Alok Aradhe, J. - This appeal has been filed under Section 96 of the Code of Civil Procedure, 1908, by the plaintiff against the judgment and decree dated 14.11.2006 by which the suit filed by the appellant/plaintiff (hereinafter referred as to as the plaintiff) seeking the relief of partition and separate possession has been partly decreed. Being aggrieved by the aforesaid judgment and decree of the trial Court, the defendant No.9 has filed cross-objections. Since common question of law and facts arise for consideration, in this appeal as well as cross-objection they were heard analogously and are decided by this common judgment.

2. The geneaology showing the relationship of the plaintiff and the defendants is as under:



3. Facts giving rise to filing of this appeal are that one Yeshwant S/o Chandranath Upadhaye was adopted by Sunanda Bai, who had lost her husband in the year 1930 and had inherited moveable and immoveable properties situate at Angol. Admittedly, the aforesaid Yeshwant died on 18.02.1988 leaving behind his widow, daughters, sons and grand-children. The eldest son of late Yeshwant namely Annasaheb died leaving behind his widow, two sons and a daughter who are arrayed as defendants No.4 to 7 in the suit. The second son namely Prakash is defendant No.1 and his two sons namely Mahaveer and Prithviraj are defendants No.2 and 3. The plaintiff and defendants No.9 to 12 are the daughter of late Yeshwant, whereas defendant No.8 is the widow of late Yeshwant who expired on 14.08.1998 after the institution of the suit. It is the case of the plaintiff that on the death of late Yeshwant, the suit schedule properties, the particulars of which have been described in Schedule A to Schedule G annexed to the plaintiff devolved on the plaintiff and the defendants. It was pleaded that the aforesaid properties are being held jointly by the plaintiff and the defendants and there has been no partition. It was further pleaded that the plaintiff has got 1/7th share in the schedule properties, whereas defendants No.1 to 3 together have got 1/7th share each in all the suit schedule properties except the property bearing CTS No.3421 mentioned in Schedule A in which the plaintiff has got 1/28th share. It was also pleaded that the aforesaid property was jointly purchased by defendants No.13 to 15 and late Yeshwant Upadhaye by a registered sale deed dated 22.05.1995 and defendants No.13 to 15 have got 1/4th share each and late Yeshwant Upadhye has got 1/4th share. Thus, the plaintiff has got 1/28th share in CTS No.3241.

4. It was also pleaded that after the death of Yeshwant Upadhaye, the plaintiff requested defendant No.1 and deceased Annasaheb to enter her name as a co-owner in respect of the suit schedule properties. However, the plaintiff learnt that defendant No.1 and late Annasaheb got their names entered in the records in respect of the suit properties. It was averred that the defendant no.1 and late Annasaheb wanted to deprive the plaintiff of her legitimate share. The plaintiff also requested defendants No.1, 5 and 6 to effect partition in respect of the suit schedule properties. However, they refused to accede to the prayer made by the plaintiff. Thereupon, the plaintiff filed the suit, on or about 20.01.1992, seeking the relief of partition and separate possession in respect of her 1/7th share in the suit schedule properties except the property bearing CTS No.3241 mentioned in Schedule A.

5. The defendants No.1 to 8 filed the written statement in which the averments in the plaint were denied and it was pleaded that late Smt. Sunanda Bai was the original propositus of the family and her husband and other members of the family died sometime in the year 1930 in an epidemic, leaving behind moveable and immoveable properties. However, it was admitted that late Sunanda Bai had adopted Yashwant Chandranath Upadhye. It was also admitted that the aforesaid late Yashwant purchased a house bearing No.4903/6 of Tanaji Galli, Belgaum in the year 1932 from the funds of late Smt. Sunanda Bai and thereafter adjacent neighbouring houses namely bearing Nos.366 and 369 were purchased in the name of Smt. Sunanda Bai by Annasaheb and Yashwant Upadhye. It was pleaded that Smt. Sunanda Bai had purchased R.S. No.176/B measuring 3 acres 5 guntas, and the aforesaid properties are belonging to joint hindu family since beginning. It was averred that in the year 1958, late Annasaheb attained the age of majority and in the year 1963 M/s. Yashwant Metal Industries was started by late Annasaheb and his father late Yashwant and later on CTS No.1440/A, 1440/B, 1440/C were purchased by M/s Yashwant Metal Industries in the name of late Yashwant in the year 1973. It was further pleaded that the remaining portion of CTS No.1440/D was purchased in the year 1991 by defendant No.1 along with Sri. Veerdhaval and Sri. Vishwajeet namely defendants No.5 and 6 after the demise of late Yashwant Upadhye.

