Debiprosad Pal, J.
1. This appeal is at the instance of the plaintiff who had instituted a suit for declaration of his exclusive title in 13 items of property listed in the schedule to the plaint, and for a declaration that the entries in the current revisional settlement record in respect of the suit property are incorrect. The properties in dispute fall within Mouza Ukra. The plaintiff's case is that the properties were acquired by him with his own money in different periods either in his own name or benami of others and he has been possessing the properties all along since acquisition. The defendant No. 1 resisted the suit contending inter alia that most of the suit properties were acquired from the income of the joint properties of Kedar Nath Chattaraj, the father of the plaintiff and that the plaintiff had no capacity for earning money. It is necessary at this stage to give the history of the family, the members of which are involved in the present litigation. One Kedar Nath Chattaraj, father of the plaintiff had five sons viz., Jyotirmoy, Brojeswar, Jitendra (plaintiff), Sadananda and Panchanan, Jyotirmoy separated during the lifetime of his father. His son pro forma defendant No. 3 Brojeswar died during the lifetime of his father leaving his son Bhutnath, being the defendant No. 1 contesting the present appeal. Sadananda died during the lifetime of his father leaving a widow who also subsequently died. Kedar Nath died in 1342 B. S. and thereafter the plaintiff, Panchanan (pro forma defendant No. 2) and defendant No. 1 Bhutnath lived in one joint. family. Kedar Nath left 14 bighas of land, out of which Jyotirmoy while separating from his father took 31/2 bighas of land.
2. The plaintiff's case is that he used to work as a colliery contractor and earned separate income. He had also got by a Deed of Gift 19 bighas of land in 1950. From his separate income he had acquired the disputed property in which he claims exclusive title. According to him the disputed properties have nothing to do with the joint properties inherited from Kedar Nath. The joint properties were partitioned on 3rd Falgun, 1360 B. S. between plaintiff, defendant No. 1 and Panchanan and each was allotted 31/2 bighas of land specifically. As already pointed out the defence case is that the joint family nucleus inherited from Kedar Nath was utilised in acquiring the disputed properties though some of them stand in the name of the plaintiff. The question, therefore, is whether the properties listed in the schedule to the plaint were the self-acquired properties of the plaintiff or are the joint properties in which the plaintiff has a share only. The learned Subordinate Judge. Asansol found that the plaintiff had separate source of income and that the nucleus of the joint family viz., the property of Kedar Nath was not sufficient for acquisition of large number of properties standing in the name of the plaintiff, after defraying the expenses of joint family of Kedar Nath and his sons, their wives and children. The suit properties were therefore held to be self-acquired properties of the plaintiff and the suit was decreed accordingly. The lower appellate court concurred with both the findings of the learned Munsif viz., that the nucleus was not sufficient for the acquisition of the suit properties and that the plaintiff had separate income from his 19 bighas of land and also from his business as a colliery contractor. In spite of the above finding, the lower appellate court considered each item of the properties separately and Item Nos. 3 and 4, plot No. 2711 of Item No. 5, Item No. 7, plot No. 2615 of Item No. 8, Item No. 9, Item No. 10 and plot No. 2862 of Item No. 12 and the property of schedule Kha were declared to be the properties belonging to the plaintiff alone. With regard to the properties of Item Nos. 1, 2, 6, 11 and the rest of the plots of Item No. 5 viz., plot No. 3329, 4238 and the rest of the plots of Item No. 8 viz.. plot Nos. 1671 and 1672 and rest of the plots of Item No. 12 viz.. Plot No. 2846 and plot No. 78/858 of the plaint, the plaintiff was declared to have 8 annas share only, and the said plots were directed to be jointly recorded in equal share in the names of the plaintiff and the defendant. The judgment and the decree of the learned Subordinate Judge was modified accordingly.
3. The plaintiff has instituted this appeal against that portion of the judgment and decree by which the properties referred to above were declared to be joint properties. The learned Counsel appearing for the plaintiff-appellant mainly contended that in view of the concurrent findings of both the courts that the nucleus of the joint family was not sufficient to acquire the suit properties and that the plaintiff had separate income out of which the said properties could be acquired the lower appellate court should have come to the conclusion that the presumption of the said properties being joint properties has been rebutted and that all the properties should have been declared to be self-acquired properties of the plaintiff.
