P. S. NARAYANA, J. ( 1 ) THE unsuccessful 1st defendant, aggrieved by the judgment and decree made in O. S. No. 104/82 on the file of Subordinate judge, Narsapur, in relation to certain items of the plaint schedule property, had preferred the present Appeal. Respondents 1 and 2 in the Appeal are the plaintiffs in the suit and respondents 3 and 4 are defendants 2 and 3 in the suit. ( 2 ) THE plaintiffs/respondents 1 and 2 filed the suit for partition on the ground that they are the sons of 2nd defendant and defendants 2 and 3 are the brothers and sons of the 1st defendant. It was pleaded that at the time of the 2nd defendant s marriage with the mother of the plaintiffs the latter s father presented her an amount of rs. 30,000/- towards Pasupu Kumkuma as per tradition and custom in the family and gave the said sum of Rs. 30,000. 00 to the 2nd defendant for improvement and for purchasing lands in the name of Neelaveni. Thereafter with the said amount and other amounts given to her, the 2nd defendant purchased lands in the name of the plaintiffs mother and the 2nd defendant was managing the same on behalf of his wife and defendants 1 and 2 have been pressurizing the mother of the plaintiffs to convey the said land in favour of the 2nd defendant for which she was not willing and the 2nd defendant also took gold waist belt weighing 15 sovereigns from the plaintiffs mother and pledged the same with the State bank of India and obtained a loan of rs. 6,500/- and further the 2nd defendant also took the gold chain of the plaintiffs mother weighing 11 sovereigns and obtained loan of Rs,2,500/- from the State bank of India and the 2nd defendant represented that with the said loan amounts he would purchase Ac. 0-50 cents of land from his sister in the name of the plaintiffs mother and accordingly he purchased the land in the name of the plaintiffs mother and the sale deed is yet to be executed and registered in the name of the plaintiffs mother. 0-50 cents of land from his sister in the name of the plaintiffs mother and accordingly he purchased the land in the name of the plaintiffs mother and the sale deed is yet to be executed and registered in the name of the plaintiffs mother. As the plaintiffs mother was not willing to convey the lands in favour of the 2nd defendant, feelings gradually strained between them and the 2nd defendant came to Yelamanchililanka in January, 1981 for sankranthi and took the plaintiffs mother to chinchinada on 19-1-1981 and on 21-1-1981 the entire family left for Tirupathi and returned to Chinchinada on 23-1-1981 and after returning from Tirupathi, the defendants 1 and 2 began compelling the plaintiffs mother to convey the land in favour of the 2nd defendant but she refused and she was also demanded to return the jewellery after redeeming them for which the defendants 1 and 2 beat her on 28-1-1981 and drove her out with the plaintiffs and therefore she returned to their maternal grandfather s house at Yelamanchililanka. After that, the defendants 1 and 2, in order to defeat the rights of the plaintiffs brought into existence fraudulently a partition under the registered partition deed dated 24-2-1981 and in that partition the plaintiffs are not represented and some of the properties shown as Items 1 to 9 in the A schedule are left out of the partition perhaps on the plea that the said Items are the self-acquired properties of the 1st defendant. But all the properties are the joint family properties acquired with the joint family nucleus and with joint exertions of the defendants who are always treating them as joint family property and are brought into common hotchpotch and as the 1st defendant happened to be the father and kartha of the family the properties are purchased in his name. But, the said properties are only purchased with the joint family and always treated as joint family property and they are jointly cultivated and the income is jointly enjoyed. But, the said properties are only purchased with the joint family and always treated as joint family property and they are jointly cultivated and the income is jointly enjoyed. Similarly the property settled on the 1st defendant is also brought into common hotchpotch and is being treated and enjoyed as joint family property and in order to cause detriment to the interests of the minor plaintiffs, the defendants 1 to 3 left out the said Items of A schedule and therefore the partition deed dated 24-2-1981 is a colourable partition and even after the said partition all the defendants are living together in the same house having a common mess and are enjoying the property jointly. All the defendants colluded together and because of the differences that arose between the plaintiffs mother and the defendants 1 and 2 herein to cause loss to the minor plaintiffs, registered partition deed dated 24-2-1981 was brought into existence and as the said partition