1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.395 OF 2008 WITH CIVIL APPLICATION NO.1642 OF 2008 Vishnu D. Shirke & Ors. ...Appellants. v. Hanmant V. Shirke & Ors. ...Respondents. Mr. Mandar Limaye, adv. For the Appellants. Mr.P.R.Nalawade, adv. For the Respondent Nos.1 and 2. CORAM : J.H. BHATIA, J. DATED : 8th October , 2009 P.C. 1 Respondent no.1, who is the original plaintiff filed Regular Civil Suit No.516 of 1989 for partition and separate possession. Defendant no.1 Vishnu is his father. Vishnu had two wives. Laxmibai, respondent no.2 is his first wife and she is the mother of the plaintiff. Dharmabai, appellant no.4, is the second wife and from her, Vishnu has two sons namely, Mahendra and Jitendra, who are the appellant nos.2 and 3. Suit was filed for partition of 15 agricultural lands and some house properties. There was no dispute that out 15 agricultural lands, 12 lands were ancestral properties in the hands of the defendant no.1 Vishnu. Dispute was only about 3 lands being gat no.128/2 admeasuring 33 R, gat no.598/2B admeasuring 28 R and gat no.121/2 admeasuring 2 26R. These lands were purchased in the name of the appellant no.4 Dharmabai in the year 1983, 93 and 1991 respectively. Defendants/appellants contended that these properties were purchased by her from the money provided by her parents while according to the respondent nos.1 and 2, these properties were also purchased from the income of the joint family property. The trial Court rejected the contention of the defendants/appellants and decreed the suit of the plaintiffs. The defendants preferred Regular Civil Appeal No.92/01 challenging the judgment and decree of the trial Court. Appeal came to be dismissed. Hence, this Second Appeal at the instance of the original defendants. 2 The learned counsel for the appellants contends that there is no provision of law under which it can be presumed that the land purchased in the name of one of the members of the family is a part of ancestral property and that person, who claims that it is part of joint family property has to prove that it was purchased with joint family nucleus. It is well settled position of law that there is no presumption that joint family holds any joint family property and, therefore, burden lies on the person, who claims that property was joint family property to prove it. Once that burden is discharged, burden shifts on the person who 3 claims that some of the properties were his self acquired property. In the present case, admittedly, besides these three disputed lands, there was 12 other agricultural lands held by the defendant no.1/Appellant No.1 Vishnu as ancestral property. Therefore, sufficient nucleus was available and out of the income of that property, some more properties could be acquired by joint family. Appellant no.4 Dharmabai did not produce any evidence to show that she had received any amount from her parents and with that money these lands were purchased. All these three lands were purchased after her marriage with the appellant no.1. The learned counsel for appellants contends that Courts below had not considered the evidence of the witnesses properly and particularly, the admission of the plaintiff. Infact, admission is only that these properties were not ancestral properties . There is no admission that these properties were purchased from the individual funds of the appellant no.4 Dharmabai. There is concurrent finding of the fact by both the Courts below that these three lands were purchased from the nucleus of the joint family and, therefore, they form part of the joint family property. In view of this, no substantial question of law is involved in the present appeal. 4 3 Therefore, the appeal stands dismissed. As the appeal itself is dismissed, Civil Application No.1642/08 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)