JUDGMENT : (HANCHATE SANJEEVKUMAR, J.) This Regular First Appeal is filed by defendant Nos.1 to 4 challenging the judgment and decree passed in O.S.No.55/2006 dated 31.01.2017 on the file of the Principal Senior Civil Judge, Chikodi (for short, ‘the Trial Court’), thereby, the suit filed for partition and separate possession is decreed with costs. Being aggrieved by granting of decree for partition in respect of suit properties bearing R.S.No.101/2 measuring 22-guntas, R.S.No.102/2 measuring 22 guntas, R.S.No.104/3 measuring 27 guntas and R.S.No.104/2 measuring 0.5 guntas (for short, ‘ the appeal properties’), the present appeal is filed. 2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court. 3. The present appeal is confined to only being aggrieved by decreeing the suit for prior partition in the lands bearing R.S.No.101/2 measuring 22-guntas out of 4 acre 29 guntas, R.S.No.102/2 measuring 22 guntas out of 3 acre 22 guntas, R.S.No.104/3 measuring 22 guntas out of 4 acre 05 guntas and R.S.No.104/2 measuring 6 guntas (for short, ‘appeal properties’). 4. The plaintiffs have filed the suit in O.S.No.55/2006 for partition and separate possession of the suit schedule-A properties by metes and bounds, by stating the genealogy as follows : 5. It is stated that all the suit properties are ancestral and joint family properties. One Narayan is the original propositus, who has five sons as above stated in the genealogy. Among them, Dasharath, who is plaintiff No.1, has two wives. After the death of 1 st wife Akkatai in the year 1962, plaintiff No.1 has married Indubai i.e., plaintiff No.2 as 2 nd wife. Plaintiff Nos.3 to 5 are children of plaintiff Nos.1 and 2. One Prakash and defendant No.5 are children of Dasharath-plaintiff No.1 through 1 st wife Akkatai. Defendant No.1 is the wife of Prakash and defendant Nos.2 to 4 are children of Prakash and defendant No.1. When this being the joint and Hindu Undivided Family, and since the properties are ancestral and joint family properties, the plaintiffs have filed the suit for partition and separate possession. 6. In response to suit summons, defendant Nos.1 to 4 appeared through their advocate and defendant No.1 filed written statement, which is adopted by defendant Nos.2 to 5. It is stated that all the suit properties are joint family properties of plaintiffs and defendants. 7. 6. In response to suit summons, defendant Nos.1 to 4 appeared through their advocate and defendant No.1 filed written statement, which is adopted by defendant Nos.2 to 5. It is stated that all the suit properties are joint family properties of plaintiffs and defendants. 7. It is the case of defendant No.1 that the above said appeal properties are the self acquired properties of defendants. That the plaintiffs have no share or right in the said appeal properties. It is submitted that the husband of defendant No.1 and father of defendant Nos.2 to 4 namely Prakash, out of his self earning, had purchased the above said appeal properties from Sathyappa, who is the last son of original propositus Narayan in the year 1998. As the said husband of defendant No.1 namely Prakash, was Secretary of the Gram Panchayat. Being Secretary of Gram Panchayat, he was having sufficient salary, separate residence, was cultivating sugarcane crop separately, transporting the same to sugar factory and was receiving price for supplying sugarcane crop separately. Therefore, the above said appeal properties are self acquired properties of Prakash. Therefore, prays to dismiss the suit. 8. Based on the pleadings of the parties, the Trial Court has framed the following issues: ISSUES 1. Whether plaintiffs prove that, the suit properties are joint family properties? 2. Whether defendant No.1 proves that, R.S.No.95, 96A, 101/2, 104/2, 104/3 are the separate properties of defendants No.1 to 4? 3. Whether plaintiff prove that, the plaintiff No.1 has bequeathed his legitimate share by way of registered and genuine Will dated 16.06.2006 in favour of plaintiff No.2 and 3? 4. Whether testamentary disposition is hit by principles of lispendency? 5. Whether plaintiffs are entitled for legitimate share by way of partition and separate possession as prayed? 6. What order or decree? 