Pal, J.:— This appeal is by the Plaintiffs in a suit for partition of homestead land in the town of Dacca claimed to be the joint land of the parties.

2. The following genealogical table will show the relationship of the parties.

3. The disputed land was acquired in 1893 by a kobala standing in the name of the third brother Jamini Kanta for Rs. 336.

4. The case of the Plaintiffs is that Chandra Kanta, father of the Plaintiffs Nos. 1 to 3, was a pleader at Lakshmipur in the District of Noakhali, that Nishikanta, Defendant No. 7, was a postmaster, that Jamini Kanta, father of Defendants Nos. 1 to 6, was in the service of the Collectorate at Dacca, that the youngest brother Chintaharan, father of the Plaintiffs Nos. 4 to 6, was still young and was a student, that in this state of affairs the land in question was acquired with the joint money of the four brothers for their joint benefit, but as the father of Defendants Nos. 1 to 6 alone was at Dacca, the property was purchased in his name alone, that though the property was thus purchased in one name it was jointly enjoyed and possessed by all the four brothers till their respective deaths and thereafter by their heirs, and that the family continued to be joint in every respect both in estate and mess till 1922 when Jamini separated from the rest.

5. The Defendant No. 7 filed a written statement practically supporting the Plaintiffs.

6. Defendants Nos. 1 to 6 are the real contesting parties and their defence is that the property was a self-acquisition of their father Jamini Kanta. Paragraphs 3, 6, 12 to 16 of their written statement practically completely set out their case.

7. The learned Subordinate Judge who heard this suit decreed the Plaintiffs' claim and arrived at the following findings:—

(1) The parties have failed to prove beyond the shadow of doubt the source of money with which the disputed property was purchased.

(2) At the time of the purchase of the suit land Jamini was living in a mess at Dacca, and both Amrita, Plaintiff No. 1, and Chintaharan, the father of Plaintiffs Nos. 4 to 6, who were both students at the time were living with Jamini in the same mess while the father of Plaintiffs Nos. 1 to 3 was then a pleader in the District of Noakhali and the Defendant No. 7, Nishi Babu, was employed in the Postal Department and Jamini was employed in the office of the Collector of Dacca on a pay of Rs. 15 or 20 per month;

(3) The parties had at the time of the acquisition of the suit land some landed properties and a joint family dwelling-house at village Madhyapara and the income from those landed properties was spent for the worship of the joint idol of the parties at Madhyapara;

(4) Both before and after the purchase of the disputed land the brothers used to send money to Jamini at Dacca and Chandra Kanta, the father of Plaintiffs Nos. 1 to 3, used to send Rs. 15 to Jamini regularly every month;

(5) There is nothing satisfactory to show that the disputed land was acquired by Jamini alone with his own money;

(6) After the acquisition of the property all the four branches of the family treated the property as their own and the suit land was thrown into the common stock of the family (the learned Subordinate Judge relied on Ex. 9, C.S Khatian of 1909, Ex. 6, tenants' ledger in the khas mahal, Ex. 8 of 1921, application by Jamini for Collector's permission to build on the land, Ex. 7, the mutation register and Ex. K, Municipal assessment register).

(7) The suit land was acquired in the interest of Jamini Kanta Sen and his three brothers as alleged in the plaint and the land belonged to all of them and has since devolved upon the parties to the suit. The Plaintiffs and Defendant No. 2 did not erect their respective structures, with the permission of Jamini or his sons nor under the conditions stated in paragraph 12 of the written statement of Defendants Nos. 1 to 6. The possession of the Plaintiffs and the Defendant No. 2 is not a permissive one.

8. On appeal by the Defendants, the Court of Appeal below reversed the judgment and decree of the Court of first instance and dismissed the Plaintiffs' suit.

9. The learned Additional District Judge who heard the appeal in the Court of the appeal below enunciated the point for determination in the appeal to be

“whether the disputed property was the joint family property of the parties or the self-acquired property of Jamini, the father of Defendants Nos. 1 to 6.”

10. He affirmed the findings arrived at by the Court of first instance, that the parties were members of a joint Hindu family, that they lived jointly till recently and that at the date of the acquisition of the property in question there already was a joint property, however small. On these findings he formulated the points for his consideration thus:—

(1) Whether there was any nucleus of joint fund sufficient for the acquisition of this property;

(2) Whether the income of the joint property was sufficient for the acquisition of the disputed property;

(3) Whether the incomes of the parties were blended into the joint fund; and

(4) the nature of the possession of the property by the parties.

11. With regard to the first point he found that there was never any ejmali fund created by contribution from all the co-sharers and that there was no nucleus of any joint fund sufficient for acquisition of the disputed property.

