The burden of proof regarding joint family property shifts to the party alleging self-acquisition once the existence of a nucleus of joint family property is established.

JUDGMENT :

Heard learned Counsel for the parties.

2. This second appeal challenges concurrent judgments and decrees passed by two courts below in a suit for partition filed by the Respondents (original plaintiffs).

3. The plaintiffs’ suit was on the footing that the suit properties described in the plaint were all joint family properties. One Pira, who was a common ancestor of the parties, had two sons by the names of Pandu and Vithu. Pandu died issueless, whilst Vithu had two sons by the names of Sambhaji and Shankar. The plaintiffs are children of Shankar, whereas the original defendant no.1 Sambhaji (since deceased), has been survived by the Appellants herein, children of Sambhaji. It was claimed in the suit that the suit properties were joint properties of Vithu and, thereafter, succeeded to by Shankar and Sambhaji. It was submitted that Shankar died on 11 November 1975 having predeceased Vithu, who died on 26 August 1978. It was submitted that there was no partition amongst the plaintiffs or their father on the one hand and Sambhaji or his descendants at any point of time and they continued to be in joint possession of the suit properties. It was submitted that defendant no.1, who was the main contesting defendant and who is Appellant No.1 to the present appeal (since deceased and now represented by Appellant Nos. 2 to 5), got his name entered in the revenue record of a part of the suit properties on the basis of a fabricated will, whilst through an invalid gift deed and allotment, others of the suit properties were sought to be transferred to the other defendants. It was submitted that Vithu himself, who is the purported testator of the will or executor of the gift deed and allotment, was not entitled to bequeath or gift away or allot the suit properties, the properties being ancestral in his hands. The defendants contested the suit claiming that the suit properties were exclusively owned by Vithu and Shankar was not concerned with the ownership of the properties. They claimed that Shankar had accepted some cash from Vithu and, thereafter, he and his family resided separately and did not pay anything to Vithu. The defendants relied on the will as well as gift deed and allotment executed by Vithu in support of their claim to the suit properties.

4. On these pleadings, the issues before the trial court were (i) whether the suit properties were self-acquired properties of deceased Vithu, and (ii) whether the properties were lawfully bequeathed or transferred by Vithu by his will dated 16 August 1977 in favour of defendant no.1 as also by a gift deed executed in favour of Defendant Nos. 2 to 5 and also allotment to Shevanta (daughter of Vithu, since deceased and deleted from the cause title) towards her maintenance. The trial court held that it was apparent from the evidence before the court that the suit lands were originally owned by Pira, who was the common ancestor of the parties and after Pira, Vithu and Pandu became the successors and possessors of the suit properties. The trial court observed that the defendants had not brought out any reliable or cogent evidence to rebut the presumption of correctness of mutation entries and that from the record and oral evidence, the suit properties could be seen as joint properties and not self-acquired properties of Vithu. The trial court also held that the defendants had failed to prove the execution of the purported will or remove suspicious circumstances in connection with its execution by cogent or satisfactory evidence. So also, so far as the gift deed is concerned, the trial court came to a conclusion that Vithu himself, not having any right to dispose of the properties, the purported execution of the gift deed in favour of defendant nos. 2 to 5 was of no legal effect. The trial court particularly observed that factually, there was no consent on the part of the other co-parceners to the purported gift made by Vithu in favour of defendant nos. 2 to 5. When the matter was carried