JUDGMENT : Ram Mohan Reddy, J. 1. Plaintiff's second appeal aggrieved by the judgment and decree dated 25-6-2002 of the Civil Judge (Junior Division) and JMFC, Sullia, dismissing O.S. No. 91 of 1994 and judgment and decree dated 9-7-2009 dismissing R.A. No. 40 of 2002 on the file of the Additional Civil Judge (Senior Division) and JMFC, Puttur. Appellant instituted O.S. No. 91 of 1994 on 2-6-1994 arraigning his father Annappa Shetty as first defendant and his brothers as defendants 2 to 7 for declaration, partition and separate possession of the plaint 'B' Schedule properties being agricultural lands, on the premise that the joint family possessed ancestral properties, having inherited by the first defendant from his father by name Thimmayya Shetty (grandfather of plaintiff). That suit was opposed by filing written statement of defendants, while the first defendant filed a separate written statement denying the plaint assertions specifically asserting that plaintiff is not entitled to a share in the plaint 'B' schedule properties, though not disputing the relationship but contended that plaintiff and defendants were divided members of the joint family. The first defendant, denied that his father, by name Thimmayya Shetty purchased plaint 'B' Schedule properties on 7-1-1937 from out of joint family fund. That Thimmayya Shetty, it is stated, conveyed the properties on 10-8-1939 jointly in favour of Krishnayya and Narayana Rao, to repay the loans, while balance sale consideration was retained by Thimmayya Shetty and thereafter did not leave any properties to his two sons. According to the first defendant, along with his younger brother Seshappa Shetty, a minor purchased plaint 'B' Schedule properties on 28-8-1940 and subsequently, in a partition on 16-1-1951, the said properties fell to the share of first defendant, hence the absolute owner of the said properties. Therefore, it was contended that the properties were self-acquired properties; since not acquired from out of the joint family exertions. Thus it was denied that the properties had come from Thimmayya Shetty, his grand father, as also the assertion that the properties were enjoyed, in joint, by all members in the family. In addition, the first defendant contended that plaintiff separated from the family some 16 years ago and was leading his life at Bellare Town carrying on business for which part of the finance was funded by the first defendant and having flourished in the business, purchased several properties. In addition, the first defendant contended that plaintiff separated from the family some 16 years ago and was leading his life at Bellare Town carrying on business for which part of the finance was funded by the first defendant and having flourished in the business, purchased several properties. The first defendant further asserted that remaining defendants were residing in the plaint 'B' Schedule properties assisting in the agricultural work and that plaintiff was a trouble monger and always troubled the first defendant, while 2nd and 3rd defendants were employed at Kudremukh; the 6th defendant-a driver, nevertheless helped the first defendant. The 5th defendant, it was stated, though had a shop, assisted the first defendant. In the circumstances, it is stated that the first defendant with an intention to deny the plaintiff any share in the said schedule 'B' properties after his death, executed a Will bequeathing the said properties to defendants 2 to 7, which the plaintiff having come to know, instituted the suit. 2. The suit was opposed by defendants 3 to 5 in their respective written statements reporting the death of first defendant on 3-2-1999 and propounding the Will of the first defendant registered on 25-6-1993 with Registration No. 14/1993-94 bequeathing plaint 'B' Schedule properties in favour of his children excluding the plaintiff. Defendants 2 and 6 adopted the written statement filed by defendants 3 to 5. 3. Defendant 1(a)-the daughter of Annappa Shetty and sister of plaintiff filed written statement, after the death of first defendant, reiterating the contentions advanced by the deceased Annappa Shetty in his written statement. 4. The Trial Court having regard to the pleadings of parties framed the following issues and additional issue 1: "1. Whether plaintiff prove that suit schedule properties are joint family properties of the plaintiff and defendants? 2. Whether the defendant 1 proves that suit schedule properties are his self-acquired properties? 3. Whether plaintiff is entitled for separate share in the suit schedule properties? If so, what is his share? 4. Whether plaintiff is entitled for mesne profits as claimed? 5. What order or decree? Additional Issue No. 1: Whether defendants 2 to 7 prove that their father deceased defendant 1-Annappa Shetty executed a Will dated 28-6-1993 in their favour in respect of suit properties and accordingly they are owners of joint property as alleged in additional written statement?" 5. 4. Whether plaintiff is entitled for mesne profits as claimed? 5. What order or decree? Additional Issue No. 1: Whether defendants 2 to 7 prove that their father deceased defendant 1-Annappa Shetty executed a Will dated 28-6-1993 in their favour in respect of suit properties and accordingly they are owners of joint property as alleged in additional written statement?" 5. The plaintiff did not enter the witness-box, but his son was examined as P.W. 1 and marked Exs. P. 1 to P. 13, while for the defendants, 4th defendant was examined as D.W. 1 and three other witnesses as D.Ws. 2 to 4 and marked Exs. D. 1 to D. 4. 