JUDGMENT Mitter, J. - I cannot say that I have found the case free from difficulty or that my mind has not been in suspense during a considerable part of the argument, but after giving the case the most careful consideration I have arrived at a conclusion, satisfactory at least to my own mind. These are two appeals by the Plaintiff and Defendants Nos. 2 and 3 and arise in a suit for partition and accounts. The properties sought to be partitioned are mentioned in three schedules to the plaint. In the " ka " schedule the immovable properties were described; in the " kha " schedule mention was made of the movable properties and the " ga " schedule related to the money-lending business. The Plaintiff sought for a declaration that he is entitled to a one-sixth share in the scheduled properties, that Defendants Nos. 2 and 3 have one sixth share each and Defendant No. 1 has a half-share. In the schedule of immovable properties there are 23 items. On the 26th of March, 1928, the Plaintiff applied for an amendment of the plaint and three more properties were directed to be added to the " ka " schedule properties as also to the " kha " schedule and also to " ga " schedule some more properties were added. The Plaintiff applied for another amendment on the 9th of July, 1930, and one other property was added to the " kha " schedule lands. The Subordinate Judge of 24 Perganas who tried the suit held that Plaintiff was entitled to a partition of the homestead, 3 bighas in area, which he found to belong jointly to Plaintiff and the three Defendants in suit. But with regard to the house upon it, the Subordinate Judge held that it belongs to Defendant No. 1 as his self-acquired property and as a house cannot be divided into metes and bounds, the valuation of the said property be determined and that the Defendant No. 1 is to pay half the amount of that valuation retaining the whole for himself and half the valuation paid by Defendant No. 1 is to be divided into equal shares amongst the Plaintiff and Defendants Nos. 2 and 3. But he has dismissed Plaintiff's claim with regard to the rest of the properties. 2. The following genealogical tree shows the relationship between the parties. 3. 2 and 3. But he has dismissed Plaintiff's claim with regard to the rest of the properties. 2. The following genealogical tree shows the relationship between the parties. 3. The principal contestant to the appeals is Defendant No. 1, Nutbehary Das, the uncle of the Appellants, who started life as a pankhapuller and, starting from nothing, by his own exertions has risen to a position of great affluence. 4. It appears from the said genealogical tree that Iswar died in the year 1302, leaving behind him his widow Chintamoni, two sons, Haridas and Nutbehary, Defendant No. 1 and two daughters, Giribala and Rajabala; that Haridas died on the 5th March, 1926, leaving behind him Manmatha, Defendant No. 2, Nani, the Plaintiff and Nagen, Defendant No. 3. Raimani is the mother of Chintamoni and mother-in-law of Iswar and she died in 1815, B. S. Giribala was married to Nafar Patra and Rajabala was married to Haricharan Das. 5. The case stated in the plaint is that Haridas Das, the father of the Plaintiff and Defendants Nos. Raimani is the mother of Chintamoni and mother-in-law of Iswar and she died in 1815, B. S. Giribala was married to Nafar Patra and Rajabala was married to Haricharan Das. 5. The case stated in the plaint is that Haridas Das, the father of the Plaintiff and Defendants Nos. 2 and 3, was the elder brother of Defendant No. 1, that the said two brothers while living in commensality, jointly as members of a joint Hindu family, acquired, numerous properties with their joint labour, care and exertions, and while they were owning and possessing the same jointly, the Plaintiff's father died on the 21st Falgoon, 1332, B. S., corresponding to the 5th March, 1926; that the Plaintiff's father used to do karbar (trade) while the Defendant No. 1 used to do the work of a rivetman and contractor; that both the brothers purchased lands both at Fatehpur and at other neighbouring places, with their joint funds, created many yucca structures, excavated many tanks and laid out many gardens and orchards on those lands as also on other lands belonging to them--also with their joint funds; that they also constructed sheds and coolie ghurs with corrugated iron, purchased pucca buildings with the lands thereunder and on letting out those pucca structures and houses, etc., they appropriated the income thereof and carried on money-lending business; that all those properties are the joint properties of the parties to this suit; that the Defendant No. 1 as being the more capable of the two brothers used to manage all the joint properties as karta of the joint family, even during the life-time of the Plaintiff's father, and it is accordingly likely that the documents relating to the joint properties have been all taken in his name; that after the death of the Plaintiff's father, the Plaintiff and Defendants Nos. 2 and 3 have been, as before, living in commensality and jointly as members of a joint Hindu family with the Defendant No. 1 and have been carrying on karbars, etc., according to the latter's orders and directions; that the Defendant No. 1 has been, as before, looking after and managing all the joint properties, as the karta of the joint family and the joint funds are in his charge and under his control. The plaint further states that the immovable properties described in Schedule (ka), the movables described in Schedule (kha) and the money-lending business described in Schedule (ga) are the joint properties of the parties to this suit, and they are being all along treated as such. The plaint proceeds to give the shares of the parties in the scheduled properties and states that the Defendant No. 1 has got an undivided half-share while the Plaintiff and Defendants Nos. 2 and 3 have, each, got an undivided one-sixth share in the aforesaid properties, as also in respect of such other movable and immovable properties and money-lending concerns as the parties to this suit may have got, over and above the aforesaid properties, as also in respect of all such properties as may be ascertained by enquiry and discovery to so belong to them; that it is necessary that all those joint properties should be partitioned by demarcation according to the aforesaid shares; that another brother of the Plaintiff having predeceased his father, and there being only a minor daughter of his who is living now, the said daughter is not entitled to get any share in the joint properties. It is further stated in the plaint that the Plaintiff and the Defendants Nos. 1, 2 and 3 were living jointly and in commensality at their homestead at Fatehpur; that Defendant No. 1 has only recently begun to reside at a new pucca house at village Mudiali belonging to the parties to this suit, on account of the incitement of his eldest son Panchanan Das who quarrelled with the Plaintiff over a trifling matter, but up till now he has not openly separated himself in food from the Plaintiff and Defendants Nos. 2 and 3; that no joint property of the parties has as yet been partitioned; that the Plaintiff has on several occasions requested the Defendant No. 1 to have all the joint properties amicably partitioned, but as the Defendant No. 1 has not paid any heed to those requests and as there is apprehension of serious misunderstanding arising between the parties in future, the Plaintiff has been compelled to institute this suit; that the Defendant No. 1 having continued to manage the joint properties as the karta of the joint family, is bound to render accounts for the period of his management. In para. In para. 8 of the plaint the Plaintiff asks for inventory of papers and documents lying in two rooms locked up both by the Plaintiff and Defendant No. 1. The cause of action for this suit is said to have arisen on and from the 20th Sraban, 1334, B. S., being the date on which, request for amicable partition was last made to the Defendant No. 1. On these pleadings the Plaintiff asked for a declaration of the shares of parties as detailed before in the scheduled properties and for partition of the same according to their respective shares, and further prayed that the Defendant No. 1 may be directed to render accounts for the period of his management and proper orders may be passed directing a Commissioner to take those accounts. 