The burden of proof in establishing the nature of property as self-acquired or joint family property lies on the party asserting the same. In the absence of clear and satisfactory evidence, the acquisition of property by the manager or karta is presumed to be from the joint family income. However, if the manager or karta had an independent source of income, the burden shifts to prove that the property was acquired without the aid of the joint family income.

(Letter Patent Appeal filed under Clause 15 of the Letters Patent against the judgment and decree of the learned single Judge in A.S.No.916 of 1985 dated 20.7.1999, allowing the appeal in so far as Item Nos.9 and 17 and dismissing the suit in respect of those items.)

P.K.Misra, J.

The present appeal under Clause 15 of the Letters Patent was filed by the plaintiff. During pendency of the appeal, on his death, the legal representatives have been impleaded as appellants 2 to 8. The appeal is confined to items 9 and 17 of the suit schedule.

2. The suit was filed for partition claiming 1/5th share in the suit schedule properties. The trial court had decreed the suit in part in respect of items 1, 2, 3, 6 to 18, 20, 22 to 24 and 28 and rejected the claim for partition in respect of items 4, 5, 19, 21, 25 to 27, 29, 30, 31 and 32 of the suit schedule properties. The plaintiff was arrayed as the first respondent and defendants 4 and 5 were arrayed as respondents 2 and 3 in the first appeal. Even though the appeal was filed in respect of the decreed items of property, as apparent from the judgment of the learned single Judge, at the time of final hearing, the appellants before the single Judge confined their submissions with regard to items 9 and 17 of the suit schedule properties. A cross-objection had been filed by the plaintiff as well as Defendant No.4 claiming that the suit should have been decreed in respect of items 4, 5, 19, 21, 25 to 27, 29, 30, 31 and 32 of the suit schedule properties.

3. Learned single Judge allowed the appeal in relation to items 9 and 17 and held that such properties were self-acquired properties of defendants 1 and 2 respectively and were not liable to be partitioned. Learned single Judge however confirmed the part decree for partition in respect of other properties. Learned single Judge also dismissed the cross-objection in respect of the properties for which the suit for partition had been dismissed. Learned single Judge also found that dismissal of the suit in respect of item 19, which was found to have been purchased by Defendant No.5, could not be challenged as such Defendant No.5 was not arrayed as a party in the cross-objection. The present appeal at the instance of the plaintiff is confined to items 9 and 17 of the suit schedule properties. Therefore, the decree of the trial court as confirmed by the learned single Judge has become final so far as all the properties save and except items 9 and 17.

4. At this stage, it is profitable to notice the relationship between the parties as described in the suit and it is not necessary to notice in detail the subsequent substitutions which have taken place either at the time of first appeal before the learned single Judge or during pendency of the appeal before the Division Bench, save and except stating that the plaintiff who had filed the present appeal having been expired, his legal representatives have been substituted. The original plaintiff and defendants 2 to 4 are the sons of Defendant No.1, and Defendant No.5 is the daughter of Defendant No.1.

5. As per the plaintiff’s case, item No.9 of the suit schedule property was purchased in the name of Defendant No.1, who was the Karta of the family at that stage, with the help of the joint family income and subsequently item No.17 was purchased from and out of the joint family income in the name of Defendant No.2.

6. During pendency of the suit for partition before the trial court, item No.9 of the plaint schedule was purchased by Defendant No.6, who was subsequently impleaded as a party in the suit. The case of the Defendant No.1 is that the joint family property was not sufficient to maintain the family and as such, there was no surplus and the property covered under item No.9 was purchased by him from out of his separate means. It was stated that certain properties had been gifted to him by his paternal uncle and he was also cultivating certain lands as a cultivating tenant. So far as item No.17