JUDGMENT M.S. Jawalkar, J. - Heard. 2. The present second appeal is filed being aggrieved by the judgment and decree dated 29/07/2004 passed by learned 14th Adhoc Additional District Judge, Nagpur in Regular Civil Appeal No.103/2002 partly allowed the appeal and the judgment and decree dated 11/02/2002 passed by 3rd Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No. 1608/1996 is modified. 3. This Court admitted this appeal on 15/12/2004 on following substantial questions of law: "i) When the Karta of a family jointly in his name (Anandrao Dhote) and in the name of his brother (Bapurao Dhote) purchased the properties i.e. Field Survey No.24, 27, 53 through the income of ancestral property, whether such property becomes joint family property or the self acquired property of Anandrao Dhote and Bapurao Dhote? ii) Whether the decrees passed by both the courts below are vitiated on account of the fact that the material evidence which has not been challenged by the defendant, has been ignored?" 4. The facts of the case as per plaintiffs is as under: The original ancestor Shri Balkrishna had left certain ancestral field and house property at Mouza Hingna. That Balkrishna died more than 50 years, before coming into force of Hindu Succession Act. It is alleged that after his death, the property was inherited by his sons Anandrao and Bapurao. That thereafter, Anandrao and Bapurao jointly purchased field Survey No.24, 27 and 53 on 07/04/1947 and 18/03/1943 from the income of ancestral property. Thus, they were joint and there was no partition between them. That defendant No.1 sold his half share in the above property jointly purchased by him alongwith Bapurao and from the sale proceeds of the same, Anandrao purchased the properties except survey No.409. That defendant No.1 had two wives. From first wife, he had two sons Dhanraj and Murlidhar. That defendants Nos.2, 4 and 5 are the children of late Anandrao from his second wife, defendant No.3. That the entire property is joint family property and Anandrao was the Karta of the family. That after partition between Anandrao and Bapurao which took place after passing of Hindu Succession Act, Anandrao was the Karta of the family consisting of himself, his two sons and as such, they became co-parcners in the property of joint Hindu family of which the Anandrao was Karta. That after partition between Anandrao and Bapurao which took place after passing of Hindu Succession Act, Anandrao was the Karta of the family consisting of himself, his two sons and as such, they became co-parcners in the property of joint Hindu family of which the Anandrao was Karta. That the appellants/plaintiffs had filed the Regular Civil Suit for partition and separate possession of the joint family property. That learned Lower Court after hearing the parties, dismissed the claim of appellants. Being aggrieved by the same, the appellants preferred an appeal before learned Lower Appellate Court vide Regular Civil Appeal No.113/2002. However, the appeal was partly allowed by learned Lower Appellate Court vide its judgment and decree dated 29/07/2004. Hence the present appeal is filed 5. The appellants' contention is that the suit property is the ancestral property and the parties are related to each other. That after the death of Dhanraj, the present plaintiff Nos.1 to 3 are entitled to inherit his share in the coparcenary property. That the deceased defendant No.1 was the karta of the joint Hindu Family. But he in order to deprive the plaintiffs of their share in the joint family property and in getting the joint family property partitioned only amongst the defendants, has secretly in-collusion with other defendants partitioned the joint family property amongst the defendants alone without the knowledge to the plaintiffs. The defendant No.1 was acting as a karta cum manager of the Hindu joint family and thus was not entitled to deal with the family property so as to affect the interest of the deceased co-parcnar Dhanraj. It is further contended that both the Courts below erred in holding that the suit properties (excluding survey No.409 and house property) were the self acquired property of the defendants without appreciating the admission and contradictory stand taken by defendants. 6. Learned Counsel for appellants relied on following citations: 1) Shyam Narayan Prasad Vs. Krishna Prasad and others reported in AIR 2018 SC 3152 2) Rohit Chauhan Vs. Surinder Singh and others, reported in 2013 (9) SCC 419 3) Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe and others, reported in AIR 1986 SC 79 4) Srinivas Krishnarao Kango Vs. Narayan Devji Kango and others, reported in AIR 1954 SC 379 5) Baikuntha Nath Paramanik (dead) by his L.Rs. and others Vs. Sashi Bhusan Paramanik (dead) by his LRs. Surinder Singh and others, reported in 2013 (9) SCC 419 3) Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe and others, reported in AIR 1986 SC 79 4) Srinivas Krishnarao Kango Vs. Narayan Devji Kango and others, reported in AIR 1954 SC 379 5) Baikuntha Nath Paramanik (dead) by his L.Rs. and others Vs. Sashi Bhusan Paramanik (dead) by his LRs. and others, AIR 1972 SC 2531 6) Patram Singh (deadased by L.R's.) Vs.Bahadur Sing, reported in AIR 1983 Allahabad 348 7) Sher Singh and others Vs. Gamdoor Singh, reported in AIR 1997 SC 1333 8) H. Lakshmaiah Reddy and ors. Vs. L. Venkatesh Reddy, reported in 2015(4) ALL MR 914 (S.C.) 9) Bama Kathari Patil Vs. Rohidas Arjun Madhavi and another, reported in 2004 (2) Mh.L.J. 7. It is the contention of the respondents/defendants that the suit properties are the self acquired properties by deceased Anandrao and cannot be styled as the properties of joint family property. The defendant No.1 on his own with the help of the brother Bapurao had purchased another suit field of 11 acres and before that defendant No.1 had on his own purchased the field of 9 acres from the self acquired property. The defendants further supported and appreciated the judgments of the learned Courts below. 