6. It was further pleaded by defendants No.1 to 8 that remaining properties mentioned in Schedule A, B, C, D and E of the plaint, which are exclusively self-acquired properties of late Annasaheb and defendant No.1, namely R.S. No.56/2/1, 681/2/B, 56/2 and 32/2/2/4/1 of Angol, Belgaum as mentioned in Schedule C. It was also pleaded that after the acquisition of the aforesaid properties major funds were invested in M/s Yashwant Metal Industries and late Yashwant Upadhye had only 10 percent share in M/s Yashwant Metal Industries. It was further admitted that till his death, late Yashwant Upadhye was the partner in M/s Yashwant Metal Industries and M/s. Yashwant and company. It was also pleaded that CTS No.3241 situate at Bazaar Galli, Belgaum, was purchased by late Yashwant Upadhye by withdrawing a sum of Rs.35,000/-, from M/s. Yashwant Metal Industries. It was also submitted that defendants are in peaceful possession of the properties in question.

7. It was averred that the properties mentioned in Schedule E, at Sl. No.2 was taken on rent from the earning of M/s Yashwant Metal Industries and Schedule C properties are exclusively the self-acquired properties of late Annasaheb and defendant No.1 and therefore, the plaintiff is not entitled to any share in the aforesaid properties. An objection was raised that the suit of the plaintiff suffered from the vice of non-joinder of parties. It was also denied that the plaintiff and defendant were members of the joint family and in the year 1974, late Yashwant Upadhye had distributed gold and silver ornaments during his lifetime to his daughters, therefore, the plaintiff and other defendants have no right title and interest in respect of the suit schedule properties. It was pleaded that the will dated 01.06.1983 was executed by their grandfather in favour of defendant Nos. 2, 3, 5 and 6, which is binding on the plaintiff.

8. The defendant No.9 filed the written statement and supported the claim of the plaintiff. It was pleaded that defendant No.9 had not given her consent for mutation of name of defendant No.1 and his sons and late Annasaheb alone in respect of Schedule A to C properties and defendant No.9 is also entitled to the relief of partition and separate possession. The defendants No.13 and 14 also admitted the averments made in the plaint and supported the case of the plaintiff.

9. However, defendant Nos.10 to 12 filed written statement and denied the allegations made in the plaint and pleaded that the deceased Yashwant Upadhye was the adopted son of late Sunanda Bai and during the lifetime of late Yashwant Upadhye, late Annasaheb and defendant No.1 have given jewellery and have given sufficient money to plaintiff and defendants No.9 to 12 and therefore, they are not entitled for any share in the properties. The defendants Nos.2, 3 and 16 to 20, in their written statement, pleaded that the relief claimed in the suit has not been properly valued and unless and until the plaintiff pays the court fee on the market value of the suit properties, the suit is not maintainable.

10. The Trial Court, on the basis of the pleading of the parties, framed the issues. Thereafter, additional issues on 04.02.2000, 13.11.2001 and 04.09.2002. The plaintiff examined himself as P.W.1 and got marked the documents Exs.P.1 to P.68, whereas the defendant got examined the witnesses as D.Ws.1 to 7 and got marked 18 documents as Exs.D.1 to D.18. The Trial Court, thereafter, by judgment and decree dated 14.11.2006, partly decreed the suit and, inter alia, held that the plaintiff and defendants Nos.9 to 12 each are entitled to relief of partition and separate possession by metes and bounds to the extent of 1/7th share in properties mentioned at Sl.Nos.5, 7 to 12 and in Sl.No.6 of Schedule A property and 1/28th share in respect of properties mentioned at Sl.Nos.2 to 6 of Schedule B, Sl.Nos.1 and 3 of properties of Schedule C, and 1/7th share in respect of properties mentioned at Sl.Nos.1 to 6 of Schedule D, and 1/28th share in respect of property mentioned at Sl.No.4 in Schedule E. It was further held that in respect of Schedule F property, the plaintiff had given up her claim, and in respect of properties mentioned at Sl.Nos.2 and 3 of Schedule F the claim of the plaintiff and defendant Nos.9 to 12 was rejected. Accordingly, the suit was partly decreed.

11. Being aggrieved, the plaintiff preferred an appeal namely R.F.A. No.743 of 2007. The defendant No.9 filed R.F.A. Crob No.2 of 2008. A Division Bench of this Court, by judgment dated 16th April 2010 allowed the appeal and held that the plaintiffs are entitled to 1/7th share in all the properties in the light of Section 6 of the Hindu Succession (Amendment) Act 39 of 2005 which came into force with effect from 09.09.2005.

