The burden of proof is on the party claiming that the properties are joint family properties to prove that the family was possessed of some property with the income of which the property could have been acquired or from which a presumption can be drawn that all the properties possessed by the family are joint family properties.

G. B. PATNAIK, J.

( 1 ) DEFENDANTS are appellants against the judgment and decree of the Subordinate Judge, Kendrapara, in Title Suit No. 23 of 1973. Plaintiff filed the suit for a declaration that the deed of partition dated 5-5-1973 is invalid, inoperative and null and void on account of fraud perpetrated on him by the defendants by including in the said document the self-acquired properties of the plaintiff to the extent of 7. 592 described in Lot No. 3 of the plaint schedule.

( 2 ) ACCORDING to the plaintiffs case, the plaintiff and the defendants are brothers and all of them had inherited the ancestral family property to the extent of 1. 85 acres described in Lot No. 1 of the plaint schedule. By the time when plaintiffs father expired, he was only 18 years old and as the family properties were not sufficient to make both ends meet, the plaintiff left for Calcutta and started some milk business and out of the income of the said business maintained the defendants and also purchased the properties to the extent of 7. 592 acres described in Lot No. 3 of the plaint schedule. Defendants have no manner of right or interest in the said property. That apart, all the defendants and the plaintiff have jointly purchased properties to the extent of 7. 925 acres described in lot No. 2 of the plaint schedule. As there was dissension amongst the members of the family, defendant No. 2 suggested to partition the properties described in lot No. 1 and tot No. 2 of the plaint schedule and plaintiff having agreed to the said proposal signed in some blank papers. The said defendant No. 2 being a clever person and with the aid and advice of the scribe and attesting witnesses got the partition deed executed on 5-5-1973 and the same was registered on the same day on the pretext that the partition is in respect of the properties described in lot No. 1 and lot No. 2 of the plaint schedule. The plaintiff being illiterate and the document in question not having been read over and explained to him, the plaintiff executed the same having implicit faith in the defendants. Later on, he came to know that in the said deed, the self-acquired properties of the plaintiff described fully in lot No. 3 of the plaint schedule have also been included and the said deed is thus bad in law being the outcome of fraud played upon the plaintiff by the defendants. On these pleadings, the present suit was filed by the plaintiff.

( 3 ) THE defendants filed a joint written statement. It was alleged in the written statement that the joint family had substantial property yielding some surplus after meeting the joint family expenses and after the death of their father plaintiff being the eldest son became manager of the family and continued to manage the family affairs. The second defendant left for Calcutta and started milk business which was yielding sufficient income. He was remitting money regularly from the so-called milk business to the plaintiff. When he used to come home, the plaintiff as well as the other brother were going to Calcutta to manage the milk business of defendant No. 2. With the money that was being sent by defendant No. 2, plaintiff had made all the acquisitions and thus the properties described in lot Nos. 2 and 3 are the joint family properties and were also being cultivated jointly and the income thereof being enjoyed jointly by all members of the family. The plaintiff was incharge of the entire joint family assets. Some dissension having arisen between the brothers, it was decided that the properties would be partitioned and at the intervention of some well-wishers all the joint family properties were partitioned amongst the four brothers. After it was worked out, plaintiff took all his brothers to the scribe who was known to him and got the partition deed drawn with the assistance of his friends and witnesses. Therefore, there was no question of fraud being practised by the defendants as alleged in the plaint. The plaintiff and the scribe also tol