IMPORTANT POINTS
1 .If the property stands in the name of a coparcener of a Hindu Undivided Family, then presumption is that it is his self acquired property, unless it is shown that it is acquired with the aid of nucleus of the joint family property.
2. The separate property of a Hindu coparcener does not acquire the characteristics of joint family or ancestral property, but by his volition and intention by his waiving or surrendering his special right in it as separate property. It is the intention, which is required to be seen, the acts and conduct being no more the evidence of the intention.

R. K. Deshpande, J.— The respondent Smt. Usha Koparkar is the original plaintiff and the granddaughter of Late Shri Vishnu Pathak, who filed Regular Civil Suit No. 80 of 1981 claiming that the suit property, which stood in the name of Vishnu Pathak, was acquired by nucleus of joint family funds and hence she was entitled to share in it. She claimed partition and separate possession of 1/36th share in the suit property, i.e. Plot No.17 at Yavatmal. The appellant Nos. l and 2 are the original defendant Nos. 17 and 19, who claimed to be the owners of the suit property on the basis of the codicil executed by Vishnu Pathak on 10.5.1973 bequeathing the suit property in their favour. The appellant Nos.3 to 7 are the original defendant Nos.26 to 30, who claimed to have purchased the suit property from the appellant Nos. 1 and 2.

2. The two sons of Kashinath Pathak, viz. Satish and Vinod, were joined as the defendant Nos. l and 2; Smt. Nirmalabai w/o Kashinath Pathak was joined as the defendant No.3; the another daughter of Kashinath Pathak, viz. Smt. Megha Gadgil, was joined as the defendant No.4; Smt. Premlabai w/o Yashwant Vishnu Pathak, was joined as the defendant No.5; and her three sons and the daughter, viz. Deepak, Ashok, Prashant; and Smt. Jyoti of Smt. Premlabai Pathak, were joined as the defendant Nos.6 to 9 respectively; the husband of Smt. Sarojini, the two sons Sudhakar and Prakash and the daughter Aruna were joined as the defendant Nos. 10 to 13 respectively; and the other daughters of Vishnu Pathak, viz. Smt. Shaila Modak, Smt. Mangala Ranade, Smt. Kusum Gupta, Ku. Suman, Smt. Saroj and Ku. Nalini were joined as the defendant Nos.14 to 19 respectively in the said suit. The parties shall be hereinafter referred to according to their original status in the Trial Court.

3. Regular Civil Suit No.80 of 1981 was partially decreed by the learned 2nd Joint Civil Judge, Junior Division, Yavatmal, by his judgment and order dated 6.3.2000. The plaintiff and the defendant No.4, the real sister of the plaintiff, are held entitled to 1/48th share each; the defendant Nos. 1and 2, the real brothers of the plaintiff, and the defendant No.3, the mother of the plaintiff, are held entitled to 3/20th share each; and the defendant Nos.17 and 19, the daughters of Vishnu Pathak, are held entitled to 1/4th share each in the suit property. The Commissioner is directed to be appointed for effecting partition of the suit property as per the declaration of the shares. Regular Civil Appeal No.55 of 2000 filed by the appellants has been dismissed by the learned Ad hoc District Judge 1, Yavatmal, by his judgment and order dated 31.3.2009. Hence, this second appeal.

4. Both the Courts below have held that the plaintiff has proved that the suit property was originally acquired by Vishnu Pathak with the aid of the joint family property. It is further held that Late Shri Sadashiv Pathak, the father of Vishnu Pathak was a rich man and acquired 105 acres and 15 gunthas of agricultural lands apart from the residential premises and fruit gardens in Konkan. He was doing roaring money lending business and acquired huge properties by way of mortgage. The other two sons of Sadashiv Pathak. viz. Vitthal and Ramchandra, were working at Bombay. Vitthal Pathak was Matriculate and was employed in the office of the Accountant General at Bombay and he was having another source of income by way of Tuition Classes. The second son Ramchandra Pathak was in service in the Post Office at Bombay.

5. The Courts below have recorded the finding that it was the income derived by Sadashiv Pathak from the joint family property at Konkan and, the income thrown in the common hotchpotch by Vitthal Pathak and Ramchandra Pathak working at Bombay that the suit property was acquired on lease from the Municipal Council, Yavatmal, on 5.11.1917. It is held by both the Courts below that when the suit property was acquired on 5.11.1917, the income of Vishnu Pathak from all sources was