SUKHANDAN Vs. BRIJNANDAN

JUDGEMENT

(1.) THIS appeal arises out of a suit for partition. The main issue in the case and the sole issue in this appeal is whether the bulk of the property in suit is joint family property or is the self-acquired property of the defendant- appellant, Sukhnandan. The plaintiffs are two brothers of Sukhnandan. Their father and the eldest brother named Sarju are dead. It has been found, and it is not now disputed, that the family was joint. The findings of the Court below are that, although Sukhnandan is the most capable member of the family and the acquisition of the property in suit is due mainly to his exertions, yet there was a nucleus of joint family property with the assistance of which the subsequent acquisitions has been made and that in consequence the property in dispute must be held to be joint property. The fact that where there is a nucleus of joint family property with the assistance of which subsequent acquisitions have been made, the burden of proving that any particular property is separate lies on the person who asserts it, was laid down by the Privy Council in 1906 in the case of Lal Bahadur V/s. Kanhaiya Lal 29 A. 244 : 9 Bom. L.R. 597 : 11 C.W.N. 417 : 5 C.L.J. 340 : 4 A.L.J. 227 : 2 M.L.T. 147 : I7 M.L.J. 228 : 34 l.A. 65 (P.C). THIS burden, as the Courts below have found, has not been discharged by Sukhnandan. On the contrary, he set up a case which has been found to be false, that the ancestral business came to an end on the death of his father, whereas in fact it was carried on by the eldest brother Sarju until Sarju became insane and the appellant came from Jhansi, where he had settled, to take over the management of the business. The only legal ground put forward by the appellant assailing the findings of the Court below is that there should have been a finding that the nucleus of joint family property was a substantial nucleus. No authority has been quoted in support of this proposition except an unreported case of the Madras High Court and there is nothing either in the rulings of this Court or of the Privy Council to support the proposition. No doubt it is true that property which was incapable of yielding any income might not be treated as a nucleus for the purpose of affecting the presumption as to subsequent acquisitions. THIS might apply, for instance, to an ancestral house. Here, however, the finding is that there was not only an ancestral house but an ancestral business the management of which was taken over by the appellant. The state of that business when the appellant took over the management of it is a fact peculiarly within the knowledge of the appellant and if he wished to show that the business was ended or yielded no income it was for him to prove it and not call the other side to prove the contrary. As we have seen, he did not attempt to prove it but, on the contrary, set up a false allegation that there was no business at all. No legal ground for assailing the findings of fact of the Court below has, therefore, been made out. Those findings are fatal to the appeal which we hereby dismiss with costs including in this Court fees on the higher scale.