In the absence of evidence as to the interests in the fund from which the consideration money for the acquisition of property was paid, or as to the shares which the parties respectively advanced, such persons shall be presumed to be equally interested in the property.

Judgement

R. N. MISRA, J. :-Defendants 1 and 3 to 5 have carried this appeal against the judgement and decree of the learned Sub ordinate Judge of Nayagarh in a suit for partition. The relationship of the parties is available from the genealogy given below :

Defendant No. 2 has been adopted out of the family. Ka Schedule property with an extent of 4.36 acres admittedly constitutes the ancestral assets. Kha to Chha schedule properties were acquired jointly in the names of plaintiff and defendants 1, 3, 4 and 5 between 17-9-1955 and 10-12-1965 and the particulars of these acquisitions appear from a chronological statement below :-

Sl. No. Date Exhibit Particulars

1. 17-9-1955 4 45 decimals of land acquired for Rs. 100/- in the name of all the five from D.W.1

2. 27-3-1957 2 32 decimals of land (Schedule Kha ) purchased by all the five members for a consideration of Rs. 675/-

3. 5-1-1962 3 88 decimals of land (Gha Schedule) purchased by all the five members for a consideration of Rs. 2,000/- from D.W.1

4. 9-4-1965 B some homestead land ( Una Schedule) purchased for Rs. 400/- in the name of all the five.

5. 5-8-1965 A some homestead land purchased for Rs. 1,000/- in the names of all the five members from D.W.4 (described in Chha Schedule.)

6. 10-12-1965 1 13 decimals of land in Chha Schedule purchased for Rs. 200/- in the names of all the five members from D.W. 3

Plaintiff claimed half share in the Ka schedule property as also in the properties described in Kha to Chha schedules on the allegation that the acquired property had been purchased out of joint family nucleus.

2. There was no dispute from the side of the defendants about the plaintiff s moiety share in the Ka schedule property. They, however, maintained that in the six items of acquired property each of them, i.e. plaintiff, defendants 1, 3, 4 and 5 had one-fifth share and they had no objection to plaintiff getting partition of his share on such basis. They pleaded that each of them had contributed towards the consideration of the acquired property and they relied upon a Panch Faisala (Ext. C) dated 28-7-1967 in which plaintiff had accepted one-fifth share of each of the defendants in these properties.

3. At the trial, plaintiff examined himself as P.W. 5 and five more witnesses in support of his stand. Defendants examined 6 witnesses also including defendant No. 1 (D.W. 6). They examined the vendor of Exts. 3 and 4 as D.W. 1, the vendor of Ext. 1 as D.W. 3 and the vendor of Ext. A as D.W. 4. They also proved Ext. C by examining D.Ws. 2 and 5.

4. The learned Trial Judge, however, did not accept the claim of one-fifth share by each of the defendants in the acquired property and on a finding that defendants had failed to prove that joint family nucleus had not been utilised for acquisition of these properties, he accepted plaintiff s claim of a moiety share therein. Defendants have carried this appeal against the said decree.

5. Mr. Pal for the appellants concedes that there is no dispute in regard to the ancestral Ka Schedule property and reiterates the claim of the defendants to onefifth share in the acquired properties covered by Kha to Chha schedules. As already indicated, these properties were acquired under six separate sale deeds between 17-9-1965 and 10-12-1965. Of these, the acquisitions under Exts. A and B are homestead property and the rest are cultivable lands.

6. The legal position is well settled that property standing in the name of individual members of a joint family would not constitute joint family property. One who asserts that such property takes the character of joint family asset has to show that the joint family had sufficient nucleus available for acquisition of the property and on such fact being proved, the burden shifts on to the individual member claiming the property to be his self-acquisition to show that joint family nucleus was not utilised for the acquisition. The learned Subordinate Judge clearly went wrong in placing the burden on the defendants to prov