6. The Trial Court, having regard to the pleadings, evidence both oral and documentary observed that the plaintiff failed to place relevant material constituting substantial legal evidence of the fact that the joint family of Annappa Shetty possessed 'B' Schedule properties as ancestral properties. 7. Regard being had to the indisputable fact that the plaint 'B' Schedule properties were purchased by Annappa Shetty-the 1st defendant, under the sale deed dated 28-8-1940 wherein the covenants made no reference to father of Annappa Shetty i.e., Thimmayya Shetty as one of the purchasers, while the conveyance of the properties were jointly in favour of Annappa Shetty and his younger brother Seshappa Shetty, and the sale consideration was paid by the purchasers, the Trial Court observed that under the registered partition deed dated 16-1-1951-Ex. D. 1, between Annappa Shetty-1st defendant and his brother Seshappa Shetty, the suit Schedule 'B' properties fell to the share of Annappa Shetty, while making provision for maintenance of their late father Thimmayya Shetty. The plaintiff having failed to establish that the consideration received by late Thimmayya Shetty under the registered sale deed dated 10-8-1939, was consideration paid by Annappa Shetty and his brother Seshappa Shetty, a minor, to purchase the properties under sale deed dated 28-8-1940, and in the absence of specific pleadings, declined to accept the contention of the plaintiff that the suit Schedule 'B' properties were joint family ancestral properties and accordingly answered issue 1 in the negative and issue 2 in the affirmative. The Trial Court further noticed that the plaintiff did not enter the witness-box, though his son examined as P.W. 1 had no knowledge of what transpired during the year 1940 when his grandfather-1st defendant and Seshappa Shetty jointly purchased the properties. The Trial Court further noticed that the plaintiff did not enter the witness-box, though his son examined as P.W. 1 had no knowledge of what transpired during the year 1940 when his grandfather-1st defendant and Seshappa Shetty jointly purchased the properties. In that view of the matter, the Trial Court justifiably declined to accept the evidence of P.W. 1 as credible evidence in support of the plea that the plaint suit Schedule 'B' properties were joint family ancestral properties. D.W. 1 none other than the 4th defendant, aged 41 years, during the year 1999 also having no knowledge about sale consideration paid by Annappa Shetty and Seshappa Shetty to purchase the suit schedule properties amongst others, did not assist the plaintiff in support of his plea, hence Trial Court did not accept the testimony of D.W. 1 that Thimmayya Shetty--the Propositus along with his two sons were living together. The sale deed dated 10-8-1939 executed by Thimmayya Shetty in favour of Narayana Rao and Krishnayya for a sale consideration of Rs. 1,000/-, contained recitals that the consideration was towards part repayment of loans due by Thimmayya Shetty, while for the balance there was no material to establish that it constituted consideration for the purchase of the properties by Annappa Shetty and Seshappa Shetty. The Trial Court observed that under Ex. D. 4, the 1st defendant and his younger brother purchased properties from Narayana Rao and Krishnayya, though for a valuable consideration of Rs. 1,000/- during the year 1940, nevertheless, the Trial Court held that it was too remote to reckon that the balance sale consideration of Rs. 775/- received by Thimmayya Shetty was part of the sale consideration paid by his two sons. The Trial Court extensively pointed out to the sale deed of the year 1937-Ex. P. 2 and recitals in the sale deed-Ex. D. 2, dated 10-8-1939 to negative the contentions of the plaintiff. In addition, the Trial Court answered issues 3 and 4 in the negative and additional issue 1 in the affirmative by recording reasons over proof of the execution of the Will propounded by defendants 2 to 7 in the light of the defence of the 1st defendant in his written statement of execution of the Will denying plaintiff a share in the suit schedule properties because of his conduct of threat and assault on the 1st defendant. The attesting witness--D.W. 2 deposed making inconsistent statements in the matter of contents of the Will relating to beneficiaries, whence the Trial Court observed that such inconsistencies does not affect the execution of the Will and declined to eschew the testimony of D.W. 2. In the light of D.W. 2 having identified the Will-Ex. D. 5, the signatures of the 1st defendant as well as that of deceased Narasimha Nayak--the other attesting witness, the fact that the Will was registered in the presence of D.W. 2 in the office of the Sub-Registrar; the contents of the Witt-Ex. D. 5, that the 1st defendant-father of the plaintiff having left the family twenty years ago, was not on good terms and habituated to assaulting and abusing the 1st defendant quite often and did not look after the 1st defendant or assist him, plaintiff had prospered in business and purchased properties; being reasons to deny plaintiff a legacy under the Will, the Trial Court accordingly dismissed the suit by the judgment and decree. 8. The lower Appellate Court too having re-appreciated the evidence both oral and documentary, concurred with the reasons, findings and conclusions of the Trial Court to dismiss the appeal by the judgment and decree. 