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2009 DIGILAW 392 (BOM)

Tarabai w/o. Prabhakarrao Natawade v. Kesharbai @ Pushpabai w/o. Eknathrao Nalawade

2009-03-23

P.R.BORKAR

body2009
JUDGMENT:- This is an appeal preferred by original plaintiffs being aggrieved by the dismissal of Special Civil Suit No.387 of 1998 by the learned Joint Civil Judge Senior Division. Aurangabad on 14.1.2004, whereby the suit for partition and separate possession was dismissed. 2. It is no more disputed that Mahipati was the original common ancestor who had two sons, namely, Deorao and Saluba. Prabhakarrao was son of Saluba and father of original plaintiff nos. 1 to 3 who are present appellants. Deorao had two sons Eknathrao and Trimbakrao. Present respondent nos. 1 to 6 (defendant nos.1 to 6) arc the legal representatives of Eknathrao; whereas respondent nos.7 to 12 (defendant nos.7 to 12) are the legal representatives of Trimbakrao. Mahipati died long back. Deorao died on 15.7.1974. Eknathrao died in November, 1997. Trimbakrao died on 31.5.1986. Saluba died on 6.10.1980 and Prabhakarrao died on 10.3.1991. Respondent nos.13 to 16 (defendant nos.l3 to 16) are purchasers of agricultural land from the plaintiffs. There is no dispute about above said facts. 3. It is also not disputed that Eknathrao. Trimbakrao and Prabhakarrao formed a joint family and Block No. 453 (Survey No.21O) admeasuring 19 acre 20 guntha land situated at Chikalthan, Taluka Kannad, District Aurangabad and Block No.146 (Survey No.65) admeasuring 27 acre 39 guntha land situated at Neem Dongri, Taluka Kannad. District Aurangabad are joint family properties. It is also not disputed that the joint family owned House No.n5 and open plot C.T.S. No.709. situated at Chikalthan. Taluka Kannad. District Aurangabad. 4. It is case of the plaintiffs/appellants that Municipal House No.4-13-78 bearing C.T.S. No.4706. situated at Nageshwarwadi, Aurangabad., a joint family property liable for partition; v. here as it is say of defendant nos.1 to 6 that the property exclusively belonged to Eknathrao and since it is his self-acquired property it is not liable for partition. 5. In para 12 of the plaint, the appellants/plaintiffs came with a case that a family arrangement had taken place between Eknathrao, Trimbakrao and Prabhakarrao in the year 1985, in which land Survey No.2 10 (Block No.453) of Chikalthan was allotted to Trimbakrao and Prabhakarrao to the extent of 1/2 portion each and their names were recorded in the revenue record vide Mutation No.1 16. Land Block No. 146 (Survey No.65) at village Neem Dongri, Taluka Kannad was allotted in the family arrangement to Trimbakrao to the extent 017 acres; to Prabhakarrao to the extent of 6 acres 39 gunthas; and Eknathrao was allotted 14 acres land along with share in well. They all have been in possession of their respective portions and their names were recorded in the revenue record. In the family arrangement, house at Chikalthan, Taluka Kannad was given in possession of deceased Trimbakrao and Prabhakarrao to the extent of 1/2 portion each and open site (Giranichi Jaga) was given in possession of Eknathrao. However, as per case of the appellants/plaintiffs the house situated in Nageshwarwadi, Aurangabad was not included in the family arrangement and it was then in possession of Eknathrao and now it is in possession of defendant nos.1 and 2 (respondent nos.1 and 2). 6. It is further stated in para 14 of the plaint that Prabhakarrao was addicted to alcohol and he was dismissed from different employments and was facing financial difficulties and taking advantage of the situation, Eknatbrao deprived him of his legitimate share in all ancestral properties. In para 15 of the plaint it is stated that financial condition of deceased Prabhakarrao had become acute and as such the plaintiffs were facing financial difficulties and, therefore, after death of Prabhakarrao, the plaintiffs/appellants were constrained to dispose of the (landed) properties to defendant nos.13 to 16 in order to satisfy dues of the co-operative societies and hand loans owed to other persons and relatives. Thus the plaintiffs/appellants themselves have come with a case that the landed properties which were in possession of Prabhakarrao were sold by the plaintiffs/appellants for legal necessity. 