JUDGMENT
Imam, C.J.
1. This is an appeal by the plaintiffs against the decision of the Additional Subordinate Judge, 4th Court, Gaya, whereby he decreed in part the plaintiffs’ suit for partition. He held that the properties standing in the name of defendant 7, Musammat Kausala Kuer, and properties standing in the name of defendant 1, Ujagir Singh, were not properties which could be the subject of partition as these properties belonged to Kausala Kuer and Ujagir Singh, respectively. A cross-objection has also been filed against the decision of the Subordinate Judge decreeing in part the plaintiffs’ suit for partition. The cross-objection, however, was not pressed before us by Mr. De, appearing for the respondents in the appeal. So far as the appeal by the plaintiffs is concerned, it is confined only with respect to the decision of the Subordinate Judge concerning the properties standing in the name of Musammat, Kausala Kuer, defendant 7 and Ujagir Singh, defendant 1. There was one other matter argued, namely, as to whether the order of the Subordinate Judge allowing maintenance to the extent of one-fourth share to defendant 7 was permissible and as to whether the same could be made a charge on the joint family properties.
2. One Ramanugrah Singh had four sons, Gobardhan Singh, Bhuletan Singh, Karu Singh and Sital Singh. The plaintiffs are Karu Singh along with his son plaintiff 2. Defendant 3 is the son of Bhuletan Singh and defendant 5 is the son of defendant 3. Gobardhan Singh had two sons, defendant 1 and defendant 2. The son of defendant 1 is defendant 4 and the son of defendant 2 is defendant 6. Sital singh was married to Musammat Kausala Kuer, and within three to four years of his marriage he died issue-less leaving behind Kaupala Kuer a widow. Kausala Kuer is defendant 7.
3. So far as the properties standing in the name of Musammat Kausala Kuer, defendant 7 is concerned, that has been dealt with by the Sub-ordinate Judge under issue no. 4. These properties consist of 3 annas 4 pies share in village Shahbazpur, mentioned in Schedule A of the plaint and Khata No. 6 in Schedule B of the plaint. Khata No. 6 of Schedule B of the plaint was purchased by a sale deed dated 23-11-1937, by Kausala Kuer, and the sale deed is exhibit A. The 3 annas 4 pies milkiat share in village Shahbazpur was purchased by her on 2-9-1932. The sale deed is
exhibit B. Under this sale deed some ‘jagir’ lands were also conveyed. These ‘jagir’ lands were sold by Kausala Kuer.
The question now is as to whether the plaintifis have established that the properties covered by exhibits A and B were purchased by the joint family in the name of Kausala Kuer or that the properties under these documents were purchased by Kausala Kuer in her own right and that the joint family had nothing to do with the purchased properties. The plaintiff 1 himself admitted that the father of Kausaia Kuer had properties and that Kaupala Kuer was his only child. According to the defendant’s witness 9, uncle of Kausala Kuer, Kausala Kuer’s father was possessed of sufficient means and that Kausala Kuer had been given money after her marriage and that out of that money some ‘Kasht’ lands and ‘milkiat’ property were purchased. Kausala Kuer had been married to Sital Singh only a few years before she became a widow.
There seems to be no adequate reason as to why joint, family property would be purchased in the name of Kausala Kuer. On the other hand, her father may well have endeavoured to mitigate his only child’s grief at her husband’s death by purchasing properties for her. There seems to be nothing improbable in this. On the other hand, it does seem somewhat improbable that the joint family of the plaintiffs would purchase properties in the name of the widow of Sital Singh. Furthermore, if Kausala Kuer’s name was merely used and the real purchaser of the, properties was the joint family, one would expect that the sale deeds in question would be in the custody of the joint family.
It is true that the original sale deed, so far as exhibit B is concerned, has not been produced, but there can be no question that the original sale deed exhibit A has been produced by defendant 7, Kausala Kuer. So far as exhibit B is concerned, it was said that it had been lost and a certified copy had been filed as exhibit B. What is to be remembered is that at any rate exhibit A was produced from the custody of defendant 7 and there can be no doubt that exhibit A is the original document. The Subordinate Judge was justified, in my opinion, in regarding this circumstance as strongly corroborating the case of defendant 7 that the purchase by exhibits A and B of the properties was made by her in her own right and that the family of her husband had nothing to do with it. It is admitted by the plaintiffs that in fact Kausala Kuer, defendant 1, is in possession of these properties, but the ex-planation offered by the plaintiffs is that that was by way of maintenance. The explanation offered by the plaintiffs is unacceptable to me.
Exhibit F-I(4) is a revenue chalan showing that revenue of tauzi No. 1394 was paid by Kausala Kuer. The cross-examination of the plaintiff clearly reveals that the financial position of the joint family was none too good and it is not the case of the plaintiffs that the money for the purchase of these properties was advanced by mention that a certain sum of money is left with Kausala Kuer for payment to Ramanugrah Singh. It is difficult to understand how there could be mention of such a thing if the purchase was really on behalf of the joint family.
