L. NARASIMHA REDDY, J. ( 1 ) THE plaintiff in O. S. No. 165 of 1987 is the appellant. He filed the suit against his younger brother, the sole defendant, for the relief of partition and separate possession of the suit schedule properties. The defendant died during the pendency of the appeal. His LRs. are brought on record. For the sake of convenience, the parties are referred to, as arrayed in the suit. ( 2 ) IN brief, the plea of the plaintiff was that, their father late Subba Reddy, was a resident of Kodavalur and died in the year 1932, when the plaintiff and defendant were aged about 9 and 6 years, respectively. He pleaded that their father owned a rice mill; share in another rice mill and other immovable properties, and after his death, their mother, Rangamma, along with himself and his brother, shifted to nellore and resided in the house of rangamma s grand-mother. It is his case that with the money and other resources left by his father, Rangamma, purchased items 2 and 3 of the suit schedule in the name of himself and his brother, and item no. 4, in her name. He alleged that item no. 1 of the suit schedule, a residential house, which belonged to the grand-mother of rangamma, was developed by changing the roof and constructing first floor, with the funds of the joint family, and though it accrued to Rangamma, by way of inheritance, it became part of the joint family property. As regards item No. 5, an extent of about 20 acres of land purchased in the name of the 1st respondent in the year 1965, he pleaded that it was acquired by utilizing the income of the joint family properties and that it is available for partition. ( 3 ) IN his written statement, the defendant pleaded that their father did not hold any property by the time he died, and that it is their mother, Rangamma, who arranged for the purchase of items 2 and 3 in their names. He contended that items 1 and 4 of the suit schedule are the exclusive properties of Rangamma and that she bequeathed the same, to his son, by name, panduranga Reddy (the 3rd respondent herein), under a Will dated 20-10-1984. He contended that items 1 and 4 of the suit schedule are the exclusive properties of Rangamma and that she bequeathed the same, to his son, by name, panduranga Reddy (the 3rd respondent herein), under a Will dated 20-10-1984. He asserted that item 5 of the suit schedule is his exclusive property and that the appellant has nothing to do with the same. He furnished the particulars of the sale of plots from part of that land. ( 4 ) THE Trial Court passed the preliminary decree dated 16-11-1995 holding that only items 2 and 3 are available for partition; items 1 and 4 were the exclusive properties of late Rangamma and that item 5 is the exclusive property of the 1st respondent. Hence, this appeal by the plaintiff, insofar as the Trial Court denied the relief in respect of items 1, 4 and 5. ( 5 ) SRI M. Ravindranath Reddy, learned Counsel for the plaintiff submits that though the defendant pleaded in the written statement that their father did not hold any properties or resources by the time he died, as DW-1, he admitted in his evidence that properties of considerable value were left by their father. He contends that item No. l of the suit schedule was developed by utilizing the joint family properties and that there is sufficient evidence to prove that it was treated as part of the joint family properties. ( 6 ) ACCORDING to the learned Counsel, item No. 4 of the suit schedule was purchased, along with those in items 2 and 3, and there exists hardly any difference as to the utilization of the funds, negotiation etc. , in relation to the purchase to that item, except that it was in the name of their mother, and in that view of the matter, it was very much part of the joint family property. ( 7 ) LEARNED Counsel further submits that DW-1 did not have any means to purchase item 5 of the suit schedule. He contends that the joint family held valuable properties, and it was with the income derived out of the same, that item No. 5 was purchased. He points out that the evidence of defendant in this regard was untrustworthy and inconsistent. He attacks the finding of the Trial Court on the validity of the Will Ex. B-4. He contends that the joint family held valuable properties, and it was with the income derived out of the same, that item No. 5 was purchased. He points out that the evidence of defendant in this regard was untrustworthy and inconsistent. He attacks the finding of the Trial Court on the validity of the Will Ex. B-4. He contends that, on the one hand, the Trial court had undertaken extensive discussion about Ex, B-4, to