1. This appeal has arisen out of a suit for partition. The case of the plaintiffs as stated in the plaint filed in the suit was that Gobinda Chandra Batabyal, Umacharan Batabyal and Sripati Charan Batabyal, the three sons of late Dataram Batabyal, were members of a joint family governed by the Dayabhaga School of Hindu law, who owned and possessed joint properties descended to them from their father and that the three brothers living in commensality were joint in mess, worship and property, had joint funds out of which properties were acquired which were the joint properties of the plaintiffs and the defendants in the suit. The plaintiffs were the sons of Sripati; defendants 3, 4 and 5 were the sons of Brojogopal, son of Gobinda; defendant 6 was the son of Uma Charan; and defendant 7 was the son of Mahim, a son of Uma Charan. The three brothers mentioned above, Gobinda, Uma Charan and Sripati, combined their earnings and out; of the joint funds acquired properties jointly owned by them. The properties alleged to be joint were mentioned in five different schedules to the plaint; the schedule (Ka) properties consisted of a dwelling house with lands on which the house stood, a two storeyed brick built house valued Rs. 2,700; the schedule (Kha) properties consisted of some lands in Mouza Amchata; the schedule (Gha) consisted of movables including a Government Promissory Note for rupees 500; the properties described in schedules (Ga) and (Uma) consisted of some lands in Mouza Nabasan, the ancestral village of the parties from where the three brothers came to the town of Midnapur.
2. The claim for partition was resisted by defendants 1 to 5. It was asserted by the contesting defendants that the two brothers Uma Charan and Sripati were mere dependant members, and as such were maintained by Govinda, the eldest brother. There was no joint fund to which the three brothers living together were jointly entitled. The properties mentioned in the plaint with the exception of those in schedules (Ga) and (Uma) were properties acquired by Gobinda out of his own funds; these properties were not joint properties, and those mentioned in Schs. (Ka), (Kha) and (Gha) have always stood in Gobinda's name and rent and taxes in respect of the same have always been paid by Gobinda's branch of the family represented by defendants 1 to 5 in the suit. Defendant 6 filed a written statement supporting the plaintiff; defendant 7 did not appear at the trial. On the pleadings of the parties concerned, the material issue raised for determination in the case was issue 5: Whether the properties mentioned in Schs. (Ka), (Kha) and (Gha) are ejmali properties as alleged in the plaint? If so, what is the plaintiff's share therein? The learned Subordinate Judge in the Court below in a careful judgment dismissed the plaintiff's claim in respect of the properties in Schs. (Ka), (Kha) and (Gha), and directed the plaint to be returned for presentation to the proper Court with respect to the properties in Schs. (Ga) and (Uma), in view of the fact that those properties [in schedule (Ga) and (Uma)] were situated in the district of Hughly. The plaintiffs appealed to this Court from the decision of the Subordinate Judge, dismissing the plaintiffs' suit with reference to the properties mentioned in Schs. (Ka), (Kha) and (Gha). In the case before us, it has to be kept in view that the question whether properties acquired by a member of a joint family were his self-acquired properties or joint properties, is a question of fact to be deter, mined on evidence; if one member of the joint family has sufficient means to purchase the properties, the presumption will be in favour of self-acquisition. It is also to be borne in mind that the mere existence of a nucleus will not impress the acquisition with the character of joint family property, unless it is shown that the acquisition could have been made from the income derived from the nucleus. The presence, therefore, of a substantial nucleus raises a presumption of an acquisition of the property which can be treated as joint property.
3. The properties described in the different schedules to the plaint have to be considered separately; but four things stand out prominently which must be taken into account:
1. The evidence led in the case before us established the position that the properties at Nabasan described in schedules (Ga) and (Uma) taken to be the nucleus of joint family property consisted of not more than 3 bighas of land, yielding an income of Rs. 1-8-0 a year, and the evidence on the side of the defendants can. not but be believed and must be treated as acceptable, that the income from the Nabasan property was not sufficient even to defray the expenses of the ancestral Durga Puja or costs of the settlement proceedings, though the requirements therefor were very small; amounts had to be contributed on these heads of expenditure by the co-sharers entitled to this property. There is no evidence given in the case that there was any money which could be treated as income out of the Nabasan property. Reference has been made to a very small income from the Nabasan property; and we got from defendant 6 in the case who had supported the plaintiffs' claim that' the income from the Nabasan land added to the income from Jajmans and disciples would be about Rs. 100 to Rs. 150 a year. We have it also from defendant 6, Mihir, that he was not in a position to say what the income from the landed property at Nabasan was. There is therefore no evidence by way of rebuttal of definite evidence coming from the side of defendants 1 to 5, the contesting defendants, that the Nabasan property did not yield an income of more than Rs. 1-8-0 a year. Mihir added in his statement in cross-examination, that no Jajmans or disciples ever paid any money in his presence, but that he heard of realization from them. On the evidence as it stands, it cannot be said that the Nabasan property described in schedules (Ga) and (Uma) could be treated as a nucleus out of which the joint properties now claimed could be acquired.
