The burden of proving that a business is a joint family business lies on the person alleging it.

RAMAPRASADA RAO, J.:- The unsuccessful plaintiff in O.S. 3 of 1968 on the file of of the court of the Subordinate Judge, Nagapattinam, is the appellant. Originally the suit was numbered as O.S. 42 of 1967 on the file of the Court of the District Judge, East Tanjore at Nagapattinam. The suit is one for partition and separate possession of the plaintiff's one third share in the suit properties and for future profits. The plaintiff's case is that his paternal grandfather Rajagopal Pillai started a photo business in 1917 under the name and style of Sri Krishna Photo Studio. The first defendant plaintiff's father and the second defendants is the step-brother of the plaintiff. It is claimed that the first defendant got himself associated with his father in the photo business and both of them ran it as a joint family business. When the grandfather Rajagopala Pillai became old, the first defendant was in sole charge of the studio and the business and the plaintiff after completing the school course, participated in the same and contributed his labour also. Thus, the family photo business was continued after the death of Rajagopal Pillai in 1965 and considerable properties were acquired from and out of the profits of the business. The plaintiff says that he became an expert in the said business and the grand-father himself till his death was doing the sedentary part of the business. As the joint family had no other business or source of earning except the photo studio the plaintiff acquired a right by birth in the family activity and the assets secured in exercise of such profession. The family acquired the house in which the studio is at present situate besides agricultural lands of an extent of 6.80 acres in Serukudi village from and out of the business profits. It is claimed that large sums of money have also been deposited by the first defendant in his name in various banks. Soon after the death of the grandfather there were misunderstandings between the plaintiff and the first defendant, who was under the influence of his second wife and by the end of April 1967 the bickerings compelled the plaintiff to demand a division of the joint family properties and allotment of his one-third share to him. The plaintiff also refers to a partition in the family to which he was a party but claims that it is unstamped and unregistered document and, therefore, would not bind him. As the first defendant refused to effect any proper division of the properties and give his one third share, though such a demand was made through mediators, he had to file the present action claiming a one third share in the plaint A to D schedule properties. A schedule properties deal with the materials in the photo studio; B Schedule refers to a house in Thiruvarur town, C Schedule deals with the agricultural lands and the D Schedule refers to a deposit of a sum of Rs. 10,000/- made by the first defendant in the Indian Overseas Bank at Thiruvarur.

2. In the first defendant's write statement he admits that the plaintiff was living with him till April 1967. Thereafter the plaintiff was living separately with his wife. It is denied that the photo studio called Sri Krishna Photo Studio is a joint family business and the properties mentioned in the various schedules to the plaint are joint family properties. Rajagopala Pillai, the grandfather of the plaintiff was a public servant employed as a clerk in the Sub-Registrar's office, in the first instance and later in the railways. Rajagopala Pillai, thereafter started a business in watch and clock repairs and later learnt photography and was carrying on a mere photography business at Nagapattinam and Thiuuthturapoondi and was not even successful. He was adjudicated as an insolvent and the first defendant emphatically denies that there were any ancestral nucleus left by Rajagopala Pillai for the first defendant to exploit the same. The first defendant's independent case is that he was trained by one G. V. Naidu, photo