7. The defendant nos. 1, 4 and 6 have filed their written statement and it is stated that the property at Nageshwarwadi. Aurangabad was self-acquired property of Eknathrao and as such it is not liable for partition. In para 12 of the written statement, the said contesting defendants have stated that it was not a family arrangement, but a complete partition of joint family properties between Eknathrao. Trimbakrao and Prabhakarrao. The house property of Trimbakrao at Kannad being his self-acquired property was not included in the partition suit. In para 12 of the written statement, the said contesting defendants have stated that it was not a family arrangement, but a complete partition of joint family properties between Eknathrao. Trimbakrao and Prabhakarrao. The house property of Trimbakrao at Kannad being his self-acquired property was not included in the partition suit. In no case the transaction can be called family arrangement, since after partition there was no act of any of the parties from which continuation of joint family can be inferred. Each sharer became exclusive owner of properties allotted to his share. The list of partition is prepared on 22.4.1985 which clearly fortifies the case of the defendants. By para 12 of the written statement the defendants called upon the plaintiffs to produce the said partition list given to Prabhakarrao duly signed by all parties and witnesses. 8. During pendancy of this appeal. Civil Application No.10005 of 2007 is filed by respondent nos.1 and 2. They stated in the application that C.T.S. No.4706 bearing Municipal House No.4-13• 78 was not included in the family arrangement as it was self-acquired property of Eknathrao. There was a document, styled as "Watani Yadi" prepared for the purpose of memory and record in three sets and a copy each of it was given to each brother. The copy in possession of deceased Eknathrao was not traceable as same was kept by him. The appellants were also called upon to produce the same, but no copy was placed on record stating that it is not traceable. The house of respondent nos.1 and 2 at Nageshwarwadi had grown old and had fallen down and a new building was constructed through developer over the said plot. The occupants have occupied flat on first floor and now while arranging household articles, they found said Watani Yadi (Partition List) which is a material document and the same may be taken on record. There is reference regarding said execution of Watani Yadi in the evidence led by the defendants. It is no more disputed that the document is not a registered deed. The learned advocate for the appellants argued that in the Trial Court permission was sought by respondent nos.1 and 2 to file secondary evidence regarding the partition deed and same came to be rejected and said decision was further confirmed by the Hon'ble High Court in Revision and thus said point is concluded. The learned advocate for the appellants argued that in the Trial Court permission was sought by respondent nos.1 and 2 to file secondary evidence regarding the partition deed and same came to be rejected and said decision was further confirmed by the Hon'ble High Court in Revision and thus said point is concluded. It is further argued that the document is not a registered document and though it is styled as partition list, it is in fact a partition deed and as such not admissible in evidence without registration and. Therefore, the application for additional evidence should be rejected. 9. Thus following points arise for my consideration. (i) Whether the property at Nageshwarwadi, Aurangabad is self-acquired property of Eknathrao and as such is not liable for partition? (ii) Whether the transaction entered into on 22.4.1985 by Eknathrao. Trimbakrao and Prabhakarrao was family arrangement not amounting to partition? (iii) Whether Civil Application No.10005 of 2007 filed for filing additional evidence should be allowed and in case it is allowed can the partition list dated 22.4.1985 be admitted in evidence? My finding on point no. (i) is in the negative and findings on point nos. (ii) and (iii) are in the affirmative. 10. The advocate for the appellants Shri. S.T. Shelke relied upon the case of Siromani and another Vs. Hemkumar and others [ AIR 1968 SC 1299 ]. in that case in para 4 Their Lordships have observed thus:- "The first question to be considered in this appeal is whether the deed. EX.D-4 dated December 27. 1943 is admissible in evidence. On behalf of the appellants Mr. Gupta put forward the argument that the document is admissible in evidence as it effected the partition of the properties of the value of more than Rs.100/- and it was not registered. It was argued that there was allotment of specific properties to individual coparceners in this document and its registration was therefore compulsory under Section 17(1)(b) of the Registration Act. In our opinion, the argument put forward on behalf of the appellants is well founded and must be accepted as correct. It was contended on behalf of the respondents that the document was not necessary to be registered because there was only severance of joint status of the members of the coparcenery and there was no partition of the properties by metes and bounds. It was contended on behalf of the respondents that the document was not necessary to be registered because there was only severance of joint status of the members of the coparcenery and there was no partition of the properties by metes and bounds. It is not possible to accept this argument as correct.” 