Judgment :- ORAL JUDGMENT: 1. This is a second appeal by original defendant no.1. The parties shall hereinafter be referred to as the plaintiff and the defendants. 2. The facts giving rise to the appeal are as follows Plaintiff no.1 is the mother of plaintiff no.2 and defendant no.2. Defendant no.1 is the transferee of the suit property. According to the plaintiffs, defendant no.2 was not the sole owner of the suit property and inspite of that he has sold the suit property to defendant no.1. According to the plaintiffs, they have 2/3rd share in the suit property. It is their contention that the plaintiffs and defendant no.2 were the members of the joint Hindu family when the suit property was alienated by defendant no.2. They contend that they had purchased jointly a plot of land for construction of the house and they constructed a house thereon. The same was constructed from joint family funds though in the name of defendant no.2. The plaintiffs contend that in the year 1949, plaintiff no.1 along with her two sons was turned out of the house by husband and since then she was living with her mother and sisters. It is their contention that plaintiff no.1 started business in grains and she was supporting the family. Thereafter, the plaintiff and defendant no.2 together started a business in the name and style ‘Mogre Brothers’ and a branch of the said shop was opened by the plaintiff and defendant no. 2 at village Tembhurda also in the rented house. The said shop was run by plaintiff nos.1 and 2. Defendant no.2, however, used to manage the said shop only on weekly market day. Further, it is contended that in the year 1968, a wholesale and retail shop of grocery was started in the name and style Kisan Kirana Bhandar. That was also a joint family business and former name ‘Mogre Brothers’ was changed. It is contention of plaintiffs that the suit property was purchased out of the earning from the said shop and the plaintiffs have, therefore, 2/3rd share in them. 3. Defendant nos.1 and 2 filed a joint written statement in the suit. According to the defendants, the suit property was self-acquired property of defendant no.2 and plaintiffs had no concern with the same. It is contended that defendant no.2 had started the grocery business and had even started a branch at Thembhurda. 3. Defendant nos.1 and 2 filed a joint written statement in the suit. According to the defendants, the suit property was self-acquired property of defendant no.2 and plaintiffs had no concern with the same. It is contended that defendant no.2 had started the grocery business and had even started a branch at Thembhurda. House, according to him, was constructed in 1967 itself and he was paying the taxes. The defendants further contend that there was never any joint family, much less a Hindu joint family. The joint family funds were not used for the construction of the house or plot and the plaintiffs have no share whatsoever in the suit property. 4. The learned Judge of the trial court found that the house was constructed from joint family funds, the plaintiffs had 2/3rd share in it and the sale-deed, therefore, was not binding on the plaintiffs. Holding so, he decreed the suit. An appeal was preferred by the defendants and the appeal came to be dismissed. Feeling aggrieved thereby, this second appeal has been preferred. 5. I have heard the learned counsel for the appellants and the respondents. 6. The appeal was admitted by this court (Kulkarni,J.) on the following substantial questions of law. 1) Both the learned courts below have erred in holding that the suit property is purchased from the joint family funds in the year 1966 from one Mahadeo Gadge and hence, it is a joint family property and further that the plaintiffs/respondents 1 and 2 have 2/3rd share in the suit property. The learned courts below while deciding this issue have not considered the fact that respondent no.1 had started her business after separating herself from her husband and hence, such business under Hindu Law is not a joint family business as there was no joint family or joint family business in existence at the time of starting of such business. 2) The learned courts below have failed to consider a very important aspect that joint Hindu family cannot be constituted in the facts and circumstances of the present case. It is liable to be seen that it is an admitted fact that plaintiff no.1 Gayabai had left her husband and come to Warora along with two sons and started residing with her sister Gangubai. It is alleged that she started the business with the help of her sister Gangubai. It is liable to be seen that it is an admitted fact that plaintiff no.1 Gayabai had left her husband and come to Warora along with two sons and started residing with her sister Gangubai. It is alleged that she started the business with the help of her sister Gangubai. Hence, there cannot be a presumption as contemplated in law of a joint Hindu family. Thus, the finding of the courts below that the plaintiffs and defendants no.2 were members of the joint family at the time of alienation of the suit property is an error apparent in law. 3) The learned courts below failed to consider that admittedly the property which was sold to appellants was in the name of Vithal and Vithal had ja right to sell the property. It has also come in the evidenced that it was Vithal, who had constructed the house. The learned courts below have unnecessarily observed that Vithal has not produced any document to support the construction. The fact remains that since the suit property was in the name of Vithal and he had purchased this property, the question of his right to sell the same does not arise. 4) The learned courts below have erred in holding that there was a joint family business and suit property was only purchased in the name of Vithal. Assuming that this is admitted, it is only to be held as a benami transaction and the plaintiffs have no right in the property, which stands in the name of Vithal. 5) It is liable to be seen that there is no nucleus established to show that it is a joint family property. Even otherwise, the learned courts below should have considered that this property was his separate property and Vithal had raised funds by starting his business in 1959 and hence, the suit property which was purchased in 1996 as an open plot was Vithal’s separate property. Thus, the learned courts below should have held that Vithal was lawful and exclusive owner of the suit property and he had a right to sell the suit property. 7. It is the case of the plaintiffs that plaintiff no.1’s husband and no.2’s father turned the plaintiffs and defendant no.2 out of the house and therefore, all three of them started living with the mother and sister of plaintiff no.1. 7. It is the case of the plaintiffs that plaintiff no.1’s husband and no.2’s father turned the plaintiffs and defendant no.2 out of the house and therefore, all three of them started living with the mother and sister of plaintiff no.1. The plaintiffs specifically averred in para no.5 of the plaint to the following effect. “That the plaintiffs and the defendant no.2 were the members of the joint Hindu family when the suit house was alienated to the defendant no.1.” 