9. The plaintiff No.3 was examined as PW.1 and two witnesses were got examined as PW.2 and PW.3 and got marked documentary evidence as Ex.P1 to Ex.P13. The defendant No.1 was examined as DW.1 and three witnesses were got marked as DW.2 to DW.4 and got marked documentary evidence as Ex.D1 to Ex.D12. 10. The Trial Court held that all the suit schedule properties are ancestral and joint family properties. The defendant No.1 was examined as DW.1 and three witnesses were got marked as DW.2 to DW.4 and got marked documentary evidence as Ex.D1 to Ex.D12. 10. The Trial Court held that all the suit schedule properties are ancestral and joint family properties. Insofar as the appeal properties are concerned, the Trial Court has recasted Issue No.2 and answered in the negative holding that defendant Nos.1 to 4 have failed to prove that appeal properties are self acquired properties of defendant Nos.1 to 4. The Trial Court assigned reason insofar as appeal properties that salary of Prakash was not sufficient to purchase appeal properties. Initially for ten years, the said Prakash was working on stipend basis and hence was not having sufficient source of income. Therefore, he did not have a capacity to purchase the said appeal properties independently. Thus answered Issue No.2 negatively holding that defendant Nos.1 to 4 have failed to prove that appeal properties are the self acquired properties of Prakash. Thus, the Trial Court decreed all the suit properties in its entirety. 11. Being aggrieved by the judgment and decree insofar as partition of appeal properties also, defendant Nos.1 to 4 have preferred the appeal by raising various grounds. 12. The learned counsel for the appellants/defendant Nos.1 to 4 submitted that the husband of defendant No.1 and father of defendant Nos.2 to 4 namely Prakash has purchased appeal properties as per Ex.D1 and Ex.D2-registered Sale Deeds from Sathyappa. Thus, these appeal properties are self acquired properties of Prakash. It is further submitted that the said Prakash was Secretary of Gram Panchayat and PW.1 in his cross-examination admitted that the Prakash along with his family members i.e., defendant Nos.1 to 4, was residing separately, cultivating land separately, transporting sugarcane crop to factory and receiving price for supplying sugarcane separately. Therefore, when this being the evidence on record, it is proved that the appeal properties are self acquired properties of Prakash. Further, during pendency of the appeal, appellants/defendant Nos.1 to 4 have filed an application under Order XLI Rule 27 of the Code of Civil Procedure , 1908 (for short, ‘CPC’), for producing service record in proving that the said Prakash was working as Secretary of Gram Panchayat and was having separate independent source of income. Further, during pendency of the appeal, appellants/defendant Nos.1 to 4 have filed an application under Order XLI Rule 27 of the Code of Civil Procedure , 1908 (for short, ‘CPC’), for producing service record in proving that the said Prakash was working as Secretary of Gram Panchayat and was having separate independent source of income. Therefore, with all these submissions, prays to allow the appeal insofar as decreeing the suit for appeal properties only, but not for all the suit schedule properties. 13. On the other hand, learned counsel for the plaintiffs/respondents submitted that the said Prakash was not having sufficient source of income and initially he was working as Secretary of Gram Panchayat on stipend basis with a meager salary of Rs.150/- per month. Therefore, he could not have capacity to purchase the said appeal properties in the year 1998. Therefore, whatever appeal properties are purchased by Prakash from Sathayappa, are out of joint family nucleus fund, but not from his income, which is rightly answered by the Trial Court while answering Issue No.2. Therefore, there is no need to interfere with the judgment and decree passed by the Trial Court. Hence, prays to dismiss the appeal. 14. Heard arguments from both sides and perused records. The following points arise for consideration: i) Whether, under the facts and circumstances involved in the case, defendant Nos.1 to 4 proved the fact that the appeal properties bearing R.S.No.101/2 measuring 22-guntas, R.S.No.102/2 measuring 22 guntas, R.S.No.104/3 measuring 27 guntas and R.S.No.104/2 measuring 06 guntas, are self acquired properties of Prakash, who is the husband of defendant No.1 and father of defendant Nos.2 to 4, as contended in paragraph No.9 of the written statement? ii) Whether the judgment and decree passed by the Trial Court requires any interference by this Court? 