the share of the parties in the properties. The trial Court has held that the plaintiff i. e Appellant in r. F. A. No. 695/t997 and Defendants 1 (c), 1 (d), 1 (e), 1 (f),1 (g) and 1 (h) and/the second defendant are all entitled to 1/8th share each in item nos. 1 to 3 of the. plaint schedule properties and to get partition thereof. The trial Court has held that the plaintiff i. e Appellant in r. F. A. No. 695/t997 and Defendants 1 (c), 1 (d), 1 (e), 1 (f),1 (g) and 1 (h) and/the second defendant are all entitled to 1/8th share each in item nos. 1 to 3 of the. plaint schedule properties and to get partition thereof. The appeal in R. F. A. No. 695/1997 relates to and is confined to the question of -shares "or quantum of share of parties in the property in suit. The appellant in R. F. A. 695/1997 has challenged the quantum of share allotted to the parties. ( 44 ) IT has been contended that the Court below has erred in granting share to the Defendants 1 (d) and 1 (f) as 1/8th share each. It has also been contended that the Court below has lost sight of subsection (d) of Section 6a of the Hindu Succession Act as amended in Karnataka. The learned Counsel contended that the suit was instituted on 6-4-1979 and there has been disruption of the joint family status prior to the amendment and that amendment came into effect with effect from 30th July 1994. According the plaintiff- appellant, he has. been entitled to 1/8th share as a co-sharer in of the items of the plaint schedule properties and 1/10th share in the share of his father on the basis of being one of his legal heirs. The plaintiff-appellant in R. F. A. 695/1997 contended that he is entitled to the share which is 11/30. The contentions raised by the learned Counsel for the appellant in R. F. A. NO. 695/1997 have hotly been contested by the respondents especially the daughters viz. , Defendants 1{c), 1 (d) 1 (e), 1 (f), 1 (g) and 1 (h ). ( 45 ) TO determine the question of shares, it has be considered whether the provisions of Section 6a as introduced in Hindu Succession Act, 1956 by Karnataka Act No. 23 of 1994 will be applicable. , Defendants 1{c), 1 (d) 1 (e), 1 (f), 1 (g) and 1 (h ). ( 45 ) TO determine the question of shares, it has be considered whether the provisions of Section 6a as introduced in Hindu Succession Act, 1956 by Karnataka Act No. 23 of 1994 will be applicable. It will be appropriate at this juncture to quote Section 2 of the Hindu succession (Karnataka Amendment) Act, 1990 as introduced and inserted in Hindu Succession Act, 1956 by Karnataka Act No 23 of 1994 whereby Section 6a has been added reads as under: 2, Insertion of new Section in Central Act XXX of 1956 in the hindu Succession Act, 1956 (Central Act XXX of 1956) after section 6 the following section shall be inserted namely; "6a Equal rights te daughter in co-parcenary property; notwithstanding anything contained in Section 6 of this. Act (a) in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth became a coparcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had , if she had been a son; inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son. (b) at a partition in such a Joint Hindu Family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son. (b) at a partition in such a Joint Hindu Family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son. Provided that the share which a predeceased son or a predeceased daughter would have got at the partition, if, he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or pf such predeceased daughter; provided further that the share allottable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be; (c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or say other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition; (d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) act, 1990. " ( 46 ) A reading of Section 6a of the Hindu Succession (Karnataka amendment) Act, 1990 (Karnataka Act No. 23 of 1994) perse reveals that with the insertion of Section 6a a daughter on account of her birth has been provided to become a coparcener in her own right in a Joint Hindu Family governed by Mitakshara law if existing on the date of enforcement of Act 23/1994 and she automatically will become a' coparcener in her own right in the same manner as the son and she has been conferred with the same rights in coparcenary property as she would have had if she had been a son including the right by survivorship. It also provides that she shall be subject to the same liabilities and disabilities in respect thereto as the son. It also provides that she shall be subject to the same liabilities and disabilities in respect thereto as the son. A reading of clause (a) with clause (b) really indicates that Section 6a will apply to the cases where the joint family exists and there has been no severance of the joint family by partition in the eye of law, Clause (b) indicates that if a partition takes place in the joint family after the coming into force of this amending Act, then in that partition of the Joint Hindu Family taking place after the commencement of this Act, the properly shall be so divided as to allot a share to the daughter the same share as is eligible 1o a son. Clause (d) which is material for our purpose as has been quoted above provides exception to the cases where clause (b) of Section 6a will not apply. As per clause (d) of Section 6a a daughter who has been married before coming into force of this amendment or amending Act she shall not be entitled to any share in joint family coparcenary property on partition taking place. In other words, the married daughters have been excluded from getting any share in the joint family coparcenary property. It further provides that clause (b) will not affect any partition of joint Hindu family coparcenary property if the partition had already taken place before coming into