Furthermore, although there is not evidence which is binding upon the plaintiff it is a piece of evidence which lends corroboration to the case of Kausala Kuer, and that is exhibit C, a. judgment in a partition suit where it was held” that the properties covered by exhibit A were the self-
acquired properties of Kausala Kuer. I have looked into the evidence from other points of view and I cannot find a single justifying circumstance to support the contention raised on behalf of the appellants that the properties standing in the name of Kausala Kuer were joint family properties. In my opinion the Subordinate Judge quite rightly excluded these properties from partition and I fully endorse the view which he took that these properties were the properties of Kausala Kuer and not of the joint family.
4. So far as the properties standing in the name of defendant 1 are concerned, I think it is quite clear that it is for the plaintiffs to prove that these properties were purchased for the joint family in the name of defendant 1. It would not be a correct proposition of law to state that because defendant 1 was a member of a joint family, the properties purchased in his name must be presumed to be properties of the joint family. It was for the plaintiffs to prove that there was nucleus of joint family property and that that nucleus was such as did or might have contributed to the property which it was sought to prove as belonging to the joint family.
In the case of — ‘Appalaswami v. Suryanarayanamurti’, AIR 1947 PC 189 (A), the Judicial Committee of the Privy Council held that proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
In the case of — ‘Vythianatha Iyer v. Vardaraja Iyer’, AIR 1938 Mad 841 (B), it was held that the mere existence of nucleus of ancestral property will not by itself raise a presumption that the subsequently acquired properties of a member are joint family properties and hence will not shift the burden of proving that the properties are separate properties on the persons alleging it to be so. To shift this burden on him, it must be proved that the nucleus was of such a character as. taking into consideration the surrounding circumstances, could have led to the subsequent acquisitions with its help. The presumption is against blending and it is only natural for a person to keep his self-acquired properties separate from the joint family property, meeting the expenses of the joint family from the joint family property. That being so. the mere failure of a member to keep separate accounts of his earning will not raise a presumption in favour of blending. The leading judgment was delivered by no less a person than Madhavan Nair J.
In the case of — ‘Venkatramavya v. Seshamma’, AIR 1937 Mad 538 (C), it was held that a party alleging that property held by an individual member of a joint family is family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired. It is only after this is shown that the onus shifts to the party alleging self-acauisition to affirmatively make out that the property was acquired without any aid from the family estate. The leading judgment was delivered by no less a person than Varadachariar J.
In the case of — ‘Chanderdeb Lall v. Nandji Lall’, AIR 1950 Pat 33 (D), it was held that
there was no presumption that the family, because it is joint, possesses joint property or any property and, when in a suit for partition a party claims that any. particular item of property held by an individual member is a joint family property, the burden of proving that it is so rests on the party asserting it. He must show that the family was in possession of some property with the aid of which the property in question could have been acquired, and it is only after that is shown that the onus shifts to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.
The plaintiffs in the present case have proved nothing to show that the properties acquired by defendant 1 were acquired from or with the help of joint family fund. On the contrary, the cross-examination of plaintiff 1 would show that his father Ramanugrah Singh was financially heavily embarrassed. He admitted that his father had taken a loan of Rs. 3000/- on a mortgage bond, and again a loan of Rs. 1400/- on another mortgage bond, which could not be paid back by him but had to be redeemed by execution of Ijara deeds and mortgage bonds by the different pattidars. He further admitted that his father had taken a petty loan of Rs. 209/- from one Rangu Kahar for which he executed a relian bond. The condition of the family was such that they could not even pay the rent of 3 bighas of kasht land and it had to be sold in execution of decree. He further admitted that after the execution of the ‘Ijaras’ only the properties standing in the names of defendants 1 and 7 were left as joint family property.
The Subordinate Judge found that these facts clearly showed that the condition of the joint family was not such as to enable it to invest heavy amounts in purchasing kasht and milkiats in the names of defendants 1 and 7. The Subordinate Judge accordingly held that the plaintiffs had totally failed to prove that the purchase of the properties in the name of defendant 1 was purchased on behalf of the joint family and from joint family fund. With this view I entirely agree as at no time had the plaintiffs discharged the onus which was upon them, namely, to prove that the properties standing in the name of defendant 1 were joint family properties. He had done nothing, in my opinion, to discharge the onus so as to shift the onus on to defendant 1 to prove that the properties standing in his name were his self-acquisition.
5. On the question of maintenance, so far as defendant 7 is concerned it cannot be denied that as the widow of Sital Singh she is entitled to maintenance. Mr. Goraknath Singh, however, suggested that in view of the fact that she has her own properties the Subordinate Judge should not have directed that there would be a charge on the one-fourth share of the joint family properties for her maintenance and that the partition would be made subject to this charge. In my opinion, in the present suit for partition there was no occasion for the Subordinate Judge to have given such a finding and to that extent his finding must be set aside. It is to be noticed that in the decree of the Subordinate Judge there is no mention of this.
6. In my opinion the appeal fails and must be dismissed with costs. As the cross-objection is not pressed, it is dismissed without costs.
Narayan, J.
7. I agree.