11. The learned advocate Shri. A.S. Bajaj for the respondents argued that in this case there was partition by metes and bounds as admitted by the plaintiffs in their plaint so also in the oral evidence, but still fact remains that the document which is sought to be produced by Civil Application No.10005 of 2007 is an unregistered deed and the perusal of the same clearly shows that it is nothing but a partition deed and as such in absence of registration it cannot be read in evidence as a partition deed. 12. The learned advocate Shri. S.T. Shelke for the appellants also referred to the case of Mt. Bhagwani Kunwar and another Vs. Mohan Singh and others [AIR 1925 Privy Council 132]. In that case it is laid down that it is well established law that those who allege that the members of a joint Hindu family had separated must prove, unless it is admitted, that there was a separation at some material time. 13. On the other hand, the learned advocate Shri. A.S. Bajaj for the respondents relied upon certain authorities. He referred to the case of Kale and others Vs. Deputy Director of Consolidation and others [ AIR 1976 SC 807 ]. In para 38 following observations are made:- "Assuming, however, that the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this Court as also of the Privy Council. In Kanhai Lal Vs. Brij Lal. 45lnd App Il8 at p.124 = (AIR 1918 PC 70 at p.74) the Privy Council applied the principle of estoppel to the facts of the case and observed as follows: "Kanhai Lal was a party to that compromise. In Kanhai Lal Vs. Brij Lal. 45lnd App Il8 at p.124 = (AIR 1918 PC 70 at p.74) the Privy Council applied the principle of estoppel to the facts of the case and observed as follows: "Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interests and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships' opinion he is bound by it, and cannot now claim as a reversioner,'" Their Lordships after referring to the case of Dhiyan Singh Vs. Jugal Kishore, 1952 SCR 478 . in para 39 observed that in view of the principle enunciated in the aforesaid case it is obvious that respondents 4 and 5 would be estopped from denying the existence of the family arrangement or from questioning its validity. In para 44 following observations are made:- "The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose. Namely, for the purpose, of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement." 14. This court in the case of P.N. Wankudre Vs. C.S. Wankudre and others [AIR 2002 BOMBAY 129] has considered a case in which a family arrangement was arrived at whereby various members of the family were put in possession and enjoyment of different property. All members of the family were signatories to said arrangement. Partition so arrived at was acted upon by parties and they also derived benefit there from. No objections were raised about it for number of years. In the circumstances it is held that even assuming that documents were required to be registered, conduct of members would operate as an estoppel preventing them from resiling from said arrangements. Partition so arrived at was acted upon by parties and they also derived benefit there from. No objections were raised about it for number of years. In the circumstances it is held that even assuming that documents were required to be registered, conduct of members would operate as an estoppel preventing them from resiling from said arrangements. One member cannot seek injunction or restraint order in respect of property partitioned and mutated in favour of another member. The learned Single Judge referred to the case of Kale Vs. Dy. Director of Consolidation (supra) and other cases, and in para 25 following observations are made:- "Further as stated above, the Appellant's husband through whom the Appellant claims, had acted upon the said documents and had derived benefit there under. The appellant herself also affirmed the agreements as stated above and further raised no objection in respect thereof for a number of years. In such circumstances even assuming that the documents were required to be registered, their conduct operated as an estoppel preventing them from resiling from the arrangements." 