Hon'ble BHANSALI, J.—These appeals are directed against judgment and decree dated 04.11.1993 passed by District Judge, Churu, whereby, consolidated Civil Original Suit No.17/1970 (11/77) filed by Birdhichand and Ors. and Civil Original Suit No.1/1972 (15/77) filed by Navratanmal and Babulal have been partly decreed. 2. The facts in brief may be noticed thus: plaintiffs Birdhichand, his wife Smt. Kankanwari and minor son Guruchand filed a suit for possession and permanent injunction against Jeevanmal, Norangmal @ Navratanmal, Babulal & Ratanlal, all sons of Birdhichand, inter alia, with the averments that properties belonging to the family as indicated in para-3 of the plaint were situated in Sardarsahar and one property was situated at Kolkata, whose rent and interest were accruing to Firm M/s. Surajmal Dhanrajmal Nahata; the Firm was ancestral and the goods lying therein, which belong to plaintiff No.1; plaintiff has married his two daughters Ganeshi and Umrao and defendants Jeevanmal and Norangmal @ Navratanmal; his few children are still unmarried; defendant Nos. 1 to 4 despite plaintiff’s efforts could not claim any status in the society and did not earn anything and have been harassing the plaintiff No.1, therefore, plaintiff decided to partition the property; plaintiff No.1 is Father and Karta of the family and is competent to partition the property; defendant Nos. 2, 3 and 4 made a written request for partition, whereof he partitioned the property on 04.01.1969 and sent certified copies to all the parties by registered post; defendant No.4 accepted the same while rest of the defendants refused to accept. It was claimed that ancestral property has been partitioned equally among his wife and six children and some property has been kept back for unmarried daughters Sushila and Shayar; defendants being sons of plaintiff, were utilizing the immovable properties but after partition, were told to occupy their shares, however, on account of conspiracy and collusion, they have occupied Haveli No.2 regarding which they have no right; defendants have illegally trespassed on the property and have deprived the plaintiff from recovery of the rent of Kolkata property, which could not be partitioned on account of pending income-tax matter. It was prayed that defendants be restrained by permanent injunction not to trespass on the property other than what was allotted to them by way of partition and remove their possession from other properties and not to interfere in plaintiff’s right to recover rent of Kolkata property. 3. It was prayed that defendants be restrained by permanent injunction not to trespass on the property other than what was allotted to them by way of partition and remove their possession from other properties and not to interfere in plaintiff’s right to recover rent of Kolkata property. 3. Written statements were filed by defendant Nos.1 to 3 disputing the averments made in the plaint. It was, inter alia, claimed that the plaintiff has not disclosed the entire ancestral property; in fact the entire property purchased by him was purchased out of ancestral property, details thereof were given in additional pleas; the partition effected by the plaintiff was arbitrary and biased, which is not acceptable to the defendants; the plaintiff has committed partiality against children of his first wife and has wrongly kept back properties from partition and is, therefore, not entitled to any injunction. It was also claimed that property of quite minimum amount has been given to them. 4. During pendency of the above suit (17/1970) filed by the Birdhichand and Ors., Norangmal @ Navratanmal and Babulal filed a suit (1/1972) for partition on 08.11.1972, which was amended and amended plaint was filed on 02.02.1978 impleading Smt. Kankanwari as party; averments were made in the plaint giving out family tree in Annexure – ‘X’; the joint business of the family was being conducted at Kolkata and Sardarsahar; the main business being money landing, dealing in movable-immovable properties and Firm M/s. Surajmal Dhanrajmal Nahata; defendat Birdhichand was Karta of the family and the entire documents, records and accounts are in his possession; the properties of the joint family were indicated in Annexure – ‘Z’. It was claimed that defendant Birdhichand was aged about 2 years at the time of death of his father Shobhachand and, therefore, Mst. Sadi and Mst. Santoshi were declared his guardians; after attaining majority the said property, which was ancestral and joint was being looked after by plaintiff; the defendant Nos. 3 and 4 started working with and under guardianship of their father. It was claimed that Birdhichand had no personal business or income, in fact the family was being maintained from funds of joint family and income of family Firm M/s Surajmal Dhanrajmal Nahata and Shobhachand Birdhichand Nahata, from which defendant Birdhichand has maintained the family and has purchased the properties. 5. It was claimed that Birdhichand had no personal business or income, in fact the family was being maintained from funds of joint family and income of family Firm M/s Surajmal Dhanrajmal Nahata and Shobhachand Birdhichand Nahata, from which defendant Birdhichand has maintained the family and has purchased the properties. 