JUDGMENT: Ms. Justice G. Rohini This Letters Patent Appeal is preferred against the Judgment dated 17.3.1997 in A.S.No.1243 of 1993, whereunder the Judgment and preliminary decree for partition granted in O.S.No.108 of 1985 on the file of the Court of the Subordinate Judge, Srikalahasti, was confirmed by the learned Single Judge. 2. The Respondents 1 to 5 herein are the plaintiffs, who filed O.S.No.38 of 1980 in the Court of the Subordinate Judge, Tirupati, (subsequently transferred to the Court of Subordinate Judge, Srikalahasti, and renumbered as O.S.No.108 of 1985), seeking a decree for partition of suit schedule properties into 24 equal shares and for allotting seven shares to them. The suit was decreed by the trial Court by Judgment dated 26.3.1993. Challenging the said Judgment and preliminary decree, the defendants 4 and 5 alone preferred A.S.No.1243 of 1993 before this court which was dismissed by Judgment dated 17.3.1997. Hence, this Letters Patent Appeal by the defendants 4 & 5. 3. The respondents 6 to 8 herein are the defendants 1 to 3 and respondents 9 to 11 are the defendants 6 to 8 in the suit. Respondent No.12 herein was not a party to the suit, but was impleaded as a party respondent pending the Appeal. 4. For the sake of convenience, the parties shall hereinafter be referred to as they were arrayed before the trial Court. 5. It is not in dispute that one Jajala Munisubbaiah @ Muddaiah was the ancestor of the plaintiffs and the defendants. It is also not in dispute that the said Jajala Munisubbaiah got Ac.0.80 cents of wet land situated in Srikalahasti, Chittoor District, in a family partition between his father and other brothers under Ex.A4 dated 2.8.1933. Jajala Munisubbaiah had four sons and three daughters. Out of his four sons, the eldest son J. Muniratnam got separated from the family long back. The 2nd son J. Venkatrayulu died on 1.5.1976. The widow and four children of the said deceased son Venkatrayulu are the plaintiffs, who filed the suit for partition. 6. The defendants 1 and 2 are the other two sons of late Jajala Munisubbaiah, whereas the defendants 3, 4 and 5 are his daughters. The defendants 7 and 8 are the sons of the 1st defendant. The defendant No.6 is the purchaser of Ac.1.65 cents of land under Ex.A1 Sale Deed dated 21.9.1976 allegedly executed by Jajala Munisubbaiah. 7. 6. The defendants 1 and 2 are the other two sons of late Jajala Munisubbaiah, whereas the defendants 3, 4 and 5 are his daughters. The defendants 7 and 8 are the sons of the 1st defendant. The defendant No.6 is the purchaser of Ac.1.65 cents of land under Ex.A1 Sale Deed dated 21.9.1976 allegedly executed by Jajala Munisubbaiah. 7. The plaint averments in brief are as under: Jajala Munisubbaiah along with his four sons constituted a Hindu Joint Family with the father being the Kartha. The eldest son of Jajala Munisubbaiah got separated from the joint family about 15 years prior to filing of the suit and he was allotted some items of joint family properties. Thereafter, Jajala Munisubbaiah along with three other sons remained joint, and the joint family was in possession and enjoyment of the plaint A, B and C schedule properties. While so, one of the sons namely Jajala Venkatrayulu, husband of the 1st plaintiff and father of plaintiffs 2 to 5, died on 1.5.1976. Even prior to his death, he demanded partition of the joint family properties, however, the other members were not willing for the same. After his death, the 1st plaintiff again requested for partition and consequently Jajala Munisubbaiah got a partition deed prepared dividing the property into 3 shares and allotting one share each to the plaintiffs, defendant No.1 and defendant No.2. However, the 1st defendant did not cooperate to proceed further and Jajala Munisubbaiah died some time in 1978 without effecting division of the joint family properties. Thereafter, the plaintiffs got issued a legal notice dated 17.11.1979 demanding partition and since the defendants did not agree, filed the suit for partition. 