15. The Trial Court has decreed the suit in respect of all the suit properties to the entire extent of each schedule properties as mentioned in the plaint. Defendant Nos.1 to 4 are aggrieved only in respect of answering Issue No.2 in the negative, holding that, the appeal properties are not self acquired properties of the Prakash. Therefore, only insofar as these appeal properties are concerned, as per recasted Issue No.2, the present appeal is preferred. Therefore, this appeal is only pertaining to appeal properties, which is answered in negative to recasted Issue No.2. Therefore, only insofar as these appeal properties are concerned, as per recasted Issue No.2, the present appeal is preferred. Therefore, this appeal is only pertaining to appeal properties, which is answered in negative to recasted Issue No.2. Insofar as the judgment and decree passed by the Trial Court in respect of other properties are concerned, defendant Nos.2 to 4 do not have any grievance. 16. There is not dispute regarding the genealogy stated by the plaintiffs as above described. Insofar as findings on Issue No.2 is concerned with regard to appeal properties are concerned, it is the contention taken by defendant Nos.2 to 4 that Prakash was working as Secretary of Gram Panchayat and was having his own independent source of Income. Therefore, he was having capacity to purchase the said appeal properties from Sathyappa. Accordingly, purchased the appeal properties as per Ex.D1 and Ex.D2-registered Sale Deeds. Ex.D1 and Ex.D2 registered Sale Deeds states that Prakash has purchased the said appeal properties on 02.11.1998 through registered Sale Deeds from Sathyappa. It is the contention of plaintiffs that though Prakash was working as Secretary of Gram Panchayat, but was working on stipend basis and was receiving meager salary of Rs.150 per month. Hence, he could not have capacity to purchase appeal properties. Thus, it is the contention of the plaintiffs that appeal properties were purchased by Prakash out of joint family nucleus fund. 17. There is no dispute that Prakash was working as Secretary of Gram Panchayat. Prakash has joined for service as Secretary in the year 1989-90 on stipend basis. As per evidence of DW.1-defendant No.1, the service of Prakash was regularized in the year 2000. The plaintiff No.1-PW.1 has admitted that Prakash was working as Secretary of Gram Panchayat, but the plaintiff No.1-PW.1 has accepted ignorance regarding what was the income and salary of Prakash. Further, PW.1 admitted in his evidence that Prakash and defendant Nos.1 to 4 were residing separately in the house bearing VPC No.844. Prakash was having separate ration card of his family members. Further, the house bearing VPC No.844, was standing in the name of Prakash separately. It is the evidence of PW.1 that the plaintiffs, her father and mother were residing in a separate house in VPC No.890. PW.1 admitted that there were separate ration cards in the family of plaintiffs and defendants. Further, the house bearing VPC No.844, was standing in the name of Prakash separately. It is the evidence of PW.1 that the plaintiffs, her father and mother were residing in a separate house in VPC No.890. PW.1 admitted that there were separate ration cards in the family of plaintiffs and defendants. PW.1 further admitted that source of income and whatever businesses were having, are separate between the plaintiffs and defendants. PW.1 further admitted that Prakash has not purchased any commodities or materials for the family of plaintiffs and likewise plaintiffs also have not purchased any material or commodities for the family of defendant Nos.1 to 4. Further, PW.1 admitted that sugarcane crops were being grown for the year 1995 and were transporting to sugar factory. The sugarcane crops were transporting separately in the name of plaintiff, plaintiffs father, in the name of Prakash and in the name of defendant No.1. It is further admitted that plaintiffs and defendants were growing sugarcane separately, and were transporting the same separately to the factory, and receiving receipts of sugarcane crops separately. It is admitted by PW.1 that there was no joint ship given in the name of plaintiffs, defendants and father of plaintiffs. The agriculture product i.e., sugarcane was being cultivated, growing and transporting it to sugar factory separately. It is the evidence of PW.1 that in respect of each other between family of plaintiffs and defendants, sugarcane crop was transported to sugar factory and receiving receipts separately. Therefore, it is proved fact that Prakash was having separate independent source of income to purchase appeal properties, apart from being Secretary of Gram Panchayat. 