KESARBAI Vs. NARAYAN

JUDGEMENT

(1.) THIS is second appeal under Section 100, Civil Procedure Code. The following substantial questions of law were formulate by order dated 5-8-83 at the time of admission of this appeal. 1. Whether the finding arrived at by the First Appellate Court that there had been no previous oral partition between the parties is contrary to the evidence produced in the case ?

(2.) WHETHER the First Appellate Court erred in law in finding that the property described in para 1 of the plaint, was the Joint Family Properly ? The facts relevant for decision of the questions referred to above are that plaintiff Narayan and defendant Hajari were real brothers. They had Khata numbers 139 and 141 in village Udankhedi. The lands included in these two khatas were joint family properly of both the brothers. Defendant Hajari was the elder brother. He acquired 1. 411 hectares of land consisting of five khatas numbers as described in para 1 of the plaint. There is concurrent finding of the Trial Court and the First Appellate Court that the land described in para 1 of the plaint which are the lands in dispute in the present case were acquired out of the income of the ancestral property. Defendant Hajari had no separate source of income. Therefore, both the Courts have rightly held that the suit lands were acquired out of the joint family nucleus. According to Mulla's Hindu Law 16th Edn. page 249, properly acquired out of income of ancestral property is also ancestral property. It has been held by this Court in Ramkrishna Vs. Vithalrao (1978 MPLJ 500) that,