JUDGMENT :

M.S.Jawalkar, J. - Heard.

2. The present second appeal is filed being aggrieved by the judgment and decree dated 29.07.2004 passed by learned 14th Adhoc Additional District Judge, Nagpur in Regular Civil Appeal No.103/2002 partly allowed the appeal and the judgment and decree dated 11.02.2002 passed by 3rd Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No.1608/1996 is modified.

3. This Court admitted this appeal on 15.12.2004 on following substantial questions of law:

"i) When the Karta of a family jointly in his name (Anandrao Dhote) and in the name of his brother (Bapurao Dhote) purchased the properties i.e. Field Survey No.24, 27, 53 through the income of ancestral property, whether such property becomes joint family property or the self acquired property of Anandrao Dhote and Bapurao Dhote?

ii) Whether the decrees passed by both the courts below are vitiated on account of the fact that the material evidence which has not been challenged by the defendant, has been ignored?"

4. The facts of the case as per plaintiffs is as under:

The original ancestor Shri Balkrishna had left certain ancestral field and house property at Mouza Hingna. That Balkrishna died more than 50 years, before coming into force of Hindu Succession Act. It is alleged that after his death, the property was inherited by his sons Anandrao and Bapurao. That thereafter, Anandrao and Bapurao jointly purchased field Survey No.24, 27 and 53 on 07.04.1947 and 18.03.1943 from the income of ancestral property. Thus, they were joint and there was no partition between them. That defendant No.1 sold his half share in the above property jointly purchased by him alongwith Bapurao and from the sale proceeds of the same, Anandrao purchased the properties except survey No.409.

That defendant No.1 had two wives. From first wife, he had two sons Dhanraj and Murlidhar. That defendants Nos.2, 4 and 5 are the children of late Anandrao from his second wife, defendant No.3. That the entire property is joint family property and Anandrao was the Karta of the family. That after partition between Anandrao and Bapurao which took place after passing of Hindu Succession Act, Anandrao was the Karta of the family consisting of himself, his two sons and as such, they became co-parcners in the property of joint Hindu family of which the Anandrao was Karta.

That the appellants/plaintiffs had filed the Regular Civil Suit for partition and separate possession of the joint family property. That learned Lower Court after hearing the parties, dismissed the claim of appellants. Being aggrieved by the same, the appellants preferred an appeal before learned Lower Appellate Court vide Regular Civil Appeal No.113/2002. However, the appeal was partly allowed by learned Lower Appellate Court vide its judgment and decree dated 29.07.2004. Hence the present appeal is filed

5. The appellants' contention is that the suit property is the ancestral property and the parties are related to each other. That after the death of Dhanraj, the present plaintiff Nos.1 to 3 are entitled to inherit his share in the coparcenary property. That the deceased defendant No.1 was the karta of the joint Hindu Family. But he in order to deprive the plaintiffs of their share in the joint family property and in getting the joint family property partitioned only amongst the defendants, has secretly in-collusion with other defendants partitioned the joint family property amongst the defendants alone without the