The burden of proof in establishing joint family property, the admissibility of oral evidence to contradict written contracts, and the presumption of joint family property when a nucleus exists.

T. Vaiphei, J.

1. This Second Appeal is directed against the appellate judgment and decree dated 27.3.2001 passed by the learned Additional District Judge South Tripura, Udaipur in Title Appeal No.9 of 1997 upholding the preliminary decree dated 8.4.1997 passed by the Ld. Civil Judge (senior division), South Tripura, Udaipur in Title Suit No. 30 of 1993.

2. The case of the plaintiff-respondents (hereinafter called "the respondent" for short) is that his father, late Surendra Majumder and the defendant/appellant (hereinafter called "the appellant" for short) are brothers, who used to live in a joint family and sharing joint mess. The said Surendra Majumder and the appellant jointly purchased 7 karris and 14 gandas of land out of the income if their joint family. The appellant also purchased in his own name 1 kani 7 gandas and 2 karas of land for the joint family. Both the brothers also inherited 13 gandas 3 karas and 4 7/32 dhurs of land on the death of their father. Thus, according to the respondent, his father and the appellant became owners of 9 kanis, 15 gandas 1 kara and 4 7/32 dhurs of land having equal share. Out of this joint family land, the appellant sold out land measuring 1 kani 5 gandas to one Narul Islam by the registered sale deed No. 1552 dated 26.3.1955 for his personal purpose. According to the respondent, the land so sold out ought to be deducted from the share of the appellant. Again, a piece of land measuring 0.17 acre "constituting the said joint family property was acquired by the Government while both the appellant and the respondents jointly sold another parcel of land measuring 0.48 acre out of the same joint family property. The total area of land originally held by the respondent and the appellant are shown in schedule "A" to the plaint while the land jointly purchased by the respondents and the appellant but registered in the sole name of the appellant is described in Schedule "B" to the plaint. Schedule "D" to the plaint describes the lands acquired by the Government and also the land jointly sold by the appellant and the respondents. It is the further case of the respondents that the lands described in schedule "C" to plaint were mortgaged to the appellant by the late Surendra Mazumder as security for the repayment of Rs. 5,000 borrowed by him. This lands, according to the respondents, are to be included in the joint family hotch potch. It is, therefore, contended by the respondents that the lands mentioned in Schedule "E" to the plaint should be accordingly partitioned after deducting therefrom the share of the appellant to the extent of the land sold by him for his personal purpose. Consequently, the respondents-plaintiffs claimed for partition, declaring their appropriate share and also for khas possession.

3. The appellant-defendant contested the suit and filed a written statement in which, it is, inter alia, averred that he along with the late Surendra Mazumder, i.e., father of the plaintiffs, jointly purchased (i) the land measuring 3 kanis, 14 gandas, 2 karas and 12 1/2 dhurs under registered Deed No. 4156 dated 26.10.1957, (ii) the land measuring 1 kani 1 kara and 5 gandas under registered Deed No. 5625 dated 16.11.1959, (iii) the land measuring 4 gandas and 2 karas under registered Deed No. 3864 dated 20.7.1966, and (iv) jointly inherited the land measuring 13 gandas, 3 karas and 4 7/32 dhurs pertaining to new jote No. 63 of Mouja Matabari from their father in equal share. Thus, according to the appellant, both he and the late Surendra Mazumder became the owners of the joint family, i.e., a total of 5 kanis, 13 gandas 1 kranta and 1 dhur in equal share. The appellant denies that the said land measuring 0.82 acre was mortgaged to him by the said Surendra Mazumder and asserts that the same were purchased by him by three separate deeds No. 5292, No. 1934 and No. 4044 at consideration of Rs. 5000 from the said Surendra Mazumder. According to the appellant, after deducting the said lands