9. The first submission of the learned Counsel for the appellant that the consideration received by Thimmayya Shetty during the year 1939 on conveying his immovable properties was, in fact, the very same consideration that was utilized by plaintiff's father Annappa Shetty and his Uncle Seshappa Shetty to jointly purchase the suit schedule properties during the year 1940, cannot be countenanced. Two Courts below, having appreciated and re-appreciated the evidence both oral and documentary, recorded findings of fact that the sale consideration under the sale deed dated 10-8-1939-Ex. D. 2 was not shown to be utilised by plaintiff's father and his brother jointly to purchase 'B' Schedule properties under the sale deed-Ex. D. 4. The material on record does not establish the nexus between the sale consideration received by Thimmayya Shetty and the sale consideration paid by the 1st defendant and his younger brother Seshappa Shetty under sale deed-Ex. D. 4. So also there is no proof of existence of joint family properties which did constitute a nucleus for Annappa Shetty and his brother Seshappa Shetty to pay consideration for purchase of the suit schedule properties under sale deed-Ex. D. 4. 10. D. 4. So also there is no proof of existence of joint family properties which did constitute a nucleus for Annappa Shetty and his brother Seshappa Shetty to pay consideration for purchase of the suit schedule properties under sale deed-Ex. D. 4. 10. It is well-settled principle of law that proof of existence of joint family does not lead to presumption that it possesses joint property and that property held by a member of the joint family cannot also be presumed to be joint family property and in a suit for partition, a party who claims any item of suit property as joint family property, the burden of proving that it is so rests on the party who asserts it. Plaintiff did not enter the witness-box, but his son and power of attorney holder when examined as P.W. 1 was unable to lay material relevant in support of the aforesaid plea that the suit schedule properties were purchased from out of the sale consideration received by Thimmaiah Shetty. In the facts, circumstances and evidence on record, the plaintiff failed to establish or discharge that burden. 11. The second submission of learned Counsel for the appellant that the fact of partition during the year 1951 between Annappa Shetty and Seshappa Shetty not in dispute, whence plaint 'B' Schedule properties fell to the share of Annappa Shetty, therefore ought to be treated as joint family properties, too does not merit consideration. 12. If regard is had to proved facts that in the year 1940, Annappa Shetty along with his minor brother Seshappa Shetty, aged 17 years, jointly purchased the suit schedule properties, for a valuable sale consideration, followed by a partition during the year 1951, whence the properties fell to Annappa Sherry's share, by itself and nothing more, it cannot be said that the said immovable properties took the character of joint family properties. In the fact situation, the properties continued to be held by 1st defendant-Annappa Shetty as his self-acquired properties. 13. The last of the submission of learned Counsel that inconsistencies elicited in the cross-examination of D.W. 2-attesting witness constituted suspicious circumstance in execution of the Will-Ex. D. 5 by the 1st defendant cannot be countenanced. In the fact situation, the properties continued to be held by 1st defendant-Annappa Shetty as his self-acquired properties. 13. The last of the submission of learned Counsel that inconsistencies elicited in the cross-examination of D.W. 2-attesting witness constituted suspicious circumstance in execution of the Will-Ex. D. 5 by the 1st defendant cannot be countenanced. D.W. 2 indisputably is one of the attesting witness while the other by name Narasimha Nayak was reported to have died and the Will was registered in the office of the Sub-Registrar, in his presence. The 1st defendant on notice, entered appearance and resisted the suit by filing written statement, inter alia, denying the allegation and specifically stating that he had executed the Will bequeathing the suit schedule properties in favour of defendants 2 to 7 excluding the plaintiff, indicating his intention in so doing. On 1st defendant's death, defendants 2 to 7 propounded the Will and examined D.W. 2 one of the attesting witnesses as required by Section 68 of the Indian Evidence Act, 1872. It is true that D.W. 2 identified the signatures of the Testator-1st defendant, the other attesting witness by name Narasimha Nayak on Ex. D. 5-Will and made inconsistent statements over the persons to whom the bequest was made. 14. Section 3 of the Transfer of Property Act, 1882, provides for interpretation of the word 'attested' in relation to an instrument to mean attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant. Applying the same, D.W. 2 being an attesting witness to Ex. D. 5-Will, the inconsistencies elicited over the persons to whom the bequest is made in the Will, pale into insignificance, hence are not suspicious circumstances, to hold that Ex. D. 5 was not proved. Applying the same, D.W. 2 being an attesting witness to Ex. D. 5-Will, the inconsistencies elicited over the persons to whom the bequest is made in the Will, pale into insignificance, hence are not suspicious circumstances, to hold that Ex. D. 5 was not proved. In my considered opinion, the reasons, findings and conclusions arrived at by the Courts below, in the facts, circumstances and evidence on record, not shown to be either perverse, illegal or to be based on 'no evidence' calling for a different view, no substantial question of law arises for decision making and the appeal is accordingly dismissed.