6. The Defendant No. 1, who is the contesting Defendant to the suit, raised several defences in his written defence filed on the 18th February, 1928 (page 121--1st part). Of these several defences to the suit, one of them put in issue the competency of the Plaintiff to maintain this suit, another raised the plea of limitation, a third raised the question of defect of parties but these defences need not detain us as they were not pressed before the lower Court and do not remain for consideration before us. It is only necessary to state those defences around which controversy has centered in the present appeal. Such defences are (1) that the Defendant and Haridas Das, the father of the other Defendants, never formed a joint Hindu family living in commensality as stated by the Plaintiff and they were never members of such a joint family, nor did they ever acquire any joint properties with their joint endeavour, labour and exertions and they never enjoyed or possessed any properties as joint properties. There never existed any joint Hindu family living in commensality which is the very essential element of joint property, nor did there ever exist any such condition, that Defendant No. 1 only maintained the said Haridas Das and his wife and sons all along with his self-earned, money; (2) that the particulars mentioned in paragraph 2 of the plaint are all false: the Plaintiff's father never did any karbar (business)--nor did he ever possess any ancestral joint capital or separate of his own; nor did this Defendant and his brother (Haridas) or the parties to this suit ever acquire any joint funds nor did they, with the help of such joint funds, ever acquire any properties, purchase any lands, excavate tanks on any lands, or do any work of improvement or construct any pucca houses or houses of corrugated iron or any other kind of houses or ghurs nor did they purchase any land with pucca or katcha-pucca structure thereon or let out any land or houses jointly, nor did or do they ever have any joint money-lending business. As a matter of fact they never had any joint funds or properties; neither the properties in dispute nor any portion thereof is joint property; (3) that this Defendant was never the karta of any joint property or of any joint family constituted according to the Hindu Shastras; (4) that the late Iswar Chandra Das, father of this Defendant, was only a common unskilled labourer; he lived his days with great difficulty during his whole life living in a hut made of gol leaves on thika land ; he was without any means--so much so---that he had no permanent habitation; as a matter of fact this Defendant did not even get a single ancestral hut by inheritance from his father; the said Iswar Chandra Das left no properties; at the time of his death he did not even have his hut on thika land, i.e., his bastu bhita (homestead). He died in the year 1302, B. S., as a dependant of his mother-in-law Raimoni Dasi, in a hut made of golpata in which Raimoni used to live; even during the life-time of his father this Defendant had to bear the expenses of his father, brother and his own family; (5) that the Plaintiff's father and this Defendant did not get by right of inheritance, or in any other way, any ancestral property as nucleus of joint property; that this Defendant started life as an ordinary unskilled labourer without any help from or expense incurred by his father, brother or any other member of his family and without getting any training with any such help from or expense incurred by anyone; then getting a little training by means of the aforesaid work, he became skilled in the work of a rivetman; then gradually with his own efforts and with the kindness and help of his own master, the late Dinanath Das, and with capital and men supplied by his son Haricharan Das, and on executing a registered deed of partnership, he at first on the 9th March, 1906, began to work as a petty contractor with and as a partner of the said Haricharan Das at the Dockyard of the I. G. N. Ry., Co. and then by dint of his own untiring industry and efforts, working alone, he gradually improved his condition and he acquired all his other properties one after another with his own money and with the income derived from his own contract business; at first this Defendant, at the request and with the consent of his grandmother, Raimoni Dasi, built a one-storied pucca house, consisting of a few rooms on the homestead land of his said grand-mother and began to live there with his mother and out of affection and a sense of duty he kept the Plaintiff's father and his wife and sons with himself and maintained them at his own expense; thereafter he increased the number of rooms on the ground floor of that building and added a second storey to that building; as a matter of fact save and except the property made a gift of, in favour of this Defendant's son Panchanan Das, out of the properties described in paragraph 1 of Schedule ka to the plaint, as mentioned later on, all the other properties in suit have been gradually acquired by this Defendant as a result of his own exertions without taking any help or money from anyone else and with his own earnings and efforts, and all those properties are the self acquired and separate properties of his own. This defence last referred to is taken in paragraph 11 of the written statement of Defendant No. 1 and we have reproduced it in extenso as upon this defence one of the most important issues, namely, issue No. 6A to which reference may be made hereafter, was raised; (6) that the three bighas plot, lying on the east of the homestead was acquired by Chintamoni Dassi, mother of the Defendant No. 1, with her own stridhan and that she subsequently made a gift thereof to the Defendant's son, Panchanon, who had lost his mother, out of affection for him and that the buildings were constructed on the said land out of the stridhan money of his deceased mother and out of the dowry money he received at the marriage; (7) that out of all the movables described in schedule " kha " of the plaint and the money-lending business in schedule " ga, " save and except the money lent to Hiralal Kashyapi by Defendant's son Panchanon, all the other monies are the separate properties of the Defendant; (8) that there was never any nucleus of joint property nor did the Defendant receive any joint fund and the Defendant as such is not liable to render accounts; (9) that the Plaintiff in collusion with Defendants Nos. 2 and 3 excluded from his claim properties standing in the name of Defendant No. 2, although the Plaintiff stated in his counter-affidavit that the properties are joint and the suit cannot proceed until the properties standing in the name of Defendant No. 2 are brought into hotchpot. A defence was also taken that the mother of the Defendant is entitled to a share in this suit for partition and she not having been made a party to the suit, it is not maintainable, but this was not pressed. 7. It is to be observed that no case was made in the plaint as originally laid, either to the grocer's shop or to the contract business which was started in the name of Nutbehari in 1906 in partnership with one Haricharan Das. An application was made for the appointment of a Receiver and the said application was disposed of on the 6th February, 1928. An application was made for the appointment of a Receiver and the said application was disposed of on the 6th February, 1928. In the order of that date the Court made the following remarks:--" Plaintiff does nowhere allege that that business is the business of the family and not of Defendant No. 1 alone." 