JUDGMENT : 1. Heard Mr. S. K. Sharma, counsel appearing on behalf of the appellants. 2. Heard Mr. Kundan Kr. Ambashta, counsel appearing on behalf of the respondents. 3. Counsel for the appellants submits that the present Second Appeal has been filed against the concurrent finding of facts, but there are questions of law which are involved in this case which are as follows:- (a) Whether the learned courts below have failed to consider that admittedly the family of the plaintiffs and the defendants was a joint family and were having joint family properties, therefore, unity of title was required to be presumed and onus was on the defendants to show that the property standing in the name of defendant no. 2 (Manju Devi) vide sale deed no. 67 dated 03.01.1985 was her self-acquired property? (b) Whether the learned courts below have failed to consider that there was an admission on the part of the defendants regarding agreement of sale vide registered agreement being deed no. 3281 dated 24.06.1982 to recover the property back, upon payment of consideration amount of Rs. 2000/- which was executed on the same day on which registered sale deed no. 3280 dated 24.06.1982 was executed? 4. From the perusal of the judgments passed by two Courts, this Court finds that the plaintiffs had filed a suit for partition to the extent of their share in connection of the suit property which included one property covered by sale deed no. 67 dated 03.01.1985 executed by one Bishwanath Karmkar in favour of defendant no. 2, namely, Manju Devi wife of Harihar Mishra. 5. The case of the plaintiffs as per the plaint was that one Dila Mishra had two sons namely Chintaman Mishra and Jinda Mishra. Chintaman Mishra died leaving behind his sons Raghunandan Mishra, Yadunandan Mishra, Harihar Mishra and Sharda Mishra. Raghunandan Mishra died leaving behind the widow Maheshwari Devi, one son Raj Kumar and two daughters Savita Kumari and Malti Devi. Manju Devi is the wife of Harihar Mishra. Jinda Mishra died leaving behind him his son Sheo Kumar Mishra. It is stated that Jinda Mishra and Chintaman Mishra and their father were members of joint Hindu Family governed by Mitakshara School of Hindu Law. 6. The specific case of the plaintiffs was that Chintaman Mishra executed the sale deed no. Manju Devi is the wife of Harihar Mishra. Jinda Mishra died leaving behind him his son Sheo Kumar Mishra. It is stated that Jinda Mishra and Chintaman Mishra and their father were members of joint Hindu Family governed by Mitakshara School of Hindu Law. 6. The specific case of the plaintiffs was that Chintaman Mishra executed the sale deed no. 3280 dated 24.06.1982 in favour of Vishwanath Karmkar with respect to land of khata no. 180 plot no. 1942 area of .80 acres out of 1.20 acres. On the same day i.e. on 24.06.1982, Vishwanath Karmkar executed a registered agreement of sale to re-convey the land of the aforesaid sale deed to Chintaman Mishra vide deed no. 3281 dated 24.06.1982 upon payment of Rs.2,000/- which was the consideration amount of the sale deed. It is further the case of the plaintiffs that Chintaman Mishra arranged Rs. 2,000/- contributed by plaintiffs to the extent of Rs. 1,000/- and Rs. 1,000/- was contributed by Harihar Mishra and after making the payment of the consideration amount a sale deed no 67 dated 03.01.1985 was executed by Vishwanath Karmkar in favour of Manju Devi wife of Harihar Mishra. It is asserted that the sale deed no. 67 dated 03.01.1985 was for and on behalf of joint family and the plaintiffs and the defendants remained in joint possession over the land mentioned above. It was also alleged that Manju Devi wife of Harihar Mishra has no separate share and she was made defendant no. 2 in the suit since the sale deed no. 67 dated 03.01.1985 was in favour of Manju Devi wife of Harihar Mishra and Harihar Mishra was the defendant no.1. 7. The defendants by filing the written statement had categorically stated that the land purchased by defendant no. 2 through sale deed no. 67 dated 03.01.1985 was a self-acquired property of defendant no. 2. Accordingly, the same cannot be subject matter of partition and according to the defendants, excluding the property covered under sale deed no. 67 dated 03.01.1985, the rest of the property is liable to be partitioned. It was further stated by the defendants that the sale deed was executed by Chintaman Mishra in favour of Vishwanath Karmkar and on the same day, a registered agreement was entered into between Chintaman Mishra and Vishwanath Karmkar for re-conveyance of the aforesaid property, which was subject matter of sale deed no. It was further stated by the defendants that the sale deed was executed by Chintaman Mishra in favour of Vishwanath Karmkar and on the same day, a registered agreement was entered into between Chintaman Mishra and Vishwanath Karmkar for re-conveyance of the aforesaid property, which was subject matter of sale deed no. 3280 dated 24.06.1982. It was pleaded by defendant that Chintaman Mishra tried to arrange money for returning to Vishwanath Karmkar, but he could not arrange the money and ultimately defendant no. 2 arrange the money by selling of her ornaments and contacted Vishwanath Karmkar to execute the sale deed in her favour. After receiving the money from her he executed sale deed no. 67 dated 03.01.1985 in favour of defendant no. 2 and accordingly, it was stated by the defendants that the sale deed no. 67 dated 03.01.1985 is an independent deed having no concern with the said agreement to re-convey the property as contained in deed no. 3281 dated 24.06.1982. 