5. Allegations were made regarding exclusion of the plaintiffs from the income, as the plaintiffs and defendant Nos. 3 and 4 are children from first marriage; the plaintiff wanted to deprive them from joint family property and, therefore, the suit was filed seeking partition of the suit property; further allegations were made challenging the partition dated 04.01.1969 claiming the same to be arbitrary, lacking in bonafides and missing out certain properties and being partial toward the children of the second marriage; relief was prayed in the plaint seeking declaration regarding the partition dated 04.01.1969 as incomplete, illegal, arbitrary and 1/9th share each was claimed by metes and bounds. 6. A written statement was filed by defendant No.1 Birdhichand, denying the averments made in the plaint. It was denied that all the properties included in Annexure – ‘Z’ were joint property; it was claimed that properties indicated at item No.8, 16, 17 and 18 were self-acquired, personal properties and the movable properties at Kolkata has been misappropriated by plaintiffs and defendant Nos. 3 and 4; details of gold and silver ornaments were incorrect; the partition made was legally correct and as three daughters are still unmarried, few properties have been kept aside with which the plaintiffs have no concern. 7. Defendant No.2 filed a written statement supporting the claim of the plaintiffs and claimed that besides the property indicated in Annexure – ‘Z’, several properties including gold ornaments, silver bars were also part of the family property, which deserve to be partitioned; defendant Birdhichand had no personal income and the entire property was purchased out of family property. 8. A replication was filed by the plaintiffs and the facts alleged in the written statement were denied. 9. Based on the pleadings of the parties, the trial court framed issues in both the suits. 8. A replication was filed by the plaintiffs and the facts alleged in the written statement were denied. 9. Based on the pleadings of the parties, the trial court framed issues in both the suits. However, in the suit filed by the Birdhichand on an application filed by Norangmal @ Navratanmal and Babulal on 8.8.1974 seeking consoli-dation of both the suits being Suit No.17/1970 and 1/1972, which application was opposed by Birdhichand, the trial court by its order dated 2.11.1979 consolidated Civil Original Suit No.17/1970 with Civil Original Suit No.1/1972. 10. On behalf of the plaintiffs, PW-1 Norangmal @ Navratanmal entered the witness-box and exhibited 46 documents and 10 documents were exhibited during the cross-examination of Birdhichand. On behalf of the defendants, Birdhichand appeared as DW-1 and exhibited 48 documents. 11. During pendency of the suit, by order dated 13.01.1977, the trial court appointed Commissioner and the learned Judge himself visited the suit property on 16.01.1977. Whereafter, the Commissioner produced the Report dated 17.01.1977 regarding the particulars of those portions of the Haveli on which both the sides had put up locks, which were sealed by the Commissioner. Whereafter, by order dated 03.02.1977, the trial court directed the Commissioner to open the locks of the portions and prepare list of the goods lying therein, whereafter, to again lock and seal the said rooms. In pursuance thereof, the Commissioner produced his Report dated 01.08.1977 – 02.08.1977 running into about 64 pages giving out the lists of goods/articles lying in the said Haveli. 12. In pursuance thereof, the Commissioner produced his Report dated 01.08.1977 – 02.08.1977 running into about 64 pages giving out the lists of goods/articles lying in the said Haveli. 12. The trial court after hearing the parties, first recorded the findings on issues pertaining to the suit for partition and came to the conclusion that the plaintiffs failed to prove that half portion in property No.8 and properties No.16, 17 and 18 indicated in Annexure – ‘Z’ were acquired out of income derived from joint family and from the evidence, it was proved that Birdhichand was engaged, and the said properties were his self-acquired properties and rest of the properties indicated in Annexure – ‘Z’ were joint family properties; it was not necessary for Smt. Kankanwari to include jewellery received from her husband and in-laws in the suit property for claiming share, the partition dated 04.01.1969 effected by plaintiff Birdhichand was incomplete, illegal, arbitrary, partial and against the law and was, therefore, liable to be set aside and the plaintiffs were entitled for share in the properties indicated in Annexure – ‘Z’ except for the personal properties of Birdhichand and share in the movable properties indicated in the lists of the court appointed Commissioner. The plaintiffs and defendants were entitled to 1/8th share each in the suit property by metes and bounds alongwith 1/8th share in the movable properties as indicated in the Commissioner’s Report. 13. The issues pertaining to the suit filed by Birdhichand seeking injunction were decided holding that the partition effected by Birdhichand was not legal and the members of the family were entitled for partition according to law, half portion of properties No. 8, 16, 17 and 18 were personal properties of Birdhichand and, therefore, he was entitled for injunction against the defendants from interfering in the possession and if locks had been put on the said properties, he was an entitled to remove the same. 14. Ultimately the trial court passed preliminary decree for partition holding parties to have 1/8th share each in the suit properties indicated in Annexure – ‘Z’ to the plaint except for properties, which were found as personal of Birdhichand and regarding the personal properties, the defendants were restrained from interfering with the possession. 