12. When the matter was taken up today, learned counsel for respondents No.1 to 3, at the outset, has invited the attention of this Court to order dated 05.12.2008 passed by a three Judge Bench of the Supreme court and has submitted that the Supreme court in the aforesaid order has observed that there is a confect of opinion in two Division Bench judgments namely Prakash Vs. Phulawati, (2016) 2 SCC 36 [LQ/SC/2015/1454] and Danamma @ Suman Surpur vs. Amar, (2018) 3 SCC 343 [LQ/SC/2018/130] with regard to interpretation of Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as the), as amended by Hindu Succession (Amendment) Act of 2005 and therefore, the matter has been referred for consideration by a larger bench. In response, learned counsel for the appellant submitted that the propositus namely Yashwant Upadhye had expired on 18.02.1988 i.e., prior to commencement of the Hindu Succession (Amendment) Act, 2005 with effect from 09.09.2005 and, with reference to the averments made in the plaint, it was pointed out that the appellant has confined the claim in this appeal on the strength of Section 8 of theand therefore, there is no impediment in hearing of this appeal.

13. We have noted the aforesaid submission. Since the appellant has confined her claim in this appeal on the basis of Section 8 of the Act, therefore, we see no impediment in proceeding further with the appeal as the question of retrospective operation of Section 6 of the Hindu Succession Act, 1956, as amended by Hindu Succession (Amendment) Act, 2005 has been referred to a larger bench, by the Supreme court does not arise for consideration in this appeal.

14. Learned counsel for the appellant submitted that, in this appeal, challenge to the impugned judgment and decree passed by the Trial Court is based in respect of the properties, in respect of which plaintiff has been denied the share.

15. Learned counsel for the appellant submitted that, admittedly, late Yashwant Upadhye was adopted by late Sunanda Bai and she had inherited moveable and immoveable properties at Angol. It is further submitted that the genealogy between the parties is admitted, and the plaintiff is entitled to 1/7th share in the properties referred to supra. It is pointed out that Sl.Nos.1 to 4 in Schedule A properties were acquired by late Yashwant Upadhye under registered sale deed dated 21.03.1996 (Ex.P.1) for consideration of Rs.20,000/-, which is clear from the recital made in the sale deed and trial Court grossly erred in not considering the properties at Sl.Nos.1 to 4 which were purchased in his name, to be his self-acquired properties, therefore, the plaintiff is entitled to 1/7th share each in the foresaid properties.

16. It is also submitted that the property mentioned at Sl.No.1 of Schedule B (Ex.P.5) was acquired by a registered sale deed dated 02.05.1938 for a consideration of Rs.2,196/- at the time when sons of late Yashwant Upadhye were minors. Therefore, the aforesaid property was also selfacquired property of late Yashwant Upadhye and the plaintiff is entitled to 1/7th share. Similarly, it is contended that the property mentioned at Sl.No.4 of Schedule C was acquired under the registered sale deed dated 20.05.1994 executed in favour of late Annasaheb and one Prakash for a consideration of Rs.35,000/- and neither of them had any independent source of income and the aforesaid sale consideration was paid from joint family funds.

17. Therefore, the plaintiff is entitled to a share in respect of the share of late Yashwant Upadhye in the aforesaid property as the aforesaid property is also joint family property. It is also argued that late Yashwant Upadhye started hardware business under the name and style of "Yashwant Metal Industries" in the year 1957-58 and the properties were purchased from the income of the joint family which are mentioned at Sl.No.1, 2 and 4 of Schedule C in which the plaintiff is entitled to a share from the share of Yashwant Upadhye. It is also argued that property bearing CTS No.770/1 is a joint family property in which the plaintiff has 1/7th share. Similarly, the property bearing No.561/1 mentioned at Sl.Nos.2 and 3 of Schedule F , which is registered in the name of Yashwant Trade Corporation, was also purchased from the funds of the joint family and therefore, the plaintiff is entitled to 1/7th share in respect of the share of late Yashwant Upadhye. It is also urged that the plaintiff is also entitled to 1/7th share in respect of the property mentioned in Schedule G to the extent of 1/7th share in view of Section 8 of the. Lastly, it is contended by the appellant that the appellant had never given up her claim in respect of item No.1 of Schedule F

