P. Govindan Nair, C.J.
1. This is an appeal by the plaintiff in a suit for partition, and the only contest in this appeal is about the partibility of one item of the properties, namely, Item No. 1 of the A schedule, which was acquired in the name of the deceased husband of the first defendant under the sale deed Exhibit B-1, dated 20-6-1963. There were other items of properties scheduled to the plaint, and no dispute arises in this appeal regarding their partibility. As regards item No. 1 of the A schedule, it was held by the trial Court that it belonged to the husband of the first defendant, the deceased Dandapani Iyer, end that the property was his self-acquired property and not joint family property. The appeal by the plaintiff before this court having failed, he has come up before this court by way of Letters Patent Appeal.
2. On behalf of the appellant counsel contended that there was clear evi-dence available in the case about the existence of sufficient nucleus for the acquisition of item No. 1 of A schedule under Ex. B-1, sale deed. Before we deal with this aspect end the arguments advanced we would like to mention a few facts.
3. The plaintiff is the brother of the deceased Dandapani Iyer. Both of them were married. The plaintiff had two sons and a daughter and Dandapani Iyer had five daughters and two sons. One of the daughters died after marriage. Dandapani Iyer was employed as an advocate's clerk and he was also doing job typing. The plaintiff was also employed as a clerk in a bank and he too was doing job typing. The extent of the income earned by these two persons is not known. Both the families were living in the same house which was bought under Ex. A-1. They were, however, having separate mess from 1956.
4. There was admittedly at least one joint family property of over an acre of wet lands, and that property was sold under Ex. A-4 dated 15-5-1963. This property was sold for a total consideration of Rs. 3,000, Rs. 200 had been received in advance and on the date of registration, the balance was paid to Dandapani Iyer. The vendors were Dandapani Iyer and the plaintiff and the amount was paid before the Sub-Registrar. The Sub-Registrar also has certified that such a payment was made. It is said that this amount was paid to Dandapani Iyer with the consent of the plaintiff. It was shortly thereafter, on 20-6-1963, under Exhibit B-1 the house in which the two brothers with their families were staving, was purchased, and the consideration for the sale was Rs. 1,600. On the basis of these facts, counsel for the appellant rightly submitted before us that he has been able to establish not only the existence of nucleus, but the existence of sufficient nucleus from which Ex. B-1 property could have been purchased. This factor taken along with the other circumstances, namely, the relationship of the parties and the sale of an admitted joint family property, leads to the presumption that the acquisition under Ex. B-1 was for the benefit of the joint family. When this presumption is drawn, it is for the first defendant, widow of Dandapani Iyer who claims that the property belonged to Dandapani Iyer, to establish that the property was acquired by Dandapani Iyer, with his own funds. Regarding this aspect, the case of the first defendant has not been consistent In the written statement, she pleaded that the funds for the acquisition of Ex. B-1 property were provided from the earnings of the deceased Dandapani Iyer. At the time when she gave evidence, she deposed that the property was acquired with the amounts received by the sale of her jewellery. This type of inconsistent pleas does not inspire confidence. There is no evidence worth the name to show that Dandapani Iyer had sufficient amounts with him at the time of the acquisition of Ex. B-1 property. We have already mentioned that he had a large family. The income from the family properties is not known. Apparently, the only income was from the property sold under Ex. A-4, and this income must have been utilised for the living of the members of the family. There is, therefore, no evidence in the case from which it is possible to conclude that the acquisition under Ex. B-1 was from the earnings of Dandapani Iyer. On the other hand, as we already pointed out, the proximity of the transactions Exs. A-4 and B-1 and the fact that the amount received under Ex. A-4 was far in excess of what had to be paid for acquiring Ex. B-1 property, and the fact that the two brothers were living amicably in the same house though having separate mess and belonged to undivided joint family, leads us to conclude that the case pleaded by the plaintiff is true and all these factors confirm the presumption that the acquisition under Ex. B-1 was with the joint family funds, and the property acquired must therefore enure to the benefit of the family.
5. Counsel on behalf of the respondents drew our attention to four promissory notes, Exs. B-6 to B-9, which were produced by the first defendant. These promissory notes indicate that there were borrowings by Dandapani Iyer. It is said that these borrowings were for family needs. It is also suggested that these debts have been discharged from the money received under the sale deed Ex. A-4. On a perusal of these promissory notes, we find that only. Exs. B-6 and B-7 were discharged at about the time the sale Ex. B-1 took place. Exhibit B-7 was discharged on 24-6-1963, four days after Ex. B-1 sale deed and Ex. B-6 was discharged on 24-7-1963 and the total amount for the discharge of these two promissory notes comes to only Rs. 1,004. Even after paying the sale consideration of Rs. 1,600 for the property under Ex. B-1, there was Rupees 1,400 left with Dandapani Iyer which could very well have been utilised for the discharge of Exs. B-6 and B-7 promissory notes. There is no indication whatsoever of the time at which the other two promissory notes Exs. B-8 and B-9 were discharged. In these circumstances, it is impossible to draw the inference that the entire amounts received under Ex. A-4 were utilised for the discharge of Exs. B-6 and B-9 promissory notes.
6. Our attention was also drawn to a mortgage Ex. A-5 executed by Dandapani Iyer. The consideration for this is Rs. 1,200. There is no evidence as to when this debt was discharged. But the evidence indicates that a suit had been instituted and a decree obtained and that debt has also been discharged. But it is not known when it was done and under what circumstances.
7. Much was sought to be made of the fact that the plaintiff was an attestor to the document Ex. B-1. It was argued that the document was taken in the name of Dandapani Iyer alone and that the attestation by the plaintiff meant that he knew the circumstances, and by attesting the documents, he has accepted the position that the property belonged to Dandapani Iyer exclusively. Assuming that such a proposition can be applied in certain circumstances, we are not satisfied that the said proposition is attracted to the facts of this case. We have already given reasons for presuming that it was the amount received under Ex. A-4 by the sale of the joint family property that went to acquire the disputed property under Ex. B-1. Such a presumption arising in this case has not been rebutted. The property must, therefore, belong to the family irrespective of the fact that the document was taken only in the name of Dandapani Iyer.
8. In the light of the above discussions, we allow the appeal and set aside the judgments of the trial court as well as the appellate court regarding Item 1 of Schedule A. The plaintiff will be entitled to one-half share in the disputed property as well, and there will be a preliminary decree accordingly. There will be no order as to costs in this appeal.