The burden of proof lies with the party asserting a fact, and in this case, the appellant failed to establish that the property was joint family property.

Walsh, J.

1. The appellant got a decree against the father of the respondent. During execution proceedings the father died and the respondent was brought on record as his legal representative. He is his undivided son. When the appellant sought to bring certain properties to sale the son claimed that they were his self-acquired properties and so not liable. The executing Court dismissed the claim, but it was allowed in appeal and this second appeal is preferred against that decision.

2. Although the appellant asserted that the property was ancestral the evidence shows, and it is not disputed before me, that it originally belonged to the maternal grandmother of the respondent who assigned it by Ex. A in 1914 to the respondent then a minor, with his father as guardian. But the appellant asserts that the property was thrown into the common stock by the respondent. The onus of proving this is, of course, on the appellant and he relies mainly on the mortgage, Ex. 1, dated 5th August 1921. By this mortgage the land in question together with ancestral property was jointly mortgaged to a third party by the respondent and his father. The respondent executed the deed as a major. He describes himself as the undivided son of his father and says that on account of our necessity"

We have borrowed of you a sum of Rupees 2400. We shall pay interest thereon at As. 12 per cent per mensem and we shall pay the annual interest on this date every year etc.

3. Then we come to the most important part, the description of the property mortgaged. First the ancestral property is described:

We have mortgaged to you under this deed the inam land acquired by our ancestors and which is in our possession and enjoyment as of right.

4. Then comes the description of the property now in dispute as follows:

and the immovable property inclusive of the water sources, wells, tanks, etc., therein specified in para. 3 hereunder and which devolved on Pallamraju of us, through his maternal grandmother Vissapragada Atchamma Garu, and in which we have rights of enjoyment.

5. Later on, alluding to both sets of properties the executants say "they are in possession and enjoyment as of right without any obstruction whatever." No statements could be more explicit and it cannot be said that there has been any confusion between the ancestral properties and those of respondents maternal grandmother, because the document goes out of its way to describe each separately and states distinctly that in the latter also both the executants have rights of enjoyment. No explanation has been offered by the respondent in the box for these admissions, and the learned Sub-Judge has entirely overlooked the fact that, in the absence of any explanation, the onus of proof is at once shifted to the respondent. He merely says with regard to Ex. 1:

The lower Court relied wholly on Ex. 1 and on the fact that during the appellants minority his father managed the attached properties. But this is not sufficient to draw the inference that the appellant converted his separate property into joint family property.

6. That conflicts with the principle laid down by the Privy Council in Chandra Kunwar v. Chandra Narpat Singh (1907) 29 All 184 . Their Lordships say:

The learned Chief Justice in his judgment points out that the burden of proving that the adoption relied on took place rests on the defendant.

7. That is undoubtedly so, but it is difficult to conceive how she could as against Mukand Singh, prima facie at all events, discharge that burden more effectually than by proving his solemn statement under hand and seal that it did take place. The proof of the admission shifts the burden, because as against the party making it, as Baron Parke says in Slatterie v. Pooley (1840) 6 M & W 664 :

What a party himself admits to be true may reasonably be presumed to be so. No doubt in a case such as this where the defendant is not a party to the deeds and there is therefore no estoppel, the party making the admission may gi