8. On the 10th of March, 1928, Defendants Nos. 2 and 3, the two brothers of the Plaintiff, filed their written statement and these Defendants, besides supporting the Plaintiff, alleged that in 1313, B. S., corresponding to 1906, when the post of a mistry, that is to say, the work of supplying men and taking contracts, fell vacant, Haridas Das and Nutbehari Das requested their father as well as their own master and well-wisher, one Dinanath Das, to get them employed in the said work; accordingly with the help of Dinanath Das, they got that appointment; that the said appointment was taken in the name of the Defendant No. 1 and as desired by Dinanath Das, his son Haricharan Das was made a partner in that work; that the said Haricharan gave up that work some days after; although the said work was taken in the name of Defendant No. 1, Haridas Das, Defendants Nos. 1 and 2 and the Plaintiff all jointly carried on the said work: that the said work was, upto the death of Haridas Das, the joint concern of Haridas Das and Defendant No. 1, and subsequently, on the death of Haridas Das it became the joint concern of the Defendant No. 1 and the sons of late Haridas Das; that a few months after the commencement of the aforesaid business, Haridas Das started a mudi shop near their own bari with joint funds for the purpose of carrying on the affairs of their joint home and he also had his son Chunilal Das brought to the mudi shop; all the rest continued to carry on the said mistry's work; that in 1320, B. S. Haridas Das and Defendant No. 1, with the object of improving and increasing the income of their business, took up another mistry's work at the Garden Reach works of the I. G. N. Ry. Co.-- the said work was taken up in the name of Defendant No. 2; that all amounts received on bills in the name of Defendant No. 2 in connection with the said business used to come into the hands of Defendant No. 1 and all the savings thereof, after meeting all expenses, used to remain in the hands of Defendant No. 1 as the karta; that the income from the mudi shop of the father of the Plaintiff and Defendants Nos. 2 and 3 used to be all spent in joint family expenses; that after the above mistry's work had been taken up in the name of Defendant No. 2, the income of the joint family increased, and many immovable properties were gradually acquired with joint income and many new houses, coolie sheds, gardens and orchards were constructed and made and many tanks were excavated and purchased and money-lending business was set up; that as the Defendant No. 1 was the karta of the joint family, all the documents were taken in his name and the money-lending business also continued to be carried on in his name; all the properties acquired in this way and the money-lending business, which continued to be carried on, were the joint properties of Defendant No. 1 and his eldest brother and after the death of the latter, the same have become the joint properties of Defendant No. 1, the Plaintiff and the Defendants Nos. 2 and 3; the said properties are neither the self-acquired nor the personal properties of the Defendant No. 1; all the statements made in paras. 2, 3 and 4 of the Plaintiff's plaint, regarding this matter, are all true; that large amounts of money have been earned by the work of repairing and constructing ships of and supplying labour to the I. G. N. Ry. 2, 3 and 4 of the Plaintiff's plaint, regarding this matter, are all true; that large amounts of money have been earned by the work of repairing and constructing ships of and supplying labour to the I. G. N. Ry. & Co., since the mistry's work had been taken in the name of Defendant No. 2, in the month of Agrahayan, 1320, B. S.; that all those moneys have been received by the Defendant No. 1 as the karta of the joint family; that Haridas never took any portion thereof in his own hands; that the Defendant No. 1 also took all the earnings of Defendant No. 3; that in this way all the earnings of all the members of the joint family who were capable of earning money, were thrown into the joint funds in the hands of Defendant No. 1 and properties were acquired both during and after the life-time of Haridas Das up to some month of the year 1334, B. S., and so long as the two brothers were living, the said Haridas Das and after his death, his sons living as members of a joint family with said Defendant No. 1, have been all along enjoying and possessing all the properties jointly, without any dispute; that the Defendant No. 1 never declared or claimed all those properties as his own; that on the other hand, he has declared the said properties to be the joint properties of the parties and has all along treated them as such. These Defendants denied the allegation of Defendant No. 1 that he has been maintaining his elder brother and his family out of kindness. These Defendants denied the allegation of Defendant No. 1 that he has been maintaining his elder brother and his family out of kindness. These Defendants further contended that even if there was no nucleus of ancestral property besides the 3 bighas and 4 cottahs of land, the position taken up by Defendant No. 1, viz., that the properties acquired by the joint labour, exertions, efforts and with the joint earnings of Defendant No. 1 and his elder brother and his elder brother's sons can not be regarded as joint properties cannot be maintained in law; that the mother of Defendant No. 1 is not a necessary party to the suit, that these Defendants have no objection to an order for her maintenance being passed; that the father of the Defendants continued to work for the joint family almost up to the time of his death which happened in March, 1926; that the statement of the Defendant No. 1 to the effect that the properties described in the schedule to the plaint are his own exclusive properties is false. 9. On the 26th of March, 1928, Plaintiff made an application for amendment of the plaint by including in the schedule to the plaint the two contract businesses carried on at Garden Reach in the names of Defendants Nos. 1 and 2 under the I. G. N. Ry. Co., as also of the grocer's shop situate at Fatehpur in the tenanted house belonging to both parties as also for inclusion of certain movable and immovable properties. 10. On the 2nd of April, 1928, Defendant No. 1 objected to the amendment. On the 5th of April, the plaint was allowed to be amended and on the 3rd of May, 1928, Defendant No. 1 filed an additional written statement (page 142), Part I of the Paper Book, the substance of which is that the grocery shop at Fatehpur is the exclusive property of Defendant No. 1 and not joint property; that the labour contract under the I. G. N. Ry. Co., was not a joint business carried on by Defendant No. 1 and the father of the Plaintiff, that the amounts mentioned in the documents specified in schedule " ga " of the petition belonged to the Defendant No. 1. 11. Upon these pleadings several issues were framed of which issues Nos. 6 and 6A are material for the purposes of this appeal. 11. Upon these pleadings several issues were framed of which issues Nos. 6 and 6A are material for the purposes of this appeal. These issues are to the following effect:--(See page 148 of Part I of the Paper Book). 6. Did the brothers Haridas and Nutbehary, and after Haridas's death, the Plaintiff and Defendants Nos. 1, 2 and 3, form members of a joint Hindu family as alleged? Had they any joint fund ? 6A. Was the contract business of Defendant No. 1 a joint property of the brothers as alleged? "Were the other properties in suit acquired out of any joint fund and are they joint properties of the brothers as alleged? 12. All the parties to the suit adduced oral and documentary evidence and after considering the same, the Subordinate Judge has arrived at the conclusion that except the land on which the homestead stands as described in Schedule I, the rest of the properties claimed are the exclusive properties of Defendant No. 1 and he has passed a preliminary decree in respect of the same in the manner indicated in the opening paragraph of the judgment. It is against this decree that the two appeals have been preferred one by Plaintiff (Appeal No. 270 of 1930) and the other by Defendant No. 2, (Appeal No. 271 of 1930). The grounds on which both the appeals are rested are substantially the same and both the appeals will be dealt with together. 