8. Thus, they contend that they constitute a joint Hindu family. In fact, law presumes that every Hindu family is a joint family unless otherwise shown. In the instant case, however, the controversy seems to have arisen because the father does not live with the family. Normally, a joint family consists of father, mother and sons and their wives. Here, admittedly, father had long back turned the plaintiffs and defendant no.2 out of the house and he is living separately. The question is whether the mother and two sons could constitute a joint family and that seems to be the question of law raised. I see no reason why they cannot. If two brothers, upon death of father, can constitute a joint family, there is no reason why two brothers in this case with their mother cannot constitute a joint family, when father deserts them. Even if one of the coparceners decides to break away from the rest of the family, the other coparceners can constitute a joint Hindu family. Even otherwise in the instant case father had deserted them, he has not separated as such from the family. I find that the two sons with their mother and even wives can constitute the joint Hindu family. In the instant case, it could be said that the plaintiffs and defendant no.2 constituted a joint Hindu family. 9. The plaintiffs’ case is that plaintiffs and defendant no.2 were turned out of the house. If the pleadings in the plaint are seen, it could be gathered that the plaintiffs do not plead that family possesses any ancestral property at all. It is not even their case that the father had given anything to them from any ancestral property. 9. The plaintiffs’ case is that plaintiffs and defendant no.2 were turned out of the house. If the pleadings in the plaint are seen, it could be gathered that the plaintiffs do not plead that family possesses any ancestral property at all. It is not even their case that the father had given anything to them from any ancestral property. There is, therefore, no pleading of the plaintiffs that any kind of nucleus was available for blending the suit property, in order that any property possessed or owned by the family should become the joint family property. There has to be some nucleus available from which that property could be purchased. Since in this case the plaintiffs did not possess any ancestral income-giving-property, it could not be said that the suit house was a joint family property as such. 10. The distinction has to be made between joint family property and the property acquired by joint efforts. The suit property could in no case be treated as joint family property. It is to be seen if it is a jointly acquired property or not. Defendants contend that defendant no.2 was alone running his own business, while plaintiff claims that the business run was family business and from its income the property is acquired. From the evidence on record, the suit property could certainly be said to be the jointly acquired property. It is the case of the plaintiffs that plaintiff no.1 started the business and started earning. DW 1 Vitthal admits in the cross-examination that his mother was dealing in grains and was earning. He also admits that his mother and aunt paid him money for starting business. If mother was also doing the business, as is accepted by the defendants, it is difficult to accept the theory of defendant no.2 that he was alone running the shop. Admittedly, there were two shops at two different places. It is, therefore, difficult to accept that defendant no.2 alone could run both the shops at the two different places. The theory of the plaintiffs that the shops were joint and run by all has, therefore, to be accepted. There is another strong reason why the property has to be treated as jointly acquired property. Dependant no.1 had filed the suit against defendant no.2 and plaintiff no.1 in respect of recovery of rent of shop of plaintiffs and defendant no.2. The theory of the plaintiffs that the shops were joint and run by all has, therefore, to be accepted. There is another strong reason why the property has to be treated as jointly acquired property. Dependant no.1 had filed the suit against defendant no.2 and plaintiff no.1 in respect of recovery of rent of shop of plaintiffs and defendant no.2. The certified copy of the plaint in that suit is Exh.36. In plaint para no.2, following averments are made. “Defendant no.2 is the mother of defendant no.1 and they constitute joint family. Defendants carry on retail grocery business” These contents are admitted in the written statement filed at Exh.37. Obviously, defendant no.2 admitted in that suit that the shop was a joint family business. Even in para 17 of the said written statement there is a clear averment that defendants were running the shop and house was reconstructed by the defendants. DW 1 Vitthal in cross-examination admits that he had filed such a written statement and that he had stated therein that house belonged to joint family. With this evidence, I do not think that any more evidence is required to conclude that the business was joint and the property was purchased from that business income. If the business was joint and the property is acquired from earning of joint business, it must be assumed that each of the members has an equal share in it unless otherwise shown. This takes me to the next substantial question of law i.e. Whether the appellant could be treated as a bona fide purchaser. Bona fide purchaser is that person who takes reasonable care to ascertain that the transferor had the power to make transfer and he had acted in good faith and also that the true owner had consented to such transfer. Since true owners are challenging the transfer, there is no question of consent. Let us see if there is evidence of appellant’s acting in good faith and whether he had taken reasonable care. I find that this is a fit case of lack of good faith and not even a reasonable care has been taken. It appears, on the other hand, that defendant no.1 entered into contract of purchase of the property with open eyes. I find that this is a fit case of lack of good faith and not even a reasonable care has been taken. It appears, on the other hand, that defendant no.1 entered into contract of purchase of the property with open eyes. The reason for saying so is that the appellant does not enter into witness box to make out the case in pleading and second in his own plaint vide Exh.36, he had made an averment and assertion that the shop and the property belonged to the joint family. This clearly shows that defendant no.1 has had full knowledge of the property being owned by the family and not by defendant no.2 alone. The appellant, therefore, could not be treated to be a bona fide purchaser. Although I find that the property is not a joint family property as such, all the same it is jointly acquired property in which each one of them has equal share. In the circumstances, there is no difficulty in confirming the judgment and decree as passed by the court below. The appeal is, therefore, dismissed. No order as to costs.