8. It is alleged that at the instance of the 1st defendant Jajala Munisubbaiah during his life time alienated Ac.1.65 cents of joint family property to the defendant No.6 under Ex.A1 sale deed dated 21.9.1976. Similarly, defendant No.1 got executed Ex.A2 Settlement Deed dated 8.11.1977 in favour of his sons - defendants 7 & 8 - transferring a portion of plaint B-schedule house. That apart, Jajala Munisubbaiah also executed Ex.A3 Settlement Deed dated 8.11.1977 in favour of defendant No.4 transferring 7 cents of land in her favour out of the joint family property. It is alleged that the said alienations were not for the benefit of joint family and therefore not valid and binding on the plaintiffs. That apart, Jajala Munisubbaiah also executed Ex.A3 Settlement Deed dated 8.11.1977 in favour of defendant No.4 transferring 7 cents of land in her favour out of the joint family property. It is alleged that the said alienations were not for the benefit of joint family and therefore not valid and binding on the plaintiffs. Hence, the suit seeking partition and allotment of 7/24th share. 9. In the written statement filed by the 1st defendant all the said allegations were denied and it was pleaded that except a portion of the house in which they were residing there was no other joint family property and whatever properties were shown in the plaint schedule were all self-acquired properties of Munisubbaiah and therefore the alienations made by him during his life time were all valid. It is further stated that late Venkata Rayalu left the family house in the year 1961 itself and settled down in his father-in-law's place at Anjuru village and he never demanded any partition during his life time. Ex.A2 Settlement Deed dated 8.11.1977 in favour of the defendants 7 and 8 was executed by Munisubbaiah out of love and affection on his own conveying a portion of the residential house mentioned in B-schedule taking into consideration the service rendered by the 1st defendant and his wife. Similarly, since the 4th defendant was in a poor financial condition, late Munisubbaiah executed Ex.A3 Settlement Deed dated 8.11.1977 in her favour. Both Exs.A2 and A3 were genuine and valid since late Munisubbaiah was the absolute owner of the said properties. Thus, it was contended by the 1st defendant that there were no properties belonging to the joint family and that both schedule A and B properties were self-acquired properties of the deceased Jajala Munisubbaiah. It was also stated that the lands in A-schedule were already alienated by Munisubbaiah much prior to 1976. 10. The defendant No.4 in her written statement stated that her father Munisubbaiah gifted a thatched house bearing Door No.164 under Ex.B7 settlement deed dated 4.8.1967 and put her in possession. Similarly, her father late Munisubbaiah also gifted to her 7 cents of wet land in Sy.No.132/7 of Srikalahasti as well as the vacant site under EX.A3 Settlement Deed dated 8.11.1977. 11. Similarly, her father late Munisubbaiah also gifted to her 7 cents of wet land in Sy.No.132/7 of Srikalahasti as well as the vacant site under EX.A3 Settlement Deed dated 8.11.1977. 11. Defendant No.5 filed a separate written statement, which is adopted by defendant No.6, stating that there was no joint family and all the properties possessed by late Munisubbaiah were his self-acquired properties and therefore the settlement deed dated 8.11.1977 executed in favour of defendant Nos.7 and 8 was valid and binding on the plaintiffs. It is also stated that Jajala Munisubbaiah executed Ex.B4 registered will dated 25.2.1972 in favour of the 5th defendant bequeathing a house property at Kothapet as well as Ac.0.50 cents of wet land in Srikalahasti and that she had been in continuous possession and enjoyment of the same. 12. Defendant Nos.2 and 3 remained ex parte and did not contest the suit claim. 13. Both the parties adduced oral and documentary evidence. 14. On appreciation of the evidence on record, the trial Court held that both plaint A & B schedule properties were the joint family properties and not the self- acquired properties of Jajala Munisubbaiah. The trial Court also recorded a finding that the alienations made by Munisubbaiah under Exs.A2 (Ex.B2) and A3 (Ex.B8) settlement deeds dated 8.11.1977 as well as Ex.B4 will dated 25.2.1972 were not valid and binding on the plaintiffs. Accordingly, by Judgment dated 16.3.1993 a preliminary decree was granted for partition of plaint A and B schedule properties into 24 equal shares and for allotment of seven such shares to the plaintiffs. However, the relief for partition of C schedule properties was dismissed holding that there was no evidence to show that the said properties were in existence. 