1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIAL APPELLATE JURISDICTION SECOND APPEAL NO. 167 OF 2007 WITH CIVIL APPLICATION NO. 371 OF 2007 Gitabai Maruti Raut........Appellant versus Pandurang Maruti Raut & ors.......... Respondents. Mr. A.V. Anturkar i/b S.B.Deshmukh for the Appellant Mr. R.D.Soni i/b M/s. Ram & Co. for the Respondent no.10. Mr. P.S. Dani i/b E.A.Sasi for Respondents 1 & 2(2) CORAM: R. V. MORE, J. DATED : 01st OCTOBER, 2008. P.C.: 1. Heard Mr. Anturkar counsel appearing for the appellant, Mr. Dani for respondent nos. 1 to 4 and Mr. Soni for respondent no.10. The appellant filed suit for partition and separate possession. The appellant is the second wife of deceased Maruti. Respodnent nos. 1 to 4 are the children of Maruti from his first wife Gitabai and respodnent nos. 5 to 9 are the children of Maruti from the appellant, the second wife of Maruti. 2. Trial Court partially decreed the suit and granted appellant and the respondent nos. 1 to 9, 1/10 share each in the 2 property, except the property at Nande. 3. Being aggreived by the trial court decree, Plaintiff filed Regular Civil Appeal No.567/06. The respondent nos. 1 to 5 also filed Regular Civil Appeal No.559/06. The main greivance of the appellant in her appeal before lower appellate court was about refusal of share in the property at Nande, and the greivance of respondent nos. 1 to 4 was about the share granted to the Plaintiff, in the property at Pirangut. 4. The lower appellate Court disposed of both the appeals by common decree which is impugned in the present Second Appeals. The lower appellate court substituted the trial court decree by granting appellant/respondent nos.1 to 3, 5 and 6, 11/70th share each and the respondent nos. 4, 7 to 9 have been granted 1/70th share each in the suit lands at village Lavale. The appellate court refused share to the appellant in the property at Pirangut and Nande. The present appellant being aggrieved by the above said decrees filed the above appeals. 5. Mr. Anturkar the learned counsel for the appellant submitted that the lower Appellate court ought to have granted share to the appellant in the property at village Nande. He also submitted that the lower appellate court committed an error in reversing trial court's decree so far as it relates to the property at villate Pirangut. In sum and substance his submission is that the Appellate Court ought to have granted share to Appellant in 3 both the lands situated at Nande and Pirangut. 6. Mr. Anturkar in order to substantiate his submission pointed out that the lower appellate court having observed that there is no documentary evidence to show that during 1965 to 1969 Defendant no.1 was doing the business in Kirloskar Engines, could not have jumped to the conclusion that the respondent no.1 purchased the property at village Nande independantly and separately. So far as property at Pirangut is concerned, Mr.Anturkar relied upon Mutation entry No.1274 at Exh.104 to substantiate his contention that the Defendant no.1 received this property in partition between Reghunath and his brother and defendant no.1. If that be so then Appellant has right in the said property. 7. Having gone through the decree impugned and having heard Mr. Anturkar the learned counsel for the appellant, Mr. Dani and Mr. Soni the learned counsel appearing for respondent nos.1 to 4 and 10 respectively, I do not find any merit in the submission of mr. Anturkar. Admittedly Maruti husband of the appellant died on 30th July 1966 and thereafter Defendant no.1 purchased the property at village Nande in his name under sale deed dated 25-2-1969. In my view if Plaintiff wanted to contend that the property at village Nande is joint family property then it was for her to plead and prove that there was sufficient nucleus out of the joint family property, with the help of which the 4 defendant no.1 could have purchased the property at village Nande. Once it is proved by the appellant that there was sufficient nucleus then, onus would have shifted on defendant no.1 to prove that the property at village Nande was his self acquired property. I have perused the plaint. There is no pleading to the effect that joint family property was yielding any income which could have formed nucleus. Even the order of Courts below do not disclose that the plaintiff has pleaded and proved about nucleus. In the absence of showing any nucleus, the Appellant cannot claim share in the property at Nande, which are admittedly purchased by defendant no.1 in his own name. The submission of Mr. Anturkar in this regard, that it is to be presumed that there was nucleus, has no merit. If the law requires that nucleus is to be pleaded and proved then it was obligatory on the part of the Plaintiff to plead and prove the same. The fact that joint family was possessing some property does not give rise to presumption that this property was capable of yielding any income. 8. The second submission of Mr. Anturkar in this regard that the appeal court wrongly jumped to the conclusion that the property at Nande is separate property of respondent no.1, is also without any merit. Had plaintiff proved the nucleus, then in that case it was for the Defendant no.1 to show that the property at Nande was purchased by him independently and separately. 5 Since nucleus itself was not pleaded and proved by the Plaintiff, it was not obligatory for Defendant no.1 to prove that the property at Nande is self acquired property. 9. That takes me to consider the claim of the Appellant in the property at Pirangut. The property at Pirangut was admittedly purchased by Raghunath, uncle of Defendant no.1 from one Kanhu Dhondu Kudale on 19th August 1947. According to the appellant by Mutation entry 1274 this property was partitioned, and the land at Pirangut was given to Defendant no.1. If that be so the Appellant obviously has share in it. Per contra it is the case of the defendant no.1 that this property was purchased by Raghunath in 1947, which was latter on gifted in favour of Defenndant no.1. In order to claim share in the property at Pirangut it was for the appellant/plaintiff to plead and prove that property at Pirangut was ancesstral property. Then and then only appellant/Plaintiff would have share in it. In the absence of any evidence that the property in the hand of Raghunath was ancesstral property, in my considered view, the appellant/plaintiff could not have relied upon the Mutation entry no. 1274 to claim share in the suit property. 10. The lower appellate court appreciated the evidence on record and came to the correct conclusion. I find no error much less substantial question of law in the appeal. Second appeals are devoid of any merit and the same is dismissed. 6 11. In view of the dismissal of the Second Appeal, C.A. no.1379/05 does not survive and stands dismissed. ( R.V. MORE, J.)