15. In this case, as can be seen from the plaint, after so called family arrangement dated 22.4.1985, the suit came to be filed on 31.7.1998 i.e. almost after 13 years. In the plaint, it is stated in para 12 how agricultural lands and the house property at Chikalthan came to be divided and how different portions were given in possession of different sharers. In para 14 it is specifically stated that Prabhakarrao was addicted to liquor. as a result of which he was dismissed from his employments by his employers. It is further stated in para 15 that financial condition of deceased Prabhakarrao had become very acute and the plaintiffs were facing financial difficulties and, therefore, in order to satisfy loans owed to other persons and relatives, the plaintiffs sold properties to defendant nos.13 to 16. The sale deeds are produced on record. They are at Exhs. 110 and 111, It is clear that on 25.10.1993 by sale deed for consideration of Rs.1,20,000/- present appellants nos.2 and 3 sold 3 Hectare 90 Are land out Block No.453 situated at Chikalthan. Taluka Kannad to respondent no.16 Chitrabai. It is stated in the sale deed that said 3 Hectare 90 Are land was owned by appellant nos.2 and 3 and was in their name. Taluka Kannad to respondent no.16 Chitrabai. It is stated in the sale deed that said 3 Hectare 90 Are land was owned by appellant nos.2 and 3 and was in their name. It is further mentioned that loan of Aurangabad District Central Cooperative Bank was to be repaid and the loan was Rs.80,000/- and including interest total amount owed was Rs.1,14,000/-. Ownership of entire property was transferred. It is further stated that if any brother, or any person from relatives (Biradar) or heir takes objection, appellant nos.2 and 3 would be responsible and they would reimburse the purchaser. It is worth noting that while mentioning the abuttals on the southern side the land owned by respondent nos.8 to 10 from same Block is mentioned, In other words, it is represented to respondent no.16 Chitrabai that remaining portion from same Block on southern side was exclusively owned by respondent nos.8 to 10 and the property sold was exclusively owned by appellant nos.2 and 3. 16. Similarly so far as the sale deed Exh.111 dated 29,3,1995 is concerned, it is executed by appellant no.1 Tarabai to which consent was given by appellant nos.2 and 3. The purchasers were respondent nos. 13 to 15. The sale was for Rs.1,90,000/-. It is mentioned that out of ancestral land Block No.146 admeasuring 11 Hectare 32 Are land the property to the share of seller was 2 Hectare 82 Are and it was being sold. It is mentioned that on eastern side there is property of defendant no. 9 Pramod and others, It appears that two portions of land were sold as abuttal of other portion was also given. It is mentioned that the property was being sold without encumbrance or liability. It is sold for the maintenance and education of minor daughter and for domestic reasons. It may be noted that these sale deeds arc specifically admitted by the appellants/plaintiffs, So these two sale deeds clearly show that to the outside world, the appellants represented that there was partition and particular portions of lands belonged to their share and as such they had exclusive right to sell the same. 17. It may be noted that these sale deeds arc specifically admitted by the appellants/plaintiffs, So these two sale deeds clearly show that to the outside world, the appellants represented that there was partition and particular portions of lands belonged to their share and as such they had exclusive right to sell the same. 17. The learned advocate Shri. Bajaj for the respondents further argued that even oral evidence shows that the so called family arrangement was acted upon by the appellants and others, They have taken advantage of the sale considerations and now the appellants cannot turn round and deny the family arrangement and claim partition. 18. The oral evidence on behalf of the plaintiffs/appellants is of appellant Santosh Prabhakar Nalawade examined at Exh.97 and witness Shekhnath Ramrao Chavan at Exh.114. Appellant Santosh in his deposition in para 7 stated that in 1985 in a family arrangement half portion of Survey No.210 was given in possession of Trimbakrao and remaining half portion was given in possession of his father Prabhakar. Accordingly mutation was carried out. The land at Neem-Dongri bearing Survey No.65 (Block No.146) was divided during family arrangement. Eknathrao took possession of 7 acres. His father Prabhakarrao was given 6 acres land. In the family arrangement house at Chikalthan was divided and was given in possession of his father Prabhakarrao and Trimbakrao. Open space at Chikalthan was given in possession of his uncle Eknathrao. The house at Nageshwarwadi. Aurangabad was not taken into consideration in the family arrangement. Eknathrao had retained said house. 