Dixit, J. - (1.)THESE two appeals under S. 23 of the High Court Act are directed against a decision of our learned brother Mehta J., whereby he modified the judgment and decree of the Court of District Judge, Ratlam, in a suit for partition of joint family property.
(2.)THE suit was instituted by Rajmal s/o Khemchand against his brother Mishrimal, his mother Sudibai and the purchasers of a house from Mishrimal which the plaintiff alleged to be a joint family property. Plaintiff claimed the partition of his one -third share in the house sold by Mishrimal and in other house property belonging to the joint family. The District Judge of Ratlam rejected the plaintiff's claim for one -third share in the house sold by Mishrimal to the purchasers Babulal and Rajmal. He however, gave to the plaintiff a decree for partition of one -third share in the other house property belonging to the joint family. The plaintiff then appealed to the High Court of the former Ratlam State. At the time of the establishment of this Court, the appeal was pending in Ratlam High Court and consequently it was transferred to this Court.
The learned Single Judge of this Court who heard the appeal came to the conclusion that the house sold by Mishrimal to the purchasers was a part of the joint family property and the plaintiff was entitled to one -third share in that property also. Accordingly he modified the judgment and decree of the Court of District Judge, Ratlam. Both the plaintiff Rajmal and the defendant Mishrimal have now appealed against the decision of the learned Single Judge. Mishrimal's claim in the appeal is that the house property sold by him to Jitmal and Rajmal was his self -acquired property. The plaintiff Rajmal's appeal is for being given costs of the trial Court and of the appellate Court.
In this appeal there is no dispute as to the extent of the share of the parties in the joint family property or as to the property other than the one sold by Mishrimal s/o Khemchand and known as "Gugliawala house" being joint family property. The controversy centres round the question whether the "Gugliawala house" was the separate property of the appellant Mishrimal or a part of the assets of the joint family. This question is no doubt a question of fact, but Mr. Chitale learned Counsel for the appellant Mishrimal has with considerable force argued that in coming to the conclusion that this house was a part of the joint family property, the learned Single Judge has taken a mistaken view both of the burden of proof and the evidence on record.
The general principle as regards burden of proof is now well -settled. As pointed out by the Privy Council in - - 'Appalaswami v. Suryanara yanamurti', AIR 1947 PC 189 (A) (page 192).

proof of 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 anyone 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.

(3.)THE point to be decided is, therefore, whether the respondent Rajmal son of Khemchand has been able to show that there was a nucleus of joint family property or funds sufficient for the acquisition of the disputed property. The plaintiff's case was that when his father Khemchand died on 26 -1 -1930, he left two houses and a sum of Rs. 500/ - due on a hundi from one Gopalji Fatechand; that he left no other property; that a few months after Khemchand's death, Mishrimal as manager of the joint family instituted Civil Suit No. 252 of 1930 in the Court of Sub -Judge, Ratlam against Kaluram and others for pre -emption of a piece of land together with a dilapidated structure standing thereon, i.e., the land on which the house in question has been now built; that in this suit a decree for pre -emption in respect of the land for Rs. 311/ - was passed; and this amount was paid by Mishrimal out of the funds of the joint family in deposit with Gopalji Fatechand and that later on when Mishrimal put up a house on this land the plaintiff also contributed to the cost of construction.
The learned Single Judge has held that it was out of the sum due from Gopalji Fatechand that the property in dispute was acquired. If that finding stands, the appellant Mishrimal's case must fail. But it appears to me that the finding is contrary to the evidence on record. The evidence of Fatechand is to the effect that the sum of Rs. 500/ - which had been deposited with Gopalji Fatechand by Khemchand was withdrawn by Khemchand himself nearly a year and a half before the house in dispute was preempted. Clearly, therefore, this amount could not have been used by Mishrilal several years after for the purchase of the land on which the house in dispute now stands.

Mr. Sanghi learned Counsel for the respondent did not contest the fact that the evidence on record showed that the sum alleged to have been deposited with Gopalji Fatechand was withdrawn by Khemchand long before the suit for pre -emption was filed. He, however, contended that from the evidence which the respondent Rajmal was allowed to produce in this Court, it was clear that Khemchand had to recover on a Hundi an amount of Rs. 700/ - from Rakhabdas Chhogalal; that this amount was collected by Mishrimal about the time when the decree for pre -emption was passed; and that it was with the aid of this fund that the pre -empted land was purchased. On this point the evidence of Mishrimal is that the amount which was deposited by his father Khemchand with Rakhabdas Chhogalal really belonged to Gulab -bai, a sister of the witness and that he collected this amount at the suggestion of Gulabbai in his capacity as her Mukhtyar -Am. Gulabbai also deposed that after her husband's death, her father Khemchand used to invest moneys on her behalf in Hundis and that Mishrimal was her Mukhtyar -Am.

On behalf of the appellant Mishrimal, Mr. Chitale objected that this evidence must be excluded from consideration as it was taken contrary to the direction dated 8 -6 -1948 of the Rat -lam High Court in the appeal from the decree of the District Judge. In order to appreciate this objection it is necessary to state that in the appeal filed by the plaintiff Rajmal in the High Court of the former Ratlam State, an order was passed on 8 -6 -1948 by the Chief Justice of Ratlam High Court directing the trial Court to examine as Court witnesses the persons concerned in connection with the plea of Mishrimal that the amount of Rs. 311/ - which he paid for preempting the property was obtained by him from Keshrimal and Bherulal who were indebted to the firm of Harnath Surajmal, where Mishrimal was employed. The Ratlam High Court also gave leave to the plaintiff Rajmal to produce documentary evidence to support his plea that Mishrimal actually received the amount due on a Hundi from Gopalji Fatechand.

