JUDGMENT : RAVI V HOSMANI, J. Challenging judgment and decree dated 10.01.2017 passed by IV Addl. District & Sessions Judge, Mandya, in RA no.34/2016 and judgment and decree dated 23.04.2016 passed by Prl. Senior Civil Judge & CJM, Mandya, in OS no.83/2001, this appeal is filed. 2. Brief facts as stated are, appellant was plaintiff in OS no.83/2001 filed for partition and separate possession of his 1/6 th share in suit schedule properties by metes and bounds and to hold separate enquiry for ascertaining mesne profits, etc. 3. In plaint, it was stated, father of plaintiff -Girigowda s/o Papegowda, died leaving behind wife – Chowdamma (defendant no.1) and 7 children i.e. plaintiff, BG Shekar, BG Ramakrishna, Narayana, defendants no.2 to 4 as his legal heirs. It was stated, BG Shekar and BG Ramakrishna died unmarried and since 7 years, whereabouts of Narayana was also not known. Therefore, his wife Smt.Sowbhagya (defendant no.5) was made party to suit. 4. It was stated, defendant no.1 being elder member of joint family was managing joint family affairs under oral arrangement and there was no partition of joint family properties. It was stated, defendant no.1 directed plaintiff to enjoy suit item no.3 for his livelihood, while defendants were receiving rents and other benefits from items no.1 and 2, until partition by metes and bounds. It was stated, defendant no.3 murdered BG Shekara at instigation of defendants no.1 and 4 in January, 2001, as he was demanding partition, and was in judicial custody. In last week of February 2001, when plaintiff demanded defendant no.1 for partition of joint family properties by metes and bounds, panchayat was convened. It was stated, OS no.73/2001 filed by defendant no.1 against plaintiff for permanent injunction in respect of item no.3 of suit properties, was pending before Prl.Civil Judge, Mandya. Hence, suit was filed. 5. On appearance, defendants no.1 to 4 filed written statement denying plaint averments except admitting that BG Shekara and BG Ramakrishna died unmarried and defendant no.1, their mother would be only legal heir. Hence she was absolute owner in lawful possession of suit schedule properties. It was stated, plaintiff has no manner of right, title or interest over any portion of suit schedule properties. It was denied that at instigation of other defendants, defendant no.3 committed murder of his brother and was in judicial custody. Hence she was absolute owner in lawful possession of suit schedule properties. It was stated, plaintiff has no manner of right, title or interest over any portion of suit schedule properties. It was denied that at instigation of other defendants, defendant no.3 committed murder of his brother and was in judicial custody. It was stated, when suit schedule properties were not joint family properties, plaintiff had no right to demand partition. It was stated, from income earned by milk vending, defendant no.1 purchased sites under registered sale deeds from one Nanjundaiah and Devaraju and constructed shops and residential houses i.e., items no.1 and 2 and got khata mutated in her name and was paying tax regularly. 6. It was further stated, item no.3 was situated in Ex-Inam village and was in possession of defendant no.1. It came to be vested with State under Karnataka Personal and Miscellaneous Inam Abolition Act and defendant no.1 had applied for its re-grant. It was stated, after conducting enquiry Inam Deputy Commissioner passed order of re-grant in favour of defendant no.1 on 25.02.1966 in ALOR no.1658/65-66. It was further stated, defendant no.1 was living with her unmarried daughter - defendant no.4 and when plaintiff interfered with possession over item no.3, defendant no.1 filed OS no.73/2001 and obtained order of temporary injunction. Hence, suit filed for partition by plaintiff was not maintainable and sought for its dismissal. 7. Based on pleadings, trial Court had framed issues.Thereafter on 12.03.2007 and 02.02.2009, fresh issues and additional issues were framed as follows: 1. Whether the plaintiff proves that suit schedule properties are the joint family properties of plaintiff and defendants? 2. Whether defendant no.1 and 4 proves that item no.1 and 2 are the self acquired properties of the 1 st defendant? 3. Whether defendant no.1 and 4 proves that item no.3 is granted by the Inam Deputy Commissioner in ALOR 1658/65-66 dated 25.02.1966? 4. Whether 6 th defendant proves that he is the bonafide purchaser of item no.3 of suit schedule properties? 5. Whether plaintiff is entitled 1/6 th share in suit schedule properties by metes and bounds? 6. What decree or order? Additional issue no.1: 1. Does the defendants no.7 to 9 proves that they are also entitle to succeed to their father's share in the plaint schedule property as contended in their written statement? 8. 