JUDGMENT
Hari Lal Agrawal, J.
1. This first appeal by the plaintiff arises out of a suit for partition. He claimed half share in the suit properties consisting of both immoveables and moveables which are described in the various items of schedule to the plaint. Items Nos. 1 to 5 of the schedule are all immoveable properties and Items Nos. 6 to 9 are moveables. Except the last item which is cash money amounting to Rs. 30,000/-, the other moveable items consist mainly of silver utensils and the like. The plaintiff in the plaint itself had stated that he had acquired a piece of Basouri land from his own earning in Mouza Nil-kanthpur in the town of Deoghar, by a registered lease deed dated 8-5-1958 and accordingly that was not liable to partition.
The trial court decreed the plaintiff’s suit in part. It did not accept the plaintiff’s claim under Item No. 6 with respect to silver utensils. Item No. 7 which is a silver snake said to be weighing 250 tolas was allowed in part. It also rejected the plaintiff’s claims with respect to the cash amount and that the Nilkanth-pur property was his self-acquired property. The plaintiff has accordingly filed the present appeal.
2. The parties to the suit are Pandas of Deoghar and it is undisputed that the plaintiff, defendant No. 1 and his two sons, namely, defendants Nos. 2 and 3, are descendants of one Maya Ram who had three sons, namely, Mukund Ram (who died earlier), the plaintiff and defendant No. 1. According to the plaintiff’s case, all the three brothers were separate in mess but the ancestral property including the income from clients (yajamans) was joint and they were enjoying the same according to their respective shares. After the death of Mukund Ram, there was a partial partition in the family in respect of the ancestral properties through three Arbitrators appointed by the parties. The Arbitrators partitioned the properties under an award dated 24-3-1958. It was accepted by all the parties. According to the award, whereas the sons of Mukund Ram separated on taking their l/3rd share in the ancestral joint properties along with Yatri Bahis, the remaining 2/3rd share therein was allotted jointly to the plaintiff and defendant No. 1. The award has been produced in the case and marked Ext. 3. It may be mentioned that the Nilkanthpur property did not find place in this award. The plaintiff’s further case is that as he was devoting most of his time in doing worship, the defendants attended to and conducted most of the Yajamans, received the offerings and Dakashina from them and divided the same to the extent of half and half, but from the last 3 years they were not dividing the income. This led to the claim of half share in the cash money of Rs. 30,000/- said to have been accumulated on account of the yajamanika income during the last 3 years with the defendants. With respect to this item of claim it was further alleged by the plaintiff that the amount was left in deposit with defendant No. 1 for construction of a joint house which was not spent as agreed to and, therefore, he wanted return of his half share in the money.
3, In the written statement filed by all the three defendants jointly, they controverted the foregoing allegations of the plaintiff. With respect to the Nilkanthpur property, they stated that it was acquired with the joint family income and, therefore, it was a joint family property liable to partition. They further pleaded in this respect that the plaintiff had no separate income of his own. With respect to the earlier partition, they said that the plaintiff being the oldest surviving brother, cleverly manipulated the affairs of the arbitration proceeding and got the Nilkanthpur property omitted from the list of the joint family properties, but they alleged that nonetheless the said property was in joint possession of the plaintiff and the defendants.
With respect to the collection of the ya.iamanika income, they alleged that it was plaintiff who was allowed to manage the family properties and the yajamanika and it was he who used to give from time to time some amount to them for meeting the household expenditure. In this way they completely refuted the ease of the cash amount of Rs. 30,000/-. They, however, stated that they would have no objection to the partition if the Nilkanthpur property was also partitioned. In this way the defendants did not dispute the plaintiff’s claim over any other items except Items Nos. 6, 7 and 9 and the Nilkanthpur property. As already stated earlier, the trial court decreed the suit in part and also holding thereby against the plaintiff that the Nilkanthpur property was also liable to partition as the plaintiff had failed to prove that it was acquired out of his own personal income. He has accordingly filed the present appeal.