deed is colourable, fraudulent and detriment to the interests of the minor plaintiffs, it does not bind the plaintiffs and the reopening of the partition is beneficial to the plaintiffs and after bringing into existence the said partition deed the 2nd defendant got issued a registered notice with false allegations stating that the plaintiffs mother has been leading an immoral life and had put the 2nd defendant to mental agony and demanded her to join him in filing a joint partition seeking divorce and a reply notice was issued and thereupon the 2nd defendant filed divorce petition and it is pending. There is no need to purchase any property benami in favour of the plaintiffs mother and she also filed a suit for declaration of her title to the lands purchased in her name and the said suit is pending. Thus, the relationship between the plaintiffs mother and the 2nd defendant strained and the 2nd defendant also filed a divorce petition and he also drove away the plaintiffs and their mother and also their reapproachment became impossible and that the 2nd defendant also neglected to maintain the plaintiffs and their mother and they are being looked after by the plaintiffs maternal grandfather. The 2nd defendant got 1/3rd interest and the plaintiffs together got 2/3 rd out of the 1/3rd share of the 2nd defendant in the plaint schedule properties and the plaint A schedule lands are fertile lands and there is also a coconut garden and that the plaintiffs are entitled to future mesne profits from the date of filing of the suit and hence this suit. ( 3 ) THE 1st defendant filed a written statement denying all the allegations. It was specifically denied that the mother of the plaintiffs had been given an amount of rs. 30,000/- towards Pasupu Kumkuma by her father and it was also specifically denied that the amount was entrusted to the 2nd defendant and it was also pleaded that the 2nd defendant got separated himself from the 1st defendant and if they were joint the amount would have been given to the 1st defendant as manager of the joint family and further stated that he did not receive any amount and if at all the 2nd defendant received any amount from the father of the plaintiff s mother he is liable to render account for the same and further contended that he got an extent of Acs. 3-09 1/2 cents of land situated in Chinchinada village and also a resident house which he got in the family partition dated 31-8-1960 and out of that property he sold away Ac. 0-45 cents of coconut garden and Ac. 0-54 cents of wet land for the maintenance of the family and further stated that he was given acs. 3-09 1/2 cents of land situated in Chinchinada village and also a resident house which he got in the family partition dated 31-8-1960 and out of that property he sold away Ac. 0-45 cents of coconut garden and Ac. 0-54 cents of wet land for the maintenance of the family and further stated that he was given acs. 1-02 1/2 cents by his father under the settlement deed dated 12-11-1959 and thus he got self-acquired separate property and further contended that as per the family custom and tradition his father partitioned only the joint family properties keeping his self-acquired properties separately and the said custom and tradition is established as per the recitals of the registered settlement deed dated 12-11-1959 and accordingly he also partitioned only the joint family properties keeping his self-acquired property for himself and further stated that he never threw his self-acquired property in the common hotchpotch or he treated them as joint family properties at any time and further stated that the plaintiffs or other defendants have no right to claim Items 1 to 9 of plaint A schedule as the said property is his self-acquired and separate property and further stated that he acquired Items 1 to 9 by his own volition and sweat by taking lease of the properties belonging to rudraraju Bala Krishnam Raju of chinchinada and further stated that defendants 2 and 3 never contributed anything for acquiring Items 1 to 9 of plaint a schedule properties and that they were never treated as joint family properties and further contended that he purchased the properties in the name of Neelaveni for his benefit and she filed a separate suit for declaration and possession of that property and further denied the allegation that he exercised pressure over Neelaveni to convey acs. 2-18 cents in the name of the 2nd defendant and further denied the allegation that the 2nd defendant pledged gold jewellery belonging to Neelaveni and further stated that he is not liable for the amounts, if any, taken by the 2nd defendant as loan and further stated that to the best of his knowledge Neelaveni does not own any gold waist belt or gold chain and further denied the allegations in para 8 of the plaint and further stated that the 2nd defendant filed O. P. No. 21/81 on