18. The Trial Court, in this regard, has committed error that the income of Prakash was not sufficient to purchase appeal properties. Though the Trial Court has found opinion that Prakash was working as Secretary of Gram Panchayat, and was not having sufficient income, is not a correct approach. From the evidence on record, it is proved that Prakash was having separate and sufficient income. Therefore, when the evidence are considered along with documentary evidence produced and considering application under Order 41 Rule 27 of the CPC, it is proved fact that Prakash was having separate, sufficient and independent source of income. Therefore, the purchase of appeal properties is proved to be self acquired properties of Prakash. Therefore, when the evidence are considered along with documentary evidence produced and considering application under Order 41 Rule 27 of the CPC, it is proved fact that Prakash was having separate, sufficient and independent source of income. Therefore, the purchase of appeal properties is proved to be self acquired properties of Prakash. Accordingly, application for additional evidence is allowed as it is not opposed by respondents. 19. PW.2 is son-in-law of Dasharath, who has stated that some of the schedule lands were under the cultivation of plaintiff Nos.2 and 3 and some of them are under the possession of defendant Nos.1, 2 and 4. Though the defendants failed to prove there is prior partition, but there were some family arrangements within the family of plaintiffs and defendants and accordingly there were respective possessions and were cultivating the crops separately according to their possession and pleadings. Thus in this way defendant Nos.1 to 4 have proved the fact that Prakash was having separate and independent source of income, which is sufficient to purchase the appeal properties. Therefore, from the evidence of PW.1 and PW.2, Prakash was residing separately in the house bearing VPC No.844. The plaintiffs and their father were residing separately in another house and were cultivating the land separately and were transporting crops to factory separately. Thus, all these evidence on record, proved the fact that, Prakash was having separate source of income to purchase appeal properties from Sathyappa. 20. Hence, the findings given by the Trial Court on recasted Issue No.2, is not correct, as it is contrary to the evidence on record, which is perverse. Therefore, it is held that the said appeal properties are self acquired properties of Prakash. Therefore, recasted Issue No.2 and the Point No.(i) framed for consideration are answered in the ‘affirmative’. Thus, the judgment and decree is liable to be modified. Therefore, the Point No.(ii) is answered ‘partly affirmative’. Hence, judgment and decree is required to be modified. 21. Hence, I proceed to pass the following: ORDER i) The appeal is allowed in part. Therefore, recasted Issue No.2 and the Point No.(i) framed for consideration are answered in the ‘affirmative’. Thus, the judgment and decree is liable to be modified. Therefore, the Point No.(ii) is answered ‘partly affirmative’. Hence, judgment and decree is required to be modified. 21. Hence, I proceed to pass the following: ORDER i) The appeal is allowed in part. ii) The judgment and decree passed in O.S.No.55/2006 dated 31.01.2017 on the file of the Principal Senior Civil Judge, Chikodi, stands modified holding that the quantum of share granted in all the suit schedule properties is confirmed, except the appeal properties, which are the lands bearing R.S.No.101/2 measuring 22- guntas, R.S.No.102/2 measuring 22 guntas, R.S.No.104/3 measuring 22 guntas and R.S.No.104/2 measuring 06 guntas. Rest of the judgment and decree is confirmed. iii) Draw decree accordingly. iv) No order as to costs.