15. 14. Ultimately the trial court passed preliminary decree for partition holding parties to have 1/8th share each in the suit properties indicated in Annexure – ‘Z’ to the plaint except for properties, which were found as personal of Birdhichand and regarding the personal properties, the defendants were restrained from interfering with the possession. 15. Feeling aggrieved, three first appeals were filed, while S.B. Civil First Appeal No.44/1994 has been filed by Navratanmal @ Narangmal and Babulal against grant of partial decree by the trial court in suit for partition and against the injunction granted by the trial court against them in the suit filed by Birdhichand; Birdhichand has been filed S.B. Civil First Appeal Nos.60/1994 & 61/1994 separately challenging the decrees passed in both the suits. 16. During pendency of the appeals, Birdhichand, Navratanmal @ Norangmal, Babulal, Jeevanmal, Smt. Umrao and Smt. Sushila died and, therefore, legal representatives were brought on record, Smt. Kankanwari also died and her name was deleted from the array of parties. 17. It is submitted by learned counsel for the legal representatives of Birdhichand, Rameshwarlal and Guruchand that the trial court was not justified in coming to the conclusion that the partition effected by Birdhichand on 04.01.1969 (Ex.-1) was unequal arbitrary and partial, Birdhichand being Karta of the family had full right and authority to execute the partition; partial partition was permissible under law; Birdhichand was justified in keeping some properties for marriage of three unmarried daughters; the partition was fair; there was no proof regarding the properties comprised in the Commissioner’s lists being ancestral properties and were not liable to partition; the report of the Commissioner was not proved and, therefore, prayed that the decree passed by the trial court on issue No.4 pertaining to validity of the partition dated 04.01.1969 deserves to be reversed and consequential decree for partition including the property at Kolkata may be passed. Further, the decree regarding movable properties be set aside. 18. Learned counsel for Navratanmal @ Norangmal, Babulal and Jeevanmal supported the decree passed by the trial court to the extent the same is in their favour and questioned the trial court’s finding regarding holding four properties as personal properties of Birdhichand. Further, the decree regarding movable properties be set aside. 18. Learned counsel for Navratanmal @ Norangmal, Babulal and Jeevanmal supported the decree passed by the trial court to the extent the same is in their favour and questioned the trial court’s finding regarding holding four properties as personal properties of Birdhichand. It was submitted that entire property comprised in Annexure – ‘Z’ was liable to partition, there was no proof regarding Birdhichand earning anything independently and, therefore, the four properties were also purchased out of income of the joint family properties and the trial court was not justified in coming to the conclusion regarding the said properties being personal properties of Birdhichand. It was further submitted that for Smt. Kankanwari to get share in the property, she was required to bring back the said property into common hotch-pot before seeking a share in the suit properties. It was prayed that the decree passed by the trial court be modified to the extent of including the four properties in the properties liable for partition and finding on issue No.3 be also reversed. It was also prayed that the appeals filed by Birdhichand and Ors. have no substance and the same be dismissed. 19. I have considered the rival submissions and have perused the judgment passed by the trial court alongwith record of both the suits. 20. The issues, which arise for determination in the present appeals are as under:- (i) Whether the partition dated 04.01.1969 (Ex.-1) executed by Birdhichand is unequal? (ii) Whether the properties No. 8, 16, 17 and 18 as indicated in Annex.‘Z’ with the plaint are self-acquired properties of Birdhichand? (iii) Whether the trial court was justified in passing decree regarding movables? (i) Whether the partition dated 04.01.1969 (Ex.-1) executed by Birdhichand is unequal? 21. So far as the power of Karta to partition the joint family properties is concerned, the said power is no more res integra. Hon’ble Supreme Court in Apoorva Shantilal Shah vs. Commissioner of Income-tax : AIR 1983 SC 40, observed and held as under:- “20. (i) Whether the partition dated 04.01.1969 (Ex.-1) executed by Birdhichand is unequal? 