the file of Sub-Court, narasapur, for divorce on the ground of immoral life of Neelaveni and further denied the allegations in paras 9 to 16 and also denied the allegation that they brought into existence fraudulently the partition deed dated 24-2-1981 and further stated that the partition deed dated 24-2-1981 is true and correct and not a colourable partition deed and further stated that he partitioned only the family properties leaving aside his self-acquired and separate properties as per the family custom and usage and further contended that he did not acquire Items 1 to 9 of the paint A schedule properties from out of the joint family nucleus nor with the joint exertions of all the defendants and further stated that items 1 to 9 of plaint schedule were never treated as joint family properties and they were never brought into common hotchpotch and that the properties are his self-acquired and separate properties and further contended that as the partition is mainly between himself and defendants 2 and 3 the plaintiffs have no manner of right to question the partition deed dated 24-2-1981 and also they have no right to ask for reopening of the partition between the defendants and further stated that the 2nd defendant embraced Islam and changed his name as Ontipalli Abdulla and he is living separately from the 2nd defendant and the relationship between himself and the 2nd defendant is also strained and further stated that the partition deed dated 24-2-1981 is fair and equitable and hence it cannot be dubbed as a colourable partition and further stated that the plaintiffs have no cause of action to file this suit and they are not entitled to seek for partition of the entire plaint A and B schedule properties and further stated that the Court Fee paid is not correct and that the plaintiffs have no right to seek any relief in this suit against him and further stated that the suit is bad for non-joinder of necessary party as Rudraraju Kasiviswanatha Raju is also a necessary party and hence the suit is liable to be dismissed with compensatory costs. ( 4 ) THE 2nd defendant filed a written statement pleading that he divided from his father and he had taken a specific stand that never an amount of Rs. 30,000. 00 towards pasupu Kumkuma had been given and he also denied that he gave Rs. 30,000. 00 towards Pasupu Kumkuma and gave that amount to him and further stated that the father of Neelaveni never presented any amount nor he gave that amount to him for purchasing land and further denied the allegation that he gave pressure to neelaveni to convey Ac. 2-18 cents of land and further stated that his wife Neelaveni does not possess any gold waist belt or gold chain nor did he pledge the same in the State bank of India, Elamanchili to purchase lands and further contended that he filed O. P. No. 21/81 for divorce on account of the immoral behaviour of Neelaveni and the allegations contra to the above facts are all false and further stated that Neelaveni filed o. P. No. 1/82 and he is contesting that petition and further denied the allegation that he drove out the plaintiffs and their mother after pilgrimage in the month of january 1981 and further stated that he along with other defendants partitioned the family properties on 24-2-1981 in which he got only Ac. 0-6 cents of land and the partition deed dated 24-2-1981 is true and genuine and it is not a colourable partition and further stated that he has no right to claim in the self-acquired and separate properties of the 1st defendant which are shown as Items 1 to 9 of the plaint A schedule and further stated that the 1st defendant acquired Items 1 to 9 of the plaint a schedule properties and he did not contribute his might in the acquisition of the said property and further stated that the plaintiffs have no manner of right to seek reopening of the partition deed dt. 24-2-1981 and further stated that he has taken Islam and he is called as Abdulla and further stated that the plaintiffs have no cause of action to file this suit and hence this suit is liable to be dismissed with costs. ( 5 ) THE 3rd defendant had adopted the written statement filed by the 2nd defendant. 