19. Appellant no.2 Santosh further stated that his grand father Saluba and his brother Deorao were jointly residing at Chikalthan. Eknathrao was residing at Aurangabad at Nageshwarwadi. His uncle Trimhakrao was an advocate and was residing at Kannad. Prabhakarrao with his family was residing at Khadakeshwar area of Aurangabad in a rented house. His father was addicted to vices. Due to addiction to liquor he was suspended from service. Thereafter he started working in GGT company, Chikalthana and then shifted to Waluj Electronic Company. Due to his addiction to liquor he was removed from above said Companies. Their financial position was hadly affected and. therefore. He, his brothers and sister could not take proper education. They were indebted and constrained to sell their land. Thereafter he started working in GGT company, Chikalthana and then shifted to Waluj Electronic Company. Due to his addiction to liquor he was removed from above said Companies. Their financial position was hadly affected and. therefore. He, his brothers and sister could not take proper education. They were indebted and constrained to sell their land. The plaintiffs sold those lands to defendant nos.13 to 16 for marriage expenses of plaintiff no.4 and for repaying the loans owed to co-operative Banks and other private loans. So the admissions given by Santosh clearly show that agricultural lands were divided by metes and bounds. Different sharers were put into actual possession and they started enjoying and cultivating them separately. Not only that, the lands allotted to their shares were sold by the plaintiffs, So all these are clear indications of partition which was permanent in nature, particularly the sales of landed property by appellants/plaintiffs clearly show intention of having pennanent partition and not a temporary arrangement. Otherwise the plaintiffs would have sold only their undivided interest or share from agricultural lands. Instead particular portions of lands allotted to their shares were sold as their own exclusive properties. 20. The evidence of PW -2-Sheknath Chavan discloses the relation between the parties. He further stated that Saluba and Deorao owned a house and open site and agricultural lands at Chikalthan. Both the brothers were having lands at Neem-Dongri. At Aurangabad they owned a plot. Now on that plot the house is standing. The said plot/house is situated in Nageshwarwadi. Aurangabad. Both brothers had purchased said property jointly. Sheknath admits that daughter of his cousin maternal aunt was given in marriage to Prabhakarrao. Plaintiff no. 1 is thus his cousin maternal aunt. He was about 12 years old when Deorao died. Saluha died in the year about 1978-80. Sheknath was 38 years of age on 29.3.2001. In other words he was born in about 1962-63. So it cannot be believed that he knew about the purchase of the plot. No sale deed in the name of Deorao and Saluba is produced on record. So in my opinion, evidence of Sheknath cannot be given much weight. 21. On the other hand, there is evidence of respondent no.1 Kesharbai at Exh.119. She stated in terms of her written statement. According to her in 1985 partition had taken place. No sale deed in the name of Deorao and Saluba is produced on record. So in my opinion, evidence of Sheknath cannot be given much weight. 21. On the other hand, there is evidence of respondent no.1 Kesharbai at Exh.119. She stated in terms of her written statement. According to her in 1985 partition had taken place. The partition was effected and the properties were divided among three brothers. Her husband Eknathrao told her about the partition. She could not give details of partition. Her husband did not tell her about any written document. She stated that house at Chikalthan was allotted to the share of Trimbakrao and Prabhakarrao and open space known as "Giranichi Jaga" was allotted to her husband Eknathrao. In para 3 she stated that in 1960 Eknathrao out of his own funds purchased plot at Nageshwarwadi, Aurangabad. He had received amount from his department. Eknath also made construction on the plot. She further admitted specifically that she was receiving money from income of agricultural lands of her parents as she has no brother, but it is pointed out that there was no such pleading to show that plot or the house in Nageshwarwadi at Aurangabad was purchased or constructed out of funds brought by appellant no. 1 from her parental side. So this is an improvement and no documentary evidence regarding the same is produced. There is also no other evidence. According to her. the suit plot at Negeshwarwadi. Aurangabad was self-acquired property of Eknathrao. Trimbakrao also purchased a plot at Kannad and constructed a house thereon out of his own earnings. Trimbakrao produced plot in the name of his son Pramod and certified copy of sale deed of the plot by Trimbakrao is produced on record which is at Exh.118/1. 