12. As regards the second point, he found that there was some joint property yielding some income but that certain idols had to be worshipped daily and this exhausted that income. In conclusion he found that it could not be proved that the income from the joint property was such as to leave a surplus after the performance of the daily worship of the family idols sufficient for the purpose of the acquisition of the disputed property.

13. As regards the third point the learned Additional District Judge found that no doubt there was some evidence on record that the co-sharers remitted money to Jamini occasionally, but that the evidence of such remittances covered a period of 1915-1918 only, that is, long after the purchase of the disputed property. Further, he took the view that these money orders were sent for the purpose of helping the needy people of the family. He concluded his discussion of the point thus:

“So considering the evidence and probabilities, I find that it could not be proved that the income of the co-sharers was blended with the joint family funds or that the purchase money came from the joint family funds.”

14. In this connection he found that at least a part of the purchase money was borrowed by Jamini and that Jamini was in a position to procure the purchase money of Rs. 335 at that time.

15. Coming to the fourth point, the learned Additional District Judge practically confined himself only to the period commencing from 1922 when construction of buildings on the disputed land was started. Admittedly the disputed land is in the possession of the Plaintiffs as also of Defendant No. 7 and they are possessing the land by constructing buildings thereon with their own money. The case of the Defendants Nos. 1 to 6 was that all these acts of possession were done with the permission of Jamini while he was alive and after his death, with the permission of the Defendants themselves. The learned Additional District Judge accepted the case of the Defendants, observing

“this at first glance seems rather an improbable story but on a consideration of the evidence and circumstances and also the probabilities of the case, I find that it is not improbable.”

16. Mr. Sen appearing for the Appellants contends that the Court of Appeal below went wrong in his points 1 and 2 in so far as he required the Defendants to establish the sufficiency of the nucleus of joint funds for the acquisition of the property. His contention is that as soon as it is proved that the family was joint at the date of the acquisition of the property and was possessed of a joint fund, the presumption will be that the acquired property is a joint property and it will be for the Defendants claiming the property to be the self-acquisition of Jamini to prove that it was acquired by Jamini with his separate fund.

17. We are unable to accept this contention of Mr. Sen. The law on the point is summarised by Sir Dinshaw Mulla in his treatise on Hindu law thus:

“When a nucleus of joint family property is proved or admitted, a presumption arises that the whole of the property of the joint family is joint including any acquisition by a member of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. Such being the presumption, if any member of the family claims any portion of the property as his separate property the burden lies upon him to show that it was acquired by him in circumstances which would constitute it his separate property. He may do so by showing that the income of the existing ancestral property was employed in other ways.”— (“Principles of Hindu Law,” Ninth edition, pp. 255-056).

18. Similarly, Mayne summarises the law thus:

“Where the possession of a nucleus of joint family property is either admitted or proved, an acquisition made by a member of the family is presumed to be joint family property. But this is subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. And it is only after the possession of an adequate nucleus is shown, the onus shifts on to the person who claims the property as self-acquisition affirmatively to make out that the property was acquired without any aid from the family estate.” (Tenth edition, pp. 373-374).

19. In Babubhai Girdharlal v. Ujamlal Hargovandas(1), (Beaumont, C.J and N.J Wadia, J.).

20. Beaumont, C.J, observed as follows:—

“In my opinion the nucleus of joint family property necessary to give rise to the presumption must be family property from which the purchase money for the property in suit might have been derived wholly, or at any rate in considerable part. It is not in my opinion enough to prove ….. that the mere possession of joint family at the date of the purchase of the property in suit is enough to raise the presumption that the property in suit is itself joint family property. It would, I think, be unfortunate if the Court was bound to presume that something had occurred, which of the evidence could not possibly have occurred, and if it be shown that the only joint family property existing at the date of the acquisition of the property in suit was of such a nature that it could not possibly have been the means off acquiring the property in suit, then in my opinion the presumption that the property in suit is joint family property does not arise.”

21. In Sankaranarayan Mudaliar v. Tangaratna Mudaliar(2), Ananta Krishna Ayyar, J., after discussing the various decided cases on the point, summed up as follows:

“In some cases, it is mentioned that mere possession of joint family property by a joint Hindu family would raise a presumption of law that all the property in the possession of a co-parcener is joint family property. I should like to observe that the above position would be strictly correct only if the joint family property possessed] by the joint Hindu family was such as would have enabled and led to the acquisition of the other property. If having regard to the nature of the income from the admitted joint family property or otherwise, the same could not have possibly helped in or led to the acquisition of subsequent property, then there is no presumption that the subsequent property is joint family property. Either the presumption should be raised only when the property possessed (by the joint family was yielding such income as could have enabled the acquisitions of the subsequently acquired property or the presumption if raised from, the mere position of the joint family property should be taken to have been counterbalanced by proof that such property yielded no income and could not have otherwise helped in or led to the acquisition of other property.”