4. Mr. K. P. Verma, who appeared in support of this appeal, pressed the appeal only in respect of two items of properties, namely, (1) the Nilkanthpur property, and (2) the claim for the cash amount of Rs. 30,000/- pertaining to Item No. 9 of the schedule to the plaint. I will first dispose of the second item of the claim, namely, the cash amount of Rs. 30,000/-. The trial court has discussed this item in paragraph 12 of its judgment. The evidence in this regard as adduced by the plaintiff may also be briefly noticed. He examined in all 10 witnesses including himself. Out of them, P. Ws. 1, 2, 3, 5, 6, 7 (son of Mukund Ram) and 9 are all formal witnesses who were examined to prove the earlier partition evidenced by Ext. 3 and the like, and it is therefore, not necessary to discuss their evidence at all. Magni Ram Mishra (P. W. 4), who was a cousin of the parties, after stating the undisputed facts regarding the previous partial partition between the parties, stated one further sentence that the plaintiff acquired separate properties at Nilkanthpur. He does not say a word regarding the cash amount of Rs. 30,000/-, Sadhu Ram Mishra (P. W. 8) is another son of Mukund Ram and stated that the plaintiff and defendant No. 1 made joint collections from their yajamans and his (P. W. 8’s) income from his yajamans was about Rs. 5,000/- annually. He also stated that for the last about 5 years the plaintiff was not getting any share in the income from the yajamans. He, however, admitted in his cross-examination that the plaintiff and defendant No. 1 sat at one place and conducted yajamans, but the money was received by defendant No. 1. The plaintiff himself also made a very criptic statement in his evidence in chief with respect to this part of the claim and simply stated that since 1965, Tula Ram Mishra, i. e., defendant No. 1 did not give him his share in the income of the joint properties and in the yajamanika which was Rs. 10,000/- to Rupees 12,000/- per year. He, however, denied the suggestion thrown to him that the income was only Rs. 2,500/- to Rs. 3,000/-. The defendant No. 1 who examined himself as D. W. 6 denied this part of the plaintiff’s claim. The plaintiff in his deposition did not state a word regarding the case that he made out in the plaint that the said amount of Rs. 30,000/- was left in deposit with defendant No. 1 for construction of a joint family house.
5. From the above evidence it is not possible to hold that the plaintiff has succeeded in establishing his case that a sum of Rs. 30,000/- out of joint family yajamanika Income was in deposit with defendant No. 1. I, therefore, in agreement with the trial court, would reject this claim of the plaintiff.
6. Now remains for consideration as to whether the Nilkanthpur property was the self-acquired property of the plaintiff or it was acquired by him for the joint family. Let us see first the evidence on the record. I have already referred to the one sentence evidence of P. W. 4 on this question while dealing with the plaintiff’s claim for the cash amount. In his cross-examination this witness admitted that at the time the said property was acquired the only source of the income of the family of the plaintiff and the defendants was from yajamanika. P. W. 8 did not speak a word regarding the Nilkanthpur property. The plaintiff himself does not disclose in his evidence as to the source of his separate income. He has satisfied himself only by saying that the lands of Nilkanthpur were his separate properties acquired during the lifetime of his eldest brother Mukund Ram and denied a suggestion in his cross-examination that it was acquired with joint family funds.
7. Now let us see the evidence of the defendants on this score. The defendants have examined six witnesses including defendant No. 1. It further appears that during the pendency of the suit also an attempt at settlement of the dispute between the parties by arbitration was made, but that did not materialise, D. Ws. 1 and 3 are witnesses of this fact, D. W. 2 is a lawyer’s clerk and a formal witness. D. W. 4 Shankar Falahari stated that during the lifetime of Mukund Ram, the eldest brother, also it was the plaintiff who used to look after the affairs of the family as Mukund Ram suffered from fileria and that till recently all the income from the yajamans was received and kept by the plaintiff, which was for the last 2-3 years being divided between the parties. To the same effect is the evidence of Gulab Mohan Jha (P. W. 5). Tula Ram Mishra, defendant No. 1, who examined himself as D. W. 6, stated in his evidence that after the sons of Mukund Ram separated from them, the properties and yajaman-ikas of the parties to the suit were joint and they were separate only in mess, but the income of the family was kept with the plaintiff as he was the Malik, save and except that he used to get about Rs. 2.50 to Rs. 3/- per day from him to meet his daily household expenses until 1375 B. S. since when the plaintiff started dividing the income derived from yajamanika. The defendants also denied the plaintiff’s case that he did go to the temple and was mostly devoting to worship. That is all the evidence on the record.