disentitle the plaintiff, to claim any rights in respect of items 1 and 4, and on the other hand, took the view that its validity cannot be decided, in the absence of the legatee under the Will, as a party to the suit. He urges that, all through the defendant pursued the matter as though he is representing his son, and in that view of the matter, no necessity was felt to implead the legatee. He submits that whatever may have been the circumstances under which the Respondent No. 3 was not impleaded in the suit, the said defect or lapse ceased to exist, once the 3rd respondent is now a party to this appeal. He attacks the finding of the Trial Court on the question of limitation also. He points out that C. M. P. No. 8797 of 2001, filed to implead the legatee would cause the defect, if any, and that the additional evidence placed before this Court through A. S. M. P. No. 751 of 2005 would establish that Ex. B-4 is not a genuine document. ( 8 ) SRI D. Prakash Reddy, learned senior Counsel appearing for the defendant submits that the plaintiff failed to prove the existence of any joint family, and what existed, at the most, was a joint property, as between the plaintiff and the defendant, in the form of items 2 and 3. He contends that item No. 1 accrued to their mother through succession, and since she is not a coparcener, the question of the said property being treated as an item of the joint family property, does not arise. Learned Senior Counsel submits that the parties never lived together as joint family, nor there existed any joint family property. He contends that items 1 and 4 of the. suit schedule are the subject-matter of the will, Ex. B-4, and the plaintiff never asserted his rights in the said items during the lifetime of his mother. Learned Senior Counsel submits that the parties never lived together as joint family, nor there existed any joint family property. He contends that items 1 and 4 of the. suit schedule are the subject-matter of the will, Ex. B-4, and the plaintiff never asserted his rights in the said items during the lifetime of his mother. ( 9 ) HE submits that the written statement filed by the defendant clearly disclosed that a Will was executed in respect of items 1 and 4, in favour of his son, panduranga Reddy, and in spite of the same, the plaintiff did not take any steps to implead the legatee, in the suit. Learned senior Counsel points out that the fact that the legatee has come on record, in this appeal, as one of the legal representatives of the defendant, does not entitle the appellant to canvass the legality of Ex. B-4, and such plea stood already barred by limitation. He opposed the applications, filed to implead the legatee as an independent party, and for receiving additional evidence. ( 10 ) LEARNED Senior Counsel further submits that the 1st respondent purchased item 5, with his own funds and the contribution made by his wife. He contends that there is sufficient evidence to prove that the defendant had his own funds in the form of savings from his salary and income derived out of the lands given to his wife towards pasupu kunkuma. He ultimately submits that no interference is called for with the findings of the Trial court. ( 11 ) THE plaintiff is the elder brother of the defendant. He filed the suit for partition of five items of immovable properties into two equal parts. The gist of the contentions was referred to, in the preceding paragraphs. Defendant opposed the suit, particularly in respect of items 1, 4 and 5 of the suit schedule. On the basis of the pleadings before it, the Trial Court framed the following issues:1. Whether all the properties shown in the plaint schedule are the joint family properties of the plaintiff and the defendant; if so, whether all of them are liable for partition? 2. Whether the Court fee paid is correct? 3. To what relief? ( 12 ) THE plaintiff was examined as PW-1. Whether all the properties shown in the plaint schedule are the joint family properties of the plaintiff and the defendant; if so, whether all of them are liable for partition? 2. Whether the Court fee paid is correct? 