The onus lies upon the person who asserts that a particular property is joint family property to establish that fact.

JUDGMENT :

A. Misra, J. - Plaintiff is the Appellant before this Court. One Madhu Mohapatra had three SODA, Gouranga., Lokenath and Basu. These three brothers were divided. Basu had three sons, Kalu, Dinabandhu and Debanando. Dinabandhu is Defendant No. 1 and three of his sons are Defendants Nos. 2 to 4. Defendants Nos. 5 and 6 are widows of Kalu and Debanando respectively. The properties described in Schedules A, B, and C belonged to late Lokenath. According to Plaintiff, Dinabandhu (D/1) adopted him before the birth of Defendants Nos. 2 to 4. Lokenath being issueless executed a will on 19-5-1941 bequeathing all his proper ties to the Plaintiff, Dinabandhu (D/1) and Durga Charan (D/2) to be enjoyed in equal shares. Plaintiff filed the present suit claiming partition and allotment of 1/3rd share in the properties left by Lokenath which he claims to be entitled under the will. Defendants Nos. 1 to 4 who contested denied execution of the will and pleaded that even if such a will was executed by Lokenath he subsequently revoked it by destroying the same along with some papers. Defendant No. 1 claims to be the adopted son of Lokenath. As the properties in suit constituted the joint family assets of Lokenath, he had no power of disposition over them by will and that Defendant No. 1 as adopted son alone is entitled to the said properties. The other Defendants are the transferees for consideration from Defendant No. 1 and they allege that their transfers were for consideration and legal necessities and in other respects they support Defendants Nos. 1 to 4.

2. The subject-matter of the suit is described in three Schedules A, B, and C annexed to the plaint. Schedule A consists of the landed property; Schedule B contains the house and Schedule C the moveables of Lokenath. In the trial Court, Plaintiff gave up his claim in respect of moveables covered by Schedule C. The trial Court decreed the suit in part holding that Plaintiff is entitled to 1/3rd share in Schedule A properties except item No. 21 together with mesne profits commencing from the year 1950. It disallowed the claim of Plaintiff in respect of Hem 21 of Schedule A and the house contained in Schedule B on the ground that Lokenath had no power of disposition over these items. Defendants No. 1 to 4 preferred an appeal challenging the judgment and decree of the trial Court. The lower appellate Court allowed the appeal in part by decreeing the claim of Plaintiff only in respect of properties in Schedule A covered by the sale deeds (Ext. 7 to 11 and 13 to 16). Plaintiff has preferred the present appeal against disallowance of part of his claim by the lower appellate Court. None of the Respondents has appeared in this appeal.

3. The concurrent findings of both the Courts below are that Defendant No. 1 is the adopted son of Lokenath; that Lokenath executed a will on 19-5-1941 bequeathing all his properties in favour of Plaintiff, Defendant No. 1 and Defendant No. 2 to be enjoyed in equal shares and that the will was genuine, was not revoked and given effect to. These concurrent findings are not challenged in this appeal.

4. The finding of the trial Court that Plaintiff acquired no right in item 21 of Schedule A or the house described in Schedule B of the plaint, as Lokenath had no power of disposition over the same, was not challenged by the Plaintiff in the lower appellate Court and to that extent it has become conclusive. The only point urged by Mr. Pal, learned Counsel appearing for the Appellant is that the lower appellate Court committed a grave error in disallowing Plaintiff's claim in respect of certain items of properties in Schedule A other than those covered by the sale deeds (Exs. 7 to 11 ami 13 to 16) by wrongly throwing the onus on the Plaintiff to prove that they were the self-acquisition of Lokenath and not part of the joint family properties. There appears to be considerable force in this contention.

5. Prior to the coming into force of the Hindu succession Act of 1956, i