15. The defendants 4 and 5 alone questioned the said Judgment and decree by preferring A.S.No.1243 of 1993 before this Court. The said Appeal was dismissed by a learned single Judge by Judgment dated 17.3.1997 confirming the findings recorded by the trial Court and upholding the preliminary decree dated 16.3.1993. 16. Challenging the same, the present Appeal has been preferred by the defendants 4 and 5 under Clause-15 of Letters Patent. During the pendency of this Appeal, respondents 13 to 19 got themselves impleaded as party respondents. 17. We have heard the learned counsel for both the parties and perused the material on record. 18. 16. Challenging the same, the present Appeal has been preferred by the defendants 4 and 5 under Clause-15 of Letters Patent. During the pendency of this Appeal, respondents 13 to 19 got themselves impleaded as party respondents. 17. We have heard the learned counsel for both the parties and perused the material on record. 18. The learned counsel for the appellants, while submitting that there was absolutely no evidence to establish that there was sufficient nucleus to acquire plaint A and B schedule immovable properties, vehemently contended that the finding recorded by the learned trial Judge as confirmed on Appeal that the plaint schedule properties were the joint family properties was erroneous and without any basis. 19. It is also contended by the learned counsel for the appellants that the property got by late Munisubbaiah under Ex.A4 partition deed dated 2.8.1933 under which late Jajala Munisubbaiah was allotted Ac.0.80 cents of wet land was hardly sufficient to maintain his large family consisting of four sons and three daughters and therefore in the absence of any other evidence, it cannot be held that the initial burden placed on the plaintiffs, to establish that the family possessed sufficient nucleus, is discharged. In support of his submission, the learned counsel for the Appellants relied on the decision of the Supreme Court in D.S. LAKSHMAIAH AND ANOTHER v. L. BALASUBRAHMANYAM AND ANOTHER, (2003) 10 SCC 310 . 20. On the other hand, the learned counsel for the respondents contended that the concurrent findings of fact recorded by the learned trial Judge as confirmed by this Court in the Appeal, warrant no interference in this Letters Patent Appeal. 21. The law is well-settled that a property cannot be presumed to be the joint family property merely because of existence of joint family. The burden of proving the property to be joint family property always lies on the person who so asserts. However, once he proves that the family possessed sufficient nucleus with the aid of which the suit properties could be acquired, then a presumption has to be drawn that the properties are joint and consequently, the burden of proof shifts to the person claiming them to be self- acquired. 22. In the case on hand, the existence of the joint family consisting of Jajala Munisubbaiah and his sons is not in dispute. 22. In the case on hand, the existence of the joint family consisting of Jajala Munisubbaiah and his sons is not in dispute. Similarly, the execution of Ex.A4 partition deed, dated 2.8.1933 under which late Munisubbaiah got Ac.0.80 cents of wet land apart from gold and cash in family partition between him, his father and brothers, has not been disputed by the defendants. It is also relevant to note that the defendants themselves produced Ex.B10 Registered Sale Deed dated 5.10.1938 under which late Munisubbaiah purchased certain immovable properties from one Krishnaiah for a sale consideration of Rs.200/-. It was also admitted by the defendants in their oral evidence that late Munisubbaiah used to maintain bullock carts and from out of the income received he purchased the property under Ex.B10 Sale Deed. It was also admitted by D.W.5 in his cross-examination that besides cultivating his own lands late Munisubbaiah was cultivating about 7 acres of land of others on lease. Having regard to the above evidence and undisputed fact as to the existence of the joint family, the trial Court concluded that apart from property got by Munisubbaiah under Ex.A4 Partition Deed the property purchased by him under Ex.B10 when he was living together with his sons also forms part of the joint family property. Though it was contended by the defendants that the joint nucleus under Ex.A4 was not sufficient to acquire the properties covered by Ex.B10, the trial Court did not accept the same. Accordingly, it was held that the joint nucleus available under Ex.A4 and Ex.B10 was sufficient to acquire the suit schedule property. Consequently, the Court below had rightly drawn the presumption that the suit A and B schedule properties were joint family properties. The learned Single Judge on re-appreciation of the evidence on record confirmed the finding recorded by the trial Court. 