8. It is further contended by learned Counsel for respondents that the sale deed executed prior to 30 years and having presumptive value. There is no mentioned that the property is purchased out of joint family fund. It is a matter of record that though it is admitted that real brother of Anandrao i.e. Bapurao was knowing all the facts, he was not examined by the plaintiffs. Moreover, defendant No.4 who is son of Anandrao also not entered into the witness box, though it is alleged that he is aware about the facts. The learned Appellate Court in fact, elaborately discussed the evidence and considered each and every facts. The will was duly established by the defendants by examining attesting witnesses. 9. I have gone through the rival contentions of the parties. Perused judgment of both the Courts and considered the citations relied on by the parties. The learned Appellate Court in fact, elaborately discussed the evidence and considered each and every facts. The will was duly established by the defendants by examining attesting witnesses. 9. I have gone through the rival contentions of the parties. Perused judgment of both the Courts and considered the citations relied on by the parties. It is a matter of record that P.W.-1 Raju deposed in his chief itself that his father died in the year 1990 and since he become sage, he saw that his father was having separate business and was residing separately from his grandfather. In cross, he has admitted that his father and his uncle by name Murlidhar was knowing all facts in respect of suit property. His father or his uncle plaintiff No.4 has not given any notice to the defendant No.1 for partition. 10. The learned Appellate Court rightly appreciated this fact that at the time of deposition, said Raju was shown his age as 35 years. As such, since many years, his father was residing separately and doing his business separately. He is not aware what are the Gat numbers of field or its measurement. He admitted that there was partition between his grandfather and brother of grandfather Bapurao. There was suggestion put to him that only one field is received by defendant No.1 by succession which was denied by the plaintiffs. The testimony of D.W.-1 that Murlidhar and Dhanraj are having two house property at Nagpur and having agricultural land about 20 acres at village Chincholi and 15 acres at Erongaon. Thus, what deposed by Raju P.W.-1 supports the contention of defendants. Admittedly, Dhanraj and plaintiff No.4 Murlidhar are possessing some landed property however, those were not referred at all. 11. It is also matter of record that neither Dhanraj during his lifetime nor plaintiff No.4 Murlidhar had demanded share to Anandrao or claimed partition. Now Murlidhar along with other plaintiffs in the year 1996 claimed such partition. The evidence laid by the defendants establishes that Anandrao was having business of milk and also he used to cultivate lands on Theka. The learned Trial Court rightly appreciated this fact from the suggestion put to D.W.- 1. Thekapatra is also exhibited document i.e. Exhibits 177 and 178. 12. It is submitted that contents of those documents are not proved. The evidence laid by the defendants establishes that Anandrao was having business of milk and also he used to cultivate lands on Theka. The learned Trial Court rightly appreciated this fact from the suggestion put to D.W.- 1. Thekapatra is also exhibited document i.e. Exhibits 177 and 178. 12. It is submitted that contents of those documents are not proved. The learned Counsel for appellants also relied on Bama Kathari Patil (supra) wherein the Hon'ble Apex Court held in paragraph No.3 read thus: "3......Exhibiting of a document is an administrative act. It is true that a document which is produced in court is ordinarily exhibited only after its proof. But, exhibiting a document does not mean that the document is proved and non-exhibiting a document does not mean that the document is not proved. A document is required to be proved in accordance with the provisions of the Evidence Act.' It is pleaded that defendant No.1 Anandrao had not taken any land on Theka. Exhibits 177 and 178 pertain to year 1953 and 1944. On perusal of cross of defendants, it appears that suggestion was put to defendants to which defendants answered as under: 'It is not true that ancestral agricultural field and fields taken on Theka used to cultivate in common." Thus there is no dispute that defendant No.1 used to cultivate the land on Theka. 