The burden of proving that property held by an individual member of a joint family is family property rests on the party asserting it.

Imam, J.

1. This is an appeal by the plaintiffs against the decision of the Additional Subordinate Judge, 4th Court, Gaya, whereby he decreed in part the plaintiffs suit for partition. He held that the properties standing in the name of defendant 7, Musammat Kausala Kuer, and properties standing in the name of defendant 1, Ujagir Singh, were not properties which could be the subject of partition as these properties belonged to Kausala Kuer and Ujagir Singh, respectively. A cross-objection has also been filed against the decision of the Subordinate Judge decreeing in part the plaintiffs suit for partition. The cross-objection, however, was not pressed before us by Mr. De, appearing for the respondents in the appeal. So far as the appeal by the plaintiffs is concerned, it is confined only with respect to the decision of the Subordinate Judge concerning the properties standing in the name of Musammat, Kausala Kuer, defendant 7 and Ujagir Singh, defendant 1. There was one other matter argued, namely, as to whether the order of the Subordinate Judge allowing maintenance to the extent of one-fourth share to defendant 7 was permissible and as to whether the same could be made a charge on the joint family properties.

2. One Ramanugrah Singh had four sons, Gobardhan Singh, Bhuletan Singh, Karu Singh and Sital Singh. The plaintiffs are Karu Singh along with his son plaintiff 2. Defendant 3 is the son of Bhuletan Singh and defendant 5 is the son of defendant 3. Gobardhan Singh had two sons, defendant 1 and defendant 2. The son of defendant 1 is defendant 4 and the son of defendant 2 is defendant 6. Sital singh was married to Musammat Kausala Kuer, and within three to four years of his marriage he died issue-less leaving behind Kaupala Kuer a widow. Kausala Kuer is defendant 7.

3. So far as the properties standing in the name of Musammat Kausala Kuer, defendant 7 is concerned, that has been dealt with by the Sub-ordinate Judge under issue no. 4. These properties consist of 3 annas 4 pies share in village Shahbazpur, mentioned in Schedule A of the plaint and Khata No. 6 in Schedule B of the plaint. Khata No. 6 of Schedule B of the plaint was purchased by a sale deed dated 23-11-1937, by Kausala Kuer, and the sale deed is exhibit A. The 3 annas 4 pies milkiat share in village Shahbazpur was purchased by her on 2-9-1932. The sale deed is exhibit B. Under this sale deed some jagir lands were also conveyed. These jagir lands were sold by Kausala Kuer. The question now is as to whether the plaintifis have established that the properties covered by exhibits A and B were purchased by the joint family in the name of Kausala Kuer or that the properties under these documents were purchased by Kausala Kuer in her own right and that the joint family had nothing to do with the purchased properties. The plaintiff 1 himself admitted that the father of Kausaia Kuer had properties and that Kaupala Kuer was his only child. According to the defendants witness 9, uncle of Kausala Kuer, Kausala Kuers father was possessed of sufficient means and that Kausala Kuer had been given money after her marriage and that out of that money some Kasht lands and milkiat property were purchased. Kausala Kuer had been married to Sital Singh only a few years before she became a widow.

There seems to be no adequate reason as to why joint, family property would be purchased in the name of Kausala Kuer. On the other hand, her father may well have endeavoured to mitigate his only childs grief at her husbands death by purchasing properties for her. There seems to be nothing improbable in this. On the other hand, it does seem somewhat improbable that the joint family of the plaintiffs would purchase properties in the name of the widow of Sital Singh. Furthermore, if Kausala Kuers name was merely used and the real purchaser of the, properties was the joint family, one would expect that the sale deeds in question would be in the custody of the joint family.

It is true that the