K. S. SHRIVASTAV, J.

( 1 ) THE defendant in OS 18/1979 is the appellant.

( 2 ) THE respondents are the sons of the appellant. They instituted a suit for partition and separate possession of the plaint schedule property through their mother, beingnatural guardian, alleging that the appellantand the respondents are the members of joint Hindu family which owns ancestral joint family property, that is the plaint schedule property. They alleged that the appellant ill-treated their mother due to which she had to stay away from him with the plaintiffs from the year 1975. They are entitled to2/3 share in the plaint schedule property and separate possession. The appellant denied the claim of the respondents alleging that the mother of the respondents had no locus standi to file a suit for partition and separate possession because she was not appointed as guardian by the competent Court. He has denied that the respondents have got2/3, share in the plaint schedule property. He has further pleaded that he was not the pattadar of the land bearing Survey Nos. 141/1 to 141/8 and 129/1 and he is only a shareholder in respect of Survey Nos. 234,235 and 590. He has pleaded that the suit house is not ancestral property, but it is the self-acquired property of the defendant. He has further pleaded that under these circumstances, the suit deserves to be dismissed.

( 3 ) ON assessment of the evidence on record, the lower Court reached the conclusion that the mother of the respondents has no interest adverse to them and, therefore,she is entitled to file a suit for partition and separate possession on their behalf and the suit schedule property is the ancestral property in the hands of the appellant. Rejecting the contention of the learned counsel of the appellant, the trial Court held that though after the death of his father the appellant being the sole surviving coparcener of the plaint schedule property became its owner by survivorship, yet after the respondents were born to him they became the coparceners with the appellant and the plaint schedule property became the coparcenary property and, therefore, the respondents have got 2/3 share in the plaint schedule property. It also concluded mat nonjoinder of the illegitimate son of the appellant is not fatal to the suit for partition because the property to be partitioned is the coparcenary property and not separate property.

( 4 ) FEELING aggrieved by the order and judgment of the lower Court, the appellant has preferred this appeal.

( 5 ) TESTING the facts of the case on the touch stone of the principles of law laid down in the cases of Srinivsa Krishna Rao vs. Narayana Deoji Kango and others, k. V. Narayana Iyyer vs. K. V. Rama Krishna Iyer and others and Baikuntha Nath paramanik vs. Sashi Bhushan Paramnaik and others,i am of the opinion that a presumption can be safely raised that the plaint schedule property was acquired from the income of the ancestral property owned by the appellant s father and grandfather because admittedly there was ancestral property in possession of the joint Hindu family consisting of the appellant and his father having sufficient nucleus to make the subsequent acquisitions and, therefore, the lower Court has concluded, and rightly so, that the burden of proof rested with the appellant to establish that the plaint schedule property had been acquired not out of the family funds, but from his own earnings.

( 6 ) RELYING on the case of Malchand Thirani and Sons vs. Commissioner of Income-Tax, west Bengal, it has been urged on behalf of the appellant that after the death of the appellant s father, his interest in Mitakshara coparcenary property devolved by survivorship upon the appellant who was then the sole surviving member and, therefore, the nature and character of the ancestral property under the Mitakshara Law has been completely abrogated vide proviso to main sections 6 and 8 of the Hindu Succession Act, 1956 (hereinafter referred to as the act) and thus the proper

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