3. To what relief? ( 12 ) THE plaintiff was examined as PW-1. His maternal aunt s son, who is said to have negotiated and participated in the purchase of item 5 of suit schedule property, was examined as PW-2. Exs. A-1 to A-10 were marked. Ex. A-1 is a sale deed, executed by the plaintiff and defendant, on 22-6-1944, in favour of one Koduru Subba kami Reddy, for sale of land, left by their father. Ex. A-2 was executed by them, their mother and others, in favour of one s. Subba Rao, relinquishing their share in a rice mill. Ex. A-3 is the sale deed, dated 15-1-1936, under which, items 2 and 3 of the suit schedule were purchased. Through ex. A-4, executed on 15-1-1936 itself, rangamma indemnified the borrowers. The borrowers have repaid the amount, which in turn was used in purchasing items 2 and 3. Ex. A-5 is a statement of the immovable properties held by the plaintiff, as a public servant, for the period 1974-76. Exs. A-7 to A-10 are the study certificates of the daughters of the appellant issued by st. Joseph s Girls High School, Nellore, to show that they lived with Rangamma at nellore, for their study. ( 13 ) THE defendant was examined as dw-1. DW-2 is his brother-in-law. DWs. 3 and 4 are said to be the witnesses for the will. DW-5 is said to be the person, who cultivated the land of items 2 and 3 of the suit schedule. On his behalf, Exs. B-1 to B-12 were marked. Ex. B-1 is the same as Ex. A-3. Ex. B-2 is the sale deed for item 4. Ex. B-3 is a mortgage deed; Ex. B-4 is the Will dated 20-10-1984, said to have been executed by Rangamma, in favour of Panduranga Reddy, the son of the defendant. Ex. B-7 is the document, under which, item 5 of the suit schedule was purchased, and Ex. B-6 is its link document. Other documents are not so important, as to be referred to, at this stage. B-4 is the Will dated 20-10-1984, said to have been executed by Rangamma, in favour of Panduranga Reddy, the son of the defendant. Ex. B-7 is the document, under which, item 5 of the suit schedule was purchased, and Ex. B-6 is its link document. Other documents are not so important, as to be referred to, at this stage. ( 14 ) ON appreciation of the oral and documentary evidence before it, the Trial court took the view that item 1 of the suit schedule property is not available for partition, since it was inherited by Rangamma. Items 2 and 3 were held to be available for partition. While item 4 was found to be the exclusive property of Rangamma, item 5 was said to have been acquired by the 1st respondent with his own funds. . ( 15 ) THE Trial Court denied the share in items 1 and 4 to the appellant, on the ground that they were bequeathed exclusively in favour of the 3rd respondent herein through Ex. B-4. ( 16 ) IN view of the submissions made by the learned Counsel for the parties, the following points arise for consideration in this appeal: (1) Whether items 1 and 4 of the suit schedule were the exclusive properties of late Rangamma. (2) Whether item 5 of the suit schedule is the exclusive property of the defendant. (3) Whether the observations made and the findings recorded, as regards ex. B-4. by the Trial Court, can be sustained in law. (4) Whether the legatee under Ex. B-4 can be impleaded as an independent party to this appeal, and whether the plaintiff is entitled to lead additional evidence at this stage. ( 17 ) THE findings on the points framed above would heavily depend upon the status and financial condition of the family of late Subba Reddy, the father of the plaintiff and defendant, by the time he died in the year 1932, According to the plaintiff, his father owned a rice mill, exclusively, held 1/4th share in another rice mill; possessed some cash and landed property, by the time he died. The defendant, however, pleaded that late Subba Reddy, was only a mechanic in a rice mill and he did not possess any property during his lifetime. The defendant, however, pleaded that late Subba Reddy, was only a mechanic in a rice mill and he did not possess any property during his lifetime. On this premise, he pleaded that items 2 and 3 of the suit schedule were purchased with the funds arranged by their mother, and thereby, there did not exist any joint family properties, much less any nucleus, which could have been used at subsequent stages, to acquire other items of property. This is what the defendant said in his written statement, on this aspect:". . . THE defendant denies that Subba Reddy was doing business and was having a rice mill and a share in another rice mill. The defendant learns that the said Subba reddy was working in rice mill as an employee and he had no rice mill and a share in another rice mill and he never did business also. The defendant further denies that after the death of Subba Reddy on 7-9-1932, the business was sold and with die sale proceeds thereof agricultural lands of an extent of Ac. 9. 