JUDGMENT : 1. This Second Appeal has been filed by the appellant-original Plaintiff challenging the judgment and decree dated 06.04.2010 passed by the Principal District Judge, Patan, (hereinafter referred to as 'the Appellate Court') in Regular Civil Appeal No. 13 of 2007, whereby the Appellate Court while dismissing the said Appeal has confirmed the judgment and decree dated 26.02.2007, passed by Principal Senior Civil Judge, Patan, (hereinafter referred to as 'the Trial Court') in Regular Civil Suit No. 294 of 1993 (Old No. 266 of 1985). 2. The Second Appeal was admitted by this Court for determination of following substantial questions of law as per order dated 13.12.2010: 1. Whether the Courts below have erred in not applying the principles of presumption of jointness of Hindu Family in the present case? 2. Whether the Courts below erred gravely in discarding the legal presumption of jointness of a Hindu family in the absence of any evidence by the defendants to rebut such legal presumption? 3. Whether the Courts below erred gravely holding that the property of Survey No. 109 was of the ownership of defendant no.1 only because his name appeared in the property card though no evidence is produced to prove that the said property was purchased by the defendant no.1 from his own income? 4. Whether the Courts below erred gravely in coming to a conclusion that the plaintiff did not have any coparcenery right in the properties in question? 3. The short facts giving rise to the present appeal are that the appellant-original Plaintiff Maniben Chunilal Mistry had filed the suit seeking partition of the two houses situated at Survey No. 109 and 110 at Patan. It was alleged interalia that the original ancestor Mulchandbhai had two sons named Tribhovandas and Chunilal. The Plaintiff-Maniben happened to be the wife of Chunilal and Defendant No.1 Hasmukhlal happened to be the son of Tribhovandas. The Defendant No.2 happened to be the wife of Defendant No.1 Hasmukhlal and Defendant No. 2 Manojkumar happened to be the son of Defendants no. 1 and 2. According to the Plaintiff, the suit properties were purchased in the name of Tribhovandas, he being the eldest son, however, the said properties were as such their joint family properties. The Defendant No.2 happened to be the wife of Defendant No.1 Hasmukhlal and Defendant No. 2 Manojkumar happened to be the son of Defendants no. 1 and 2. According to the Plaintiff, the suit properties were purchased in the name of Tribhovandas, he being the eldest son, however, the said properties were as such their joint family properties. After the death of Tribovandas and Chunilal, the Plaintiff Maniben was the guardian of Defendant No.1 Hasmukhbhai, who was a minor at the relevant time and therefore, the Plaintiff herself was managing the affairs of the said properties. Under the circumstances, the Plaintiff had onehalf share in the said properties. 4. The said suit was resisted by the present respondents (original defendants) contending interalia that the suit properties were self acquired properties of Tribhovandas, the father of the Defendant no.1 and were not joint family properties. Therefore, the Plaintiff did not have any right or share in the said properties. It was further contended that the said Tribhovandas had purchased the property bearing survey no. 110 on 23.10.1937, through registered sale deed. After the death of said Tribhovandas in the year 1959, the Defendant no.1 being a minor, the Plaintiff had made an application for appointing her as a guardian of Defendant No.1. After defendant No.1 became major, the said properties were mutated in the name of Defendant No.1 only. 5. The Trial Court had framed as many as 11 issues at Exhibit 51 from the pleadings of the parties, and after appreciating the evidence on record, it dismissed the suit of the appellant-Plaintiff by the judgment and decree dated 26.02.2007, against which the appellant had preferred the appeal before the appellate Court, which also came to be dismissed by the impugned judgment and decree. 6. Learned Advocate Mr. Thakkar appearing for the appellants, taking the Court to the judgments and decrees passed by the Courts below submitted that both the Courts had failed to appreciate the evidence on record in its right perspective and had failed to raise the presumption of jointness of Hindu family as also the presumption with regard to the suit properties being joint family properties. He further submitted that the Survey no. 109, though since 1914 was in the name of Tribhovandas, was a joint family property, as in the year 1914, the said Tribhovandas being of very young age could not have purchased the said property. He further submitted that the Survey no. 109, though since 1914 was in the name of Tribhovandas, was a joint family property, as in the year 1914, the said Tribhovandas being of very young age could not have purchased the said property. Similarly, the property being Survey No. 110 was also purchased in the name of Tribhovandas as he was the eldest member in the family. Distinguishing the decision of the Supreme Court in case of Appasaheb Peerappa Chandgade V/s. Devendra Peerappa Chandgade reported in AIR (2007) SC 218, he submitted that the properties having been purchased from the nucleus of the joint family, it was for the respondents to prove that the suit properties were purchased by Tribhovandas from his independent income. 