1. This appeal arises out of a litigation between members of a Hindu family. The appellant Gulabrao, son of Anandrao Zadc, is the original defendant No. 2.
2. The suit was filed by two plaintiffs, who are brothers of the appellant, namely plaintiff No. 1 Ramji and plaintiff No. 2 Gunderao, both sons of Anandrao Zade, who died on March 9, 1938, leaving behind four sons, Shamrao (defendant No. 1), Gulabrao (defendant No. 2-appellant), Ramji (plaintiff No. 1) .and Gunderao (plaintiff No. 2), and three sons of a deceased son Vithoba. The three sons of the deceased Vithoba are defendants Nos. 3 to 5. Anandrao also left behind him his widow Radhabai who died on April 16, 1951. The two plaintiffs filed the suit for partition and separate possession of their 2/5ths share in the joint family properties mentioned in Schedules A and B attached to the plaint. Schedule A refers to the immovable property and Schedule Bi refers to the movable property i.e. ornaments, household utensils, cattle and cash. The immovable properties are fields at mouza Khumari, monza Jirola, mouza Chargaon, mouza Raulgaon, and houses and kothas at mouzas Khumari and Dorii and an open site at Khumari.
3. In this appeal it is not necessary to refer to all the points of contention between the parties at the time of the suit because in appeal only one point has been tirged. In appeal it is urged that the lower Court, namely, that of the 5th Additional District Judge, Nagpur, which had pass-ed a preliminary decree in favour of the two plaintiffs, for their 2/5ths share in the joint family properties, erred in holding that the fields at Chargaon and Raulgaon and the houses and kotha at Dorli are joint family properties. The contest in appeal between the parties relates only to these properties.
4. With regard to these properties, the plaintiffs' case was that although the-fields at Chargaon and Raulgaon were purchased in 1942-43 in the names of Shamrao, the eldest son of Anandrao, and Gulabrao, the second son, they were really purchased out of the income and savings of the joint family, that although Shamrao was the eldest brother the real de facto management, was is the hands of Gulabrao. Similarly, as regards the house and kotha at Dorli r plaintiffs' case is that although these were purchased in November 1942 in the-name of Gulabrao alone they were purchased from out of the joint family funds and are really joint family property.
5. On the date of the suit defendant No. 5 Nilkanth was a minor and his-guardian-ad-litem was defendant No. 3 Damodhar. He filed a separate written statement wherein the pleas taken by defendants Nos. 1 to 4 were substantially repeated.
6. In their written statement so far as material for the purposes of this appeal,, defendants Nos. 1 to 4 contended that Gulabrao was not the de facto manager but in fact ever since he was a child of 5 years Gulabrao has been residing at Dorli with his mawasa Manaji although occasionally he used to visit Khnmari at the time of hangani or harvest to receive his share of the joint family income. The defendants denied that the properties at Raulgaon and Chargaoiii had been acquired from the income of the joint family properties. According to them these properties were purchased by Gulabrao with his separate funds although the sale-deed mentioned the names of Shamrao and Gulabrao as purchasers. It was averred in the written statement that Manaji had gifted his. house to Gulabrao by a gift-deed dated March 9, 1934, that Gulabrao also-managed and continued to manage the Mrana shop of Manaji, that the property was acquired by Gulabrao for himself out of the income from the Mrana-shop at Dorli which belonged to him solely after the death of Manaji who dide in 1940. In the written statement it is also affirmed that Gulabrao got from Manaji cash and movables worth Rs. 6,000. As regards the properties at Dorli, viz. the house and kotha, it was pleaded that these were also purchased by Gulabrao for himself with his own funds, by sale-deeds dated November 6, 1942, and November 11, 1942. The defendants denied that these properties had been acquired by Gulabrao from the joint family funds as alleged by the plaintiffs. As the appeal does not relate to the ornaments, household utensils etc. it is not necessary to refer to the plaint allegations and pleas in the written? statement relating to them.
7. In appeal the learned Counsel for the appellant has stated that he does not challenge the finding of the lower Court that there was no previous partition prior to the date of this suit, and it is, therefore, unnecessary to refer to the controversy between the parties at the time of the suit relating to the alleged' earlier partition. The only point urged in appeal is that the lower Court erred in holding that the fields at Chargaon and Raulgaon, and the house and kotha at Dorli were joint family properties in which the two plaintiffs are entitled to 2/5th share. That the two plaintiffs were entitled to 2/5th share in the joint family properties is also not disputed in appeal. The only point for decision in this appeal is, therefore, whether the learned Additional District Judge erred in holding that the fields at Raulgaon and Chargaon and the house and kotha at Dorli which are shown as items % and 4 and items 5(d) and 5(e) in Schedule A attached to the plaint are also joint family property in which the two plaintiffs are entitled to 2/5th share.