5. Whether plaintiff is entitled 1/6 th share in suit schedule properties by metes and bounds? 6. What decree or order? Additional issue no.1: 1. Does the defendants no.7 to 9 proves that they are also entitle to succeed to their father's share in the plaint schedule property as contended in their written statement? 8. In support of his case, plaintiff examined himself and two others as PWs.1 to 3 and got marked Exs.P1 to P23. In rebuttal, defendant no.1 examined herself and six others as DWs.1 to 7 and got marked Exs.D1 to D75. 9. On consideration, trial Court answered issues no.1, 5 and additional issue no.1 in negative, issues no.2 to 4 in affirmative and issue no.6 by dismissing suit. 10. Aggrieved, plaintiff filed R.A.no.34/2016 on several grounds, based on which first appellate Court framed following points: 1. Whether the appellant/plaintiff proves that all the suit schedule properties are the joint family properties as on the date of filing of the suit? 2. Whether the appellant/plaintiff further proves that he is entitled for any share in the suit schedule properties? If so, what is his share? 3. Whether the 6th defendant is the bonafide purchaser of suit item no.3? 4. Whether the I.A.No.iii filed under section 151 of CPC deserves to be allowed? 5. Whether the I.A.no.IV filed under Order 41 Rule 27 read with section 151 of CPC deserves to be allowed? 6. Whether I.A.no.V filed under Order VI Rule 17 read with section 151 of CPC deserves to be allowed? 7. It is necessary to interfere with the judgment and decree of the trial Court. 8. What Order? 11. On consideration, it answered points no.1, 2, 5 to 7 in negative and points no.3 and 4 in affirmative and point no.8 by dismissing appeal. Against concurrent findings, this appeal is filed. 12. Sri S. Subramanya, learned counsel for plaintiff submitted appeal was against concurrent erroneous findings in suit for partition and separate possession. It was submitted, suit properties were joint family properties of B. Girigowda. He married Smt.Chowdamma (defendant no.1) and had children namely B. Krishna (defendant no.2), BG Ramu (plaintiff), Narayana (dead, his wife, Smt.Bhagya is defendant no.5), BG Puttaswammy (defendant no.3), Smt.Sowbhagya (defendant no.4), BG Shekara (died issueless/intestate) and J Ramakrishna (died issueless/intestate). 13. It was submitted, suit properties were joint family properties of B. Girigowda. He married Smt.Chowdamma (defendant no.1) and had children namely B. Krishna (defendant no.2), BG Ramu (plaintiff), Narayana (dead, his wife, Smt.Bhagya is defendant no.5), BG Puttaswammy (defendant no.3), Smt.Sowbhagya (defendant no.4), BG Shekara (died issueless/intestate) and J Ramakrishna (died issueless/intestate). 13. It was submitted after death of Girigowda, name of defendant no.1 was mutated in records, but suit properties continued to be in joint possession of all family members.Hence, plaintiff as share holder was entitled for partition. It was submitted defendants no.1 to 4 resisted suit on ground that suit properties were purchased by Smt.Chowdamma by selling her gold jewels and money received from maternal home and hence, her self-acquired properties, but did not substantiate same. Hence, dismissal of suit was without proper appreciation of material on record. 14. It further submitted finding by both Courts about suit properties being absolute properties of Smt.Chowdamma was contrary to settled principle of law that mere mutation of name of elder member of family would not confer title. It was submitted, in her cross-examination DW.1-Smt.Chowdamma categorically admitted about non-receipt of any properties from her parents. Even execution of Ex.P10 - Deed of Settlement on 22.11.2004 in favour of BG Puttaswamy and Smt.Sowbhagya and in turn, they selling schedule 'B' property in favour of Chikkaya s/o Budigowda under Exhibit-P11 was illegal. 15. It was submitted, after death of Smt.Sowbhagya on23.08.2010 without any issues, Smt.Chowdamma once again executed two Gift Deeds (item no.1 and 2), on 18.10.2010 at Ex-P19 and on 10.11.2010 at Exhibit-P20, gifting entire suit properties in favour of Balamuri Ganapti Seva Trust (BGST). Based on said deed, BGST were claiming title and filed application for impleading. 16. It was submitted as on date of execution of Gift Deeds, title of Smt.Chowdamma was divested with execution of Settlement Deed dated 22.11.2004, in favour of her two children namely, Puttaswamy and Smt.Sowbhagya. Thus, Ex.P19 and 20 were invalid in eye of law and unenforceable. 17. It was submitted, at best, Smt.Chowdamma was competent to execute gift deed with respect to properties of defendant no.4, who died intestate/issueless as per Section 15(1)(c) of Hindu Succession Act, 1956, since defendant no.3 was still alive on date of execution of Exs.P19 and 20. 