7. However, the learned Advocate Mr.M.B.Gohil appearing for the respondents relying upon the very judgment in case of Appasaheb Peerappa Chandgade V/s. Devendra Peerappa Chandgade (supra) submitted that the according to the settled position of law, no presumption could be raised as regards the property being joint family property, in absence of any cogent evidence. According to him in the instant case, there were neither pleadings nor proof given by the appellant herein with regard to the properties in question being joint family properties and therefore, the question of raising presumption did not arise. 8. Having regard to the submissions made by the learned advocates for the parties and to the evidence on record, as also the judgments and decrees passed by the Courts below, it appears that the original-Plaintiff Maniben had died during the pendency of the suit and her daughter Nirmalaben was substituted in her place. Hence, during the course of trial the said original Plaintiff-Maniben could not be examined and the said Nirmalaben had given evidence on behalf of the Plaintiff. Similarly, Defendant No.1 Hasmukhbhai and Defendant No.3 Mayurbhai were examined on behalf of the defendants. Both the parties had laid the documentary evidence also. 9. In the opinion of the Court, the question as to whether the Courts below had committed any error of law in not raising the presumption as regards the jointness of the Hindu family or as regards the suit properties in question being joint family properties, is squarely covered by the decision of the Supreme Court in the case of Appasaheb Peerappa Chandgade V/s. Devendra Peerappa Chandgade (supra). The Supreme Court while examining the legal proposition as regards the presumption to be raised in case of joint Hindu family properties, after discussing earlier judgments, has held as under: “9. So far the legal proposition is concerned, there is no gainsaying that whenever a suit for partition and determination of share and possession thereof is filed, then the initial burden is on the plaintiff to show that the entire property was a joint Hindu family property and after initial discharge of the burden, it shifts on the defendants to show that the property claimed by them was not purchased out of joint family nucleus and it was purchased independent of them. This settled proposition emerges from various decisions of this Court right from 1954 onwards. 10. In the case of Srinivas Krishnarao Kango V/s. Narayan Devji Kango & Ors. AIR 1954 SC 379 , their Lordships held that proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established 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 burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Therefore, so far as the proposition of law is concerned, the initial burden is on the person who claims that it was joint family property but after initial discharge of the burden, it shifts to the party who claims that the property has been purchased by him through his own source and not from the joint family nucleus. Same proposition has been followed in the case of Mst. Rukhmabai V/s. Lala Laxminarayan & Ors., AIR 1960 SC 335 wherein it was observed as follows: “There is a presumption in Hindu Law that a family is joint. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called “division of status”, or an actual division among them by allotment of specific property to each one of them which is described as “division by metes and bounds”. There can be a division in status among the members of a joint Hindu family by definement of shares which is technically called “division of status”, or an actual division among them by allotment of specific property to each one of them which is described as “division by metes and bounds”. A member need not receive any share in the joint estate but may renounce his interest therein; his renunciation merely extinguishes his interest in the estate but does not affect that status of the remaining members visavis the family property. A division in status can be effected by an unambiguous declaration to become divided from the others and that intention can be expressed by any process. Though prima facie a document clearly expressing the intention to divide brings about a division in status, it is open to a party to prove that the said document was a sham or a nominal one not intended to be acted upon but was conceived and executed for an ulterior purpose. But there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish the fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.” Similarly in the case of Achutan Nair V/s. Chinnammu Amma & Ors., AIR 1966 SC 411 , their Lordships held as follows: “Under Hindu law, when a property stands in the name if a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law.” Similarly, in the case of Bhagwat P. Sulakhe V/s. Digambhar Gopal Sulakhe & Ors., AIR 1986 SC 79 , their Lordships have held that the character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the cosharers. By a unilateral act it is not open to any member of the joint family to covert any joint family property into his personal property. 