13. It is also duly appreciated by learned Appellate Court that there is evidence on record that Anandrao used to give monetary help to Dhanraj and Murlidhar. He also incurred full expenses of treatment of wife of plaintiff No.4 Murlidhar. Even sister of plaintiff Usha Dongre deposed about financial aid of Rs.35,000/- and Rs.25,000/- by Anandrao to deceased Dhanraj for his business. Her oral deposition that her father was required to sell some land for that monetary help to deceased Dhanraj and plaintiff No.4 Murlidhar. It is supported by sale deeds on record. She also deposed that property was self acquired property of her father. There is no evidence to support contention of plaintiffs that deceased Dhanraj purchased the property in the name of his father Anandrao due to love and affection. As there is no evidence on record to show that what was the income out of Survey No.409, which is only ancestral property. There is no evidence to support contention of plaintiffs that deceased Dhanraj purchased the property in the name of his father Anandrao due to love and affection. As there is no evidence on record to show that what was the income out of Survey No.409, which is only ancestral property. It would be difficult to come to any conclusion that property is purchased by Anandrao are purchased from the income out of field Survey No.409. The plaintiffs thus failed to prove that there was any nucleus of the joint family property. 14. One Narayan who was examined by the plaintiff as plaintiffs witnessed, though he deposed in favour of plaintiffs in examination in chief, he admitted in cross examination that he never seen the documents pertained to 8 acres of ancestral property of Anandrao and he has no knowledge about other field except the field at Hingna. So also, deposition of P.W.-3 was not relied by the learned Appellate Court as it is hearsay evidence. 15. On appreciation of evidence on record, it is clear that will was executed by deceased Anandrao on 26/02/1992 and thereafter within 7 months, Anandrao in his lifetime itself partitioned the suit property except Survey No.409 and house No.625 amongst the defendants. Therefore, nothing turn on will whether it is executed as per provisions of law or not. Even this point was not raised before the learned Trial Court. There is concurrent finding recorded by both the Courts below that property acquired is self acquired property of Anandrao, except the finding recorded by learned Appellate Court that property filed Survey No.409 and ancestral house No.625 of village Hingna is ancestral property. This finding is based on suggestion put to plaintiffs. Defendants also did not denied the same. 16. The learned Counsel for appellants relied on Shyam Narayan Prasad (supra) wherein it is held that the properties acquired by defendant in the partition dated 31/07/1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. However, as discussed above, the citation is not applicable in the present set of facts, as it is duly proved that the properties were purchased by Anandrao and Bapurao in their joint names on their own. Anandrao sold his share of the field purchased jointly. However, as discussed above, the citation is not applicable in the present set of facts, as it is duly proved that the properties were purchased by Anandrao and Bapurao in their joint names on their own. Anandrao sold his share of the field purchased jointly. It has also come on record that Anandrao was having various business not only this, he used to help the defendant No.4 and deceased Dhanraj. So it is not the case that Anandrao received any ancestral property in partition. At least there is no evidence placed on record by the plaintiffs to that effect. 17. The learned Counsel for appellants also relied on Rohit Chauhan (supra) wherein the Hon'ble Supreme Court held that a coparcener getting ancestral property on partition can alienate the said property if he had no son. If son was born subsequently, son cannot question the alienation which took place before his birth. After birth of son, coparcener could alienate the property as Karta for any legal necessity. To make this citation applicable, it is necessary to establish that there was ancestral property which was partitioned and fall in the share of defendants. 18. The learned Counsel for appellants also relied on Bhagwant P. Sulakhe (supra) wherein the Hon'ble Apex Court 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 co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. With due respect to the ratio laid down by the Hon'ble Apex Court, it is not applicable in present set of facts. As discussed above, the appellants failed to establish that there was any ancestral property which was partitioned and Anandrao received the share in the said partition. On the contrary, it is duly proved that Anandrao had purchased the property along with Bapurao. Anandrao was having various business and therefore it cannot be said to be an ancestral property. Whatever, ancestral property i.e. field No.409 and house No.625 is admitted in view of the cross of plaintiffs by the defendants. 19. On the contrary, it is duly proved that Anandrao had purchased the property along with Bapurao. Anandrao was having various business and therefore it cannot be said to be an ancestral property. Whatever, ancestral property i.e. field No.409 and house No.625 is admitted in view of the cross of plaintiffs by the defendants. 19. The learned Counsel for appellants also relied on Srinivas Krishnarao Kango (supra), wherein it is held that burden was wrongly casted on plaintiff to prove that property was ancestral one. The Hon'ble Apex Court observed in paragraph No.8 as under: "8......" The Hindu law upon this aspect of the case is well settled. 