90 cents at. Chintachelika Village, H/o Gandavaram were purchased. . . . The said Subba Reddj father of plaintiff and defendant had no properties either self-acquired or ancestral by the time of his death. He was only working as mechanic in a rice mill situated at Kodavalur. . . " ( 18 ) IN his deposition as PW-1, the plaintiff repeated the contents of the plaint and said that apart from holding properties his father lent certain amount to one Mr. Kanumuru Kodandarami Reddy, during his lifetime and that items 2, 3 and 4 of the suit schedule were purchased with the said amounts. Items 2 and 3 of the suit schedule were purchased through Ex. A-3, equivalent to Ex. B-1, dated 15-1-1936. In his written statement, the defendant stated that these two items were purchased by the money lent to one Kanumuru kodandarami Reddy, by their mother rangamma, on their behalf. When it came to the deposition, the defendant said that the said lands were purchased by their mother by selling her jewellery, and that item 4 of the suit schedule was purchased with her own funds. ( 19 ) IN his cross-examination, the defendant virtually gave a go-by to his version in the written statement and chief-examination. When it came to the deposition, the defendant said that the said lands were purchased by their mother by selling her jewellery, and that item 4 of the suit schedule was purchased with her own funds. ( 19 ) IN his cross-examination, the defendant virtually gave a go-by to his version in the written statement and chief-examination. After his attention was drawn to certain particulars of property held by his father, he ultimately said,"my father got properties. . . My father constructed a rice mill in the partnership concern at Singarayakonda. It is true that my father got 25 paise share in the rice mill and the groundnut mill". ( 20 ) IT was elicited through him that the parents of Rangamrna died while she was a child, her marriage was performed by her grand-mother, and at the time of marriage, the grand-mother did not hold any property. He stated that he does not know whether his mother owned any jewellery. He further stated: "it is true that she was brought up by her grand-mother, as an orphan". He admitted that he joined the plaintiff in executing Exs. A-1 and A-2. Ex. A-1 is a sale deed under which an item of land purchased by their father in 1927 was sold in 1944. Under Ex. A-2, plaintiff, defendants, rangamma and others relinquished their 3/4th share in a Rice Mill for Rs. 30,000/- on 16-9-1967. ( 21 ) A close analysis of the pleadings and evidence on this aspect reveals that late Subba Reddy held immovable properties as well as cash in the form of loans to others, by the time he died. Items 2 and 3 of the suit schedule were purchased on 15-1-1936 for a consideration of Rs. 5,908/- from one Mr. Koduru Venkaia Subba reddy. Rangamma acted as guardian of the plaintiff and defendant, who figured as purchasers in Ex. A-3, which is equivalent to ex. B-1. If the recitals of Ex. A-3 are examined in isolation, one may find it difficult to know the soufce of the sale consideration. However, Ex. A-4, a security bond executed by Rangamma, on the same day i. e. 15. 1. 1936 makes this aspect very clear. A-3, which is equivalent to ex. B-1. If the recitals of Ex. A-3 are examined in isolation, one may find it difficult to know the soufce of the sale consideration. However, Ex. A-4, a security bond executed by Rangamma, on the same day i. e. 15. 1. 1936 makes this aspect very clear. In this document, it is recited that Subba Reddy, the husband of Rangamma, and father of the plaintiff and the defendant, lent amount to Kanurnuru Subba Reddy and Tavva vudayavarula Setty, through a promissory note dated 11-1-1934 and by 15-1-1934 the amount, together with interest became rs. 5,703/ -. It is stated that the cost of the land, when the amount was lent by subba Reddy was relatively less and the rates of interest were higher, and since the position had changed, Rangamma thought that it would be beneficial for the minors, if the amount is invested in purchasing the land. Reference was made to the purchase of the items 2 and 3 for a sum of Rs. 5,908/- and utilization of the amount, which was repaid by the borrowers, for this purpose. Ex. A-4 was executed as a measure of security for the borrowers, in the event of any dispute as to the entitlement of the plaintiff and defendant, who are minors, or any title dispute over the land so purchased. Therefore, it stands established that items 2 and 3 were purchased with the funds left by late Subba Reddy with his borrowers. ( 22 ) ITEM 4 of the suit schedule was purchased under Ex. B-2, one day prior to the purchase under Ex. A-3. The document does not disclose that the consideration was arranged out of Shreedhana, or any other exclusive resources of Rangamma. Out of the total consideration of Rs. 1,000/-, a sum of Rs. 700/- was paid and a promissory note was executed for