8. We hold that the learned Additional District Judge was right in his finding on this point for the following reasons.
9. The two plaintiffs filed the suit for partition and separate possession of their 2/5th share in the joint family property of deceased Anandrao who died on March 9, 1938, leaving behind him his widow Radhabai, his four sons and three sons of his predeceased son Vithoba. In the plaint it was alleged that the properties in dispute in appeal were also joint family properties, although the two sale-deeds P-23 and D-5 in respect of Chargaon fields stand in the name of Gulabrao and Shamrao and although the two other sale-deeds viz. D-6 and D-7 of November 1942, relating to the house and kotha at Dorli stand in the name of Gulabrao alone.
10. When a plaintiff files a suit alleging that a certain property belongs to a joint family, the initial burden is on the plaintiff to prove his assertion that the property in question is joint family property. See Section 103, Evidence Act. But this burden can be discharged by him in various ways, and when he discharges this burden, the burden of proof then shifts to the defendant who alleges that, the property in question does not belong to the point family but is the self-acquired property of the defendant. The initial burden ; which rests on the plaintiff who alleges that the property in question belongs to the joint family may be discharged by showing that the property was purchased from joint family funds or by joint labour. He can also discharge the burden by showing that the joint family possessed joint family property, that the nucleus of joint family property either proved or admitted was of such a nature that with its help the property in controversy could have been acquired. If the existence of a joint family nucleus or property is either admitted or proved, it must be shown that the nucleus was of such a character that with its help the property in controversy could have been acquired.
11. If the initial burden of proof resting on the plaintiff is thus discharged, then the burden would shift to the defendant to prove that the property in question was acquired by himself with his own self-acquired property and without the, aid of the joint family property or joint family funds or income.
12. These principles are well settled by their Lordships of the Supreme Court, In Shrinivas Krishnarao Kango v. Narayan Devji Kango : 1SCR1 their Lordships of the Supreme Court referred to the following observations of the Privy Council in Appalaswami v. Suryanarayanamurti  Mad. 440., 50 Bom. L.R. 628.The Hindu law upon this aspect of the case is well settled. 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 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;....
In such a case the defendant can discharge his burden of proof by showing, for instance, that the income derived from the ancestral lands had been kept intact or that the income derived therefrom was not available to him or that the purchase was made from his own earnings and from moneys obtained by him without the aid of joint family funds or joint family income.
13. These principles have to be applied to the facts of this appeal.
14. Admittedly, the joint family of Anandrao and his sons had both movable and immovable property. Admittedly, the fields at Khumari and Jirola are joint family properties. There is, therefore, a nucleus of joint family property, and the next question for consideration is whether in size and quality the nucleus was of such a character that with its aid the property in question would have been purchased. The properties in controversy are: (i) two fields bearing khasra Nos. 312 and 314 at Chargaon purchased for Its. 200 by exh. P-23, dated May 26, 1942, from Krishnarao raalguzar (1-4 D.W. 2); (ii) two fields khasra Nos. 2 and 3 of Raulgaon, purchased for Rs. 1,500 on November 1.7, 1943, by D-5, executed by Shankar (D.W. 3) ; (iii) an open site at Dorli, 30 cubits by 15 cubits, purchased on November 11, 1942, for Its. 42 under D-6 which has been proved by Suryabhan (D.W. 4), the vendor; and (iv) the kotha at Dorli, 13 cubits by 36 cubits, purchased by Gulabrao in his own name on November 6, 1942, for Rs. 50 from Raghoji who has not been examined.
15. As regards the admitted nucleus of joint family property, they are (i) four fields at mouza Khumari viz. fields Nos. 346, 347, 19/4, and 418, measuring 10.13 acres, and (ii) two fields at mouza Jirola measuring about 13 acres,
16. Gunderao (plaintiff No. 2) in his evidence as P.W. 7 has deposed that there are two orange gardens in the fields at mouza Khumari and the trees began to bear fruit during the lifetime of his father Anandrao. When his father died, the garden used to yield Rs. 500 to Rs. 700 per year. The joint family also used to get produce of cotton from the fields worth about Rs. 400. Juar from the field was only sufficient to meet the needs of. consumption for the family. In addition, the family used to get one or two khandis of therfrom the fields. The family had two agricultural servants who were paid Rs. 200 and Rs. 100 per year. Admittedly, there are about 14 or 15 members of the family. This is admitted both by plaintiff No. 2 as well as Gulabrao (D.W. 13), Gunderao has also deposed that Gulabrao used to look after the entire family affairs and lie used to sell oranges from the orange gardens. Shamrao, the eldest member, merely used to look after the cultivation of the fields.
