Bapna, J. - (1.) THIS is a second appeal by the defendants in a suit for partition.
(2.) THE relationship of the parties will be evident from the following pedigree table: - Jagannath Shiv Pratap Ram Pratap Motilal Ramchandra Lachmilal Harish Chandra Kanhaiyalal Sohanlal Mohan Lal Suraj Kumar Harikishan Dayal Bhawani Shanker Banwarilal Ramakant Kailash Subhash Chandra 2. After the death of Jagannath and Shivpratap, Motilal instituted the present suit on 9th July, 1949, on the allegations that one Pakki Haveli facing north, a nohara facing north, and a dilapidated Haveli facing west, situated at Dausa, and more fully described in the plaint, were the joint family property of the family consisting of the sons of Shiv Pratap, as it had been acquired by joint family funds in the life time of the father and grand-father of the plaintiff, who all lived together, although it was acquired in the name of Shivpratap. It was mentioned that the sale was obtained in the name of Shivpratap because the grand-father was indebted to various persons. It was then alleged that the said property No. 3 was obtained by the defendants Nos. 1, 2, 3, Harish Chandra, Kan-aiya Lal and Sohanlal under a gift from Shivpratap brought about by the said defendants. It was alleged that the said transfer by way of gift was invalid, and the plaintiff was entitled to a sixth share in the said property. The suit was contested on behalf of Harish Chandra, Kanhaiyalal and Sohanlal. It was pleaded that the three house properties originally belonged to Jagannath, but they were sold in execution of a decree against Jagannath and purchased by one Nathulal in 1910 A. D. Thereafter Shivpratap purchased this property from Nathulal in 1914. It was the self-acquired property of Shivpratap, and he had full' power to dispose it of by gift. Haveli facing west was gifted to Harish Chandra by registered deed dated 16th June, 1947, and the other Haveli and Nohra were gifted to Kanhaiyalal and Sohanlal by a registered deed dated 13th August, 1947, and these gifts were valid dispositions of property. The plaintiff alleged the said gifts to be invalid also on the ground that the donor was not in, his proper senses at the time of the alleged gifts. The trial court framed several issues, of which only two are relevant: - 1. Whether on the date, of the purchase of the three house properties in dispute, the father Shivpratap anil the grandfather Jagannath were alive, and the said house properties were purchased by the joint funds of the family in the name of Shivpratap? 2. Whether defendants Nos. 1 and 3 had obtained the gift of the house property from Jagannath while he was on his death bed, and not in his proper senses, and the gift was, therefore, invalid? The trial court held that Shivpratap was in his proper senses, and knew the nature of the transaction when he made the gift. It was, However, held that the plaintiff and the defendants as also their father and grand-father were members of a joint Hindu family, and that the property had been purchased from the joint funds of the family. As a result of these findings the plaintiffs suit for a sixth share in the house property in dispute was decreed, and a commissioner was appointed for partition of the properties by metes and bounds. This judgment was paassed by the Munsif on 13th February, 1951. On appeal, the learned District Judge did not, discuss the evidence as to the acquisition of the property by the joint funds of the family, but he maintained the decree on the ground that Jagannath, his son Shivpratap, and his six grandsons were members of a joint Hindu family till the death of Jagannath, and there was presumption that the family continued to be joint even thereafter unless a separation was proved. He went on to say that where it was admitted that there was a joint Hindu family, and it lived in commen-sality and possessed joint property, the presumption was that all the property of which the members of the family were possessed was joint, and that the defendants had not been able to prove that there Was a separation, and that Shivpratap purchased the property in dispute with his separate income. The defendants Harishchander, Kanhaiyalal and Sohanlal have come in appeal. Motilal died in the meanwhile, and is now represented by his three sons, Mohanlal, Suraj Kumar and Harikishan Dayal. It may be stated at the outset that no other property besides the disputed house property which was purchased in the name of Shiv Pratap has been alleged or proved to be joint. The basis on which the learned District Judge proceeded, that there was a joint Hindu family possessed of some property, which gave rise to a presumption that the other property possessed by the family was joint, does not exist. The plaintiff has not alleged that there was any other property of any of the members of the family which was joint. If that would have been so, it would have also formed the subject-matter of the claim for partition. On behalf of the defendants documents have been produced which show that the two Havelies and the Nohara were sold in execution of a decree held by Nathulal against Jagannath. The sale certificate Ex. D. 2 shows that this sale was made on 3rd November, 1912, for a sum of Rs. 1225/-, the decree being for Rs. 2323/10/- dated 29th October, 1910. Nathulal was auction-purchaser, and he sold the three house properties to Shivpratap for a sum of Rs. 2299/- by document Ex. D. 3, dated 16th March, 1914. It is said on behalf of the defendants that one Pannalal, a creditor of Dukhbhanjan, S/o Rampratap, wanted to attach this property or a portion thereof, whereupon Shivpratap filed an objection. The decree-holder thereupon agreed that the property should be released from attachment. This is document Ex. D 4. Ex. D. 5 is the deed of gift of the dilapidated Haveli made by Shivpratap to Harishchandra on 16th, June, 1947, and the deed of gift by Shivpratap of the other Haveli and Nohra to Kanhaiyalal and Sohanlal is document dated 13th August, 1947. Shivpratap died on 20th August, 1947, while the present suit was instituted on 9th July, 1949. On behalf of the plaintiff 14 witnesses have been produced, of whom 13 purported to say that the three house properties were purchased in the name of Shivpratap from the joint family funds of Jagannath, Shiv Pratap and his sons. None of them have, however, been able to say as to what were the earnings of Jagannath, Shivpratap or Motilal. The other sons of