21. So far as the power of Karta to partition the joint family properties is concerned, the said power is no more res integra. Hon’ble Supreme Court in Apoorva Shantilal Shah vs. Commissioner of Income-tax : AIR 1983 SC 40, observed and held as under:- “20. If the father in exercise of his superior right or of his right as patria potestas is entitled to bring about a complete disruption of the joint family and to effect a complete partition of joint family properties of a Hindu joint family consisting of himself and his minor sons even against the wishes of the minors and if partial partition be permissible with the consent of sons when they have all become major, we see no reason to limit the power or authority of the father to effect the partition only to a case where the partition is total. The superior right or the right of patria potestas which a father enjoys is always expected to be exercised in the best interest of the members of the family and more particularly his minor sons. The father, undoubtedly, enjoys the right to bring about a complete disruption of the joint family consisting of himself and his minor sons and to effect a complete partition of the joint family properties even against the Will of the minor sons. It is also now recognized that partial partition of joint family properties is permissible. When father can bring about a complete partition of joint family properties between himself and his minor sons even against the Will of the minor sons and when partial partition under the Hindu Law is not accepted and recognized as valid by judicial decisions, we fail to appreciate on what logical grounds it can be said that the father who can bring about a complete partition of the joint family properties between himself and his minor sons will not be entitled to effect a partial partition of joint family properties between himself and his minor sons, if the father in the interest of the joint family and its members feels that partial partition of the properties will be in the best interest of the joint family and its members including the minor sons. Even if the test of consent is to apply, the father as the natural guardian of the minor sons will normally be in a position to give such consent and it cannot be said as a matter of universal application that in all such cases of partition, partial or otherwise, there is bound to be a conflict of interest between the father and his sons. If the father does not act bonafide in the matter when he effects partition of joint family properties between himself and his minor sons, whether wholly or partially, the sons on attaining majority may challenge the partition and ask for appropriate reliefs including a proper partition. In appropriate cases even during minority, the minor sons through a proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interest.” As would be noticed from the law laid down by Hon'ble Supreme Court above that while the power of father to bring about a disruption of joint family is complete, if the father does not act bonafide in the matter, when he effects partition of joint family properties between himself and his children, the sons can challenge the partition and ask for appropriate reliefs including a proper partition. 22. From a bare look at the partition deed dated 04.01.1969 (Ex.-1) and the list of immovable properties (Annexure – 'Z'), it would be observed that the most valuable property situated at Kolkata and admitted by Birdhichand himself as a joint family property was not brought to partition, as many as 11 properties were withheld (not partitioned for the alleged purpose of marriage of daughters), none of the movable were brought to partition and even while partitioning the properties as indicated in Ex.-1, the distribution has been wholly unequal among the children of Birdhichand's first wife on the one hand and himself and children of his second wife on the other hand. Learned counsel for Birdhichand could not point out any aspect so as to justify the nature of partition and the deficiencies in the partition Ex.1, the trial court on critical examination of available evidence was fully justified in coming to the conclusion that the partition effected by Birdhichand vide Ex.-1 was wholly unequal and was liable to be ignored/declared illegal. (ii) Whether the properties No. 8, 16, 17 and 18 as indicated in Annexure – ‘Z’ with the plaint are self-acquired properties of Birdhichand? 23. The properties No.8, 16, 17 and 18 were included by the plaintiffs Norangmal @ Navratanmal and Babulal, in the list of properties sought to be partitioned and it was claimed that the properties belonged to the joint family. 24. In the written statement, Birdhichand specifically took plea regarding the said properties as being his self-acquired properties and it was claimed that besides the income of the joint family, he had his own personal income out of which, the said four properties were acquired and, therefore, the same cannot form subject matter of the suit for partition. 25. A replication was filed by the plaintiffs questioning the said stand of Birdhichand and it was indicted that except for the earnings from the joint family property/business, Birdhichand had no other source of income and the properties were purchased out of joint family funds and were, therefore, liable to be partitioned. 26. Hon’ble Supreme Court in Rangammal vs. Kuppuswami & Anr.: AIR 2011 SC 2344 , held that it is well settled that the party, who pleads had also to prove his case in the following terms:- “14. Section 101 of the Indian Evidence Act, 1872 defines ‘burden of proof’ which clearly lays down that whosoever desires any court to give judgment as to any legal right or law dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. Thus, the Evidence Act has clearly laid down that the burden of proving fact always lies upon the person who asserts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.” 