17. The plaintiffs also adduced evidence of the witnesses Laxman (P.W. 1) and Bhagwan (P.W. 2) to show that the joint family had sufficient funds. Laxman (P.W. 1) who brought account books of one Mukundrao, in whose service-he was employed, has deposed that there was a khata in the names of Anandraoy Vithoba, Shamrao, Gulabrao, Eamji and Gunderao, minors by guardian Anandrao, who borrowed Rs. 3,500 in 1927 from his master on a mortgage. On December 7, 1937, the whole mortgage debt was paid off. During the intervening 10 years Anandrao made various payments varying between Rs. 100 and Rs. 1,100. The final payment which was made in 1937 was of Rs. 553. The evidence of this witness is relied on by the plaintiffs for showing that Anandrao was able to save large amounts of money every year and to repay the entire debt of Rs. 3,500 which he had borrowed as early as 1927. In cross-examination the witness merely stated that he could not say from where Anandrao got money to make the last payment. It is not the case of the defendants that Anandrao incurred other debts in order to make repayments to Mukundrao.
18. The next witness relied on. by the plaintiffs is Bhagwan (P.W. 2) who was in the service of Sheikh Subhan, an orange merchant of Nagpur. He has proved that in 1941-42 there was a khata of Gulabrao and also a khata of Shamrao, sons of Anandrao. In 1942-43 there was a khata of Gulabrao Anandrao of Khumari, In the khata of the year 194.1-42 the figure of Rs. 3,007 is shown as price of oranges sold and paid to Gulabrao. It is unnecessary to refer to the evidence of this witness relating to the khatas subsequent to 1942-43 because the properties in question were purchased in 1942-48 and the question for determination is whether at about the year 1942-1943 the joint family had sufficient nucleus of property and sufficient surplus of income from which the property in question could have been purchased.
19. On the question of income from orange gardens Gulabrao has deposed that Gunderao was in charge of selling vegetables and oranges. In cross-examination lie denied the suggestion that he used to sends Gunderao to sell oranges to-dalal Subhan, but lie admitted that he used to send Gunderao to bring money for him from Subhan. According to Shamrao (D.W. 12), lie, Gunderao and1 Ramji jointly used to sell orange crop. They did not sell the orange crops to Subhan. The orange garden used to fetch Rs. 200 to Rs. 400 per year. According to him in some years there was loss and in some years there was a saving of Rs. 200. In view of the admission of Gunderao that the orange garden used to yield about Rs. 500 to Rs. 700, the figure of Rs. 3,000 and other figures in Subhan's account running to several thousands could not have related to the orange garden of the plaintiff. Shamrao (D.W. 12) has admitted that from the orange garden there used to be a saving of about Rs. 200 in some years. There is, therefore, no reason to reject the evidence of Gunderao, the plaintiff who in his deposition as P.W. 7 has deposed that the orange garden used to yield about Rs. 500 to Rs. 700. According to Gunderao the cotton crop used to fetch about Rs. 400. This fact is not traversed by either Shamrao (D.W. 12) or Gulabrao (D.W. 13). We, therefore, concur in the finding of the learned Additional District Judge that upon the evidence it is clear that there was joint family property which could yield substantial surplus to the family. In view of this finding the burden of proof would shift to the defendant i.e. Gulabrao to prove that the properties in question were his own self-acquired properties.
20. This is not a case in which properties have been acquired in the name of one of the members of the joint family. Two of the sale-deeds viz. P-23 and D-5 for Rs. 200 and Es. 1,500, respectively, are in the names of both Shamrao and Gulabrao. Shamrao is the eldest member of the family and Gulabrao is-the second eldest. The very fact that these two sale-deeds were taken in the names of two eldest members of the joint family would ordinarily raise a presumption that the properties purchased by these two sale-deeds were purchased for the joint family. Even when there is no joint family nucleus, if properties are jointly acquired by brothers, there would be a presumption that the joint acquisition by the brothers is joint family property: vide Rampershad Tewarry v. Sheochurn Doss (1866) 10 M.I.A. 490 Haridas Narayandas v. Dekuvarbai I.L.R. (1926) Bom. 443, 28 Bom. L.R. 637 and Sital-prnsad v. Bamprasad  Nag. 17. As the sale-deeds were both in the names of Shamrao and Gulabrao and as both of them happen to be the two eldest members of the-joint family, ordinarily the presumption would arise that the purchase was for the joint family.