24-2-1981 and further stated that he has taken Islam and he is called as Abdulla and further stated that the plaintiffs have no cause of action to file this suit and hence this suit is liable to be dismissed with costs. ( 5 ) THE 3rd defendant had adopted the written statement filed by the 2nd defendant. ( 6 ) ON the strength of the above pleadings, the following Issues were settled by the trial court: (1) Whether Items 1 to 9 of plaint a schedule are the separate and self-acquired properties of the 1st defendant and are not liable for partition? (2) Whether the partition deed dated 4-2-1981 is unjust, unfair, inequitable, to the plaintiffs and does not bind them? (3) Whether the present suit for partition is not maintainable? (4) Whether the suit is bad for nonjoinder of necessary parties? (5) To what profits, if any, are the plaintiffs entitled? (6) To what relief?in the trial Court, P. W. I and P. W. 2 were examined and Exs. A-1 to A-4 were marked on behalf of the plaintiffs/respondents 1 and 2 and D. W. I to D. W. 3 were examined and exs. B-1 to B-10 were marked on behalf of the defendants. ( 7 ) SRI C. C. S. Sastry, the learned counsel representing the appellant with all vehemence had argued that the trial Court had totally erred in decreeing the suit relating to certain items. The learned counsel also pointed out that the stand taken by the 1st defendant is clear and categorical and in the light of the evidence available on record the respondents 1 and 2/plaintiffs are not entitled to any relief at all. The learned counsel further contended that the respondents 1 and 2/plaintiffs have no right to question the partition between defendants 1 to 3 and the learned Counsel also had submitted that the finding of the court below that items 1,2,5 to 7 and 9 of the a schedule are the joint family properties and the respondents 1 and 2/plaintiffs are entitled to have a share, cannot be sustained and the trial Court should have held that the said items are separate and self-acquired properties of the appellant/1st defendant. The learned counsel also had contended that the trial Court failed to see that the income from the alleged joint family nucleus was just sufficient for maintenance of the family and could not have been a source for acquisition of the items 1, 2, 5 to 7 and 9. The learned counsel also had laid stress on ex. B-5, dated 24-2-1981, the registration extract of partition between D. W. I and his sons. The learned counsel also contended that the suit is bad for non-joinder of necessary party. The learned counsel also had contended that the trial Court had not appreciated the principles of Hindu Law properly in relation to partition. The learned counsel also placed reliance on k. V. Narayanan v. K. V. Ranganadhan1. ( 8 ) SRI Chidambaram, the learned counsel representing the contesting respondents/ plaintiffs on the other hand had contended that the suit should have been decreed as prayed for. But however the relief was not granted relating to certain items and inasmuch as the plaintiffs/respondents had not questioned the same, the learned counsel fairly submitted that he is not agitating the said question. The learned counsel had taken me through the evidence available on record and had contended that the findings recorded by the trial Court are 1. AIR 1976 SC 1715 . based on evidence available on record and those findings need not be disturbed. The learned counsel also had contended that several of the facts are not in dispute at all and the learned counsel also commented about both Exs. A-3 and A-4 and had submitted that all was not well between 2nd defendant and his wife. The learned counsel also had drawn my attention to Exs. A-1 to a- 4 and Exs. B-1 to B-10 and the evidence of p. W. I and also D. W. I to D. W. 3. The learned counsel also had placed reliance on jamunabai v. Sharadabai2. ( 9 ) HEARD both the counsel. ( 10 ) IN the light of the respective contentions of the parties, the following points arise for consideration in this Appeal. (1) Whether Items 1 to 9 of plaint A schedule are the separate and self-acquired properties of the 1st defendant and hence those properties are not liable for partition? (2) Whether the relief of partition be granted in view of the partition deed dated 24-2-1981? (1) Whether Items 1 to 9 of plaint A schedule are the separate and self-acquired properties of the 1st defendant and hence those properties are not liable for partition? (2) Whether the relief of partition be granted in view of the partition deed dated 24-2-1981? (3) Whether the suit is bad for non-joinder of necessary party? (4) Whether the respondents 1 and 2/plaintiffs are entitled to profits. (5) To what relief? ( 11 ) AS far as Points 1 to 4 are concerned, inasmuch as they are closely connected, there will be common discussion and these points are being answered together. ( 12 ) RESPONDENTS 1 and 2/plaintiffs filed the suit for partition of plaint schedule properties into three equal shares and to allot one such share to their father - 2nd defendant, and after partition of the l/3rd share into three equal shares, to allot two 2. 1998 (4) ALT 676 . such shares to respondents 1 and 2/plaintiffs on the ground that these are the joint family properties of the said family. The case of the plaintiffs is that their mother was presented Rs. 30,000. 