18. It was submitted, defendant no.3 had executed registered Gift Deed dated 11.11.2010 measuring East to West (15+23)/2 ft. 18. It was submitted, defendant no.3 had executed registered Gift Deed dated 11.11.2010 measuring East to West (15+23)/2 ft. and North to South 54.5 ft. in favour of BGST under Ex.P21, which would not be equal to his ½ share. In view of above, following substantial questions of law would arise for consideration: i. After executing Settlement Deed dated 22.11.2004 at Exhibit-P10, whether Smt.Chowdamma was competent to independently execute Gift Deeds (including share of Puttaswamy) when item nos.1 and 2 of suit properties were not divided between Smt.Chowdamma and BG Puttaswamy? ii. As BG Puttaswamy had not validated Exs.P19 and20 and not gifted entire his ½ share in items no.1 and 2 of suit properties, whether BGST is entitled for entire property gifted by Smt.Chowdamma or Plaintiff and other heirs of Puttaswamy are entitled for share therein? 19. Learned counsel prayed for answering substantial questions of law in favour of plaintiff, allow appeal and decree suit in toto. 20. On other hand, Sri HB Chandrashekar, learned counsel for BGST - impleading applicant submitted, defendant no.1 had executed gift deed in its favour and since then it was in possession and enjoyment of suit properties. Hence, suit for partition and separate possession was not maintainable. It was submitted, in its judgment, trial Court upheld validity of gift in favour of BGST. In appeal, first appellate Court permitted BGST to collect rent and after concurring with findings of trial Court, rightly dismissed appeal. 21. It was submitted, though defendants no.1 and 3 contested suiting appeal, they had died. Hence, in order to protect interests of BGST, impleadment was necessary and sought for allowing application. 22. Heard learned counsel, perused impugned judgment and decree and record. Counsel for defendants no.6 (A, C and D), 10, 12, 13, 15 and tenants - respondents no.16 to 23 herein remained absent. While, defendants no.2, 5, 6 (B), 6 (E-1 to E-3), 8 and 9 are served and unrepresented. Hence, appeal was heard on merits for admission. 23. This appeal is by plaintiff challenging concurrent findings dismissing his suit for partition and separate possession and mesne profits etc. Suit claim is based on assertion that suit properties were joint family properties of B. Girigowda, who married defendant no.1 and had children i.e. defendant no.2, plaintiff, Narayana husband of defendant no.5, defendants no.3, 4 and BG Shekar (who died intestate/issueless) and J. Ramakrishna (who also died intestate/issueless). Suit claim is based on assertion that suit properties were joint family properties of B. Girigowda, who married defendant no.1 and had children i.e. defendant no.2, plaintiff, Narayana husband of defendant no.5, defendants no.3, 4 and BG Shekar (who died intestate/issueless) and J. Ramakrishna (who also died intestate/issueless). Plaintiff further claim after death of B. Girigowda, all legal heirs inherited suit properties and were in joint possession and enjoyment. Though, name of only defendant no.1 was entered in revenue records and when plaintiff, who had a share, demanded partition and same was refused, suit was filed. 24. Defendants no.1 to 4 opposed suit by claiming suit properties to be self-acquired properties of defendant no.1 purchased by her after selling her gold jewelleries and using money given to her at time of marriage. 25. During trial, plaintiff along with two others deposed as PWs.1 to 3 and got marked Exs.P1 to P23 comprising of genealogical tree, RTC, assessment/demand register extracts, sale deeds/settlement deeds, death certificate, application filed before Municipality and certificate issued by it, family list certificate, encumbrance certificates, gift deeds and notice issued by Municipality. While defendants no.1, 5 and 6(B) along with four others examined as DWs.1 to 7 and got marked Exs.D1 to D75 comprised mainly of sale deeds, assessment records/extracts, tax paid receipts, RTC/RoR, KSFC loan statement, order passed by Deputy Commissioner, marriage invitation cards, Voter ID cards etc. 26. On consideration, trial Court dismissed suit holding plaintiff had failed to establish suit properties were joint family properties and that defendants established suit properties were self-acquired properties of defendant no.1, that defendants also established item no.3 as granted by Deputy Commissioner and holding defendants no.7 to 9 had failed to establish that they were also entitled to share in suit properties. It was observed that relationship of parties and genealogical trees at Ex.P1 and P17 were not in dispute. It observed purchase of suit properties as well as grant of item no.3 in name of defendant no.1 was also not in dispute. It noted that plaintiff’s father was working in Mysugar Company and settled at Mandya. And Exs.P7 and P8 – registered