The burden of proving joint family property rests on the party asserting it, and the party alleging joint family property must show the existence of a nucleus with the aid of which the property in question could have been acquired.

Narayan, J.

1. This is an appeal by the defendants arising out of a suit for partition.

2. One Ganpat Lal had five song, Satnarain Lal, Chhabilchand Lal, Ranjil Chand, Ramdayal and Chanderdeo. Satnarain and Chhabilchand died issueless, and the plaintiff is the son of Ramjil Chand, who had another son Makhan Lal, who also died without an issue. Ramdayal is defendant 1 in the suit and Chanderdeo is defendant 2, defendants 3, 4 and 5 being the sons of Chanderdeo. The case made out by the plaintiff was that the five brothers lived joint and that he and the defendants still constitute members of a joint Hindu family. It wag further alleged by the plaintiff that moat of the jote lands and movables in possession of the family had been acquired jointly by the five brothers, and that some of the lands had been purchased in the names of the different members of the family. He wanted a partition of his 5 annas 4 pies share in the family properties. Defendants 2 to 5, who are the appellants before us, contested the suit and their contention was that all the five sons of Ganpat had separated from one another and that the properties standing in the names of the defendants were their self-acquired properties.

3. The Court of first instance the Munsif of Katihar, dismissed the suit, his finding being that the separation between the brothers took place long ago, and that the properties have already been divided. That Court further held that lots 1 and 2 which stood in the name of Ramdayal (defendant 1), lots 3 and 4 which stood in the name of defendant 2, and lot 5 which stood in the name of defendant 3 were the self, acquired properties of these defendants.

4. The lower appellate Court reversed the decision of the Court of first instance. The learned District Judge was of the opinion that the family still continued to be joint and that all these properties were liable to be partitioned as joint family properties.

5. Mr. Raj Kishore Prasad on behalf of the appellants has submitted before us that the lower appellate Court has not considered the evidence properly and that the decision of the lower appellate Court disregards the legal principles on which a case like this bas to be decided.

6. We agree with Mr. Raj Kishore Prasad that it is a fit case which should be sent back to the Court below. The lower appellate Court has begun the discussion of the evidence by referring to the statement of Ramdayal (defendant 1), who is the oldest surviving member of the family and who did not contest the suit but was examined as a witness on behalf of the plaintiff, This witness had filed a petition admitting the claim of the plaintiff, and it appears that the learned District Judge was very much influenced by this admission of defendant 1. But the learned Munsif has pointed out that Ramdayal had stated in his cross-examination that there was never any joint fund belonging to the brothers. The judgment of the learned District Judge does not show that he took any notice of this statement made by Ramdayal and this circumstance alone is sufficient for holding that the case has not been properly considered by the learned District Judge. It seems that the learned District Judge completely overlooked the principle that there is no presumption that the family, because it is joint, possesses joint property or any property and that, when in a suit for partition, a party claims that any particular item of property is a joint family property, the burden of proving that it is so rests on the party asserting it. The plaintiff in this case had, therefore, to establish that the family was possessed of some property with the income of which the properties claimed by him in this suit could have been acquired or from which the presumption could be drawn that all the properties possessed by the family are joint family properties. In the plaint, there is a statement to the effect that most of the jota lands, cattle, carts, horses and houses had been acquired jointly by