1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR SECOND APPEAL NO. 58 OF 2009 (Devidas Narayanrao Wagare vs. Smt. Vimalbai Narayanrao Wagare & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. FEBRUARY 25, 2009. Heard Shri Deshpande, learned counsel for the appellant. The matter was heard on 18.2.2009 and was required to be adjourned to enable the appellant – plaintiff to produce copy of Exh. 104. The copy has been produced today. It is argued that Exh. 104 is the document of partition and on it signature of the appellant – plaintiff was obtained forceably. The perusal of said document shows that it is not a document of partition and it only permits the appellant – plaintiff to use the shop for earning his livelihood subject to payment of amount of Rs.600/- per month to other members. It also contemplates that if in future the partition becomes necessary, the market price of the shop would be worked out and the person interested in retaining the shop will pay the proportionate share to each member towards 2 market price so determined. It is to be noted that this document is dated 29.5.1991 and the suit has been filed by the appellant – plaintiff in the year 2000 for declaration, perpetual injunction and possession. He wanted declaration that suit property i.e. shop in question was purchased by him on 15.10.1987 out of his own funds. The trial Court has granted that declaration and appellate Court has after accepting Exh. 104 reversed it. The contention that Exh. 104 is the document of partition and as it is not registered, it cannot be looked into, is misconceived. Similarly, the appellant – plaintiff has not stated as to whether he was paying amount of Rs.600/- as contemplated by said agreement at Exh. 104. The defendants have specifically issued a legal notice in the year 2000 pointing out that he has stopped paying said amount of Rs.600/- per month after death of his father in October 1999. The trial Court has overlooked this aspect of the matter. The burden to show that signature on Exh. 104 was obtained by force was upon the appellant – plaintiff. He has failed to discharge it. Another argument before this Court is, burden was upon the defendants to show that suit property was purchased from joint family funds. The contention in present facts is misconceived. The Courts have 3 found that a joint family exists. The agreement at Exh. 104 is also found to be established. In the circumstances, burden was upon the plaintiff to show that he purchased the shop out of his own funds. Issue No.1 was accordingly framed by the trial Court. I, therefore, do not find any substantial question of law arising in this Second Appeal. It is dismissed. No order as to costs. JUDGE *GS.