The burden of proof in establishing joint family property and the admissibility of evidence under Section 65(c) of the Evidence Act.

( 1 ) THE property which is the subject-matter of this litigation was acquired by Satish Chandra Dutta, father of defendants 1 and 3 in the year 1906 by a patta from Narendra Nath Das and others. Satish had a brother named Sital. Respondent 1 is the son of Sital and brought the suit for partition of the property on the allegation that the property, though acquired in the name of only one brother Satish, was really the joint property of the two brothers Satish and Sital. The present appellant was impleaded as defendant 4, as he had acquired a portion of the property in suit by settlement from Satish and another portion by purchase from the heirs of Satish. Other defendants were, apart from the sons of Satish, the other tenants who were in possession of parts of the property, having taken settlement either from Satish or his heirs.

( 2 ) THE defence was that the property was not joint and was really the personal property of Satish acquired with his own money.

( 3 ) THE trial Court rejected the defence contention, believed the plaintiff's case and decreed the suit.

( 4 ) ON appeal, the learned Additional District Judge has also come to the same conclusion and dismissed the appeal.

( 5 ) BOTH the Courts placed considerable reliance on an admission made by Satish in a written statement said to have been filed by both the brothers Satish and Sital in Title Suit No. 646 of 1908 of the First Munsif's Court, Diamond Harbour.

( 6 ) THE main contention in the appeal is that the finding of fact by the learned District Judge that the acquisition of the property, though in the name of Satish, was really by both the brothers Satish and Sital, cannot be accepted as final finding of fact binding on this Court, inasmuch as it is vitiated by errors of law. The first error of law, which Mr. Janah appearing for the appellant has alleged is that the learned District Judge did not properly consider the question as to on whom the burden of proof lay and had also not arrived at any finding on the point whether the joint family had a nucleus out of which this property could have been acquired. His second contention is that the written statement on the admission in which so much reliance has been placed was wrongly admitted in evidence. Thirdly he contended that the Court below wrongly rejected the mortgage bond which was sought to be put in as evidence on behalf of the defendants to show the source of the money with which the selami was paid.

( 7 ) THE law is well settled now that in a case of this nature, where, though a document is standing in the name of one person, another party comes and claims the property to be joint family property, the burden is first on him to prove that the two were joint at the time of the acquisition and secondly that the joint family had a sufficient necleus from which the property could have been acquired. If this burden is discharged by the party who claims the property to be joint the burden then shifts to the other side to show that really the property was acquired for himself and with his own funds. The judgment delivered by the learned District Judge does not indicate that these points were in his mind at all. It does appear that the learned Judge did come to a conclusion that the two brothers were living jointly in 1313 B. S. at the time of the settlement of the land. There is no indication that he applied his mind to the question of the presence of a nucleus. Mr. Roy Choudhury for the respondents has drawn my attention to the statement in the judgment where the Judge Says that both the brothers were in a position to earn some money and prima facie in a position to contribute towards the expenses of taking settlement of the disputed lands. This, however, falls far short of a finding that they did pool their resources in such a way as to form a nucleus and that nucleus was sufficient for the purpose of acquisition of a property of this nature.

( 8 ) I am of opinion that in view of the serious m