T.S.Misra, J. - (1.) MAKHAN had four sons Gokul, Ram Dayal, Behari and Thakuri. They are all now dead. The Petitioners 1, 2 and 3 are sons of Thakuri, whereas opposite parties 5, 6 and 9 are sons of Gokul and opposite party No. 10 is son of Behari. The opposite parties 7 and 8 are the sons of Munshi (now deceased), who was the son of Gokul. The dispute relates to plots Nos. 170/1, 172/1 and 173/1. These plots form part of Khata No. 229. It is not in dispute that the lease of these plots in question was executed in favour of Thakuri deceased. In an action for correction of papers commenced by opposite parties 5, 7, 8 and 10 against Thakuri, it was claimed that plots Nos. 170/1, 172/1 and 173/1 were the joint family property, hence they were cotenants along with Thakuri.
(2.) THE claim was resisted by Thakuri contending, inter alia that he had acquired a Patta of the said plots for his own benefit and not for the benefit of the family, that he had the sole and exclusive right, title and interest in those plots, and that the same did not belong to the joint Hindu family nor formed part of the joint family property. The Consolidation Officer did not accept the contention of Thakuri and held that Mitthu, Jai Chand, Tulsi, Nil Kanth, Ram Bharosey and Jeet Bahadur were co -tenants along with Thakuri. He, therefore, ordered for the recording of their names accordingly. Aggrieved by that order Thakuri preferred an appeal before the Settlement Officer (Consolidation) which was allowed and the order passed by the Consolidation Officer was set aside. Mitthu, Jai Chand, Tulsi, Nil Kanth, Ram Bharosey and Jeet Bahadur then preferred a revision before the Deputy Director of Consolidation who disagreeing with the conclusions reached by the Settlement Officer (Consolidation) set aside the order passed by the Settlement Officer (Consolidation) and restored the order passed by the Consolidation Officer. The sons of Thakuri have now impugned the said order of the Deputy Director of Consolidation as also the order of the Consolidation Officer and sought quashing thereof.
(3.) IT was urged on behalf of the Petitioners that in view of the fact that the Patta of the plots in dispute had been acquired in the exclusive name of Thakuri it could not be held that the same was joint family property inasmuch as it was not substantiated by any cogent evidence that the said Patta of the plots in question was secured out of joint family funds. I find force in this contention. It is not disputed that the Patta of the plots in question was obtained in the sole name of Thakuri, nor is it disputed that there had been a partition in the family round about 1945 or 1946. The Patta had been executed in the year 1934. It is a settled principle of Hindu Law that there would be a presumption of jointness of the family, but there can be no presumption that a property standing in the name of a member of the joint Hindu family is also a joint family property. A member of a joint Hindu family may acquire property out of his own earnings and may keep it separate from the family. If he blends it in the joint family property then the self acquired property by the member concerned will become joint family property and will cease to be his exclusive property. Any member of the joint Hindu family may, therefore, while remaining a member of the joint family acquire out of his own earnings property for his own benefit. Where, however, it is established or admitted 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 presumption arises that it was joint property and the burden would then shift to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family. 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. Whether the evidence adduced by a party is sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and extent of the nucleus. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which acquisition could be made (See paragraph 233 Mulla's Hindu Law 12th Edition).;