Shivpratap were minors at the time, and on the admitted case of the plaintiff were unable to earn anything. There is no proof that there was any other property at the time which yielded any income to the family. This was, therefore, a case where there was a joint Hindu family. There houses were purchased by Shivpratap in his own name. Motilal says that he had become a Vaidya, and had begun to practise and to earn something. It was admitted by him that he was not more than 18 years old at the time, and had not taken any education in Ayurved at any institution. As held by their Lordships of the Privy Council in Annamalai Chetty vs. Subramanian Chetty (1) a member of a joint undivided family can make separate acquisition of property for his own benefit, and unless it can be shown that the property was acquired from the funds of the joint family or earnings of the members which were blended with the joint family estate, the property so acquired by an individual does not become joint family property. The burden of proving in an action for partition of joint family property that any particular item of property is joint, primarily rests upon the plaintiff. Circumstances may readily cause the onus to be discharged, as for example, by showing that there was nucleus of income, from which the property could have been acquired and from this a presumption could be drawn that all the property possessed by the family was joint family property, or that it was purchased with joint family funds. None of these alternatives is a matter of legal presumption. The evidence of the plaintiffs witnessess that has been led in this case about the earnings being blended together is hopelessly insufficient. Even the plaintiff has not been able to state what he was able to earn in 1914. He has not stated what the income of the family was, and whether looking to the size of the family any money could be saved. The amount of the decree and the sale of the property in 1912, prima facie show that the joint family was in straitened circumstances, and the property was lost without even fully satisfying the decretal debt. How this family got enough funds in about 17 months' time has not been disclosed. The plaintiff's witnesses have, however, admitted that Shivpratap was carrying on the profession of a Vaidya,and had some income. This kind of income is obviously self-acquired property. While, therefore, there is no evidence that the joint family had any income, there is evidence that Shivpratap had a separate income of his own. As stated earlier, though Motilal has said that he used to earn as a Vaidya, he has not said a word which may show what he, as a lad of 18, could earn in 1914 as a Vaidya. His witnesses have said that he started practice as Vaidya even three or four years earlier. Motilal has, however, not been able to say what he could do as a Vaidya when he was 14 or 15 years old. Strong evidence was, therefore, required on behalf of the plaintiff to show wherefrom this money to purchase the three house properties came after they had been lost to the family. The explanation is that the houses were purchased in the name of Shivpratap, because Jagannath had debts to pay. The suggestion is that if they had been purchased in the name of Jagan Nath, they could have been made available for the discharge of the debt to Jagannath. It did not make any difference, if the property was purchased from the joint family funds in the name of Shivpratap, because it is not said that any of the debts of Jagannath were such for which the joint family property could not be made liable. The averments made by Shivpratap in the deed of gift are that the house properties were self-acquired properties, and Motilal, Ramchandra deceased and Lachmilal had established themselves separately and were not on good terms with the donor. It was said that Motilal and Ramchandra had begun to live separately 20 years ago, and Lachmilal about 14 years ago, and that the donor had decided to gift away the respective properties to Harish Chadra, Kanhaiyalal and Sohan Lal, as mentioned in the two deeds. Learned counsel for the plaintiff-respondent relied on a document Ex. P. 3 purporting to be a rent note of one of the house properties, namely, the Nohra, in the name of Shivpratap and Motilal. It purports to have been executed by one Shyamlal, P. W. 14, and it is urged that the execution of this deed was a strong piece of evidence to show that the Nohara was considered to be the joint property of the family, and not of Shivpratap alone. This document is highly suspicious. It is on a court-fee stamp of Re. 1/- purchased on 21st January, 1939, for the purpose of filing an appeal in a certain case by Motilal through a lawyer Mahboob Ali, according to the endorsement on the stamp. The date of the document is not mentioned. It is not mentioned in the document when it was executed, but the rent is said to begin from Kartik Sudi 5th Smt. 1996, which may also be considered to be the date when it may have been executed. This Hindi date corresponds to 13th December, 1939. This stamp, therefore, which was purchased by Motilal plaintiff himself in January, 1939, remained with him unutilised till December, 1939. The document mentions that it is a rent note for a period of three years at the rate of annas 8 per month. The requisite stamp for a deed of this nature, according to the Jaipur law in force will be of the value of annas 4, as the total value of the rent for three years would not exceed Rs. 25/ -. Shyamlal does not say that Shivpratap knew anything about this document. What he says is that this stamp was given to him by Motilal for execution of the lease deed, which he did. He does say to not whom were the subsequent rents paid, which were endorsed on the document. The circumstances surrounding this deed Ex. P. 3 make it a highly suspicious document, and certainly does not impute any admission of Shivpratap that it was joint family property. The two courts have come to an erroneous conclusion in holding that the three house properties, which are the subject of the suit, were of the joint family consisiting of Jagannath, Shivpratap and his sons. The sale deed is in favour of Shivpratap alone, and no circumstances have been proved which may show that this was not the property of Shivpratap himself. The appeal is accordingly allowed, the judgment and decree of the lower court are set aside, and the plaintiff's suit is dismissed with costs throughout. . ;