balance of Rs. 300/ -. The Vendor for items 2, 3 and 4 is the same. As observed earlier, it was elicited through the defendant that Rangamma lost her parents when she was a child, and her marriage was performed by her grand-mother. It has also come on record that her grand-mother did not hold any property, by the time the marriage of Rangamma was performed. As observed earlier, it was elicited through the defendant that Rangamma lost her parents when she was a child, and her marriage was performed by her grand-mother. It has also come on record that her grand-mother did not hold any property, by the time the marriage of Rangamma was performed. Under these circumstances, it is difficult for anyone to believe that she possessed any resources of her own, to purchase item 4 of the suit schedule. On the other hand, the family comprising of herself, her husband, Subba Reddy, the plaintiff and the defendant, held sufficient properties, by the time Subba Reddy died. Though the defendant initially said that his father did not possess any property, at subsequent stages, he admitted that his father possessed rice mill and other properties. From a perusal of Ex. A-4, it is evident that items 2 and 3, landed property of 8 and acres, was purchased for a consideration of Rs. 5,900/-, which was recovered from the borrowers of Subba reddy. Rangamma managed all the properties after the death of her husband. The version of the defendant as to the financial status of the family was proved to be an utter falsehood. The record discloses that even after purchasing items 2 and 3 of the suit schedule in the year 1936, and maintaining family at Nellore, the family possessed Ac. 2. 80 cents of land at kandukuru, purchased by Subba Reddy, in the year 1927, and it was sold by the plaintiff and defendant in the year 1944 under Ex. A-1. Under Ex. A-2, the parties to the suit, Rangamma and others relinquished 3/4th share in a mill for Rs. 30,000/- in 1967. Till then, they shared the income. The income from the other mill is not explained. Therefore, it is clearly evident that the joint family comprising of plaintiff and defendant and their father, Subba Reddy, held properties of substantial value, by the time the Kartha of the family i. e. Subba reddy died in the year 1932. The legal implications of this would be dealt with, while discussing point No. 2. ( 23 ) POINT No. 1 framed in this appeal, takes in its fold, two items of property, viz. , items 1 and 4 of the suit schedule. The discussion undertaken above discloses that item 4 was purchased with the joint family funds in the name of Rangamma. ( 23 ) POINT No. 1 framed in this appeal, takes in its fold, two items of property, viz. , items 1 and 4 of the suit schedule. The discussion undertaken above discloses that item 4 was purchased with the joint family funds in the name of Rangamma. Hence, it is not her self-acquired property. However, it is not in dispute that the original owner of item No. 1 was the grand-mother of Rangamma. After the death of her grand-mother, Rangamma succeeded to the said property as a legal heir. It may be true that certain improvements were made to the house comprised in that item. Even assuming that the joint family funds were utilised for undertaking the improvements, the legal character of the property does not get altered. If improvements were made with the funds of the family, the family in turn had the benefit of residing in it, without payment of rents. Even otherwise, the family as a whole, may be entitled to recover the amount spent in making improvements, if it is established that such improvements were made with the consent of the lawful owner and with a condition that the funds so used would be refunded. Mere spending of amount for the improvement of a property does not have the effect of changing the very ownership. There is nothing on record to show that Rangamma parted with her ownership of the said house, in favour of the plaintiff and defendant, during her lifetime. Therefore, the finding of the Trial Court on this aspect deserves to be upheld. ( 24 ) AS for point No. 2, the plaintiff specifically pleaded that item 5 was purchased with the funds of the family; whereas the defendant pleaded that it is his exclusive property. Apart from asserting this, as PW-1, the plaintiff examined PW-2, in support of his contention on this aspect. PW-2 is the cousin of the plaintiff and defendant, i. e. son of their maternal aunt. He stated that Rangamma used to manage the family of the plaintiff and defendant and the properties, held by it. He stated that the purchase of item 5 was negotiated by him, and a person, by