13. On the pleadings in the case, one of the questions which arose before the trial Judge was the question of the burden of proof. The case us indicated in the plaint is that Plaintiff's father and the Defendant No. 1 formed, members of a joint Hindu family and acquired properties while living as such and the properties form the subject-matter of this partition action. If the Plaintiff establishes that Haridas, the father of Plaintiff and Defendant Nos. 2 and 3 and Defendant No. 1 formed members of a joint Hindu family, then the burden of proof would undoubtedly be on the Defendant No. 1 of showing that any acquisition made, even if the property stands in the name of Defendant No. 1, was his self-acquisition. But the initial burden of proving that there was a family joint in estate, consisting of the Plaintiff's father and Defendant No. 1, lay on the Plaintiff. But the initial burden of proving that there was a family joint in estate, consisting of the Plaintiff's father and Defendant No. 1, lay on the Plaintiff. It is not enough for the Plaintiff to show that his father and Defendant No. 1 were living in commensality and were joint in worship. It must be further shewn that they were joint in estate, i.e., there was nucleus of ancestral property which has descended to Plaintiff's father and Defendant No. 1 which was sufficient for the purchase of the properties claimed as joint family properties or there was joint family estate even if there was no nucleus of ancestral property. 14. In considering the true legal position of the family up to the death of Iswar (father of Nutbehary and Haridas) which happened in 1302, B. S., i.e., in 1895, it is to be observed that there was no true joint family--a family joint in food, worship and estate with all its implications in law, for under the Bengal School of Hindu Law so long as the father is alive, the sons have no interest in the property of the father and in this respect the position in the Bengal School is in striking contrast to that of the Mitakshara School where sons acquire by birth an interest in ancestral property and become co-owners with the father in such, i.e., ancestral, property. The two Schools of Hindu Law have, from the same texts, arrived at diametrically opposite conclusions as regards the right of a son to ancestral property by birth. It is now well-settled that the presumption of Hindu Law that while a family remains joint, all properties, including acquisitions made in the name of individual members, are joint property does not apply to a family consisting of father and sons under the Dayabhaga system of Hindu Law--See Sarada v. Mahananda I. L. R. 31 Cal 448 (1904) as explained in Ramanath v. Kusumkamini 4 C. L. J. 56 (1906) and Jasoda v. Lalmohan 42 C. L.J. 486 (1925). 15. The question next to be considered is whether on the death of Iswar in 1895, there was in the hands of his two sons, Nutbehary and Haridas, any nucleus of ancestral property, for Plaintiff and Defendants Nos. 15. The question next to be considered is whether on the death of Iswar in 1895, there was in the hands of his two sons, Nutbehary and Haridas, any nucleus of ancestral property, for Plaintiff and Defendants Nos. 2 and 3 assert that there was a family joint in estate whereas Defendant No. 1 maintains that there was no such joint family as there was no nucleus of ancestral property and the brothers were only joint in commensality. There can be no doubt that before ancestral joint family can come into existence, there must have been a nucleus of joint family property--See Mayne on Hindu Law. Plaintiff sought to maintain, therefore, that the property which stood in the name of Raimoni--the mother of Chintamoni--the mother-in-law of Iswar--was really benami for Iswar. It is argued that the purchase-money was paid by Iswar and reliance has been placed on the evidence of Saradamoyee, the vendor, which it is said stands uncontradicted. But as against the oral evidence, we have the deed of release of 1911 by Chintamoni in favour of Plaintiff's father and Nut Behary in which it is distinctly recited that it was Raimoni's property which descended to Chintamoni as stridhan and she was relinquishing' it in favour of Plaintiff's father Haridas and of Nutbehary, Defendant No. 1. The Subordinate Judge has treated this document as operating as an estoppel and has held that it precludes the Plaintiff and Defendants Nos. 2 and 3 from contending that the property was benami for Iswar. The learned Advocate-General has argued that this view is wrong as it is not shown that the Defendant was made to change his position in any way by anything done by Plaintiff's father. There is considerable force in this argument. But whether it operates as estoppel or not, it is very good evidence of an assertion by Chintamoni that Raimoni's property was her own, an assertion which was accepted as true by Plaintiff's father and Defendant. This weakens the effect of Saradamoyi's evidence as to Iswar's paying the consideration money for the lease in Raimoni's name. Besides, this evidence, such as it is, cannot stand against the tenor of the deed of settlement as confirmed by the release (page 62, Part II). She says in examination-in-chief that it was Iswar who brought the consideration money for the settlement in favour of Raimoni. Besides, this evidence, such as it is, cannot stand against the tenor of the deed of settlement as confirmed by the release (page 62, Part II). She says in examination-in-chief that it was Iswar who brought the consideration money for the settlement in favour of Raimoni. She is unable to say if Raimoni had any funds of her own and she is compelled to admit that negotiations for the settlement were not with her but with her mother-in-law. We agree, therefore, with the Subordinate Judge that there was no nucleus of ancestral property, as in our opinion for the reasons given above and that the registered pottah granted by Nistarini and Saradamoyi on the 12th November, 1894 (Ext. AA3, page 21, Vol. II), to Raimoni was her own land and that she was not a benamdar for Iswar. This is the land about 3 bighas in area on which the homestead of the parties stands and which subsequently descended after Raimoni's death in 1908 to her daughter Chintamoni who executed a release in favour of the next reversioners Haridas and Defendant No. 1 in 1911 (Ext. L, p. 62, Vol. II). This was said by the Plaintiff to be the nucleus of ancestral property which descended to Plaintiff's father and Defendant No. 1, but this Plaintiff has failed to prove. There was, therefore, no ancestral joint family--joint family possessed of ancestral property on Iswar's death. 