21. Shamrao has, however, supported the case of Gulabrao. According to Shamrao, the fields purchased at Raulgaon viz. the fields purchased by sale-deeds P-23 and D-5, belonged to Gulabrao exclusively and he (Shamrao) had no share in them. According to him, Gulabrao purchased these fields with his own money and he (Shamrao) did not contribute any money. Shamrao also deposed that he executed a farkatnama (release deed D-2) dated March 29, 1951, in favour of Gulabrao. According to him the agreement to execute a release deed was entered into on February 1. 1951. Krishnarao (D.W. 5). of Dorli also deposes to the agreement dated February 1, 1951, by Shamrao in favour of Gulabrao, but there is no reference to this agreement in the final farkatnama or release deed executed by Shamrao on March 29, 1951. This was executed after Gunderao had demanded partition on March 20, 1951. It is not unlikely that the farkatnama was executed in view of the plaintiffs demand for partition on March 203 1951,
22. The case of Gulabrao in his written statement is that the properties in dispute were acquired, by him for himself out of the income from the Kirana shop at Dorli which solely belonged to him after the death of his mawasa Manaji in 1940. In the written statement he does state in addition that he had acquired cash and movables worth Rs. 6,000 from Manaji, but it is not the ease made out in the written statement that he had purchased the property from out of the cash left by Manaji. In his evidence, however, Gulabrao deposed that he had purchased the fields out of the cash of Es. 5,000 and 200 tolas of silver and 12 tolas of gold which had been gifted to him by his mawasa Manaji. Even in his deposition he does not make out a clear case whether he had used the cash for purchasing the fields or whether he had used the gold and silver for purchase. His deposition is counter to his written statement in which be stated that he had purchased the properties in question from the income of the kirana shop at Dorli belonging to Manaji and which belonged to Gulabrao after the death of Manaji. The case set out in the written statement with regard to all the properties in question has not been proved by the evidence. Gulabrao has not given evidence as to the nature of the income from the kirana shop, nor is there any other evidence on this point.
23. As already observed, the two main sale-deeds viz. P-23 and D-5, which are for Rs. 200 and Rs. 1,500 respectively, stand not only in the name of Gulabrao alone but in the names of Gulabrao and Shamrao, the eldest members of the joint family. As in this appeal only one question has been argued, the evidence of ail the witnesses examined at the hearing of the suit has not been referred to us but only the evidence of the relevant witnesses. We, therefore, concur in the appreciation of the evidence by the learned Additional District Judge and in his conclusion and finding that Gulabrao has not proved that he had purchased the properties in question with his own funds.
24. We, therefore, hold that the finding of the learned Additional District Judge that the properties referred to in the sale-deeds P-23, D-5, D-6 and D-7 are properties of the joint family in which the plaintiffs have admittedly 2/5th share, and that the properties are not the self-acquired properties of Gulabrao is correct. We, therefore, dismiss the appeal with costs.
25. Cross-objections have also been filed by respondent Ramji who was original plaintiff No. 1, in regard to an amount of Rs. 4,600 said to have been recovered by the appellant Gulabrao by selling the oranges in 1950-51 to Sheikh Subhan, a dealer in oranges. The respondent Hamji claimed Rs. 920 as 1/5th share in this amount of Rs. 4,600. The claim made in the cross objections is clearly unfounded because in the plaint itself there is no reference to this amount of Rs. 4,600. In the Schedule B attached to the plaint, which refers to movable property, item No. 13 refers to cash and other miscellaneous articles in the possession of defendants Nos. 1 and 2 i.e. Shamrao and Gulabrao. This amount is shown only as Rs. 2,000. In the plaint no case has been made out that any amount representing sale proceeds of oranges is with defendants Nos. 1 and 2 and is subject to partition as joint family property. In the cross-objection the amount is referred to as Rs. 4,600 recovered by Gulabrao by selling oranges in 1950-51, but it is not the case of Gunderao (P.W. 7) that the orange, garden of the joint family used to fetch Rs. 4,600 in any year. According to him the garden used to fetch only Rs. 500 to Rs. 700 per year. There is no evidence therefore to show that the amount shown in the account books of Subban as sale price of oranges represents sale price of the oranges of the joint family gardens at Khumari. The cross-objections are clearly therefore ungrounded and are dismissed with costs.
26. In the result, both the appeal and the cross-objections are dismissed with costs.