The presumption of joint family property shifts the burden on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.

Judgement

R. N. MISRA, J. :- Defendants have carried this appeal against the preliminary decree passed by the learned Additional Subordinate Judge of Purl in a suit for partition.

2. Parties are related in the manner indicated below:-

Plaintiffs filed the suit for partition of the properties in the hotchpot alleging that there had been no partition among the three branches of which the common ancestors were Bhagaban, Michhu and Hadibandhu. With the aid and assistance of joint family nucleus several acquisitions were made and such properties have also been included in the hotchpot for partition on the footing that they were impressed with joint family character. The kha schedule property represents the moveables while the Ga schedule relates to money-lending business of the family. Plaintiffs averred that they were being deprived of the benefits of the joint family properties and when they demanded partition, the same was not accepted too. Thus the suit was filed in forma pauperis asking for one-third share.

3. Bali and Bholi filed a written statement pleading previous partition among the three branches prior to 1927 when the Current Settlement Operations began. The said partition was by metes and bounds; the shares were specifically defined in the record-of-rights and in respect of many items of property specific possession also came to be noted; parties lived in separate houses; were separately assessed to choukidari taxes and have carried on their own business in money lending with separate funds; the several acquisitions have been made in the names of the different members which are not joint family properties. It was also alleged that some of the properties included in the hotchpot belonged to the family deity and were not liable to be divided. Bali and Bholi died during the pendency of the suit but their legal representatives have adopted the written statement filed by the deceased defendants.

4. The trial court came to hold that there was no previous partition; it accepted the plaintiffs claim that there was joint family nucleus and the defendants claim of self-acquisition was rejected and all the properties shown in the Ka schedule were held liable for partition and plaintiffs were declared to have one-third share therein. plaintiffs claim for partition of moveables in Kha schedule and money-lending business as given in the Ga schedule was rejected.

5. Defendants have carried this appeal challenging the decree of the trial court. The dismissal of the suit in regard to the Kha and Ga schedule properties has become final.

6. There is no dispute before us that the burden to establish a plea of previous partition lay on the defendants who advanced that plea. Mr. Mohapatra for the appellants maintains that the cumulative effect of the materials placed before the court are sufficient for reaching a conclusion that there has been a previous partition and, therefore, the learned Trial Judge should have accepted the defendants plea of previous partition. It is the admitted case of parties that the different branches are living separately. The Current settlement Record-of-Rights shows either ascertainment of shares of specific possession of certain items of property by different members of the family. Admittedly, there has been cessor of commensality; taxes are being separately paid; money-lending business has been separated; different members of the family have been acquiring property separately; even in the recent Settlement which is not complete, parchas show separate record. According to Mr. Mohapatra, the cumulative effect of these features certainly proves a previous partition. He relies on a passage from Mulla on Hindu Law under Art. 327, where it has been said:-

"Cesser of commensality, it is stated above, is not a conclusive proof of partition; the reason is that a member may become separate in food and residence merely for his convenience. Separate residence of the members of the joint family in different places where they are