16. The question next arises that if there was no ancestral joint family, whether there was at any subsequent period a joint family--family in possession of joint estate at a subsequent period prior to the starting of the contract rivetting business of 1906 which the Defendant No. 1 claims to be exclusively his own and on the other hand Plaintiff and other Defendants claim to belong to the joint family and which assertion and counter-assertion, as we have already seen, have given rise to an important issue in the case. In a judgment which exhibits great learning, Mr. Justice Beaman of the Bombay High Court said that the two notions of joint family property and joint ancestral family property are distinguishable. See Karson Das v. Ganga Bai I. L. R. 32 Bom. 479 (1908). In a judgment which exhibits great learning, Mr. Justice Beaman of the Bombay High Court said that the two notions of joint family property and joint ancestral family property are distinguishable. See Karson Das v. Ganga Bai I. L. R. 32 Bom. 479 (1908). After pointing out that there must have been nucleus of a joint family property before ancestral joint family property can come into existence, because the word " ancestral " connotes descent and therefore pre-existence, the learned Judge observes as follows:--" But because it is true that there can be no joint ancestral property without a previous nucleus of joint family property, it is not true that there can be no joint family property without a pre-existing nucleus, for that would be identifying joint family property with ancestral joint family property." The learned Judge then points out that where property is admitted or proved to be joint family property, it is subject to exactly the same legal incidents in every respect as property which is admitted or proved to be ancestral joint family property. One of the incidents of ancestral joint family property is that where it is known or admitted that some at least of the property of a joint family has come down to them, the presumption is that the whole property is ancestral and any member, alleging it is not, will have to prove his self-acquisition. Similarly in the case of joint family property--as distinguished from ancestral joint family property--the same presumption will apply. The Bombay case was under the Mitakshara system of Hindu Law as modified by the Mayukha. But so far as the incident of the two classes of property relating to the presumption of jointness under Hindu Law is concerned, there seems to be no distinction in principle between the Mitakshara and Dayabhaga. Mr. Justice Beaman's view has been approved by a Division Bench of the Bombay High Court in the case of Haridas v. Devakumar Bai I. L. R. 50 Bom. 443 (1926). 17. Mr. Justice Beaman's view has been approved by a Division Bench of the Bombay High Court in the case of Haridas v. Devakumar Bai I. L. R. 50 Bom. 443 (1926). 17. In other words, it is true under the Dayabhaga, system that if two or more sons of a father succeed to ancestral property or without possessing such property live jointly after the death of their father and acquire properties in joint names and during such state of living, other properties are acquired in the names of other members of the family, it is for the other members to show that it was their self-acquisition. There is a presumption in favour of jointness in respect of properties acquired during a state of jointness, viz., where there are either (1) nucleus of ancestral property or (2) where there is no nucleus of joint family property, but there is proof of the existence of joint family property and this presumption has to be displaced by the person alleging the property to be his separate or self-acquired property. But the strength of the presumption in either case varies with the circumstances of each individual case. In some case the presumption may be easily displaced. For instance, where ancestral property or other joint property is shown to be inconsiderable and the property acquired by an individual member of the family is of considerable value and it is shown that the earnings of the member claiming self-acquisition were large, the presumption is at once displaced or rebutted. This being in my opinion the true position in law, we proceed to the determination of the crucial question in the case--to whom the contract business of 1906, referred to in the amended plaint of the Plaintiff and in the pleadings of the Defendant, belongs. We have already come to the conclusion that neither Haridas nor Nutbehary started with any nucleus of ancestral property on their father Iswar's death in 1895. Then comes the question whether prior to the contract business of 1906 there was joint family property as contradistinguished from ancestral joint family property in which Nutbehary and Haridas were jointly interested and whether that was sufficient to aid the two brothers in starting the 1906 business which admittedly stands in the name of Nutbehary and which he carried on for years in co-partnership with Haricharan Das, son of Dinu Mistry--an old friend of the family. 18. One of the principal questions, therefore, which emerge for decision in these two appeals is to whom did the contract business of 1906 belong--viz., whether it was the exclusive business of Nutbehary, Defendant No. 1 or was it the business of this family, i.e., Nutbehary and his brother Haridas? The Subordinate Judge has found for Defendant No. 1 and this finding has been attacked both by the Advocate-General and Mr. Bose. Mr. Bose, appearing for the Plaintiff-Appellant, has argued that Defendant No. 1 admitted in his written statement (p. 121) that the business was started with the help and kindness of Dinu Mistry and it is admitted by Defendant No. 1 that his father, brother and everybody were working under Dinu and in starting this contract business Dinu Mistry would have sympathy for all the members of the family and not for Defendant No. 1 alone and it is contended that the contract business which was started in the name of Defendant No. 1 in partnership with Dinu Mistry's son Haricharan Das (see Ext. F, dated the 3rd May, 1906--Part II, page 33) was really a contract for the joint family consisting of Haridas and his brother. In support of this, reliance has been placed on the anxiety of Defendant No. 1 Nutbehary to deny that Dinu Mistry did help him in getting the contract and his denial of the fact that the Defendant No. 1 signed the partnership deed through the pen of Manmatha and to the fact that Haricharan and Manmatha were working in the contract business and by their joint labour and exertion the contract business was being carried on and reference is made to entries in pay-book of the period to show that and to the oral evidence that all the earning of Haricharan and Manmatha used to be paid to Defendant No. 1. 19. The learned Advocate-General argued that there can be no doubt that the business of 1906 was a contract business of the family and he asks us to arrive at this conclusion by a very different process of reasoning. 19. The learned Advocate-General argued that there can be no doubt that the business of 1906 was a contract business of the family and he asks us to arrive at this conclusion by a very different process of reasoning. His contention is that the genesis of the second contract business of 1913 which stood in the name of Manmatha, Defendant No. 2, furnishes the key to the solution of the problem as to whether the contract business of 1906 belonged exclusively to Defendant No. 1 or to Defendant No. 1 and his brother. The learned Advocate-General put his argument in this way :-- It appears from the evidence of Defendant No. 1 that one Mr. Smith quarrelled with the Superintendent of I. G. N. R. and Co. and took service under John King & Co. and he wrote two or three letters to Nutbehray to take contract work under John King & Co., as well as under I. G. N. R. and Co. Nutbehary showed one of the letters to Mr. Row, the foreman of I. G. N. R. & Co., who showed it to the Superintendent. What happened next is stated by Nutbehary in the following words:--"Coming back in 10 minutes, he called me to the Superintendent who told me not to go to the John King & Co. He told me to open another firm in the name of another person and that he would let me have two contracting firms. He suggested my son's name but I said that my son was reading then at school. Then he said 'name a devil of the sky and bring him to me.' Then I suggested the name of my brother's son Manmatha who was working in my firm then and the Sahib approved it. In this way the firm in Manmatha's name was started." The effect of this evidence is That I. G. N. R. Co. agreed to allow Nutbehary, Defendant No. 3, to have two firms in the name of two persons. I. G. N. R. Co. in effect said: "Why should you (Nutbehary) go to John King and Co., for extra work? We will shut our eyes to the fact that the second business is really your business"; and that it follows inevitably from this evidence that the second firm was going to be the same as the earlier one. I. G. N. R. Co. in effect said: "Why should you (Nutbehary) go to John King and Co., for extra work? We will shut our eyes to the fact that the second business is really your business"; and that it follows inevitably from this evidence that the second firm was going to be the same as the earlier one. If the old firm of 1906 belong to Nutbehary alone, the second firm of 1913 must also be Nutbehary's. Once this position is accepted, the story that the second firm was Manmatha's firm must be untrue. The books of account fit in with this genesis. The second firm of 1913 being merely a compensation to Nutbehary for not going to John King & Co., there must be two firms in form, but in substance one, either of Nutbehary or of his family. To all intents and purposes the other firm must appear as a stranger firm. Books must be kept as of two different firms. Behind the two firms there was one common ownership, the second firm of 1913 was started with the same fund and the same men. It was pointed out by the learned Advocate-General that the Subordinate Judge also came to the conclusion that the contract business of Manmatha was secured by Nutbehary for Manmatha and he set it up with his own men and money (p. 652, lines SO to 34). In order to establish that the contract business of 1906 was a joint business, the learned Advocate-General has asked us to start with the admitted fact that the structures on Raimoni's land were built with the joint funds of both Haridas and Nutbehary as would appear from the recital in the deed of release of 1911. The pucca rooms were complete by 1904, bricks were purchased in 1901-02, the money which Nutbehary earned by his work at Barisal and other places was spent in the purchase of bricks, the admission of Nutbehary that the money for the contract business earned between 1906-11 was used for adding to the structures--all these show that the costs for buildings were joint, the transactions of cultivating lease proved the existence of joint assets, the land and structures and assets represented by leases were joint properties of a family living in joint mess. The substance of this argument is that as the earnings from the contract business from 1906 were spent in erecting structures on joint, land, the contract business must have been the joint business of Haridas and Nutbehary. The learned Advocate-General concedes that the oral evidence in this case is not only contradictory and conflicting, but barring a few witnesses, the rest of the important witnesses are either the parties themselves or their subordinates. He has therefore submitted that in other to do justice in this case, it is necessary to concentrate attention more on documentary evidence which offers solid and reliable grounds than the conflicting oral testimony. In this connection it is to be noted that the Judge who has decided the suit is not the Judge who has seen the majority of the witnesses, and it is pointed out that we are in the same position as the learned Judge below and the appeal must be decided on its instrinsic merit and this Court is not to be influenced in any way by what has been said by the trial Judge below. 20. The rule which has been laid down with regard to the weight which is to be attached to the opinion of the trial Judge on the credibility of the conflicting witnesses whom he has heard and seen, does not apply to the case where the trial Judge is in no better position than the Court of Appeal, i.e., where he has not seen or heard the important witnesses. That rule has been stated by the House of Lords in the case of Montgomery v. Wallace James [1904] A. C. 73, where Earl of Halsbury L. C. expressed himself thus:--" It is simply a question of fact, and doubtless where a question of fact has been decided by a tribunal which has seen and heard the witnesses, the greatest weight ought to be attached to the finding of such a tribunal. It has had the opportunity of observing the demeanour of the witnesses and judging of their veracity and accuracy in a way that no appellate tribunal can have." Their Lordships of the Judicial Committee in the Privy Council has taken the same view in two cases--in the case of Khoo Sit Hoh v. Lim Thean Tong [1912] A. C. 323 and Bombay Cotton Manufacturing Co., Ltd. v. Motilal Shivlal L. R. 42 I. A. 110 : s. c. 19 C. W. N. 617 (1915). In the former case Lord Robson said this:--" The case was tried before the Judge alone; it turned entirely on questions of fact, and there was plain perjury on one side or other. Their Lordships' Board are, therefore, called upon, as were also the Court of Appeal, to express an opinion on the credibility of conflicting witnesses whom they have not seen, heard or questioned. In coming to a conclusion on such an issue, their Lordships must of necessity be greatly influenced by the opinion of the learned trial Judge, whose judgment is itself under review. He sees the demeanour of the witnesses, and can estimate their intelligence, position and character in a way not open to the Courts who deal with later stages of the case." In the latter case Sir George Farwell said this:--" It is doubtless true that on appeal the whole case, including the facts, are within the jurisdiction of the Appeal Court. But generally speaking, it is undesirable to interfere with the findings of fact of the trial Judge who sees and hears the witnesses and has an opportunity of noting their demeanour, especially in cases where the issue is simple and depends on the credit which attached to one or other of conflicting witnesses. Nor should his pronouncement with respect to their credibility be put aside on a mere calculation of probabilities by the Court of Appeal. In making these observations their Lordships have no desire to restrict the discretion of the Appellate Courts in India in the consideration of evidence. They only wish to point out that where the issue is simple and straightforward and the only question is which set of witnesses is to be believed, the verdict of a Judge trying the case should not be lightly disregarded." See also Dominion Trust Co. v. New York Life Insurance Co. [1919] A. C. 254. They only wish to point out that where the issue is simple and straightforward and the only question is which set of witnesses is to be believed, the verdict of a Judge trying the case should not be lightly disregarded." See also Dominion Trust Co. v. New York Life Insurance Co. [1919] A. C. 254. In the present case all the witnesses for the Plaintiff and the principal witnesses for the Defendant No. 1 were examined by another Judge, Mr. R. Mukherji, and in these circumstances this Court is in the same position as the trial Judge and the appeal must be dealt with on a consideration of the evidence, irrespective of the opinion of the trial Judge as to the veracity or otherwise of the witnesses. We will approach the consideration of the evidence in this case, keeping this principle in view. 21. After indicating the arguments of the Appellants we now proceed to deal with one of the most important issues in the case as to whether the business of 1906 was the separate business of Defendant No. 1 or was the joint business of Defendant No. 1 and his brother Haridas, father of Plaintiff and Defendants Nos. 2 and 3. Ext. F which is dated the 3rd of May, 1906 (Part II, page 33 of the Paper-book) shows that the business of building and repairing ships was started in March, 1906, between Nutbehary Das and Haricharan Das, son of Dinu Mistry, that the terms of the said verbal agreement were reduced to writing and a partnership agreement was executed between Defendant No. 1 and Haricharan Das on the other and it was stimulated therein that Nutbehary shall he partner to the extent of an eight annas share and Haricharan shall be partner to the extent of the other eight annas. It was further stipulated that both the parties shall supply the number of workmen necessary for the purpose of carrying on this business and that whenever it would be necessary for Nutbehary to pay or to advance money to the workmen supplied by him, he shall do so on borrowing the amount from Haricharan who will be at liberty to charge interest at the rate of Re. 1 annas 4 per cent, per mensem. 