2. As to the existence of a joint fund out of which joint properties could be acquired, no money, according to the evidence which appears to us to be trustworthy, ever came from the Nabasan property. The brothers Sripati and Uma Charan had practically no income, and the eldest Gobinda was the only person who had a decent income out of which the family consisting of his brothers and other defendants were maintained.
3. The evidence coming from the plaintiffs' side from defendant 6 himself, supporting the case of the plaintiffs, and the witnesses examined at his instance in support of the plaintiff's claim, go only to establish that there was jointness in mess and worship, and that there was no property excepting the property at Nabasan described in schedules (Ga) and (Uma), which was joint family property owned and possessed by the three brothers, Gobinda, Sripati and Uma Gharan.
4. The properties acquired and described in schedules, (Ka), (Kha) and (Gha) were all acquired in the name of Gobinda alone who, on the evidence before the Court, had sufficient fund for acquisition of the same.
4. There was in the case before us no joint fund; there was no substantial nucleus out of which any property could be acquired, as alleged by the plaintiffs in the suit. The eldest brother, Gobinda was really the earning member, and the other two brothers living in commensality were dependents. There is a significant statement contained in the evidence given by defendant 6 in support of the plaintiffs' case, relating to jointness of fund. It was stated by Mihir, in his evidence before the Court, that the plaintiffs and the defendants were joint in mess; that the expenses of the sacred thread ceremony and the first rice ceremony of all the members were met from joint funds; the paddy from Amchata was consumed on all ceremonial occasions; each member of the family had to contribute to the joint funds on a fixed scale; and after contribution at that rate each member used to keep his savings to himself. This would go to establish the jointness in mess as has been deposed to also by the other witnesses examined by or on behalf of the plaintiffs at the instance of defendant 6 including Barada Sundari, mother of defendant 6, who was giving her evidence, in support of the plaintiffs' case, and in support of the case stated by her son but not jointness of fund for acquisition of joint properties. Passing on now to the properties sought to be partitioned:
5. Schedule (Ka) property-It consists of a pucca dwelling house standing on lands acquired in the name of Gobinda. In regard to some of the plots of land appertaining to the homestead, documents were not produced by defendants 1 to 5; but they were not called for at any time by the plaintiffs from the contesting defendants in the suit. These defendants, however, established by evidence, their title by purchase; and the title deeds were produced in respect of the greater portion of the lands on which the pucca structure stood, and evidence both oral and documentary, was given of payment of rent and taxes in respect of the land covered by the pucca structure and by the homestead generally. The entries in the Settlement Records produced on the side of the contesting defendants make it abundantly clear that they were the parties in possession of the homestead comprising several plots of land. The non-production of some unregistered documents of which mention was made in the plaint, did not and could not possibly minimise the effect of the evidence On the record, showing that the homestead was owned and was being possessed by Gobinda, and after him, by defendants 1 to 5. On this part of the case, it is significant that so far as the construction of the pucca dwelling house was concerned, no attempt was made to establish the position that any portion of the costs of construction of the building comprising the dwelling house, which was of a substantial nature, consisting of many rooms and out-houses, was contributed by the plaintiffs, or by defendants 6 and 7 or their predecessors-in-interest, Uma Charan and Sripati. The mention of Uma Charan's name in a document (Hebanama Ex. 1 in the case) executed by a third party, could not in our opinion advance the claim of the plaintiffs or that of defendant 6 to the schedule (Ka) property as joint; that might at the most, be treated as a piece of evidence in support of the case of the plaintiffs, so far as it related to the schedule (Ka) property. But the effect of such evidence was almost nil in view of the positive and definite evidence that the schedule (Ka) property was acquired by Gobinda, and was owned and possessed by defendants 1 to 5 after his demise. The evidence on this part of the case indicates clearly that plots of land were acquired by Gobinda at different times and structures were built upon them at his own expense. The evidence of possession of Gobinda and after him by defendants 1 to 5 appears to us to be complete; and there can be no question of the schedule (Ka) property being joint property to which any party other than defendants 1 to 5 could have any semblance of claim. The plaintiff's claim for partition of schedule (Ka) property must therefore fail.