name, Masthan reddy. He said that he did so, at the instance of Rangamma, and that the land was purchased for a consideration of rs. 2,000/ -. He stated that the purchase of item 5 was negotiated by him, and a person, by name, Masthan reddy. He said that he did so, at the instance of Rangamma, and that the land was purchased for a consideration of rs. 2,000/ -. He deposed that Rangamma paid the consideration at the time of execution of the sale deed. As to the reason for execution of the sale deed, in the name of the defendant alone, he said that plaintiff resided at a far of place at that time. PW-2 further stated that the defendant was working in a glass Factory at Gudur, at a salary of Rs. 200/- per month; he had no capacity to pay the consideration, and that the land was purchased for the benefit of the family. ( 25 ) IN the cross-examination, on behalf of the defendant, neither the relationship of pw-2, to the parties, was disputed, nor it was suggested that he did not negotiate the deal. The cross-examination was mostly on superficial aspects, such as, the knowledge of PW-2 about the surname of masthan Reddy; his involvement in certain criminal cases etc. PW-2 stuck to his stand, that though the amount paid by rangamma, the sale deed was obtained in the name of the defendant; since the plaintiff was a Government employee, and far away. ( 26 ) IN his written statement, the defendant stated that item 5 was purchased with his own earnings. To be precise, the relevant pleading reads as under:". . . The defendant submits that he purchased the said extent of Ac. 20-00 of dry land in Padarupalli village under a registered sale deed dated 16-1-1965 for a sum of Rs. 2,000/- with his own earnings from out of his employment and also from the agricultural income of the lands owned by him in Chinthachelika village and the agricultural lands of Ac. 3-00 owned and possessed by himself and his wife in panchedu Village, Kovur Taluk got under a registered settlement deed dated 7-3-1960. . . " ( 27 ) THE lands in Chinthachelika village, referred to above, are those in items 2 and 3. According to the defendant, those lands were under the cultivation of DW-5 upto the year 1982, and after he (defendant) retired from service in 1983, he started cultivating them. . . " ( 27 ) THE lands in Chinthachelika village, referred to above, are those in items 2 and 3. According to the defendant, those lands were under the cultivation of DW-5 upto the year 1982, and after he (defendant) retired from service in 1983, he started cultivating them. He proceeded as though the land, in items 2 and 3, was partitioned between himself and the plaintiff, and from 1983 onwards he cultivated the share of the plaintiff also, by paying the rent at rs. 1,000/- per acre, per year. He did not state as to whether any such partition or division, as the case may be, has taken place, and if so, at what point of time. He was not consistent even about the maktha, said to have been paid to his brother, towards his share. While in the written statement he said that it was Rs. 4,000/- per year, in his chief-examination, he said that it was Rs. 1,000/- per year. ( 28 ) THE defendant further stated that he obtained a lay-out for dividing the land in item 5, into plots and started selling the same from 8-9-1996 onwards. ( 29 ) IN his chief-examination, the defendant narrated the manner in. which item 5 of the suit schedule was acquired, as". . . I purchased this land with the income from my family and also with the amount that was derived from my wife s land. My father-in-law Guduru Venkata Subba Reddy arranged this loan. . . " ( 30 ) THE manner in which he understood the connotation of the word "family", would be clear from the following portion of his chief-examination:". . . I did not spend any amount of my joint family. Myself and my brother PW. 1 never lived joindy. We have no joint family properties. It is false to say that lands were purchased with die joint family funds in my name as PW. l was in Government servant I purchased the property with my self acquired property. . . "the defendant did not plead that he acquired any property before 16-1-1965, date of Ex. B-7 under which item 5 was purchased. The defendant was cross- examined extensively about the purchase of item 5. It was suggested to him that at the time of purchase of item 5, the plaintiff was a State Officer and was in foreign countries. . "the defendant did not plead that he acquired any property before 16-1-1965, date of Ex. B-7 under which item 5 was purchased. The defendant was cross- examined extensively about the purchase of item 5. It was suggested to him that