27. In the context of a suit for partition where a claim is made by the defendant regarding properties being self-acquired, Hon’bel Supreme Court in Makhan Singh (D) by LRs. vs. Kulwant Singh : AIR 2007 SC 1808 , held and observed as under:- “9. The High Court has also rightly observed that there was no presumption that the property owned by the members of the Joint Hindu Family could a fortiori be deemed to be of the same character and to prove such a status it had to be established by the propounder that a nucleus of Joint Hindu Family income was available and that the said property had been purchased from the said nucleus and that the burden to prove such a situation lay on the party, who so asserted it.” From the above principles of law laid down by Hon’ble Supreme Court, the burden essentially was on the plaintiffs Norangmal @ Navratanmal and Babulal to prove that the said four properties were acquired out of joint family funds and that Birdhichand had no independent income to acquire the said properties. It is not in dispute that the title deeds of all the four properties i.e. Ex.-A/38, Ex.-A/39, Ex.-A/40, Ex.-A/41 and Ex.-A/16 stand in the name of Birdhichand alone. The entire emphasis of learned counsel for the plaintiffs has been that the Birdhichand succeeded to huge ancestral properties and in view of presence of nucleus, the presumption will have to be drawn that the properties were purchased out of joint family funds. 28. DW-1 Birdhichand in his statement stated that he started earning at a young age and with the aid and assistance of his maternal grand-father, he was involved in wagering and speculation contracts, which activities were quite prevalent at the relevant time and used to yield huge income and were not accounted for and the properties were purchased out of the said income. 29. 29. The plaintiffs in the cross-examination could not shake DW-1 in this regard and further failed to place any material on record so as to connect the purchase of the said properties out of joint family funds. The plea of presumption, as held by Hon'ble Supreme Court in the case of Makhan Singh (supra) is not available. Further on behalf of the plaintiffs only PW-1 Norangmal @ Navratanmal appeared in the witness-box, who was aged only about 10-11 years when properties were purchased by Ex.-A/38, Ex.-A/39, Ex.-A/40 and was not even born when the property vide Ex.-A/41 was purchased, did not place any material except for his oral assertion regarding purchase of properties by Birdhichand out of income of joint family. 30. There is apparently no reason for disbelieving the statement of Birdhichand, who was aged about 77 years, when his statement was recorded in the year 1993 and who was subjected to intense cross-examination running into 11 pages. 31. The entire case of the plaintiffs regarding the said four properties is based on presumption and assumption and merely because nucleus and/or income of the joint family was available with Birdhichand, which fact alone was not sufficient to come to a conclusion that the said four properties were purchased out of those funds in view of specific assertion of Birdhichand to the contrary and failure on part of the plaintiffs to lead any further evidence in support of the said contention and, therefore, the finding recorded by the trial court regarding the nature of the said four properties being self-acquired properties of Birdhichand cannot be faulted on any ground and the same is, therefore, upheld. (iii) Whether the trial court was justified in passing decree regarding movables? 32. From the plaint averments, it is clear that the plaintiffs had specifically sought partition of the movables claiming the same to be part of joint family properties, while in the written statement specific assertions were made qua the four immovable properties, except for a bald denial regarding the movable properties, no further assertion was made by Birdhichand denying the status of the said properties and/or claiming the same to be his personal/self-acquired properties. The list of movable properties, which have been ordered to be partitioned by the trial court have all been found housed in the old Havelies of the family and, therefore, in absence of any positive evidence by Birdhichand to claim the said movables as his personal properties, it cannot be said that the trial court was not justified in treating them as belonging to Joint Family and decreeing the claim of the plaintiffs qua the said movable properties. 33. In view thereof, decree passed by the trial court regarding the movable properties also cannot be said to be perverse so as to require interference by this Court. 34. So far as the issue pertaining to inclusion of the jewellery of Smt. Kankanwari in the properties for the purpose of determination of her share is concerned, even by the assertions made in the plaint, the jewellery was her Istridhan, which was not liable to revert back in the common hotch-pot before determining her share and as such the finding in this regard also it cannot be said to be vitiated so as to require interference by this Court. 35. No other issue was agitated by any of the learned counsel appearing for the parties. 36. Consequently, the judgment and preliminary decree dated 04.11.1993 passed by District Judge, Churu does not call for any interference. The appeals have no substance and the same are, therefore, dismissed. No costs.