8. This Court finds that the following issues were framed by the learned trial court:- (i) Whether the suit as framed is maintainable? (ii) Whether suit is barred by limitation & adverse possession? (iii) Whether there is any unity of title & possession among the parties with regard to suit lands? (iv) Whether the land under sale deed dated 03.01.1985 executed in favour of Manju Devi was purchased from the joint family fund of the parties? (v) Whether panchnama dated 18.03.99 is forged & fabricated document? (vi) Whether the plaintiff is entitled to separate Takhta to the extent of his share? (vii) Whether suit is hit by provisions of specific Relief Act? 9. The learned trial court while deciding issue nos. 3 & 4 found that the sale deed 3280 dated 24.06.1982 did not whisper a word regarding any agreement to buy back the property much less anything about agreement of sale vide deed no. 3281 dated 24.06.1982. Further, the learned trial court held that the sale deed no. 67 dated 03.01.1985 was not executed pursuant to registered agreement of sale vide deed no. 3281 dated 24.06.1982. The learned trial court further considered the evidence of P.W.-1 who had stated in his examination-in-chief that his father had given Rs. 2,000/- to Vishwanath Karmkar, but has not supported his case as set out in the plaint that the plaintiffs had contributed Rs. 3281 dated 24.06.1982. The learned trial court further considered the evidence of P.W.-1 who had stated in his examination-in-chief that his father had given Rs. 2,000/- to Vishwanath Karmkar, but has not supported his case as set out in the plaint that the plaintiffs had contributed Rs. 1,000/- for consideration amount for registration of sale deed no 67 dated 03.01.1985. Similar was the situation with P.W.-7 who has also stated in her examination-in-chief that 2,000/- was returned to Vishwanath Karmkar by her father-in-law, but she also did not state that any of the plaintiffs had contributed for consideration of sale deed no. 67 dated 03.01.1985. Accordingly, the leaned trial court held that the plaintiffs had failed to establish that the consideration amount of sale deed no. 67 dated 03.01.1985, which was executed in the name of defendant no. 2, was paid through contribution of the plaintiffs and also of the defendant no. 1, although this was the specific case of the plaintiffs in the plaint as stated above. The learned trial court further appreciated the fact that the consideration amount in connection with the sale deed no. 67 dated 03.01.1985 was paid by defendant no. 2 to Vishwanath Karmkar in presence of the Registrar himself. The learned court also considered the evidence of the scribe of the sale deed no. 67 dated 03.01.1985 who in his examination-in-chief has stated that the consideration amount has been paid by Chintaman Mishra, but his oral evidence was rejected in view of the endorsement made by the Registrar in the sale deed no. 67 dated 03.01.1985 that the consideration amount was paid at the time of the registration of the sale deed no. 67 dated 03.01.1985 by the respondent no. 2. Considering all these aspects of the matter the learned trial court by a well-reasoned judgment held that the property covered by sale deed no. 67 dated 03.01.1985 was not covered as a joint family property and has also held that there was no unity of title and possession over the land covered by sale deed no. 67 dated 03.01.1985. The learned trial court also considered that even the mutation in connection with the property, was made exclusively in favour of defendant no. 2. The learned trial court while deciding issue no. 67 dated 03.01.1985. The learned trial court also considered that even the mutation in connection with the property, was made exclusively in favour of defendant no. 2. The learned trial court while deciding issue no. 2 had also considered that the P.W.-1 who is one of the plaintiffs had stated in para 4 of his examination-in-chief that the sale deed executed by Vishwanath Karmkar in favour of defendant no. 2 vide sale deed no. 67 dated 03.01.1985 came to his knowledge after two to four years. 10. So far as the learned appellate court is concerned, the point of determination before the appellate court was whether the sale deed no. 3280 dated 24.06.1982 was an absolute sale or it was mortgage by conditional sale and whether the property acquired by virtue of sale deed no. 67 dated 03.01.1985 is self-acquired property of defendant no. 2 or it is joint family property. 11. This Court finds that the plea that sale deed no. 3280 dated 24.06.1982 was mortgage by conditional sale was rejected by the learned lower appellate court and after considering the materials on record, the learned lower appellate court has given concurrent finding that the sale deed no. 3280 dated 24.06.1982 was an absolute sale and has also held that the property covered by sale deed no. 67 dated 03.01.1985 was a self-acquired property of defendant no. 2. 