sale deeds dated 29.10.1979 and 21.04.1980 indicated ancestral properties of plaintiff’s father were sold. 27. It observed purchase of suit properties as well as grant of item no.3 in name of defendant no.1 was also not in dispute. It noted that plaintiff’s father was working in Mysugar Company and settled at Mandya. And Exs.P7 and P8 – registered sale deeds dated 29.10.1979 and 21.04.1980 indicated ancestral properties of plaintiff’s father were sold. 27. By referring to case law, it observed burden would be on plaintiff and defendants no.2, 5 and 7 to 9, who claimed existence of Hindu Undivided Joint Family and suit properties as joint family properties, to establish same. It observed pleadings to be bald and lacking required particulars. Though Ex.P7 – sale deed indicated plaintiff’s father joined by plaintiff and his brother alienating an old dilapidated house in favour Rangegowda for Rs.500/- and sale of 30 guntas of land in favour of B. Girigowda for Rs.3,000/-, same would not by itself establish purchase of property in name of defendant no.1. It held there was material to establish that items no.1 and 2 of suit properties were purchased in name of defendant no.1 much prior to Exs.P7 and P8. It also noted that under Ex.P10 - settlement deed, defendant no.1 had settled properties in favour of defendants no.3 and 4 and under Ex.P11 – sale deed, defendants no.3 and 4 had sold item no.3 in favour of defendant no.6 would not indicate that suit properties were joint family properties. Similar conclusion was reached on perusal of gift deeds at Exs.P19 to P21, which came into existence after filing of suit. On referring to other exhibits marked, it held, none of them would establish that suit properties were joint family properties. 28. Apart from above, trial Court also traversed oral evidence and noting inconsistency and ignorance of necessary particulars of transactions by PW.1 and affirmed its conclusion. It found deposition of PWs.2 and 3 about convening of panchayat etc. to be contradicting with deposition of PW.1.Trial Court also meticulously appreciated oral and documentary evidence led by defendants and after assigning reasons answered issues against plaintiff and dismissed suit. 29. In appeal, first appellate Court concurred with trial Court findings on independent re-appreciation. While passing impugned judgment, first appellate Court considered I.A.no.4 filed for additional evidence and I.A.no.5 filed for amendment. 29. In appeal, first appellate Court concurred with trial Court findings on independent re-appreciation. While passing impugned judgment, first appellate Court considered I.A.no.4 filed for additional evidence and I.A.no.5 filed for amendment. Additional evidence sought to be led was production of Trust deed dated 30.08.2004, which would not be helpful for plaintiff to establish suit properties as joint family properties. On consideration, first appellate Court held additional evidence was necessary to decide for disposal of appeal. 30. First appellate Court observed by way of amendment pleading sought to be incorporated were about death of defendant no.1 intestate, claim of succession to her estate and alleging execution of gift deeds Exs.P19 to P21 as being without consent of defendant no.1 etc. It observed plaintiff was aware about said facts at time of filing suit and proposed pleadings were not necessary for deciding rights of parties and rejected application. 31. Main grounds urged herein are directed towards questioning title of defendant no.1 in execution of Settlement/Sale deeds (Exs.P9 to P11) and validity of Gift Deeds (Exs.P19 to P21) rather than on material available for establishing that suit properties were joint family properties and as such amenable for partition. 32. When property was purchased in name of defendant no.1, much prior to alienation of two joint family properties by plaintiff's father, mere elicitation of an admission that defendant did not receive any property from her father at time of marriage cannot be held to mean that she did not receive any money at any point in time or at time of or prior to purchase of property in name of defendant no.1. 33. Hon'ble Supreme Court in case of D.S. Lakshmaiah v. L. Balasubramanyam , reported in (2003) 10 SCC 310 held: " 18. 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. 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 the property with his own funds and not out of joint family nucleus that was available." (emphasis supplied) 34. As noted above, both Courts after meticulous appreciation of entire evidence on record held failure on part of plaintiff to establish suit property was joint family properties by assigning cogent reasons. In view of above, no substantial question of law including one proposed would arise for consideration. 35. Hence, Appeal is dismissed. No order as to costs.