22. In C.V Vythianatha Iyer v. C.V Varadaraja Iyer(3), (Madhavan Nair and King, JJ.), it was held that the mere existence of a nucleus of ancestral property will not by itself raise a presumption that the subsequently acquired properties of a member are joint family properties. The nucleus must be shown to be of such a character as, taking into consideration the surrounding circumstances, would have led to the subsequent acquisition with its help. The ancestral nucleus must be shown to be of such substantial value that it might well have contributed to the acquisition of the property in question.

23. In Venkataramayya v. Seshamma(4), Varadachariar and King, JJ., took the same view.

24. I respectfully agree with the views expressed in cases referred to above and in my judgment, in order to raise the presumption that the acquired property is a joint family property, not only should the nucleus be established to be sufficient for the acquisition of the property but it should also be established that it was available to the acquirer.

25. The presumption considered above is not any technical rule of Hindu law. It is merely a rule of procedure affecting the duty of proof and has its basis in the experience and observation of the course of the usages and habits of Hindu society. Presumption is only an inference as to the existence of one fact from the existence of some other fact founded upon a previous experience of their connection.

26. It may be pointed out in this connection that if any rule of procedure in this respect can be said to be indicated by the texts dealing with self-acquisitions, it is perfectly consistent with the views taken by the learned Judges whose judgments have been referred to above.

27. Chapter VI of the Dayabhaga, while dealing with property liable or not liable to partition, deals with self-acquisitions, and on the authority of Manu and Vishnu declares that to be not liable to partition which is gained without expenditure of patrimony.

(Verse 3)

(Verse 3)

“What a brother has acquired by his labour, without using the patrimony, he need not give up without his assent, for it was gained by his own exertion.” (Manu, IX 208 and Vishnu, XVIII, 42).

28. Consistently with his theory that one can become owner only on the strength of the own exertion.

29. Jimutabahan says:

“Since the patrimony is not used there is no exertion on the part of the others, through the means of the common property: and, since it was obtained by the man's own labour there is no physical effort on the part of the rest; it is, therefore, the separate property of the acquirer alone” —

30. After much discussion Jimutabahan ultimately declares that property alone to be liable to partition which is acquired by means of joint stock used for the express purpose of acquisition and no other—

(Verse 51)

31. In conclusion of the section he says—

“Consequently it was an inaccurate assertion that another unseparated brother participates on the mere ground of the acquisition being made by an unseparated brother.”

32. In my judgment the formulation of points 1 and 2 by the learned Additional District Judge was not erroneous and his judgment is not affected by any error in this respect.

33. As regards point No. 4 Mr. Sen contends that the judgment of the learned Additional District Judge is vitiated by the fact that it fails to take into consideration the several; material documents relied on by the Court of first instance and that it ignored altogether the treatment of the property by the parties concerned during the period from the date of acquisition to 1922 when the construction of buildings commenced. Mr. Sen contends that this omission has vitiated the entire judgment inasmuch as the conduct of the parties during this period as found by the Court of first instance would have an important bearing both on the question whether the original acquisition was for the family benefit and whether the story of permissive user since 1922 is unacceptable. Mr. Sen further contends that the treatment of the property during this period would have an important bearing on the question whether the acquirer threw the property into the joint stock.

34. The judgments of both the Courts below were placed before us and after carefully considering them we are of opinion that this contention of Mr. Sen must prevail. The Court of first instance took into consideration the documentary evidence showing that in the khas mahal all the members of the family were recorded as joint owners, that at the Cadastral Survey also the property was recorded as joint property with specification of the shares of the members, that Jamini was alive over twelve years after these records and never raised any objection to these entries. On the other hand, nearly 12 years after the publication of the C.S Khatian he in his application to the Collector for permission to build on the land referred to the C.S Khatian and even during his life-time acts of possession by construction of separate buildings on the land by the Plaintiffs' party commenced.

35. Dr. Sen Gupta, appearing for the Respondents, contends that all the above records and acts can be explained by the evidence on the record. That may be so. But the difficulty is that the final Court of fact did not at all consider this portion of the case, and we sitting on second appeal do not feel inclined to enter into the evidence in this case. In our judgment this contention of Mr. Sen appearing for the Appellants must be given effect to.

36. The result is that this appeal is allowed. The judgment and decree of the Court of Appeal below are set aside and the case is remitted to it for the re-hearing of the appeal on the evidence already on record. Costs of this appeal as also further costs will abide the result.

Akram, J.:— I agree.

C.C