A Hindu, even if he be joint, may possess a separate property, there is a presumption under the Hindu Law that property purchased or acquired out of the income or with the assistance of the ancestral property is ancestral in nature.

HARI LAL AGRAWAL, J.

1. This first appeal by the plaintiff arises out of a suit for partition. He claimed half share in the suit properties consisting of both immoveables and moveables which are described in the various items of schedule to the plaint. Items Nos. 1 to 5 of the schedule are all immoveable properties and Items Nos. 6 to 9 are moveables. Except the last item which is cash money amounting to Rs. 30,000/-, the other moveable items consist mainly of silver utensils and the like. The plaintiff in the plaint itself had stated that he had acquired a piece of Basouri land from his own earning in Mouza Nilkanthpur in the town of Deoghar, by a registered lease deed dated 8-5-1958 and accordingly that was not, liable to partition. The trial court decreed the plaintiffs suit in part. It did not accept the plaintiffs claim under Item No. 8 with respect to silver utensils. Item No. 7 which is a silver snake said to be weighing 250 tolas was allowed in part. It also rejected the plaintiffs claims with respect to the cash amount and that the Nilkanthpur property was his self-acquired property. The plaintiff has accordingly filed the present appeal.

2. The parties to the suit are Pandas of Deoghar and it is undisputed that the plaintiff, defendant No. 1 and his two sons, namely, defendants Nos. 2 and 3, are descendants of one Maya Ram who had three sons, namely, Mukund Ram who died earlier the plaintiff and defendant No. 1. According to the plaints case, all the three brothers were separate in mess but the ancestral property including the income from clients (yajamans) was joint and they were enjoying the same according to their respective shares. After the death of Mukund Ram, there was a partial partition in the family in respect of the ancestral properties through three Arbitrators appointed by the parties. The Arbitrators partitioned the properties under an award dated 24-3-1958. It was accepted by all the parties. According to the award, whereas the sons of Mukund Ram separated on taking their 1/3rd share in the ancestral joint properties along with Yatri Bahis, the remaining 2/3rd share therein was allotted jointly to the plaintiff and defendant No. 1. The award has been produced in the case and marked Ext. 3. It may be mentioned that the Nilkanthpur property did not find place in this award. The plaintiffs further case is that as he was devoting most of his time in doing worship, the defendants attended to and conducted most of the Yajamans, received the offerings and Dakashina from them and divided the same to the extent of half and half, but from the last 3 years they were not dividing the income. This led to the claim of half share in the cash money of Rs. 30,000.00 said to have been accumulated on account of the yajamanika income during the last 3 years with the defendants. With respect to this item of claim it was further alleged by the plaintiff that the amount was left in deposit with defendant No. 1 for construction of a joint house which was not spent as agreed to and, therefore, he wanted return of his half share in the money.

3. In the written statement filed by all the three defendants jointly, they controverted the foregoing allegations of the plaintiff. With respect to the Nilkanthpur property, they stated that it was acquired with the joint family income and, therefore, it was a joint family property liable to partition. They further pleaded in this respect that the plaintiff had no separate income of his own. With respect to the earlier partition, they said that the plaintiff being the oldest surviving brother, cleverly manipulated the affairs of the arbitration proceeding and got the Nilkanthpur property omitted from the list of the joint family properties, but they alleged that nonetheless the said property was in joint possession of the plaintiff and the defendants.

With respect to the collection of the yajamanika income, they alleged that it was plaintiff who was allowed to manage the family pr