11. In the case of Surendra Kumar V/s. Phoolchand (dead) through Lrs & Anr, 1996 2 SCC 491 their Lordships held as follows: “It is no doubt true that there is no presumption that a family because it is not joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging selfacquisition to establish affirmatively that the property was acquired without the aid of joint family.” Therefore, on survey of the aforesaid decisions what emerges is that there is no presumption of a joint Hindu family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence. “10. The aforesaid ratio of judgment has also been followed in the later decision in case of Marabasappa (dead) by Lrs. And Others V/s. Ningappa (dead) by Lrs. “10. The aforesaid ratio of judgment has also been followed in the later decision in case of Marabasappa (dead) by Lrs. And Others V/s. Ningappa (dead) by Lrs. And Others reported in (2011) 9 Supreme Court Cases 451 wherein it has been held that there is no presumption of joint family property. 11. In light of the aforesaid legal position, if the evidence laid in the present case is appreciated, there remains no shadow of doubt that the appellant plaintiff had failed to discharge the burden of proving that the properties in question were joint Hindu family properties, acquired out of the nucleus of the joint Hindu family. As stated earlier, there could not be any presumption with regard to joint family property, though the family may be joint. Since the appellant-plaintiff had failed to prove that the said properties were acquired from the nucleus of joint family properties, there was no question of the respondents-defendants proving that the said properties were self acquired properties of their predecessor Tribhovandas, as sought to be submitted by learned Advocate Mr. Thakkar. On the contrary, it was proved by adducing documentary evidence that the property bearing survey no. 109 was in the name of Tribhovandas right from the year 1914 and Survey No. 110 was purchased by the said Tribovandas in the year 1937. It has also come on record that when the said Tribhovandas expired in the year 1959, the defendant No.1 Hasmukhbhai was minor and therefore, the Plaintiff Maniben herself had made an application before the concerned authority for appointing her as a guardian of defendant No.1 Hasmukhbahi. It has also come on record that she had disposed of three of the properties of Tribhovandas as the guardian of the defendant No.1 Hasmukhbhai, and when the said Hasmukhbhai became major, the said properties bearing Survey No. 109 and 110 were mutated in the name of the said Hasmukhbhai only. At no point of time, it was ever asserted by the Plaintiff-Maniben that the properties in question were joint family properties. 12. Though it was submitted by learned Advocate Mr. Thakkar, appearing for the appellants that the said Tribhovandas, being of a very young age in the year 1914 could not have acquired Survey No. 109 and could not have purchased survey no. 12. Though it was submitted by learned Advocate Mr. Thakkar, appearing for the appellants that the said Tribhovandas, being of a very young age in the year 1914 could not have acquired Survey No. 109 and could not have purchased survey no. 110 in the year 1939, there are neither pleadings nor evidences adduced by the appellantPlaintiff in the suit, in support of such contention. In absence of any cogent evidence with regard to the properties being joint family properties, no such presumption could be raised. As per the settled legal position, the person alleging the property to be joint property has to establish that the family was possessed of some property with the income of which the property could have been acquired. There is no presumption that the property is joint Hindu family property, merely because there exists joint Hindu family. The proof of existence of joint family cannot lead to the presumption that the property held by the member of the family is joint. The substantial questions of law framed by the Courts therefore are answered in the negative. 13. There being no illegality or perversity in the judgments and decrees passed by the Courts below, the Second Appeal deserves to be dismissed and is dismissed accordingly. The request made by learned Advocate Mr. Thakkar appearing for the appellants to extend the interim relief in Civil Application No. 7058 of 2010 for a period of four weeks to enable the appellant to approach the higher forum is rejected, for the reasons stated in the order.