18. On the other hand, learned counsel for respondents No.1 to 3 submitted that there is no material on record to show that late Yashwant Upadhye had any income. It is further submitted that defendant No.1 and late Annasaheb had commenced the business and out of the aforesaid income, the properties were purchased which were the selfacquired properties of late Annasaheb and defendant No.1 in which the plaintiff does not have any share. It is also submitted that the averments in paragraph 3 of the plaint with regard to the property being selfacquired property of late Yashwant Upadhye are vague and properties in question have been purchased from the funds of joint family. Learned counsel has further contended that in RFA No.743 of 2007, the appellant had relied on Section 6 of the Act, whereas in this round of litigation, the plaintiff is placing reliance on Section 8 of the Hindu Succession Act. Our attention has also been invited to cross-examination of P.W.1 in support of the submission, that late Yashwant Upadhye had no independent source of income. It is also argued that even though in Ex.P.1, the name of late Yashwant Upadhye has been shown, but it is pertinent to note that late Yashwant Upadhye had 10% share in the firm. It is also submitted that in respect of the house properties and open spaces, the plaintiff has been granted share by the trial Court, treating the same to be property of late Sunanda Bai. It is further submitted that the properties mentioned at Sl.Nos.1 to 6 of Schedule B annexed to the plaint are not available as the aforesaid property has been lost in tenancy. It is also submitted that the properties mentioned at sl.Nos.2 and 4 are self-acquired properties of defendant No.1 and late Annasaheb. Similarly, the property mentioned at sl.No.4 in Schedule F; is not available for partition.

19. Learned counsel for respondent No.5 has submitted that late Yashwant Upadhye had no independent income to purchase the property. In this connection, learned counsel for respondent No.5 has invited our attention to paragraphs 14, 15, 16, 17 and 19 of the evidence of P.W.1 and has submitted that merely because the properties have been purchased from the fund of the joint family business, the properties do not become the joint family properties. In support of his submission, learned counsel for respondent No.5 has placed reliance on the decisions of the Supreme Court in Srinivas Krishnarao Kango Vs. Narayan Devji Kango and others, (1954) AIR SC 379, G.Narayana Raju (dead) by his legal representative, Vs. G.Chamaraju and others, (1968) AIR SC 1276 and Appasaheb Peerappa Chandgade Vs. Devendra Peerappa Chandgade & Ors., (2007) AIR SC 218.

20. Learned counsel for the cross-objector has adopted the submission made by the learned counsel for the appellant and has submitted that defendant No.9 had never given up her share in respect of the properties mentioned in Schedule F and the Trial court has wrongly rejected the claim of defendant No.9 in respect of the aforesaid property.

21. We have considered the submissions made on both sides and perused the records. The following issues arise for our consideration in this appeal:

i) whether the plaintiff is entitled to 1/7th share in the properties listed at Sl.Nos.1 to 4 in Schedule A, Sl.No.1 in Schedule B, Sl.Nos.2 and 4 in schedule C, Sl.Nos.1 to 3 in Schedule E and Sl.Nos.1 to 3 in Schedule F and the entire property in Schedule G, in view of Section 8 of the Hindu Succession Act, 1956

ii) whether the defendant No.1 has been able to prove that the suit properties as mentioned in Schedule A to E annexed to the plaint are his self-acquired properties of the defendant No.1 and deceased Annasaheb

22. Before proceeding further, we may refer to few settled legal principles pertaining to law of succession. Under Section 8 of the Act, the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. It has further been held that Section 8 lays down the scheme of succession to the property of a Hindu dying intestate and the schedule specified the heirs on whom such property should devolve. The heirs specified in Class-I take simultaneously to the share of all other heirs (see Commissioner of Wealth Tax Vs. Chander SenF, (1986) AIR SC 1753 and Yudhister Vs. Ashok Kumar, (1987) AIR SC 558 and decision rendered in Civil Appeal No.5124/2019 dated 01.07.2019 in Arshnoor Singh Vs. Harpal Kaur). It is well settled legal proposition that jointness 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 the person asserting that any item of the property was joint. But if joint family has sufficient nucleus from and out of which said property could be acquired, the burden shifts to the member of the family, that the property has been acquired without assistance from the joint family (see Mst. Rukhmabai vs. Lala Laxmi Narayan, (1960) AIR SC 335, K.V. Narayanaswami Iyer Vs. K.V. Ramkrishna Iyer, (1965) AIR SC 289, Mudi Gowda Gowdappa Vs. Ramchandra Ravagouda, (1969) AIR SC 1076, Surendra Kumar Vs. Phoolchand (dead) through LRs & Anr., (1996) 2 SCC 491 , [LQ/SC/1996/269] D.S.Lakshmaiah & Anr. Vs. L.Balasubramanyam & Anr.,2003 10 SCC 31, Makhan Singh (D) by LRs Vs. Kulwant Singh, (2007) 10 SCC 602 [LQ/SC/2007/429] and Marabasappa (D) by LRs vs. Ningappa, (2011) 9 SCC 451 [LQ/SC/2011/1213] .

