IMPORTANT POINT
[The court established that in disputes over ancestral property, the burden of proof lies on the party claiming self-acquisition, and transactions lacking legal necessity may be deemed void.]

JUDGMENT/ORDER

1. Heard both the parties at length.

2. This Court while issuing the notice has framed the following substantial question of law vide order dtd. 19/12/2022:-

"Whether the District Judge - 1, Bhandara erred in granting partition of house No. 339 when it was not claimed by the plaintiff ?"

3. The present Second Appeal is filed by the appellants being aggrieved by the judgement and order dtd. 07/07/2016 passed by learned District Judge-1, Bhandara in Reg.C.A. No. 93/2010, whereby the judgment and decree dtd. 26/03/2009 passed by learned 4th Joint Civil Judge, Junior Division, Bhandara in R.C.S. No. 88/2005 was confirmed.

4. The brief facts of the case can be summarized as under:-

The plaintiff nos. 1 and 2 and defendant nos. 2 and 4 are brothers and defendant nos. 5(a) and 5(b) are sisters (legal heirs of defendant no. 5). The defendant no. 1 is the father of plaintiffs and defendant nos. 2, 4 and 5. The defendant no. 3(a) and 3(b) are legal heirs of deceased brother of the plaintiffs. It is the contention of the plaintiffs that, defendant nos. 3(a) and 3(b) are not having any share in the suit property, however, they are in possession of House no. 151 at Dhargaon. Defendant no. 1 has received (1) field survey no. 34/1, area 0.22 H.R., (2) field survey no. 109, area 0.38 H.R., (3) field survey no. 110, area 45 decimal out of 90 decimal and (4) House no. 151 at Dhargaon. Out of income from said fields, he had purchased field at Koknagad bearing survey no. 218, area 1.17 H.R., so also he constructed House no. 339 at Dhargaon. Since 2002, defendant no. 2 was looking after the property belonging to defendant no. 1, however, he had not maintained accounts of profit and loss. In April, 2005, it is learnt by the plaintiffs that defendant no. 1 has sold out the House no. 339 on 01/12/2004 to defendant no. 2. It was also learnt by the plaintiffs that defendant no. 2 also mutated his name in the fields survey nos. 34/1, 109 and 110, therefore, the plaintiffs had issued notice to the respondents on 05/04/2005 for partition of the entire property. But, there was no response to the said notice, therefore, the plaintiffs had filed a suit against the defendants.

5. In the suit, defendant no. 1 filed his written statement at Exh. 14 and defendant nos. 2 & 4 filed their written statement at Exh. 15. As per their contentions, survey No. 217, area 1.17 H.R. of Mouza Koknagad was purchased by defendant no. 1 out of his own income. Even House no. 339 was constructed by defendant no. 1 out of his own income. It is also contention of the defendants that the suit properties are partitioned between his four sons 20 years ago. Defendant no. 1 sold out one property to defendant no. 2 on 01/12/2004 for legal necessities.

6. The learned Trial Court recorded the finding that the suit property was ancestral property. However, the plaintiffs failed to established that House no. 339 was sold by defendant no. 1 illegally. It is also held that defendant no. 1 failed to established that field survey no. 217 and House no. 339 were his self acquired property. The learned Trial Court further held that defendant no. 1 failed to prove that the property was partitioned 20 years back before filing of the suit. Accordingly, the learned Trial Court decreed the suit and granted partition except suit House no. 339, and awarded 1/7th share to the plaintiffs and defendant nos. 1, 2, 4, 5(a) and 5(b) in (1) field survey no. 34/1, area 0.22 H.R. at Mouza Dhargaon, (2) field survey no. 109, area 0.38 H.R. at Mouza Dhargaon, (3) field survey no. 110, area 45 decimal at Mouza Dhargaon, (4) field survey no. 217, area 2.55 H.R. at Mouza Koknagad and House no. 151 at Mouza Dhargaon.

7. Being aggrieved by the said judgment, defendant nos. 1, 2 & 4 filed R.C.A. No. 93/2010 before learned lower Appellate Court. It is contended that the suit property is ancestral one. However, some properties were purchased by defendant no. 1 out of his own income. Even defendant no. 1 had cons