at the time of purchase of item 5, the plaintiff was a State Officer and was in foreign countries. It was also suggested that in the declaration made by the plaintiff in Ex. A-5, item 5 was shown. In the cross-examination, the defendant changed his version, as to the resources for purchasing item 5 and stated as under:"the amount belongs to my wife and the father-in-lawr I did not spent any amount from my earnings. " ( 31 ) THEREFORE, it is evident beyond a pale of doubt that the defendant was not at all consistent about his version as to the manner in which item 5 was purchased. He kept on changing his stand, as to the very status of the family. At one point of time he said that items 2 and 3 alone were their joint properties. At another place, he said that there was a partition between himself and his brother, wherein he got 4 acres of land, and said, "i got Ac. 4-00 from my joint family towards my share. " he did not state as to when the partition took place. ( 32 ) AS regards the funds for purchasing item 5, he pleaded in the written statement that it was partly from his own earnings, out of his employment and agricultural, and partly from the lands owned by himself and his wife. In his chief- examination he challenged the version and said that the funds were partly from his family and the remaining, as loan, by his father-in-law. His cross-examination presents a different picture altogether, and he said that, he did not spend any amounts from his earnings. ( 33 ) IN the preceding paragraphs, it was found that the family possessed sufficient nucleus, to acquire properties. Though the defendant denied it, initially, he changed his version at a later stage. He admitted not only the existence of properties left by his father, but also about the receiving of maktha for items 2 and 3 till 1982. ( 33 ) IN the preceding paragraphs, it was found that the family possessed sufficient nucleus, to acquire properties. Though the defendant denied it, initially, he changed his version at a later stage. He admitted not only the existence of properties left by his father, but also about the receiving of maktha for items 2 and 3 till 1982. ( 34 ) IT is settled principle of Hindu law that there is always a presumption in favour of the family being joint, till the otherwise is proved. So far as the properties are concerned, such a presumption is not available. However, where, a coparcener, asserting the jointness of the property, proves to the satisfaction of the Court, that there existed sufficient nucleus for the joint family to acquire properties, the burden shifts to the one, who pleads that any item of properties, is his self-acquisition. ( 35 ) IF we examine the instant case on the touchstone of these principles, it is evident that the defendant failed to prove that there was any prior partition in the family or that it ceased to be joint. He did not dispute his relationship with the plaintiff. He was not consistent about the very existence of joint family between them. He treated items 2 and 3 of the suit schedule as their joint properties and not as joint family properties. Even in that regard, he did not state as to when the partition has taken place. Hence, the presumption, as to the existence of joint family, gets attracted. ( 36 ) SO far as the properties, and in particular, items 4 and 5 are concerned, the plaintiff clearly established that there existed adequate nucleus of the joint family, sufficient to make acquisitions at a later point of time. Beyond any pale of doubt, he proved that items 2 and 3 were purchased with the money left by his father, with his borrowers, and there were necessary resources for purchasing item 4, contemporaneously. It was the case of the defendant himself that the income derived out of these properties was being received by himself and Rangamma, their mother. For a family, which was in a position to purchase items 2 and 3, for a consideration of about Rs. 6,000/-, way back in the year 1936, it is by no means a difficult task, to spare Rs. For a family, which was in a position to purchase items 2 and 3, for a consideration of about Rs. 6,000/-, way back in the year 1936, it is by no means a difficult task, to spare Rs. 2,000/- about 30 years thereafter, for purchasing item 5. During this interregnum, an item of joint family was sold under Ex. A-1 and had the income from the Rice Mill, which was relinquished through Ex. A-2, apart from maktha from items 2, 3 and 4. Once the existence of nucleus was established, it was for the defendant to prove that he purchased item 5 with his own funds, to the exclusion of the joint family. As is evident from the