1 annas 4 per cent, per mensem. There is nothing in the deed to show that this business was the business of Nutbehary and his brother Haridas Das or of the joint family, consisting of Nutbehary and his brother and it has been contended by Mr. S. N. Banerjee, the learned Counsel who appears for the Defendant Nutbehary, that the burden of proof of establishing that this was really a joint family business taken in the name of Nutbehary lies on those who assert the same. The learned Advocate-General has drawn our attention to four passages in Nutbehary's evidence to show that in this family the habit of taking documents benami is an old habit and has been resorted to when occasion demanded. At page 464, line 11, Nutbehary states that one of the tenanted houses was in the name of Manmatha; at page 468, lines 11 to 16 reference is made to benami in the name of Nutbehary's son, Panchu; at page 470 lines 3 8 to 22, Nutbehary refers to a false lease in the name of Govinda for cheating the Municipality and at p. 482, lines 9-10, the witness makes the significant statement " for saving income tax I kept properties in the name of Manmatha, Bhaba, his daughter, and Panchu, his son." Reference was next made to Ext. L, page 62, Part II, in which there is a recital that the two brothers, Haridas and Nutbehary, constructed building at their own cost and Nutbehary admits that two pucca rooms were constructed in their residential house at Fatehpur a year or two before he became a contractor, i.e., before 1906 (see page 479, line 32). He states that the pucca houses were constructed on the land of Saradamoyee with his earnings outside. See page 458, line 10, and again at page 480 this Defendant said that he brought eight to nine hundred rupees from Barisal and Chandpur and the rooms were constructed with that money. In the meantime Haridas was looking after the reconstruction of the rooms. It is said that there is no evidence that Nutbehary was sending any money for the support of his wife who was living with Haridas. It follows from this that whatever earnings were made by joint members of the family were being pooled together and the conclusion is inevitable that their earnings were all joint. It is said that there is no evidence that Nutbehary was sending any money for the support of his wife who was living with Haridas. It follows from this that whatever earnings were made by joint members of the family were being pooled together and the conclusion is inevitable that their earnings were all joint. This is the form which the argument of the learned Advocate-General has taken. It is further pointed out that there are other transactions which indicate the existence of joint estate. There were two cultivating leases, one taken in the name of Haridas in respect of 2 bighas of land on the 1st July, 1898--the lease was for a term of 3 years--see Ext. AA, Vol. 2, page 31. The second lease was taken in the name of Haridas and Nutbehary on the 18th of December, 1904 and was for a term of 5 years. See Ext. AA2, page 37, Vol. 2. The lessor in the first lease was Kshetramohan Sant and the lessor in the second lease was one Dwarkanath Adak. He sold his interest in the second lease to Nutbehary on the 31st of August, 1907 and it is argued that these transactions show that the purchase by Nutbehary of the superior interest was both for himself and his brother Haridas. It is pointed out that these are not lands in the remote corner of the village but are garden lands--see evidence of Prohlad, P. W. 6--page 325. The effect of these transactions is that the purchase of the superior interest was a purchase for the benefit of both the brothers who held the subordinate interest. In order to escape from this position, Nutbehary has set up the theory of surrender and he stated that both these lands were surrendered because on his return home his brother Haridas wanted money from him which he refused--see p. 458, lines 20-36. It is said that the story of surrender is not at all true and should not be accepted, for there is no documentary evidence of any kind in support of his surrender. The Zemindar's paper was not called and the evidence of Defendant's witness No. 18, Dharanidhar, is not acceptable, for it is common ground that these are the parts of the garden. 22. In reply to this argument of the Advocate-General as indicated in the last paragraph, Mr. The Zemindar's paper was not called and the evidence of Defendant's witness No. 18, Dharanidhar, is not acceptable, for it is common ground that these are the parts of the garden. 22. In reply to this argument of the Advocate-General as indicated in the last paragraph, Mr. Banerjee for the Respondent contends that the fact that the brothers contributed to the structures on Raimoni's land, jointly does not necessarily show that their earnings were joint; that it is not shown that Nutbehary did not send any money for the maintenance of his wife when he was out of his home in Balasore, Barisal and other places, that the superior interest in lands covered by the leases in Exts. AA 1 and AA 2 in the face of the deeds was purchased by Nutbehary alone after the expiry of the lease in favour of Haridas Das on the 5th of October, 1906, by Ext. A (28), p. 39, part. II, and that the superior interest of land covered by Ext. AA 2 was purchased by Nutbehary on the 31st of October, 1907, after the lands have been surrendered by Haridas. It is further pointed out that the purchase by Nutbehary from Dwarkanath Adak of the superior interest of the land covered by Ext. AA 2, i.e., the lease in favour of both Haridas and Nutbehary executed on 18th of December, 1904, was for a sum of Rs. 2,500. 23. In our opinion the circumstances on which the learned Advocate-General has relied to show the existence of joint estate prior to the starting of contract business in 1906 in Nutbehary's name lead to the conclusion that the family, consisting of Haridas and Defendant No. 1, was joint in estate. The lease of 1904 was for a period of 5 years and it was the joint property both of Nutbehary and Haridas. The lease was subsisting when the contract business was started in March, 3 906. It is difficult to accept the theory of surrender set up by Defendant No. 1 in his evidence. It has next been argued by the learned Advocate-General that the possession of joint estate, however slight, entitles him to a presumption in his favour that the business was joint and he relies on the Bombay decisions already referred to. It is difficult to accept the theory of surrender set up by Defendant No. 1 in his evidence. It has next been argued by the learned Advocate-General that the possession of joint estate, however slight, entitles him to a presumption in his favour that the business was joint and he relies on the Bombay decisions already referred to. We have discussed the question before and we are of opinion that Defendant No. 1 must establish that the business was not a joint business. 