12. Counsel for the appellants while advancing his argument has submitted that the learned courts below have failed to consider that the sale deed no. 3280 dated 24.06.1982 was itself a conditional sale, as on the same day the agreement of sale vide deed no. 3281 dated 24.06.1982 was executed between Vishwanath Karmkar and Chintaman Mishra that the property would be re-conveyed to Chintamani Mishra upon payment of consideration money. However, during course of argument, it is not disputed by the counsel appearing for the appellants that sale deed no. 3280 dated 24.06.1982 has no reference regarding any agreement of sale for re-conveyance much less agreement of sale vide deed no. 3281 dated 24.06.1982, which was registered on the same day. 13. Counsel for the appellants further submits that this aspect of the matter that there was an agreement for re-conveyance of the property was an admitted fact. Accordingly, the sale deed no. 3281 dated 24.06.1982, which was registered on the same day. 13. Counsel for the appellants further submits that this aspect of the matter that there was an agreement for re-conveyance of the property was an admitted fact. Accordingly, the sale deed no. 3280 dated 24.06.1982 was itself mortgage by conditional sale and even if this agreement was not mentioned in sale deed no. 3280 dated 24.06.1982, the same has no bearing. 14. The counsel also submits that so far as the issue regarding the property covered by sale deed no. 67 dated 03.01.1985 being a joint family property is concerned, the same has also not been properly considered by the learned courts below, in as much as, the joint family status was an admitted fact and accordingly, the onus was upon the defendants to prove that the property covered vide sale deed no 67 dated 03.01.1985 was self-acquired property of the defendant no. 2 and this was not discharged by the defendants. He submits that the defendant no. 2 never deposed before the learned courts below. 15. Counsel for the appellants refers to a judgment passed by Hon’ble Supreme Court AIR 1954 Supreme Court 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango & Ors.) and has referred to para 10 of the said judgment to submit that the burden is on the defendants to prove that the execution of the sale deed no. 67 dated 03.01.1985 in favour of respondent no. 2 was made without the aid of joint family funds. He submits that once it is proved that the family is a joint family, the onus is on the person who asserts, to show that it is his self-acquired property. This onus has not been discharged by the defendants in the instant case. The counsel submits that the learned lower appellate court has wrongly held that the sale deed no. 3280 dated 24.06.1982 was an absolute sale and that the property covered by sale deed no. 67 dated 03.01.1985 was a self-acquired property. 16. After hearing the counsel for the parties and after considering the materials on record, this Court finds as under:- A. Admittedly, the family involved in this case is a joint family and a suit for partition was filed. B. Defendant no. 67 dated 03.01.1985 was a self-acquired property. 16. After hearing the counsel for the parties and after considering the materials on record, this Court finds as under:- A. Admittedly, the family involved in this case is a joint family and a suit for partition was filed. B. Defendant no. 2 was impleaded, who was a member of the joint family in the capacity of wife of Harihar Mishra (Defendant No. 1), one of the coparceners of the family. Admittedly, she was made party in the suit as because a portion of the property, which was claimed to be a part of joint family property, was standing in her name by virtue of sale deed no. 67 dated 03.01.1985. C. Admittedly, on 24.06.1982, a sale deed no. 3280 dated 24.06.1982 was executed by Chintamani Mishra in favour of Vishwanath Karmkar and on the same day, an agreement of sale vide deed no. 3281 dated 24.06.1982 was also executed by Vishwanath Karmkar and Chintaman Mishra with stipulation that the property would be re-conveyed to Chintaman Mishra by Vishwanath Karmkar upon re-payment of an amount of Rs. 2,000/- which was the consideration amount in the sale deed no. 3280 dated 24.06.1982. D. Admittedly in sale deed dated 24.06.1982, there is no mention/indication that there is any agreement for re-conveyance of the property or that the sale deed itself was subject to the agreement for re-conveyance. E. This Court is of the considered view that as per the provisions of Section 58 (c) of Transfer of Property Act, 1882, in absence of any inclusion of this agreement for re-conveyance i.e. agreement of sale being deed no. 3281 dated 24.06.1982, in the sale deed no. 3280 dated 24.06.1982, it cannot be said that sale deed no. 3280 dated 24.06.1982 was mortgage by conditional sale. The proviso to clause (C) of section 58 of Transfer of Property Act, 1882 clearly provides that no transaction shall be deemed to a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. This aspect of the matter has been properly considered by the learned lower appellate authority and the learned lower appellate authority has held that the sale deed no. 3280 dated 24.06.1982 was an absolute sale. This Court further finds that so far as sale deed no. 67 dated 03.01.1985 which was executed by the purchaser of sale deed no. This aspect of the matter has been properly considered by the learned lower appellate authority and the learned lower appellate authority has held that the sale deed no. 3280 dated 24.06.1982 was an absolute sale. This Court further finds that so far as sale deed no. 67 dated 03.01.1985 which was executed by the purchaser of sale deed no. 3280 dated 24.06.1982 in favour of the defendant no. 2 is concerned , this deed also does not refer to the agreement of sale vide deed no. 3281 dated 24.06.1982. This sale deed no. 67 dated 03.01.1985 has also been held to be an absolute sale in favour of defendant no. 2. F. So far as the source of fund for buying the