22. Kesharbai further stated that Eknathrao had bank account at Pune. She also produced 7 deposit receipts and cheque book with list at Exh.118. The deposit receipts show that on 13.5.1948 Rs.3,000/-, on 15.11.1948 Rs.60/-, on 4.5.1949 Rs.500/-. on 23.5.1949 Rs.150/- on 6.6.1950 Rs.200/-, on 16.9.1949 Rs.300/- and on 25.1.1956 Rs.500/- were deposited by deceased Eknath in his account in the Bank of Maharashtra Limited. So these are not the documents to show what was balance in the bank account of deceased Eknath in the year 1962 when the alleged plot at Nageshwarwadi. Aurangabad was purchased. on 23.5.1949 Rs.150/- on 6.6.1950 Rs.200/-, on 16.9.1949 Rs.300/- and on 25.1.1956 Rs.500/- were deposited by deceased Eknath in his account in the Bank of Maharashtra Limited. So these are not the documents to show what was balance in the bank account of deceased Eknath in the year 1962 when the alleged plot at Nageshwarwadi. Aurangabad was purchased. The cheque book produced by defendant no.1 shows that it was a cheque book which contained cheques from Nos.817806 to 817810. So there were five cheques. Original cheques are not there, but counter foils show that those cheques were issued in the year 1951. So it cannot be said that these deposit receipts and cheque book in any way help the defendants in proving that deceased Eknath was possessing sufficient amount to purchase plot and make construction thereon. 23. Civil Application No.2521 of 2006 is filed by M/s. Apex Developers who had undertaken to develop the plot at Nageshwarwadi on which there a dilapidated house. It is stated in the application that said contractors and developers have entered into a development contract with respondent no.1 Kesharbai alias Pushpabai w/o. Eknath Nalawade and respondent no.2 Kiran Eknath Nalawade on 16.3.2005. It is case of said defendant nos.1 and 2 that house constructed by Eknath had become dilapidated and, therefore, they decided to enter into development agreement. The agreement of development is produced in Civil Application No. 2521 of 2006. 24. This court by order dated 1.3.2007 in Civil Application Nos.9352 of 2006 and 2875 of 2004 has allowed modification of the order of temporary injunction passed by the court earlier on 17.2.2006 restraining respondent nos.1 and 2 from alienating or creating third party interest in relation to the suit property at Negeshwarwadi. Aurangabad. By the order dated 1.3.2007 this court modified the order of interim injunction with certain conditions and after directing the appellants/plaintiffs to furnish solvent security of Rs.5 Lacs granted permission to hand over possession of property to developer and alienate flat property with a clear understanding to the purchasers that their rights would be subject to final result of this appeal and a notice on a Board was to be displayed to that effect outside the property. 25. Considering the evidence discussed earlier and consideration the actions of appellants subsequent to 1985, in my opinion, the so called family arrangement amounts to final distribution of property among the sharers. 25. Considering the evidence discussed earlier and consideration the actions of appellants subsequent to 1985, in my opinion, the so called family arrangement amounts to final distribution of property among the sharers. Parties wanted to act on the family arrangement as partition, particularly the plaintiffs themselves have acted and treated the property allotted to their share as their exclusive property and dealt with it by executing the sale deeds in favour of respondent nos. 13 to 16 prior to the tiling of the suit and in these circumstances they are estopped from challenging the existence and validity of the partition effected in the year 1985. They are not entitled to fresh partition of the properties which were admittedly carried by the partition of 1985, namely, both agricultural lands and the house property including open space situated at Chikalthan. Taluka Kannad. 26. That takes us to the question whether the property situated in Nageshwarwadi, Aurangabad which was not admittedly subject matter of the partition, was self-acquired property of Eknath as stated by defendant nos.1 to 6 or it is a joint family property liable for partition. 