8. Learned counsel for the appellant contended that the very fact that Nilkanthpur property did not find place in the earlier partition when the same had already been acquired by the plaintiff, was such a coercing factor on which alone this Court should hold that the said properties were the separate properties of the plaintiff appellant. He also referred to the case of Hanso Patak v. Harmandil Patak, (AIR 1934 All 851) to contend that the nature of the income received by the plaintiff even according to the suggested case of the defendants, namely, payments made by the yajamans either by way of charity or by way of remuneration to the plaintiff, was on account of the personal services rendered by the plaintiff and the same could not amount to a family property. He accordingly argued that even assuming, in view of the evidence of the witnesses, that the plaintiff had no independent income of his own save and except the yajamanika income of the nature as said by the witnesses, the very nature of the income cannot be said to be a joint family income as such and, therefore, any acquisition made by the plaintiff even out of the said income must be deemed to he a property acquired out of his own funds and not liable to partition. The facts of the Allahabad cas” were that the grandfather of the plaintiff used to receive income from his work by officiating as a Pandit in the houses of his clients. On his death the plaintiff’s father also carried on the same work. In these circumstances it was held that the income received as amounts paid by people at their discretion either by way of charity or by way of remuneration for personal services rendered, cannot be claimed as of right and, therefore, that did not amount to a family property. It was specifically observed in this case by Sulaiman, C. J. that —
“If the right to receive offerings were connected with any land in the occupation or user of the family or with any temple at which they were officiating, the right might possibly be a family property, or again if there were a service which could be rendered even against the will of others, on whom it is to be imposed, it might be claimed as of right.”
Mukerji, J., who gave his separate judgment, in this connection referred to the case of Ghelabhai Gaurishankar v. Har-gowan Ramji, ((1912) ILR 36 Bom 94) where it was observed that “hereditary priests” maintained by certain castes have a right to force the services on the members of the caste. On the facts of the case before us, the plaintiff has himself claimed for partition of yajamanika books and yajamanika brits. It is also admitted by witnesses examined on behalf of both the parties that during the earlier partition of 1958 hereditary yaja-mans were allotted to the share of the eldest brother. It is well known that when a person visits religious places such as Baidyanath Dham, no other panda except that one who is his hereditary Panda (save in cases where any ancestor of a person had not visited earlier) can render service to him. I find myself in full agreement with the above view and would hold that the hereditary priest, is alone entitled to force his service on the particular person. The case before us, therefore, is clearly covered by the exception indicated by the learned Judges of the Allahabad High Court itself and, therefore, the case relied upon by Mr. Verma instead of supporting him goes against him and on the above view of the law I must hold that the nature of income derived by the family of the plaintiff and the defendants, admittedly the only source of income, was the joint family income of the parties. Admittedly the plaintiff had no other source of income. It well might be that after the said income derived from the yajamans was distributed between the two branches, the amounts in the hands of the respective parties might have partaken the nature of their independent income, but it is not the case of the plaintiff that he acquired the Nilkanthpur property out of the income that he received on such distribution, and looking for evidence, there is absolutely none on this point. It is difficult therefore to hold with the plaintiff that the Nilkanthpur property was acquired out of his own independent income.
9. Coming to the argument of learned counsel that the omission of the said property during the earlier partition should be taken by itself to be a proof of the property not belonging to the joint family, also cannot be accepted. It is no doubt true that when a partition is admitted or proved, the presumption is that all the properties were divided and a person alleging that any family property was still joint has to prove it, and it is equally well true that a Hindu, even if he be joint, may possess a separate property, there is a presumption under the Hindu Law that property purchased or acquired out of the income or with the assistance of the ancestral property is ancestral in nature.