property contained in sale deed no. 67 dated 03.01.1985 is concerned, the learned lower appellate court has given a clear finding that the witnesses examined on behalf of the plaintiffs/appellants have not been able to prove before the learned courts below that there was sufficient fund with the joint family at the time of acquisition of the property and payment of consideration money, was made from the nucleus of joint family. The Hon’ble Supreme Court in the judgment reported in (2003) 10 SCC 310 (D.S. Lakshmaiah versus L. Balasubramanyam) in para 18 has clearly held that there is no presumption of a property being joint family property only on account of existence of joint family and the person asserting has to discharge the initial burden of establishing that there was any nucleus in the form of any income from which joint family property could be claimed. Para 18 of the aforesaid judgment is quoted as under:- “The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. Para 18 of the aforesaid judgment is quoted as under:- “The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased that property with his own funds and not out of joint family nucleus that was available.” The judgment which has been heavily relied upon by the counsel for the appellants passed by Hon’ble Supreme Court reported in AIR 1954 Supreme Court 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango & Ors.) has been considered in the said judgment reported in (2003) 10 SCC 310 (D.S. Lakshmaiah versus L. Balasubramanyam) at para 10 in the following manner :- “In Srinivas Krishnarao Kango v. Narayan Devji Kango the contention that was urged on behalf of the appellant was that the burden was wrongly cast on the plaintiff of proving that the acquisition of the properties were made with the aid of joint family funds, the argument being that as the family admittedly possessed the ancestral watan lands of the extent of 56 acres, it must be presumed that the acquisitions were made with the aid of joint family funds and, therefore, the burden lay on the defendants who claimed that they were self-acquired acquisitions to establish that they were made without the aid of joint family funds and that the evidence adduced by them fell far short of it and that the presumption in favour of the plaintiff stood unrebutted. It was noticed by this Court that on the question of the nucleus, the only properties which were proved to belong to the joint family were the watan lands of the extent of about 56 acres bearing an annual assessment of Rs. 49. There was no satisfactory evidence about the income which these lands were yielding at the material time. It was noticed by this Court that on the question of the nucleus, the only properties which were proved to belong to the joint family were the watan lands of the extent of about 56 acres bearing an annual assessment of Rs. 49. There was no satisfactory evidence about the income which these lands were yielding at the material time. Under these circumstances, noticing with approval the aforesaid Privy Council decision, it was held that whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him to establish that there was adequate nucleus out of which the acquisition could have been made is one of fact depending on the nature and extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income which may well form the foundation of the subsequent acquisitions.” G. Accordingly this Court is of the considered view that the ratio of the judgment passed by Hon’ble Supreme Court reported in AIR 1954 Supreme Court 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango & Ors.) does not help the appellants in any manner as the appellants had miserably failed to establish the nucleus of the fund in the joint family to purchase the property covered by sale deed no. 67 dated 03.01.1985 which admittedly stood in the name of defendant no. 2. H. This Court further finds that the plaintiffs themselves have taken the pain to establish that the property standing in the name of defendant no. 2 vide sale deed no. 67 dated 03.01.1985 was purchased from the contributions of the plaintiffs and the defendant no. 1, which they measurably failed to prove and the learned courts below have given concurrent findings of facts that the property covered vide sale deed no. 67 dated 03.01.1985 was the self-acquired property of the defendant no. 2. In such circumstances, this Court is of the considered view that the plaintiffs could not discharge the initial onus to prove that there was any nucleus with which the property covered by sale deed no. 67 dated 03.01.1985 was the self-acquired property of the defendant no. 2. In such circumstances, this Court is of the considered view that the plaintiffs could not discharge the initial onus to prove that there was any nucleus with which the property covered by sale deed no. 67 dated 03.01.1985 could be acquired by the joint family in the name of the defendant no. 2 and the specific case of the defendants was that the property was acquired by the defendant no. 2 by her own funds. I. In view of the aforesaid facts and circumstances, this Court finds that there is concurrent findings of fact by the learned courts below that the property was the self-acquired property of defendant no. 2, after appreciating all the materials and evidences on record. Accordingly this Court finds that no question of law, much less, any substantial question of law is involved in this second appeal. 17. Accordingly, this Second Appeal is dismissed.