00 towards Pasupu kumkuma by her father at the time of marriage and the said amount was entrusted to the 2nd defendant for improvement and for purchasing lands in the name of their mother by name Neelaveni and thereafter with the said amount the 2nd defendant purchased lands in the name of their mother and he was managing the same on behalf of his wife and defendants 1 and 2 had been pressing the mother of the plaintiffs to convey the said lands in favour of the 2nd defendant for which she was not willing and the 2nd defendant also had pledged the gold ornaments belonging to their mother with the State Bank of India and obtained loans representing that the said amount would be used for purchasing 50 cents of land from his sister in the name of the said Neelaveni. Accordingly he purchased the land in the name of the plaintiffs mother but however the sale deed is yet to be executed and registered in her name but unfortunately the feelings became strained. Their specific case is that the plaintiffs mother refused to convey the land in favour of the 2nd defendant and further demanded for return of jewellery and hence there were certain problems in the family. Their specific case is that the plaintiffs mother refused to convey the land in favour of the 2nd defendant and further demanded for return of jewellery and hence there were certain problems in the family. It is also their specific case that a fraudulent partition and registered partition deed dated 24-2-1981 was brought into existence and it was marked as Ex. B-5 and the plaintiffs are not represented and some of the properties in fact were left out only with a view to contend that they are the self-acquired properties of the 1st defendant, but all these properties are the joint family properties. ( 13 ) NO doubt, there is no presumption that Hindu joint family possesses joint property. But however when once it is 502 andhra Law Times Reports [2003 established that joint family was having sufficient nucleus to acquire property then it can be presumed that any acquisition by a member of the joint family is joint family property and it is not in dispute that the 1st defendant got Ac. 3-09 1/2 cents of land in the joint family partition under the original ex. B-3 partition deed. Under Ex. B-3, the 1st defendant and his sons partitioned their properties two years prior to the date of partition deed some time in the year 1958. Ex. B-9 is the sale deed in favour of D. W. I dated 9-3-1958. On behalf of the plaintiffs, p. W. 1 and P. W. 2 were examined. In the evidence of P. W. 1 he had deposed that ex. A-1 is the deed of Registered partition deed, dated 24-2-1981 and in Ex. A-1 all the joint family properties of the defendants are not shown and Items 1 to 9 of plaint A schedule are left out of the partition and further stated that all the plaint A schedule properties are joint family properties of the plaintiffs and defendants and none of them are the self-acquired properties of the 1st defendant. The 1st defendant and his brothers had partitioned their joint family properties in the year 1958 and the property was also purchased by the 1st defendant under the original of Ex. B-9 in the same year and hence it cannot be said that the 1st defendant was having any income from the joint family properties for purchasing the properties under the original of Ex. B-9 in the same year and hence it cannot be said that the 1st defendant was having any income from the joint family properties for purchasing the properties under the original of Ex. B-9 and hence in the absence of any evidence it cannot be said that the properties under the original of Ex. B-9 have been purchased by the 1st defendant with the help of joint family nucleus. The trial Court on appreciation of the evidence of P. W. I, P. W. 2 and also the evidence of D. W. I to D. W. 3, had recorded a specific finding that the properties purchased under the original of ex. B-9, shown as items 3, 4 and 8 of the plaint A schedule, cannot be said to be the joint family properties. Further a finding had been recorded that the other items shown as Items 1, 2, 5 to 7 and 9 purchased under the originals of Exs. B-7, B-8 and B-10 which are subsequent to partition that was effected by the 1st defendant and his brothers in the year 1958, are the properties purchased out of the joint family nucleus. The 1st defendant further claimed that he was having income by cultivating the lands of others on lease. But however no evidence was let-in to show that he was cultivating the lands of Rudramraju Balakrishnam Raju and the said Rudramraju Balakrishnam Raju was not examined. There is no oral and documentary evidence in this regard except the evidence of D. W. I and another witness d. W. 2 who does not own any lands. It is also pertinent to note that the finding relating to ex. B-9 in relation to certain items became final and the respondents 1 and 2/plaintiffs in the suit, had not questioned the said finding and hence in the absence of the same, I am not inclined to disturb the said finding which was arrived at on appreciation of the oral and documentary evidence. ( 14 ) NO doubt, an attempt was made to assail