4. The rules relating to self-acquisitions in a joint family have clustered round the texts of commentators but have been adapted to suit changing requirements of the Hindu Society through the development of the law by judicial decisions. The old rule was that in a joint family all properties, except those mentioned in the texts of the commentators, in the possession of any individual coparcener, are joint properties. The Privy Council modified the rule by laying down in old cases that only where there was a nucleus of ancestral property, the presumption was that all properties acquired by any one coparcener was joint property, the question of proportion of the nucleus to the property acquired being immaterial. It has been now held as a result of several decisions that the nucleus must be such from which the property ultimately acquired might be fairly said to have grown. The law as developed by series of judicial decisions is now well settled. Proof of the existence of a joint family does not lead to the presumption that properties held by any member of the family are joint, and the burden rests upon any one asserting that any item of the properties is joint to establish the fact. But where it is established that the family possesses some joint properties which from their nature and relative value may have formed the nucleus from which the properties in question may have been acquired, the burden shifts to the parties alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property (Appalaswami v. Surjyanarayana Murti, AIR 1947 PC 189). But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption, the nucleus must be such that with its help the property claimed to be joint could have been acquired. An important element for such consideration is the income which the nucleus yielded. Where the finding of the court is !hat the nucleus of the joint properties was not sufficient for the acquisition of the properties, the burden is upon the person who alleges such properties to have been acquired out of joint family fund, to establish it. (Srinivas Krishna Rao Kango v. Narayan Devji Kango, : 1SCR1 ). The presumption with regard to joint family and joint family property which applies to cases under the Mitaksara Law would seem to apply also to cases under the Dayabhaga Law. Although there are fundamental points of difference between the Mitakshara and the payabhaga Law as to the constitution of a joint family and the rights of members in ancestral properties, there is no presumption under the Dayabhaga Law that properties purchased by a son in his name in the father's lifetime and of which the son had been in possession since the purchase is joint family property. (Kunjabehari Rana v. Gourhari Rana, : AIR1958Cal105 ). The doctrine of self-acquisition in connection with a Dayabhaga family is the same as in a Mitakshara family. (Mayne's Treatise on Hindu Law and Usages, 11th Edition, page 365).
5. The concurrent findings of the courts below established that the nucleus of the joint family property which consisted of roughly 11 bighas of land from which three families have to be maintained was not sufficient for the acquisition of the suit property. Both the courts have also found that the plaintiif was a colliery contractor from 1920 to 1930 and then from 1935 to 1940 and that the plaintiff' therefore had separate income out of which the property could have been acquired. There is also the finding of both the courts that the plaintiff had 19 bighas of land which would yield separate income to him. When the finding of the learned Subordinate Judge was accepted by the lower appellate court that the nucleus of the joint property was not sufficient, after maintaining all the members of the family to acquire suit property, the burden lay upon the defendants who alleged that the properties have been acquired out of joint family fund to establish it. In the face of the concurrent findings of both the courts, the lower appellate court was wrong in placing the burden upon the plaintiff to prove the separate acquisition of the suit properties. The defendants had failed to establish that the properties were acquired with nucleus of the joint family properties. In the facts and circumstances of the present case the presumption of the acquisition of the suit properties with the nucleus of the joint family properties is rebutted by the concurrent findings of the courts below viz., that the nucleus was not sufficient to acquire the suit properties (2) the plaintiff had separate source of income out of which the suit properties could have been acquired.
6. In these circumstances this appeal is allowed. The judgment and decree or the lower appellate court in so far as it has declared the properties of Item Nos. 1, 2, 6 and 11 and the rest of the plots of Item No. 5 viz., plot Nos. 3320 and 2438 and rest of the plots of Item No. 8 viz., plot Nos. 1671 and 1672 and rest of the plots of Item No. 12 viz., plot Nos. 2846 and 78/858 of the plaint as joint properties is reversed and set aside, and the judgment and decree of the learned Subordinate Judge, Additional Court, Asansol is restored. The result is the judgment and decree of the Additional Subordinate Judge, Asansol is fully restored and the appeal is allowed. There will be no order as to costs.