23. The expression partnership property has been defined in Section 14 of the Indian Partnership Act, 1932 and includes, (i) all the property and interests in property originally brought from stock of the firm; (ii) all property and rights and interests in property acquired by purchase otherwise by or for the firm in the course of business of the firm; (iii) the good-will of the business. Section 15 of the Indian Partnership Act deals with concept of application of the property of the firm. It lays down that property of the firm may be held and used by partners of the firm exclusively for the business of the firm.

24. In order to determine the issue, whether a particular property is partnership property or not following guiding factors may be taken into account:

(a) Whether the property was acquired for partnership purpose in the course of the business of the firm;

(b) Whether it was purchased with the assets of the firm;

(c) Whether it was acquired by or for the firm;

(d) Whether it was put to the use of the firm and treated as the property of the firm;

(e) Whether it was entered and carried on in the books of the firm as the property of the firm;

(f) Whether it had been thrown into the partnership stock.

The ultimate test determining whether the property is the partnership property the intention of the parties or the agreement between the partners. In the absence of such an agreement, the property would be deemed to be the property of the firm, that is, partnership property, in the following cases:

(a) If it is originally brought into the stock of the firm; or

(b) If it is acquired, by purchase or otherwise by or for the firm; or

(c) If it is acquired by purchase or otherwise, for the purpose and in the course of the business of the firm; or

(d) In the absence of a contrary intention, if it is acquired with money belonging to the firm.

It follows that, for the proper determination of the question whether a particular property is or is not the property of the firm, the court, in the first instance, has to see: Whether the partners have by their agreement, determined among them whether it shall not be the property of the firm If there is such an agreement, the same governs the mater. But, if there is no agreement, attention has to be paid to:

(a) The source whence the property was obtained.

(b) The purpose for which it was acquired; and

(c) The mode in which it has been dealt with.

25. We may advert to the evidence on record. The plaintiff has examined herself as P.W.1 and she has reiterated the averments made in the plaint in the examination-in-chief. She has also exhibited the documents namely Exs.P.1 to P.69. The aforesaid witness in the cross-examination has denied the suggestion that after her marriage, her brothers have given 7 to 8 lakh rupees. It was admitted by her that her father namely late Yashwant Upadhye, besides working as a priest, was also working as a clerk in a cinema theatre in Belgaum and the income out of poojas performed by late Yashwant Upadhye was sufficient to meet the requirement of the family. She has also denied the suggestion that her eldest brother late Annasaheb started the business in the year 1958.

26. It has further been stated in the crossexamination that late Yashwant Upadhye was carrying on the business since 1946 and stated the business in a rented shop. It was further stated by her that late Yashwant Upadhye had purchased a house in Bendigeri Galli in the name of late Annasaheb. It has also been stated by her that in the year 1963, Yeshwant & Company was set up which used to deal in the business of hardware items in which late Yashwant Upadhye and her brothers namely defendant No.1 and Annasaheb were partners. It has further been admitted by her that in the aforesaid partnership, her father namely Yashwant Upadhye had 10% share and late Annasaheb and Prakash i.e., defendant No.1, had 40% share each. In paragraph 19 of the crossexamination, it is stated by the plaintiff that items No.1 to 4 of A schedule properties were purchased out of earnings of Yashwant Metal Industries as well as from income of the shop. In paragraph 20, P.W.1 has denied that item Nos.3 and 4 of C Schedule annexed to the plaint has been purchased by Annasaheb. It is also stated by her that properties mentioned in Schedule F and Schedule G belong to the joint family.

27. From perusal of Ex.P.1 i.e. sale deed, it is evident that CTS No.1440/A, 1440/B, 1440/C and 1440/D were purchased by late Yashwant Upadhye under a registered sale deed dated 21.03.1974 for a consideration of Rs.20,000/- in his individual capacity. The aforesaid properties have been referred to at sl.Nos.1 to 4 of Schedule A to the plaint. From perusal of Ex.P.3, it is evident that the aforesaid sale deed dated 28.11.1961 has been executed in the name of late Annasaheb for a consideration of rs.3,000/- which is a non-agricultural land bearing sy.No.32/2 which has been mentioned at sl.No.4 of Schedule C to the plaint. Similarly, Ex.P.5 dated 02.05.1938 has been executed in the name of father of the plaintiff namely late Yashwant Upadhye in respect of nonagricultural land bearing sy.No.176/2 which is listed at sl.No.1 of Schedule B to the plaint. Ex.P.7 is the sale deed dated 22.10.1975 executed in favour of late Yashwant Upadhye in respect of the property bearing Municipal No.14 for a consideration of Rs.20,000/-.