27. As discussed earlier, absolutely no evidence is led other than bare word of respondent no.1 Kesharbai examined at Exh.119 to show that the plot was exclusively purchased by Eknath and house was constructed by him. It may be noted that in the partition of 1985 portions of the constructed house property at Chikalthan were allotted to Prabhakarrao and Trimbakrao, only open space (Giranichi Jaga) was allotted to the share of Eknathrao. Admittedly Eknathrao was residing at Negeshwarwadi, Aurangabad at that time. 28. Respondent no.2 Kiran at Exh.120 stated that he had approached the office of Ammunition Factory at Pune where his father Eknathrao was working as Head Clerk and sought to get information. However, it docs not appear that he got any evidence. His evidence shows that his father Eknathrao was working in the Ammunition Factory. Khadki. Pune from 1944 to 1956. There is nothing on record to show under what circumstances after 12 years of services Eknathrao came to an end. There is 110 evidence on record to show that he was getting any pension. There is nothing on record to show that he received any amount by way of retiral benefits which was sufficient for purchasing the plot and making construction of house thereon. There is 110 evidence on record to show that he was getting any pension. There is nothing on record to show that he received any amount by way of retiral benefits which was sufficient for purchasing the plot and making construction of house thereon. In cross-examination Kiran did state that his father had taken voluntary retirement. Thus evidence of respondent no.2 does not take the case of defendants any further. Respondent no.1 Kesharbai in her cross-examination has not stated what Eknathrao was doing after 1956 when he left service with the Defence Department. So question arises what was the source of income of Eknathrao other than the ancestral landed property. There is complete silence as to what Eknathrao was doing for his livelihood after 1956. It docs not appear that he was serving anywhere or doing job anywhere. It has come in evidence that he was working for communist party. In the evidence of respondent no.1 Kesharbai in para 4 of cross-examination it has come on record that Demao. Saluba and Eknathrao were looking after lands at Chikalthan and Neem Dongri. So absolutely there is no evidence to show that Eknathrao had sufficient source of income of his own to purchase the plot and construct house thereon. 29. The position of law is that, where it is established or admitted 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 presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative, that the property was acquired without the aid of the joint family. However, no such presumption would arise, if the nucleus is such that with its help, the property claimed to be joint could not have been acquired. 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. In this case admittedly the joint family owned about 47 acres 19 gunt has land at Chikalthan and Neem Dongri. Considering the value which appellants got for portions of lands sold by them, it can be presumed that the lands were good in quality and that can also be gathered from revenue extracts on record. So there was sufficient nucleus. In this case admittedly the joint family owned about 47 acres 19 gunt has land at Chikalthan and Neem Dongri. Considering the value which appellants got for portions of lands sold by them, it can be presumed that the lands were good in quality and that can also be gathered from revenue extracts on record. So there was sufficient nucleus. In fact there is no evidence: led by either side to show that particular amount was required for purchase of plot and construction of house. Looking to this position and considering that Eknathrao did not during partition of 1985 insist on getting house shows that the house in Nageshwarwadi, Aurangabad must be a joint family acquisition and since he was residing there no share was given to him except open site at Chikalthan. 30. In these circumstances. I answer points accordingly and hold that though appellants arc not entitled to partition of Block No.146 situated at Neem Dongri and Block No.453 situated at Chikalthan and of the house property situated at Chikalthan, still the property at Nageshwarwadi, Aurangabad is a joint family property of which no partition was earlier effected between Eknathrao, Trimbakrao and Prabhakarrao. It is a joint family property. 31. In these circumstances the appeal is partly allowed. The suit is dismissed in respect of agricultural lands and house property at Chikalthan and Neem Dongri. However, appellants are entitled to partition of Municipal House NoA-I3-78 bearing C.T.S. No.4706 situated at Nageshwarwadi, Aurangabad. The share of the appellants who are legal representatives of deceased Prabhakarrao is 1/ 2. The remaining 1/2 share is owned equally by respondent nos.1 to 6 on one hand and respondent nos.7 to 12 on the other. The partition of said house property at Nageshwarwadi, Aurangabad be effected in the final decree proceedings. The concerned court shall take into consideration the orders passed pending this appeal regarding development of said property. Appeal is accordingly disposed of. However, in the circumstances of the case, the parties shall bear their own costs. Appeal partly allowed.