discussion undertaken in the preceding paragraphs, the defendant failed, miserably, on this point. Therefore, the inescapable conclusion is that, item 5 of the suit schedule property was purchased with the joint family funds, and thereby it is also available for partition. ( 37 ) NOW remain Points 3 and 4. In fact, they are different facets of the same issue. It was held that item 4 was purchased by the joint family funds in the name of rangamma. Therefore, she could not have bequeathed the said property under the Will, Ex. B-4. The Trial Court had undertaken extensive discussion on the validity of Will of Ex. B-4. The plaintiff was obviously not aware of the same and he filed the suit. The defendant had taken upon himself the task of proving and sustaining Ex. B-4. He did not raise any plea as to non-joinder of necessary party, viz. , legatee under the Will. The legatee was none other than his own son. If he was of the view that the plaintiff cannot assail the validity of the Will, he ought not to have relied upon it. However, he has chosen to examine the attestors etc. , and tried to prove it. The Trial Court had almost recorded a finding, upholding the Will, but refused to go further, on the ground that the legatee is not a party. It is in this context, that the plaintiff filed CMP No. 8797 of 2001, to implead the legatee who is already a party to this appeal. In addition, he has filed an application to receive certain documents under Order 41 Rule 27, as additional evidence, with a view to attack Ex. B-4. It is in this context, that the plaintiff filed CMP No. 8797 of 2001, to implead the legatee who is already a party to this appeal. In addition, he has filed an application to receive certain documents under Order 41 Rule 27, as additional evidence, with a view to attack Ex. B-4. ( 38 ) HAVING regard to the fact that item 4 is outside the scope of the Will, Ex. B-4, and item 1 is not available for partition, this court is of the view that it is not necessary to deal with the validity or otherwise of ex. B-4 in these proceedings. In other words, item 4, falls outside the scope of Ex. B-4, not as a result of pronouncement, on its validity, but because of the capacity of the testator, to deal with that item. So far as item 1 is concerned, it was competent for rangamma to have executed a Will. If the plaintiff is interested in claiming any share in that item, he has to work out his remedies separately against the legatee under the Will, if such steps are permissible in law. The objection as to limitation etc. , raised by the learned Counsel for the defendant need to be dealt with, in such proceedings. ( 39 ) THOUGH the learned Counsel for the parties have relied upon several decided cases, the necessity to refer to them is not felt; since the case findings mostly rest upon the evidence and on principles of law, regarding which, there hardly exists any doubt. ( 40 ) THE defendant pleaded that he made certain alienations in item 5. Admittedly, he was managing that property. The plaintiff cannot take exception to any alienations, which have taken place prior to the filing of the suit. At the most he can require the defendant now, his legal heirs, to account for the sale proceeds, in the final decree proceedings, in accordance with Law. ( 41 ) IN view of the findings recorded above, the appeal is partly allowed, to the extent indicated hereunder: (A) Item 1 of the suit schedule property was inherited by late Rangamma, and the same is not available for partition. ( 41 ) IN view of the findings recorded above, the appeal is partly allowed, to the extent indicated hereunder: (A) Item 1 of the suit schedule property was inherited by late Rangamma, and the same is not available for partition. (B) Items 4 and 5 of the suit schedule were acquired with the funds derived from the nucleus of the joint family, and as such, shall be included in the preliminary decree, for being partitioned along with items 2 and 3 of the suit schedule. (C) Such portion of the land in item 5 of the suit schedule, as has been alienated subsequent to the date of filing the suit i. e. 3-10-1986, shall be computed towards the share of the defendant (at present his legal representatives ). (D) The Will, Ex. B-4, insofar as it deals with item 4 of the suit schedule property, is inoperative in law, since the said item was found to be joint family property of plaintiff and defendant. However, its legality and validity, as regards item 1 of the suit schedule, is outside the scope of the suit; and the plaintiff has to work out his remedies separately, in accordance with law. (E) There shall be no order as to costs.