23. The said finding has been assailed before us by the appellants contending that the property that fell to the share of late Munisubbaiah under Ex.A4 partition deed was very meager and would not have formed sufficient nucleus to acquire the suit schedule properties. The very same contention was advanced on behalf of the appellants before the learned single judge. 23. The said finding has been assailed before us by the appellants contending that the property that fell to the share of late Munisubbaiah under Ex.A4 partition deed was very meager and would not have formed sufficient nucleus to acquire the suit schedule properties. The very same contention was advanced on behalf of the appellants before the learned single judge. While rejecting the said contention, the learned single judge observed as under : "I am also of the view that 80 cents of wet land under a tank is not a small property in the year 1933. Moreover, the price index and cost of living of those days cannot be lost sight of. It is on record that the property covered by Ex.B10 was purchased for consideration of Rs.200/-. This document is an indication of the level of prices of immovable properties. It is understandable that the yield from 80 cents of wet land, which is the joint family nucleus, would have been sufficient to pay the consideration under Ex.B10. Likewise, other properties also must have been purchased with the joint family income. It is also on record that the family was cultivating some lands on lease and that income also was the income of the joint family and hence all accretions by the joint family are rightly held to be the joint family property. It is no doubt true that an attempt is made by the defendants to show that some double bullock carts were being hired and some money was being earned from that source, but the details of the income have not been brought on record. Hence, the contention of Mr. Ramachandra Rao cannot be accepted." 24. We agree with the reasoning of the learned single judge. On a consideration of the entire evidence, we do not find any justifiable reason to interfere with the concurrent finding of fact that the suit schedule properties are the joint properties. 25. However, the learned counsel for the appellants while pointing out that Ex.A2 (Ex.B2), Ex.A3 (Ex.B8) and Ex.B4 documents contained a specific recital that the properties covered by the said documents were self-acquired properties of late Munisubbaiah, contended that the said statement made by late Munisubbaiah by itself is a relevant fact and has to be accepted, particularly in the absence of any rebuttal evidence. In support of his submission, the learned counsel relied upon a decision of the Madras High Court in PERIASAMI v. VARADAPPA2 in which it was held that the statements made in the documents must be taken as evidence under Section 32 (7) read with Section 13 (a) of the Evidence Act, 1872. 26. The learned counsel also submitted that the observation of the learned single judge that Exs.B2, B4, B7 & B8 did not contain any recital to show that they were the self-acquired properties of Munisubbaiah, was incorrect. 27. On a perusal of the record we found that Ex.A2 (Ex.B2), Ex.A3 (Ex.B8) and Ex.B4 executed by late Munisubbaiah contained a specific recital that they were his self-acquired properties. 28. Section 32, Clause (7) and Section 13 (a) of the Evidence Act, 1872, to the extent necessary may be extracted hereunder : 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant :- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) ... ... ... ... ... .. . (2) ... ... ... ... ... ... .. (3) ... ... ... ... ... ... .. (4) ... ... ... ... ... ... .. (5) ... ... ... ... ... ... .. (6) ... ... ... ... ... ... .. (7) or in document relating to transaction mentioned in section 13, clause (a):- When the statement is contained in any deed, will or other documents which relates to any such transaction as is mentioned in section 13, clause (a). (8) ... ... ... ... ... ... .. 13. Facts relevant when right or custom is in question:- Where the question is as to existence of any right or custom, the following facts are relevant:-- (a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence; (b) ... .. ... ... ... 