S.K. Ray, J.
1. This is a plaintiff's second appeal from the confirming decision of the lower appellate court.
2. They filed the suit for declaration of title in respect of the suit property comprising of 37 decimals 8 karis and 2 gandas and that the sale deeds dated 10-11-1965 (Exs. A and B) executed by defendant No. 3 for self and as guardian of minor defendants 4 and 5 in favour of defendants 1 and 2 are invalid in law and not binding upon the plaintiffs. They also prayed for confirmation of possession or in alternative, if found dispossessed, for recovery of the same.
3. Before setting out the plaintiff's case in detail it is necessary to set out the genealogy of the family to indicate the relationship between the plaintiff and defendants Nos. 3 to 9.
Rama Hrushi (D.6)
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Naba (D.8) Bhagat Bansi Murali Madan
(D.9) =W. Rukmani (D.7) (dead)
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| | Binod (P. 1) Mana (P. 2)
Basanti (D. 4) Santi (D. 5)
4. According to the plaintiffs, the suit properties were the self-acquisition of Nisakar and Chuin and each of them were in separate possession of moiety interest therein as owners. Chuin adopted defendant No. 6 and gifted away his entire -/8/- annas to him on 3-3-1922 under the deed of gift Ex. 7. Defendant No. 6 became absolute owner thereof. Defendants 1 and 2 purchased -/8/-share of Nisakar from defendants 8 and 9 and are in possession thereof. This transfer has not been challenged in this suit. Of the three sons of defendant No. 6, Bansi died first and thereafter Madan. Defendant No. 6 executed the deed of gift on 20-1-1966 (Ex. 8) in respect of his -/8/- properties acquired under Ex. 7 in favour of the plaintiffs, who became absolute owners thereof. On 10-11-3965, defendant No. 3 for self and mother guardian of defendants 4 and 5 transferred the interest under Exs. A and B to defendants 1 and 2 respectively as heirs of late Bansi. It is alleged that since Bansi had no interest in the suit properties defendants 3, 4 and 5 did convey nothing to defendants 1 and 2.
5. The defence case is that the suit lands were ancestral properties of Bidei and not self-acquired properties of Chuin and Nisakar. The gift deed of Chuin in favour of defendant No. 6 in respect of -/8/- interest in the joint family properties was invalid in law. Accordingly, Ex. 8, the deed of gift executed by defendant No. 6 conveying the entire -/8/- interest to the plaintiffs was also invalid in law. Bansi had l/3rd interest in the same and the transfer by his heirs, namely, defendants 3, 4 and 5 to defendants 1 and 2 is valid in law and good title had passed to the said transferees.
6. The trial court found that the suit properties were joint family properties of Chuin and Nisakar having been acquired from out of the joint family nucleus. It retained the character of joint family properties in the hands of defendant No. 6. But Bansi, who pre-deceased Madan had a share in the same. Defendant No. 6 had, therefore, no right to transfer the entire land to the plaintiffs by way of gift. The defendants 3, 4 and 5 had l/4th interest in the half share belonging to Chuin's branch and not l/3rd as claimed by defendants 1 and 2. Accordingly, the sale deeds Exs. A and B are valid only to the extent of l/4th and invalid as to the interest in excess of l/4th conveyed thereunder. The defendants 1 and 2 will recover possession of the same only in a separate partition suit.
This decree of the trial court was confirmed by the lower appellate court. It has not rendered any finding about the manner of acquisition of the suit properties and whether the family had sufficient nucleus from out of which the suit properties could have been acquired. It held these properties to be joint family properties on the ground that Chuin and after him defendant No. 6 treated the suit properties as joint family properties and defendant No. 6 was enjoying it with his sons and their wives.
7. The sole question for consideration in this case is whether the suit properties were the joint family properties or joint acquisition of the two brothers Nisakar and Chuin. There is absolutely no evidence in this case that the properties belonged to Bidei Jena or that there was sufficient joint family nucleus from out of which the suit properties could have been acquired so as to give rise to the presumption that the suit properties are joint family properties. The averments of para 9 of the written statement, therefore, have not been established. The defendants, however, alleged in para 10 of the written statement that Chuin and his descendants were treating the suit properties as joint family properties. There is evidence that some of the suit properties were jointly acquired by the parties and there is no positive evidence as to the manner or source of acquisition. Defendant No. 6, who has been examined as P. W. 2 has stated that his father and Nisakar used to go to Calcutta and with their income these two brothers began purchasing lands, some jointly and some separately, and at the time of acquisition these two brothers were joint. In the context of the aforesaid facts the presumption that the properties are joint family properties prevail. The leading principle in Hindu law is that in absence of proof of division the presumption is that every Hindu family is joint in food, worship and estate. This presumption is stronger in the case of brothers than in the case of cousins and the farther you go from the founder of the family the presumption becomes weaker and weaker. The reason is that the brothers are for the most part undivided while the second cousins are generally separated and third cousins are for the most part separated vide Article 233 of Mulla's Hindu Law, 13th Edition. The burden of proof that the two brothers were separate at the time of acquisition is, therefore, squarely on the plaintiffs. Similarly, another principle of Hindu Law is that the properties jointly acquired by the members of the joint family without the aid of joint family nucleus are presumed to be the joint family properties. As an extension of this principle, when the members of the joint family acquire proper-ties by their joint labour such properties, in absence of clear indication to the contrary, would also be presumed to be owned by them as joint family properties and their male issues would necessarily acquire a right by birth in such properties vide the case of Satyanarayan v. Lakhiram, ILR (1959) Out 526. Though there is no express pleading that the properties were acquired by joint labour of Chuin and Nisakar, there is evidence to that effect, as disclosed in the testimony of defendant No. 6 himself. The presumptions of Hindu Law as indicated, therefore, arise and such presumptions have not been rebutted by the plaintiffs. That apart, it appears from the deed of gift that Chuin treated the properties as joint family properties. There is a clear recital in Ex. 7 by Chuin that he along with defendant No. 6 and their respective wives were jointly enjoying and possessing these properties. The import of this recital is clear that Chuin was treating the suit properties as joint family properties and the aforesaid presumptions get reinforced by it. In view of the aforesaid circumstances, I think that the lower appellate court was correct in his ultimate conclusion that the suit properties acquired by Chuin and Nisakar were joint family properties in their hands and, at any rate, Chuin treated the same as such, and proceeded to dispose of the suit on that footing.
8. In the result, therefore, there is no merit in this appeal which is dismissed but without costs.