28. Ex.P.9 is the sale deed dated 25.09.1944 by which Yashwant Upadhye had purchased property bearing Sy.No.56/2 which is mentioned at sl.No.3 of Schedule C for a consideration of Rs.2,531.25 ps. Ex.P.11 is the sale deed dated 10th February 1939 executed in favour of Yashwant Upadhye respect of agricultural land, measuring 2 acres, bearing Sy.No.906, later on changed to Municipal No.43/2. From perusal of ex.P.13, it is evident that by the aforesaid sale deed dated 20th May 1974, late Annasaheb and Prakash purchased Sy. No.681 which is mentioned at Sl.No.2 of Schedule C to the plaint for a consideration of Rs.35,000/-.

29. Now, we may advert to the evidence of D.W.1. D.W.1-Prakash, in paragraph 2 of his examination-in-chief, has admitted that late Sunanda Bai was the owner of house bearing CTS No.365 at Angol and agricultural land bearing Sy.No.176/2 measuring 3 acres 5 guntas at Angol (the aforesaid land has been mentioned at sl.No.1 in Schedule D). He has further admitted that late sunanda Bai adopted late Yashwant Upadhye in adoption. It has further been admitted that late Sunanda Bai subsequently purchased house bearing CTS Nos.366 and 369 and thereafter, an adjacent building in Tanaji Galli, Belgaum, sometime in the year 1932 or 1933. It has further been stated that, at that time, the father of defendant NO.1 namely late Yashwant Upadhye was performing poojas in Basti and used to earn Rs.200/- to Rs.300/- per month by pooja. It has further been stated that his father used to write accounts in two firms and used to earn Rs.400/- to Rs.500/- per month. He has further admitted that he is not aware whether the earnings of his father were sufficient to maintain the family.

30. In paragraph 4, it has further been admitted that his elder brother namely late Annasaheb and father late Yashwant Upadhye started the business sometime in the year 1956 or 1957 in a rented accommodation. It was further pleaded that from 1963 onwards, D.W.1 started assisting his father late Yashwant Upadhye in the business of hardware. It has also been admitted by him that his father, the elder brother late Annasaheb and defendant No.1 were the only three partners in the firm and in the year 1960, late Annasaheb had purchased bearing CTS No.264 situate at Angol. He has further admitted that he is not aware as to whether the same was self-acquired property or purchased out of the joint income. It was further pleaded that in the year 1974, the properties bearing CTS Nos.1440/A, 1440/B and 1440/C were purchased in the name of his father. It was further stated that in the year 1963 late Annasaheb purchased 81/4 guntas of vacant plot at Angol Galli. It is further stated that during the year 1976-77, he has purchased two plot bearing CTS No.81/4 which was his self-acquired properties as the same were purchased from his own income.

31. It was also stated that in the plot purchased by his brother, an industry namely M/s. Yashwant Metal Industries was set up. It has also been admitted that in 1958 another business in the name and style of "M/s Yashwant & Company" was started in which his father and brother were partners. It has further been admitted that Sunanda Bai died in the year 1983 and the property held by late Sunanda Bai, on her death, devolved on his father namely late Yashwant Upadhye and his father late Yashwant Upadhye got his name mutated in the records. In paragraph 22 of the evidence, it has been admitted that his father namely late Yashwant Upadhye was the partner in the firms till his death. In paragraph 23 of the evidence, it has further been admitted that in the sale deed with respect to CTS No.1440/A, 1440/B and 1440/C, the name of late Yashwant Upadhye is mentioned and there is no mention of any firm represented by late Yashwant Upadhye. However, the fact that property bearing CTS No.4903/62 at Tanaji Galli, Belgaum, being purchased by late Yashwant Upadhye in the year 1939 has been denied. It has been further admitted in paragraph 24 of the crossexamination that the defendants did not have any documents to show that the properties were purchased by late Sunanda Bai.