29. 13. Facts relevant when right or custom is in question:- Where the question is as to existence of any right or custom, the following facts are relevant:-- (a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence; (b) ... .. ... ... ... 29. A combined reading of the above provisions shows that the statement of a dead person in a document relating to transaction by which the right in question was created is admissible as a relevant fact. 30. However, we are unable to agree that the recital in the documents in question executed by Munisubbaiah by itself is sufficient evidence to establish that the suit schedule property is the self-acquired property of late Munisubbaiah. 31. It is a well settled principle of law that recitals in deeds can only be the evidence as between the parties to the conveyance and those who claim under them. At any rate, a recital by itself cannot prove the assertion of fact contained by the recital, but some other evidence must be available to substantiate the same. It is true that where the alienation is questioned long after the transaction took place a recital in the document which is consistent with the probability and circumstances of the case assumes greater importance since the original parties to the transaction and those who could have given evidence at the relevant point of time have grown old or passed away. In such cases, undoubtedly the statement of a dead person in a deed is a relevant fact as provided under Section 32 of the Evidence Act and admissible in evidence. However, such recital by itself does not constitute sufficient evidence to establish the existence of a fact. 32. In the case on hand, Ex.A2 & Ex.A3 settlement deeds were executed in the year 1977 whereas Munisubbaiah died in the year 1978. Though Ex.B4 will in favour of the defendant No.5 was executed in the year 1972, the same came into operation only on the death of Munisubbaiah in the year 1978. Admittedly, the suit for partition was filed on 7.4.1980 specifically pleading that the alienations made by late Munisubbaiah under the above said documents were not valid and not binding on the plaintiffs. Admittedly, the suit for partition was filed on 7.4.1980 specifically pleading that the alienations made by late Munisubbaiah under the above said documents were not valid and not binding on the plaintiffs. May be that, by that time the executant of the documents - Munisubbaiah - was not alive, however it cannot be said that there were any lapses on the part of the plaintiffs in questioning the alienations made by late Munisubbaiah. The law is also well settled that it is not necessary for the coparceners to specifically seek setting aside the alienations of joint family properties but it is sufficient if a suit is filed for partition and possession after declaring the alienations are not binding on them. 33. For the aforesaid reasons, we do not find any substance in the contention raised by the learned counsel for the appellants that in view of the recital in the documents executed by late Munisubbaiah that it is his self-acquired property the burden shifts over to the plaintiffs. The admissibility of such recital under Section 32 (7) read with Section 13 (a) of the Evidence Act does not affect the question of onus of proof so far as the alienation of joint family property made by the kartha affecting the vested rights of other coparceners. Having regard to the evidence adduced on behalf of the plaintiffs, we are satisfied that they have successfully discharged the initial burden of establishing that the joint family of Munisubbaiah possessed sufficient nucleus out of which plaint A and B schedule properties were acquired. In the absence of acceptable evidence by the defendants to rebut the same, the trial Court was justified in granting a decree for partition. 34. The other decisions cited by the learned counsel namely PAWAN KUMAR GUPTA v. ROCHIRAM NAGDEO AIR 1999 SC 1823 = 1999 (3) ALD (SCSN) 17, and MAHBOOB SAHAB v. SYED ISMAIL, AIR 1995 SC 1205 , are not relevant so far as the controversy involved in the case on hand. 35. Accordingly, we hold that the judgment and preliminary decree granted by the trial Court as confirmed by the learned single judge on appeal is in accordance with law and does not suffer from any infirmity. 36. In the result, this Letters Patent Appeal is dismissed. No costs.