10. In the case of Karoo Singh v, Ujagir Singh (1954 BLJR 352) : (AIR 1954 Pat 524) it was observed by a Bench of this Court that mere proof of the existence of a joint family does not lead to the presumption that the property held by any member of the family is Joint, and the burden rests upon the person asserting that any item of property is joint to establish that there was a nucleus of joint family property and 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. The Division Bench referred to the case of Vythianatha Iyer v. Vardaraja Iyer (AIR 1938 Mad 841) with approval, where it was observed that 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.
I find myself in respectful agreement with the view expressed in the aforesaid Madras decision. In the case before us, on the evidence the only nucleus which has been proved to be in existence is the yajamanika income. Definite evidence of P. W. 4 in this regard is that the plaintiff had no other source of income except the yajamanika income. In view of the above evidence and the position in law just noticed above, it has but got to be held that the Nilkanthpur property in question acquired by the plaintiff, although stands in his own name, was acquired by him out of the nucleus of the joint Hindu family, and at the time when this property was acquired by the plaintiff all the three brothers were joint with him. The branch of Mukund Ram, however, does not lay any claim over this property and, therefore, on the facts obtaining according to the evidence, this property was coming in joint possession of the smaller joint Hindu family consisting of the plaintiff and the defendants. Admittedly the share of each party would be half in this property also.
11. In the result, I do not find any merit in this appeal and would accordingly dismiss the same, but in the circumstances I shall make no order as to costs.
Chaudhary Sia Saran Sinha, J.
12. I agree to the order proposed by my learned brother but would like to make a few observations of my own. The plaintiff claimed the Nilkanthpur property as his separate or self acquired property without stating in the plaint the source from which it was acquired. Out of the various ways in which a separate property can be acquired two of them, as mentioned in Section 230 of the Mulla’s Hindu Law are income from separate property or from separate earnings of a member of the joint family, Undisputedly the parties are pandas of Baidyanath Dham and except Jagmanika plaintiff had no other source of income. The plaintiff having prayed for the partition of the Jagmanika Books and Brit and income therefrom, he has treated the Jagmanika business as the joint family property and in the very nature of this profession when carried on by the members of a joint family, as prevalent at Deoghar, it must be treated as joint family property.
13. No satisfactory evidence is forthcoming from the side of the plaintiff to show the source from which this property was acquired. The plaintiff has not even cared to file the sale deed or examine competent persons regarding the same. He has not also laid evidence about the amount of consideration money for this transaction. The evidence from the side of the defendants about acquisition of this property from the joint family fund consists of the ipse dixit of P. W. 6. In such circumstances the onus will determine the matter.
14. According to the plaintiff (P.W. 10), income of the two brothers from the Jagmanika was Rs. 10000/- to Rs. 12000/-per year. Thus, it is established that the family possessed joint property which from its nature and relative value may have formed the nucleus from which the Nilkanthpur property may have been acquired. It is true that there is no material to show the amount spent over the acquisition of this property but once existence of nucleus is established and no other source of income is disclosed, the presumption may be made that the nucleus was sufficient to enable the property to be acquired. It is true that when in a suit for partition, a party claims that any particular item of the property is joint family property, the burden of proving that it is so rests on the party asserting it but once nucleus of the nature stated above is established or admitted, as in the instant case, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. The plaintiff has signally failed to discharge this onus. The attendant circumstances are also non existent. There is no evidence about the said property being in exclusive pos-session of the plaintiff. A room has been constructed over the property but the plan, if any, sanctioned for the same has not been brought on record by the plaintiff to show that it was sanctioned at his instance. There is also no reliable evidence about the expenses over the construction of this room being met by the plaintiff out of his separate fund. As against this there is satisfactory evidence to show that prior to 2 or 2 1/2 years the plaintiff was the karta of the joint family and used to receive the joint family Jagmanika income. The arbitrators of the earlier partition were solely concerned with the partition of the joint family properties of the three brothers. Being creatures of agreement, it was beyond the competence of the arbitrators to arbitrate about anything which was not the joint family property of the three brothers. They being totally unconcerned with any other property except the joint family properties of all the three brothers, non-mention of this property in the award cannot be a circumstance to support the case of the plaintiff. There is thus absolutely no merit in this appeal which must fail.