When the case went back to the District Judge, Ratlam, no witness was examined, because, of the witnesses named by the parties many resided outside the jurisdiction of the Court and those who were served did not appear. The learned District Judge accordingly made a report to this Court. Thereupon the parties prayed to this Court that the evidence of the witnesses be recorded here and by this Court. This prayer was granted. Accordingly the plaintiff Rajmal availed himself of this opportunity and tendered in evidence Punamchand to prove the fact that about the time when the decree for pre -emption was passed Mishrimal collected Rs. 700/ - due on a Hundi from the firm of Rakhabdas Chhogalal and that this amount had been deposited by Khemchand the father of the plaintiff with Rakhabdas Chhogalal.

The objection of Mr. Chitale is that the Ratlam High Court was not Justified in giving an opportunity to the parties to adduce additional evidence when the conditions for the application of O. 41, R. 27 did not exist, and that in any case the plaintiff could not lead any additional evidence to prove the collection of any amount by Mishrimal from the firm of Rakhabdas Chhogalal, when the Ratlam High Court had given him opportunity to produce additional documentary evidence only for proving that Mishrimal received some amount due on a Hundi from Gopalji Fatechand. On the authority of the decision of the Supreme Court in - - 'Arjan Singh v. Kartarsingh', : AIR 1951 SC 193 (B), Mr. Chitale contended that the additional evidence recorded contrary to the principles governing the reception of such evidence under O. 41, R. 27 and contrary to the express direction of the Ratlam High Court must be ignored. This objection is, in my view, well -founded.

It is not clear from the order dated 8 -6 -1948 of the Ratlam High Court, how that appellate Court was not able to pronounce judgment on the material before it without calling upon the parties to produce additional evidence to support their pleas about the source from which the amount of Rs. 311/ - for pre -empting the land was obtained by them. It appears to me that the Ratlam High Court passed the order with regard to reception of additional evidence before examination of the evidence on record and before coming to a decision that the evidence as it stood lacked in some particulars which required to be filled up so as to enable the appellate Court to pronounce its judgment. The plaintiff Rajmal could not also bring on record additional evidence to establish a new story when he was permitted to confine his additional evidence only to the fact of the collection by Mishrimal of an amount due under a Hundi from Gopalji Fatechand.

In the case cited by Mr. Chitale the Supreme Court has clearly laid down that if additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record must be ignored and the case decided as if it is non -existent, I think, the rule laid down by the Supreme Court applies to the present case and the additional evidence which the parties produced must be discarded from consideration. If that evidence is rejected there is nothing whatever to suggest that any joint family fund formed the nucleus for the acquisition of the land on which the house in question stands. Even if the evidence is looked into as explaining that about the time of the passing of the pre -emption decree Mishrimal obtained Rs. 700/ - from Rakhabdas Chhogalal, that evidence, in my opinion, falls far short of establishing that the money which was deposited by Khemchand with Rakhabdas Chhogalal was a part of the joint family assets, and was in addition to the amount he had deposited with Gopalji Fatechand, or, as the learned Counsel for the plaintiff Rajmal suggested, that the amount which Khemchand had withdrawn from Gopalji Fatechand was deposited by him with Rakhabdas Chhogalal.

Having regard to the fact that the plaintiff Rajmal had at several places in his deposition made a categorical statement that Khemchand left only two houses and the amount due on a Hundi from Gopalji Fatechand and that it was out of this amount due from Gopalji Fatechand that Mishrimal paid the requisite amount for pre -empting the land, as also to the statement of Sudibai that she herself obtained money from Fattu Porwad and gave to Mishrimal for preempting the property, and regard being had to the evidence of Gulabbai that her father Khemchand used to invest her moneys in Hundis on his behalf and in his own name, I am unable to accept the story of the plaintiff, which is now being put forward, that it was with the aid of the money realised from Rakhabdas Chhogalal that Mishrimal paid the requisite amount for pre -empting the land.

The statement of Punamchand of the firm of Rakhabdas Chhogalal is that Rajmal himself had approached him about an year and a half before the date of his deposition for making a search of certain documents in his possession. This shows that Rajmal was aware of certain transactions between the firm Rakhabdas Chhogalal and Khemchand. If, therefore, Rajmal had really believed that the moneys deposited by Khemchand with Rakhabdas Chhogalal belonged to the joint family and that it was out of this amount that Mishrimal paid Rs. 311/ - for purchasing the land in the pre -emption suit, then it is improbable that Rajmal would not have, taken this plea at the very outset. Rajmal has given no explanation whatsoever as to why it was not possible for him to say at the very beginning that the amount in deposit with Rakhabdas Chhogalal was a part of the joint family assets and that it provided a nucleus for purchasing the pre -empted property. In the above circumstances the conclusion that the plaintiff Rajmal has not been truthful about the moneys obtained from Gopalji Fatechand or Rakhabdas Chhogalal forming the nucleus for the purchase of the property is irresistible.

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