6. Schedule (Kha) properties in Mouza Amohata: The evidence shows that the lands in Amohata were acquired in the year 1864. Gobinda was the recorded tenant; under the Midnapur Zamindary Company, rents used to be realized by Uma Charan and Sripati; and evidence has been led on the side of defendants 1 to 5 explaining the reason why in some of the rent receipts the names of those persons appeared. Some of the documents in the shape of rent decrees in which the plaintiffs' names appeared along with the names of defendants 1 to 5, cannot, in our judgment, establish the title of the plaintiffs to the Amchata lands. So far as these rent decrees were concerned, it would appear that the question at issue relating to the title to the properties, raised as between the two sets of defendants in the litigations in which the decrees were passed, was expressly left open. The litigation, it may be noticed, in which the decrees were passed, were characterised by the trial Court as collusive proceedings; and we are inclined to think that the observations made by the learned Judge in the Court below stand on valid grounds. It appears to us to be established that the lands at Amchata schedule (Kha) properties were self-acquired properties of Gobinda. In regard to the properties mentioned in schedules (Ka) and (Kha) mentioned above, it is to be noticed that they were never at any time considered to be joint properties of the three brothers, Gobinda, Uma Charan and Sripati, by defendant 6 who supports the plaintiffs in their claim for partition. It is worthy of notice that in the lists of the properties submitted by defendant 6 as a Government servant, no mention was made at any time of any of these proper. ties as joint family properties; the only property mentioned by defendant 6 in the lists submitted by him as a Government servant from time to time was the Nabasan property mentioned in schedules (Ga) and (Uma) to the plaint.
7. A grocer's shop started by Sripati was brought in so far as the evidence given by the plaintiffs and defendant 6 was concerned. It is impossible on the evidence before us, to say that the negligible income out of a small shop with a capital only of Rs. 30 to 40 could help the parties concerned, the plaintiffs and defendants 6 and 7, in establishing their case of acquisition of property out of joint funds, so far as the properties standing in the name of Gobinda were concerned, and which were proved to be his self-acquired properties, purchased out of his own funds. Some evidence was led on the question of joint worship. That evidence may be believed but it does not throw any light on the question of jointness of properties mentioned in schedules (Ka) and (Kha), as raised by the plaintiffs and defendant 6 in the plaint and the written statement filed by them respectively in the Court. The joint worship was carried on out of the very small income of lands at Nabasan which were joint as between the three brothers, Gobinda, Uma Charan and Sripati, supplemented by the contributions made by the members of the family out of their separate funds, of which mention was made in the deposition of defendant 6 before the Court and to which reference has been made above. Reliance was placed upon the contents of some letters used as evidence passing between the parties, the plaintiffs and defendants 6 and 7 on one hand and the contesting defendants, defendants 1 to 5, on the other in support of the case, so far as jointness of the properties covered by schedules (Ka) and (Kha) was concerned. As has been observed by the Judge in the Court below, a careful reading of these letters does not in any way indicate jointness of funds, much less jointness in the matter of acquisition or possession of the properties covered by schedules (Ka) and (Kha) to the plaint. Reference was made in detail to these letters; but the impression left on us on perusal of the same was that no light was thrown by the letters on the main question in controversy between the parties, namely joint character of the properties mentioned in schedules (Ka) and (Kha) to the plaint.
8. The movable properties mentioned in schedule (Gha), including a Government Promissory Note for Rs. 500, cannot be held to be joint. There is no evidence in support of such a position; and the evidence coming from the side of defendants 1 to 5 goes to establish that they belonged to them to the exclusion of the plaintiffs and defendant 6. On the whole, on a careful consideration of the material before us, the definite conclusion, we have arrived at is that the Judge in the Court below is right in his decision dismissing the plaintiffs' claim for partition, as made before the Court, so far as that claim related to the properties mentioned in schedules (Ka), (Kha) and (Gha) to the plaint. In our judgment the plaintiffs and defendant 6, who supported to the fullest extent the case of the plaintiff before the Court, had not by evidence before the Court made the beginning of a case in respect of which it could be said that any of the items of properties mentioned in schedules (Ka), (Kha) and (Gha) to the plaint, was joint property belonging to the three brothers Gobinda, Uma Charan and Sripati. In the result, the decision and the decree passed by the Court below are affirmed: and this appeal is dismissed with costs payable by the plaintiffs-appellants to defendants 1 to 5 respondents. The hearing fee in this Court is assessed at five gold mohurs.