Honble SABHARWAL, J.–Appellant No. 1 and respondent No. 2 are husband and wife respectively. Respondent No. 1 is their son. The second appellant purchases the property in question form the first appellant.

(2). The respondent in this appeal are original plaintiff. They filed a suit for declaration of their 2/3rd share, partition and possession thereof in respect of two properties described as Item No. 1 and Item No. 2. According to them, Schedule Item No. 2 property come to appellant No. 1 (original defendant No. 1 in the suit) in partition between him and him brothers and it is an ancestral property. The Item No. Property, according to the averments in the plaint, was acquired by plaintiffs and the first defendant out of joint Hindu family funds and the first defendant was trying to alienate the suit property for his self benefit and not for the benefit of the members of the family. When, during the pendency of the suit, it came to notice of the plaintiff that Item No. 1 property had been sold by the first appellant, on their application, appellant No. 2 was impleded as defendant No. 2 in the suit.

(3). The trial court decreed the suit holding that the respondents are entitled to 2/3rd share in the properties as also possession thereof and also granting other consequential reliefs.

(4). The first appellate Court, however, allowed two separate appeals that had been filed by each of the appellant end (Sic and) and the suit was ordered to be dismissed. It was held that the respondents have failed to prove that Item No. 1 property was joint Hindu family property. The said property was held to be the self acquired property of the first appellant. It further held that respondents No. 1 has failed to prove that any amount of income was available in the hands of the first appellant to purchase Item No. 1 property noticing that except 15 guntas of land (Item No. 2 property), there was no ancestral property with the first appellant and that the trial Court was not correct in observing that in was for the first appellant to show that no enucleus us of ancestral property was available with him to purchase Item No. 1 property.

(5). The judgment and decree of the first appellate Court was challenged by the respondents before the High Court in a second appeal (Regular Second Appeal No. 213/91). That appeal was filed by son and mother. On a memo filed by respondent No. 1 who was first appellant before the High Court, his second appeal was dismissed and only the claim of his mother who prosecuted the second appeal was examined by the High Court. The High Court by the impugned judgment restored the judgment and decree of the trial court, setting aside that of the first appellate Court.

(6). The High Court has held that Item No. 2 property has been proved to be joint Hindu family property and the respondents have share in it. The finding in respect of Item No. 2 property has not been challenged before us. Even otherwise, there is no ground to upset the said finding of fact. The only controversy that has been raised before us is in respect of Item No. 1 property. The said property was purchased by the first appellant in the year 1970-71. It was sold by him in favour of the second appellant in the year 1987 after filing of the suit. The only question to the examined is whether Item No. 1 property was self-acquired property of the first appellant of it was joint Hindu family property in which the respondents/plaintiffs had 2/3rd share. Answering this question in favour of the respondents, the High Court has held that the second appellant could only be entitled to purchase 1/3rd share from the first appellant who had no right to sell the remaining 2/3rd share in Item No. 1 property.

(7). The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu family property of self-acquired property of the first appellant.

(8). There was evidence and it has been established that Item No. 2 measu

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