the judgment on the ground that the suit is bad for non-joinder of a necessary party, the said Rudramraju kasiviswanatharaju. ( 14 ) NO doubt, an attempt was made to assail the judgment on the ground that the suit is bad for non-joinder of a necessary party, the said Rudramraju kasiviswanatharaju. I do not think that the said contention on behalf of the appellant is well founded because he cannot be said to be a necessary party to the suit for partition and at the best the 1st defendant could have examined him as a witness to substantiate his stand. In the decision referred (1) supra, it was held that the property separate or self acquired of a member of a joint Hindu family may be impressed with the character of joint Hindu family property if it is voluntarily thrown by the owner into common stock with intention of abandoning 1 his separate claim therein but the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case and it must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such intention cannot be inferred merely from the physical mixing of the property with his joint family property or from the fact that the other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilized out of generosity or kindness to support persons whom the holder is not bound to support or from the failure to maintain separate accounts, for an act of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation. In the decision referred (2) supra, it was held: "hindu Law on this aspect of the case, namely, the nature of the property in the name of a member of the joint family, is well settled. There is no presumption that the property held by any member of joint family is joint. The initial burden rests upon the person who seeks to assert that the property is joint. If it is established that the family possesses adequate joint family property which might have formed the nucleus to acquire the property, then the burden shifts to the person alleging that the property is self-acquired, to establish affirmatively that the property was acquired without the aid of the joint family property. If it is established that the family possesses adequate joint family property which might have formed the nucleus to acquire the property, then the burden shifts to the person alleging that the property is self-acquired, to establish affirmatively that the property was acquired without the aid of the joint family property. A classic decision on this aspect is Appalaswamy v. Suryanarayanamurti (AIR 1947 P. C. 189), where Sir John Beaumont observed as follows:"proof of the existence of a joint family does not lead to the presumption that the property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is 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. "the Supreme Court in Mudigowda godappa Sankh v. Ramachandra Revgowda sankh (dead) by LRs. 3, following the rule laid down in the above Privy Council case, observed that:"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 property is 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. " ( 15 ) AS far as the principles relating to the burden of proof in relation to the properties 3. AIR 1969 SC 1076 . of a coparcenary or a joint family is concerned, they are well settled. " ( 15 ) AS far as the principles relating to the burden of proof in relation to the properties 3. AIR 1969 SC 1076 . of a coparcenary or a joint family is concerned, they are well settled. Here is a case where the defendants had partitioned their properties under Ex. B-5 and a clear finding had been recorded that it had not included Items 1 to 9 treating them as exclusive or separate property of the 1st defendant. But in view of Ex. B-9, a finding had been recorded that except items 3, 4 and 8, the other items of the plaint A schedule properties are the joint family properties. Though the learned counsel for the appellant had advanced elaborate arguments, he was unable to assail the said finding since the said finding is based on both oral and documentary evidence i. e. , the evidence of P. W. I, P. W. 2 and D. W. I to d. W. 3 and also in the light of the probabilities of the case, especially in view of Exs. B-3, B-5 and B-9. Hence, on the overall appreciation of the facts and circumstances of the case, inasmuch as the trial Court had recorded all the factual findings based on the material available on record, I am unable to see any reason to arrive at a different conclusion and hence these findings are hereby affirmed. I had already observed that though there is an adverse finding relating to certain items, the respondents/plaintiffs had not chosen to question the same and hence the said finding cannot be disturbed. ( 16 ) POINT 5: For the foregoing reasons, there are no merits in the Appeal and accordingly the Appeal is dismissed. But in view of the close relationship between the parties, this Court makes no order as to costs.