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: See Babubhai Girdharlal v. Ujamlal Hargovandas, Venkataramayya v. Seshamma Vythianatha v. Vadradaraja.' However in the said judgment itself, the Hon'ble Apex Court further observed in paragraph No.10 which reads as under: '10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on, him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the 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 in 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 product substantial income, which may well form the foundation of the subsequent acquisitions. On the other hand, a running business in which the capital invested is comparatively small might conceivably product substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case." In the present matter, the plaintiffs failed to discharge his initial burden that there was any nucleus which could yield income for such subsequent acquisition. 20. The learned Counsel for appellants also relied on Baikuntha Nath Paramanik (dead) by his L.Rs. and others (supra) wherein the Hon'ble Apex Court held in paragraph No. 10 read thus: "10...... When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisition then a presumption arises that the acquisitions standing in the name of the persons who were in the management of the family properties are family acquisitions." For the reasons stated above, this judgment is also not applicable. 21. The learned Counsel for appellants also relied on Patram Singh (deadased by L.R's.) (supra) wherein the Alahabad High Court held in paragraph No. 10 read thus: "10. If the evidence had been appraised from the proper viewpoint, the lower appellate court ought to have taken into consideration the facts that the parties were living joint in the year 1941 when the land was purchased and having been purchased in the joint names of the parties, it was for the defendant to establish that the consideration for the purchase of the land was advanced by him entirely from his own resources and self acquired funds with the intention of purchasing the property as separate property and the name of the plaintiff as a co-purchaser was no better than that of a Benamidar. ..... Not keeping the promise to contribute towards the share of the price by the plaintiff will not make the land which was purchased as joint property, the separate, property of the defendant on the plaintiffs' failure to contribute his share of the purchase price. ..... Not keeping the promise to contribute towards the share of the price by the plaintiff will not make the land which was purchased as joint property, the separate, property of the defendant on the plaintiffs' failure to contribute his share of the purchase price. At best the defendant could claim recovery of 1/2 of the purchase price of the land from the plaintiff but on no theory could the land which was purchased as the joint property of the parties become the separate property of the defendant on non-payment of his share of the price by the plaintiff." Ratio of the case is not at all applicable in the present set of facts. Though property purchased jointly, it was not of joint family properties. 22. The learned Counsel for appellants also relied on Sher Singh and others (supra) wherein the Hon'ble Apex Court held in paragraph No. 5 read thus: "5......Once the existence of joint family was not in dispute, necessarily the property held by the family assumed the character of a co-parcenary property and every member of the family would be entitled by birth to share in the co-parcenary property unless any one of the co- parceners pleads, by separate pleadings, and proves that some of the properties or all the properties are his self-acquired properties and could not be blended in the co- parcenary property." 23. The learned Counsel for appellants also relied on H. Lakshmaiah Reddy and ors. (supra) wherein the Hon'ble Apex Court held in paragraph No. 9 read thus: "9......The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue." 24. Considering the facts and circumstances and law position, the plaintiffs failed to discharge their initial burden that property acquired jointly by deceased-defendant No.1 Anandrao and his brother Bapurao out of yield obtained from any nucleus which yield such income to purchase such property. As such, the properties i.e. field Survey Nos.24, 27 and 53 are rightly held to be self acquired property by both the Courts below. It is duly established that defendant was having business of milk, he used to cultivate land on Theka and other supporting business. The property purchased was not in the capacity of Karta. As such, the properties i.e. field Survey Nos.24, 27 and 53 are rightly held to be self acquired property by both the Courts below. It is duly established that defendant was having business of milk, he used to cultivate land on Theka and other supporting business. The property purchased was not in the capacity of Karta. As such, in answer to substantial question of law No.1, I have held that though property is purchased in the joint name, plaintiffs failed to discharge initial burden that there was any nucleus which yield such income to acquire such property and considering the other evidence on record, the property rightly appreciated by both the Courts below i.e. field Survey No.24, 27 and 53 as self acquired property of deceased-defendant No.1 Anandrao. In answer to substantial question of law No.2, I answered in the negative. There is no perversity in the finding recorded nor any illegality in the order passed by both the Courts below. Hence Appeal stands dismissed. 25. Decree be drawn up accordingly.