B.N. Maitra, J.
1. The plaintiff hat alleged that the disputed property belonged to one Mahendra Das, who died leaving six sons, Sashi, Brojomohan, Chandi Charan, Tulsicharan, Tustu (defendant No. 1) and Jaoaki. Sashi is dead and Palaram (defendant No. 2) is his son. Those six brothers sold the property to Suren Das and Dulal Das. Thereafter Suren transferred his 8 annas share of his property to one Rajen. Then on the footing of a registered kabuliyat dated 9-11-1943, Rajen and Dulal settled the property to Brojomohan (Mahendranath's son) at a rental of Rs. 17-8 annas. After his death, the property devolved on his two daughters, Kamalabala (pro forma defendant No. 3) and Binabala. The latter died without any other heir and hence, her interest was inherited by her sister, Kamalabala. The latter sold the suit land to the plaintiff by a kobala dated 30-11-1961 for Rs. 1,500/-. The plaintiff is inpossession of the property. But in the R.S. khatian, the land was erroneously recorded in the names of Tustu (defendant No. 1) and Palaram (defendant No. 2) at persons in permissive possession of the property. The defendants have no interest or possession. The plaintiff was threatened with dispossession. Hence the suit for an injunction on declaration of the plaintiffs title to the suit land.
2. Only the defendant Nos. 1 and 2 contested the suit. Their defence is that Brojomohan and they remained in joint mess and property when other brothers became separate. While they were thus in joint mess and property, the disputed land together with seme other lands was taken settlement of by them in the benami of Brojomohan for three years. Thereafter they executed a kabuliyat on 9-11-1943 for another term. The settlement was taken from the fund of the joint family of which Brojomohan was the karta. The entry in the R. S. khatian is erroneous. The plaintiff has no title of possession.
3. The learned Munsif accepted the defence version. So, the suit was decreed in part in respect of the plaintiffs 1/3rd share of the property. The prayer for injunction was refused. It was stated that since the settlement was taken for the benefit of the joint family, Kamala Bala was entitled to 1/3rd share. So, on the footing of the purchase, the plaintiff acquired only 1/3rd interest in the property. An appeal was filed. The learned Additional District Judge, Hooghly, stated that there was a joint family fund, but the money required for the purchase in question was no supplied from the joint family fund. Such purchase was, in fact, made, otherwise from the income of the landed property of the members of such joint family. So, the appeal was dismissed. Hence this appeal by the plaintiff.
4. The learned Advocate appearing on behalf of the plaintiff-appellant has contended that the finding arrived at by the final court of fact is on the face of it made erroneous. The appeal could not be dismissed after making the finding that the disputed purchase was made by the members of the joint family, otherwise from the income of the landed property. The onus was not properly discharged. There was an error of law for which the appeal should be allowed. The learned lawyer appearing for the respondent supported the decision of the first appellate court.
5. Reference may be made to the Bench decision of Mr. Justice Paul and Mr. Justice Akram in 46 Cal WN 239 at p. 243 : (ATR 1942 Cal 553 at p. 555) to show that when there is a Hindu joint family the onus of proofis on the person to prove that a separate acquisition by an individual member of the family is really joint property. He is to prove that when the property was acquired there was sufficient nucleus of the joint family fund with which the acquisition could have been made and also that such fund was actually available to the acquirer. This case was followed in the care in (1954) 58 Cal WN 980. Following the decision of the Judicial Committee in the case in AIR 1947 PC 189 at p. 192 it has been stated by Mr. Justice Venkatarama Ayyar in : 1SCR1 to show that proof of existence of a joint family does not lead to the presumption that the property held by any member of the family is joint family property and the onus is on the person who asserts that any item of property is his joint property to prove the same. Where it is found that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which that property may have been acquired, the burden shifts to the party alleging that it was a self-acquired property. The important thing to be considered is the income which the nucleus yields. This principle was also followed in the case of Narayana Swami v. Ramkrishna in : 7SCR490 and also in the case in : 3SCR464 . This principle was also followed by Mr. Justice Ramaswami in the case of Mudi Gauda v. Ramchandra in : 3SCR245 . Let the aforesaid principles of law be applied to the facts of this case.
6. There is a clear finding by the final court of fact that the purchase was not made by the members of the joint family from the income of their landed property. Thereafter a pure surmise and conjecture was made by that court by saying that those members might have acquired the property by their joint labour in order to take settlement of the properly it a premium of Rs. 150/-. This surmise should not have been made by that court on such a vital point, when he held that the joint family had no nucleus from which the disputed acquisition could have been made. Hence such erroneous finding, which is the basis of the decision of the final court of fact, must be set aside. It is, therefore, held that the joint family bad no nucleus from which the disputed acquisition could have been made, such settlement was taken by Brojomohan alone on his own behalf and it was not a settlement taken in his benami, as alleged by the defendants. Since Brojomohan alone took the settlement, after his death his 16 annas share of the property passed to his two daughters, Kamalabala and Binabala. After Binabala's death, Kamalabala became the sole owner of the property. Thereafter she sold it to the plaintiff. In such circumstances, I find thatthe plaintiff only hat title and possession in the disputed land, that the entry in the R.S. khatian is erroneous and the defendants haveno interest or possession.
7. The appeal be allowed. The judgment and decree appealed against he hereby set aside and those of the trial court restored.
8. There will be no order as to costs.