32. D.W.3 namely Jitendra Vasantarao Upadhye, Manager of the Adinath Co-operative society Limited, has stated in his evidence that the aforesaid co-operative society had extended cash-credit loan facility to the defendant and the aforesaid loan was given for the purpose of business. D.W.7-Vinutha has supported the case of the plaintiff. From perusal of the documents produced on behalf of the defendants, it is evident that Ex.D.5 is a partnership deed, Ex.D.7 is the accounts book of Yashwant and Company, Ex.D.10 the partnership deed of Yashwant Raj and Company. Ex.D.18 is a copy of the partnership deed of Yashwant traders.

33. The trial court has granted 1/7th share each to the plaintiff and defendants 9 to 12 in properties mentioned at serial numbers 5 and 7 to 12 of schedule A, serial number 2-6 of schedule B, serial number 1 and 3 of schedule C, serial number 4 of schedule E, 1/28th at serial number 6 of schedule A and 1/7th share in schedule F. Therefore, the issue which arises for consideration in this appeal is whether plaintiff is entitled to 1/7th share in the following properties:

1. Serial number 1 to 4 of the schedule A

2. Serial number 1 of Schedule B,

3. Serial number 2 and 4 of Schedule C

4. Serial number 1 to 3 of Schedule E

5. Serial Number 1 to 3 of Schedule F

6. Properties mentioned in Schedule G

Now we may proceed to deal with the claim of the parties in respect of their share in the aforementioned properties ad-seriatum.

34. Properties mentioned at numbers 1 to 4 of Schedule A:

From perusal of the sale deed exhibit P1 it is evident that late Yashwant had acquired the properties mentioned at serial numbers 1 to 4 of schedule A to the plaint by registered sale deed dated 21/03/1974 for a consideration of Rs.20,000. The sale deed describes the name of Late Yashwant and has no reference to his capacity as partner of the firm. From the admission made by DW 1 Prakash in his evidence, it is evident that Yashwant Upadhye had an independent source of income as he used to earn by performing pujas as well as used to write accounts in 2 firms. It has also been admitted by DW 1 that late Yashwant namely his father got his name mutated in the revenue records and it has also been admitted that in the sale deed there is no mention of any firm. It is pertinent to mention here that there is no evidence on record to show that aforesaid property was purchased either from the assets of the firm or was acquired for the firm, there is no evidence on record that the aforesaid property was put to use of the firm and treated as property of the firm. Similarly, the defendants have not also led any evidence to show that the aforesaid property was entered in the books of the firm as property of the firm or was thrown into the partnership stock. Therefore the inevitable conclusion is that the aforesaid property was self acquired property of late Yashwant in which plaintiff and defendants number 9 to 12 have 1/7th share each, however the aforesaid aspect of the matter has not been considered by the trial court and therefore the finding of the trial court if set aside in this regard and it is held that plaintiff and defendants number 9 to 12 had 1/7th share each in the aforesaid property.

35. Property mentioned at Serial number 1 of Schedule B of the plaint:

The aforesaid property was acquired vide registered sale deed dated 02/05/1938 by late Yashwant for a consideration of Rs.2196/-. The aforesaid property was purchased by late Yashwant when none of the sons of late Yashwant had an independent source of income as they were minors. Therefore, the aforesaid property is also self acquired property of late Yashwant. However, the trial court has failed to appreciate the aforesaid aspect of the matter, therefore the finding recorded by the trial court that plaintiff and defendants number 9 to 12 are not entitled to 1/7th share in the aforesaid property is hereby set aside. Accordingly it is held that aforesaid property is self acquired property of late Yashwant and plaintiff as well as defendants 9 to 12 are entitled for 1/7th share in the aforesaid property.