force of Karnataka Act No 23 of 1994, meaning thereby that if partition has already been effected actually or in the eye of law before coming into force of Karnataka Act No. 23 of 1994 it will not be effected by clause (b) of Section 6a. In cases where partition of joint Hindu family had already been held by metes and bounds, or by and under deeming clause by necessary implication before coming into force of the amending Act those concluded partitions will not be: reopened. ( 47 ) THIS being the position of law, it has to be considered whether in the instant case the shares which have been allotted in favour of the daughters of P. E. Sadashiva Rao have been validly. allotted and whether Section 6a will apply to the present case. No doubt, the suit for partition had been filed on 6-4-1979, but till then there had been no partition of the joint Hindu family properties. allotted and whether Section 6a will apply to the present case. No doubt, the suit for partition had been filed on 6-4-1979, but till then there had been no partition of the joint Hindu family properties. The decree for partition, no doubt, has been passed 30-6-1997. Karnataka Act No. 23 of 1994 shall came into force on 30-7-1994. So, it cannot be said that Section 6a did apply. In the present case, firstly on the date of filing of suit for partition by one of the coparceners the joint family status came to an end immediately and it only the sharers of coparceners to be separated. As joint family, having ceased to exist on the date of suit being filed on 6-4-1979 as well as on 8-2-1994 on the date of death of original defendant no. 1 P. E Sadashiva Rao having died during the pendency of the suit. On 8-2-1994 in view of the deeming clause under Section 6 of Hindu Succession Act and deemed separation and partition take in place before the coming into force of Karnataka Act No 34 of 1994 i. e. , before 30-7-1994 the provisions of Section 6a introduced by Act 23 of 1994 in Hindu succession Act, 1956 cannot be applied. ( 48 ) THAT as all the properties of the plaint schedule have been held to be the joint family properties and defendant-1 admittedly died on 8-2-1994 i. e. , before the coming into force of the Karnataka Act No 23 of 1994 viz. , Karnataka Hindu Succession (Amendment) Act, 1994, as such the provisions of Section 6 of the Hindu Succession Act having been into operation and become applicable on 8-2-1994. That under Section 6 of the Hindu Succession Act read with explanation 1 to Section 6, it had to be deemed that immediately before and on the date of the death of Defendant-1-P. E Sadashiva Rao, the partition had taken place under the deeming clause to determine his share in suit property at the time of his death, and it is well settled principles of law, as to legal fiction. Under deeming clause, that on the legal fiction of deeming and state of fact as if has happened in the eye of law, then such fiction has to be given full effect Reference in this regard may be made to the decision of Hon'ble Supreme Court in the case of M/s VOLTAS LTD. , BOMBAY vs UNION OF INDIA to the case referred therein in Para 7 of the report. Thus considered it will have to be deemed that partition amongst coparceners i. e. , plaintiff and defendant (original) no. 1 and defendant no. 2 in the eye of law did take on 8-2-1994 that is before 30-7-1994 the date of coming into force of Act No. 23 of 1994 and joint family status in every case i. e. , ceased before 30-7-1994. That in view of Section 6 of the Hindu succession Act and explanation thereto the share of the deceased p. E Sadashiva Rao would be deemed to be 1/3rd as a coparcener and the plaintiff and Defendant-2 would also to be entitled to 1/3rd share each in the said properties as coparceners. ( 49 ) AS regards the share of P. E Sadashiva Rao, it would be clivisible and will be divided amongst all the ten heirs of P. E Sadashiva Rao. Thus, the share of the plaintiff would be 1/3rd share + 1/30th share= 11/30th share and same i. e. , 1/30 + 1/30 i. e. , 11/30th will be the share of Defendant-respondent no. 2 P. S. Sairam, another son of the deceased P. E Sadashiva Rao. The other legal heirs of the original defendant-1 i. e. , respondents 1 (a) to 1 (h) will be entitled to 1/10th of the 1/3rd share of the original Defendant-1 i. e. , each one of respondents 1 (a) to 1 (h) will be entitled to 1/30th share only in the properties. R. F. A. No. 695/1997 is allowed only to this extent. That the shares of the parties are modified as under; that is instead of the parties getting 1/8th share, the parties to the case will have, are held, to be entitled the shares as under; the plaintiff-appellant share would be 11/30th. R. F. A. No. 695/1997 is allowed only to this extent. That the shares of the parties are modified as under; that is instead of the parties getting 1/8th share, the parties to the case will have, are held, to be entitled the shares as under; the plaintiff-appellant share would be 11/30th. The Defendant respondent-2's share would be 11/30'h. The share of the defendants- respondents 1 (a) to 1 (h) would be only 1/10th share each in the 1/ 3rd share of P. E, Sadashiva Rao i. e. , Defendant-respondents 1 (a) to 1 (h) each are held entitled to 1/30th share in the suit properties. Thus, trial Court's decree is modified only as regards the quantum of share of the parties respectively. ( 50 ) THE judgment and decree of the Trial Court is hereby modified only to the extent of share of parties as above, holding the plaintiff appellant to be entitled to a partition of his 11/30th share in suit properties except item no. 4 of the plaint schedule. Rest of the decree of the trial Court and direction contained therein are maintained. R. F. A. No. 720 of 1997, as such, is hereby dismissed in toto. The parties to the appeals shall bear their respective costs of this Court and Trial Court. --- *** --- .