36. Properties mentioned in Serial number 2 and 4 of Schedule C:

We are conscious of the fact that there is no presumption that business carried on by a member of joint family is his joint family business. However, it is pertinent to mention here that in the instant case there is ample evidence on record including the admission of defendant number 1 to the effect that his father, prior to constitution of the partnership firm, used to earn and after death of Sunanda Bai, her properties devolved on late Yashwant, which were his self acquired properties. It is evident that joint family had sufficient nucleus to acquire the properties. Therefore, the presumption in law is that the properties mentioned in serial number 2 and 4 of Schedule C were acquired from the funds of the joint family even though the sale deeds were executed in favour of late Anna Saheb and defendant number 1 namely Prakash. It is also noteworthy that property listed at serial number 4 of schedule C was acquired in favour of Late Anna Saheb and Prakash for a consideration of Rs.35,000/- and the sale deed reveals that sale consideration of Rs.29,000/- was paid earlier and balance sale consideration of Rs.6,000/- was paid at the time of execution of the sale deed. It is relevant to mention that late Yashwant was partner in the firm till his death that is till 18/02/1988. It is apposite that defendants have failed to disclose the source from where the property was obtained. No evidence has been led by the defendants to show that the aforesaid properties were acquired from the funds of the firm and were ever treated property of the firm. It is also not shown that the aforesaid properties were entered in books of the firm as property of the firm. In other words the defendants have not been able to rebut the presumption in law that the aforesaid properties are joint family properties. The aforesaid aspect of the matter however has not been appreciated but the trial Court. Therefore, we cannot sustain the conclusion of the trial court that plaintiff and defendants 9 to 12 had no share in the aforesaid property. Accordingly the same is set aside and the aforesaid properties are held to be properties belonging to the joint family and it is held that plaintiff and defendants number 9 to 12 shall be entitled to share in the aforesaid properties in equal proportion from the share of late Yashwant i.e. 1/28th share each.

37. Properties mentioned in Serial number 1 to 3 of Schedule E:

The plaintiff as well as defendants number 9 to 12 are not partners in the partnership firm. In serial number 1 to 3 of Schedule E, the machineries as well as stock in trade of the partnership firm has been mentioned. All the partners are the joint owners/co-owners of the partnership property and since the plaintiff and defendants number 9 to 12 are not partners in the partnership, therefore they are not entitled to claim any share in respect of the properties mentioned at serial number 1 to 3 of schedule E. Therefore we affirm the finding of the trial court in this regard on the aforesaid issue.

38. Properties mentioned in Serial Number 1 to 3 of Schedule F:

The property mentioned at serial number 1 of Schedule F was purchased in the year 2000 in the name of defendant witness number 2 namely, Pruthviraj. The aforesaid witness in paragraph 2 of his examination in chief has stated that aforesaid property belongs to partnership firm namely M/s. Yashwant Raj and company. It has further been stated by the aforesaid witness that the said property has been purchased by him by taking loan of Rs.39 Lakhs by a registered sale deed date 08/02/2000 from Adinath Cooperative Credit Society. However, it is pertinent to note that aforesaid witness has admitted that since 1994 onwards he started business in Yashwant agencies on a monthly salary of Rs.5,000/-. It is pertinent to note that agreement of sale of the aforesaid property was reduced into writing in the year 1999 by paying a sale consideration of Rs.1,000/- and the sale deed was executed on 08/02/2000. In his evidence, DW 2 has not exhibited the aforesaid sale deed. DW 3, namely Jitendra, who is manager of Adinath Cooperative Society Limited, has stated in his evidence that loan was advanced by the society for business and not for purchasing the property. The aforesaid witness has clearly stated that society has not paid any housing loan for purchasing the property thus the defendant number 2 has failed to discharge the burden that the property in question was his self acquired property. However the aforesaid aspect of the matter has not been appreciated by the trial court. Without there being any material on record, the trial court has held that plaintiff has given up her claim in respect of property mentioned in serial number 1 of schedule F. Therefore we set aside the finding recorded by the trial court in this regard. Thus the aforesaid property in view of presumption in law has to be held to have been acquired by the joint family and therefore the plaintiffs and defendants 9 to 12 are entitled to 1/28th share each in the aforesaid property which is joint family property. However since property bearing number 2 and 3 in Annexure F belongs to the partnership firm and plaintiff and defendants 9 to 12 are not partners in the aforesaid firm , they have rightly been held to be not entitled to any share in property mentioned in serial number 2 and 3 of annexure F. Thus it is held that plaintiff and defendants 9 to 12 are entitled to share in property mentioned at serial number 1 of annexure F only to the extent of their share as the same is a joint family property.

39. Properties mentioned in Schedule G:

The property mentioned in Schedule G contains of movable properties containing gold and silver ornaments and articles. The trial court has not assigned any finding for not awarding share to the plaintiff in the aforesaid properties mentioned in Schedule G. The aforesaid properties have been acquired from the funds of joint family and therefore the plaintiff and defendants number 9 to 12 are entitled for their share i.e. 1/28th share each in the aforesaid property which belongs to the joint family.

Accordingly, issues framed by us are answered.

In view of preceding analysis, it is directed that partition and separate possession shall be effected by appointing court commissioner. To the aforesaid extent judgment and decree passed by the trial court is modified. Accordingly the suit of the plaintiff is decreed partly and the remaining portion of the judgment and the decree is maintained. In the result, appeal and cross-objection are disposed of.

Final Result : Disposed