24. In order to show that the contract business of 1906 was the joint business of both the brothers, the Plaintiff and Defendants Nos. 2 and 3 have rested their case partly on verbal testimony and partly on documents. The verbal testimony has been discussed in detail by Mr. Amarendra Nath Bose, the Advocate for the Plaintiff and the documentary evidence has been discussed by the learned Advocate-General who appears for Defendants Nos. 2 and 3. It is convenient in the special circumstances to consider the documents which are a crucial element in the case and then to deal With the story told by the witnesses, more particularly in view of the circumstance alluded to by the learned Advocate-General in his opening that the oral evidence is conflicting and contradictory on almost every material matter in the case. 25. In support of the Plaintiff's case the learned Advocate-General has relied on the following documents:-- Ext. 1/7 Ext. 1 (a) Ext. 1 (c) Hatchitta accounts of DinuMistry from 1298 to 1301 Paper-book. Part II. Ext. 1 ( a) ... Account of Iswar Chandra Das from 1298 to 1301 Part II, page 8. Ext. 3 Pay book of Nutbehary's firm from 1906 to 1909 Part II, pages 99-104, Ext 3 (c) Pay Book of Nutbebary's firm from 1913 to 1914 Part II, pages 105-6. Ext. 4 Jabda of Nutbehary's, firm from 1916-17 Part II, pages 175 to 192. Ext. 4 (a) Account Book for 1916-17 Part II, pages 193-208. Exts. (a), (a l), a 2, a 3 Pay book of Manmatha's firm pages 209-241. Ext. 6 (b) Accounts kept for income tax purposes 107-108 Part II. 26. The (a) series of books have been very strongly relied on by the learned Advocate-General as showing that moneys received by Nutbehary Das, Defendant No. 1, on bills in the name of his- firm from the I. G. N. Ry. Co. Ext. 6 (b) Accounts kept for income tax purposes 107-108 Part II. 26. The (a) series of books have been very strongly relied on by the learned Advocate-General as showing that moneys received by Nutbehary Das, Defendant No. 1, on bills in the name of his- firm from the I. G. N. Ry. Co. were made over to Manmatha's firm. These books are Mahina (salaries) Khassra books of Manmatha's firm. In other words they are books which show the payment of the wages of the workmen employed by Manmatha for carrying on the contract business. The Subordinate Judge finds these books to be genuine books, but states that wherever there is entry of Tahabil Jama in Nutbehary's name, the name is an interpolation in different ink and he refers to page 30 of the original Account Book--Ext. A (3) where the accounts of 29th of April, 6th, 20th and 27th May were inserted before the account for 14th May, 1927. The name of Nutbehary, according to the Subordinate Judge, has been interpolated in different ink and this must have been made afterwards to create evidence in the case. These books have been proved by witness No. 1. Bishnupada for Defendants Nos. 2 and 3 who proves that the books were mainly written by him. He says at page 374 " I wrote the entries in the name of I. G. N. R. & Co. hearing from Manmatha Babu. I wrote the debits against Nutbehary Babu also hearing from Manmatha Babu." He explains the word " Tahabil " as follows:--The word " Tahabil " in the kkata indicates the amounts received by Manmatha Babu from Nutbehary Babu for making the payments. The evidence on the side of Defendant No. 1 to show the nature of the books is that of his witness Gobinda Ghosal (at p. 558, Vol. I) who has written part of the Exts. a 4, a 5. He says no entry was made in the name of Nutbehary. The effect of this witness's evidence is that wherever the name of Nutbehary occurs, there is an interpolation. The learned Advocate-General has commented on the method adopted by the Subordinate Judge in dealing with these books. I) who has written part of the Exts. a 4, a 5. He says no entry was made in the name of Nutbehary. The effect of this witness's evidence is that wherever the name of Nutbehary occurs, there is an interpolation. The learned Advocate-General has commented on the method adopted by the Subordinate Judge in dealing with these books. His comment is that the Subordinate Judge has taken a short cut and after examining a few of the entries where Nutbehary's name occurs in a different ink from those of the other entries, he has leapt to the conclusion that wherever there is an entry in Nutbehary's name, that must be an interpolation, and he has pointed out that Nutbehary has not produced his corresponding set of books and an adverse inference should be drawn from this circumstance that if those books had been produced, they would have corroborated the " a " series of books of Manmatha's firm. It became necessary, therefore, to examine a large number of entries, showing the Tahabil Jama in Nutbehary's name which do not appear in different ink, ourselves. We have examined those entries with great care and it seems to us that Nutbehary's name has been inserted over the word " Tahabil Jama " in these " a " series of books. It also has been pointed out by Mr. Banerjee for the Respondent that such entries appear to be wholly inappropriate in the Mahina Khata or the wages book of workmen. The entries in the name of " Nutbehary " and " I. G. N. Co." are also open to suspicion as some of the entries of money received in March are shewn in an entry in the month of February. In some there are double entries in Nutbehary's name. In an entry of 14th of August, 1927, the name of Nutbehary overlaps the word "Tahabil Jama"; in some cases the debit is shewn on the credit side. On a careful examination of the accounts we are of opinion that the entries shewing the receipts from Nutbehary and paying out to Nutbehary in the " a " series of books, i.e., the khasra mahina books are interpolations. It has, therefore, been very strenuously contended by Mr. Banerjee for the Respondent that as the Plaintiff and Defendants Nos. On a careful examination of the accounts we are of opinion that the entries shewing the receipts from Nutbehary and paying out to Nutbehary in the " a " series of books, i.e., the khasra mahina books are interpolations. It has, therefore, been very strenuously contended by Mr. Banerjee for the Respondent that as the Plaintiff and Defendants Nos. 2-3 have been proved to be guilty of falsehood in relation to " a " series of documents, it raises a reasonable suspicion that their case is wholly dishonest. It is true that the interpolations are not interpolations but on inspection of some of the entries it appears that interpolations were inserted out of due order. If however the case of the Plaintiff and Defendants Nos. 2 and 3 rested on this evidence alone, it would have been easy to reject their case but considerable difficulty has been created in the determination of this case by reason of some of the entries in books proved to have been kept by Defendant No. 1, viz., Exs. 4 and 4 (a) and Ex. 5 (khatian) which would seem to throw light on the question at issue in the present case, as also by an admission made by Defendant No. 1 in a previous deposition with regard to the joint character of most, if not all the immovable properties which are the subject-matter of this action, and to which detailed reference must be made hereafter. 27. We proceed first to examine the evidentiary value of Ext. 4. This is a book of Nutbehary's firm, its writer is Sashibhushan Kuar, witness No. 4 for Defendants Nos. 2 and 3--see page 380, lines 28-30. He described this book as a Jabda and states: " Jabeda would be written from a salary book, dadan book and the book in which salaries were calculated. Jabedas contained a regular accounts of the firm only." This is a book of the year 1916-17 and shows that large sums of money were received from Manmathanath Das, Defendant No. 2. The Defendant No. 1 contends that the entries shewing the receipt of lump sums from Manmathanath Das on almost every entry, beginning from the 7th of January and ending the 8th of December, are not genuine entries and they have been attacked as interpolations. The Defendant No. 1 contends that the entries shewing the receipt of lump sums from Manmathanath Das on almost every entry, beginning from the 7th of January and ending the 8th of December, are not genuine entries and they have been attacked as interpolations. It is said that the accuracy of these entries cannot be checked as the totals were made long afterwards and Manmatha, Defendant No. 2, does not produce his own books for 1916 and 1017. In our opinion these entries are genuine entries as they find place in the Khatian kept by Nutbehary--(see page 159). The Khatian which is a sort of ledger shows that Nutbehary received these sums from Manmatha. We have examined this original Khatian which is a bound book and we have no reason to doubt that the Khatian is not a genuine document. This document shows clearly that Defendant No. 1 was not telling the truth when he deposed that " he, Manmatha, never handed over the money received on his bills to me " --see page 456, line 2. These entries show that money received by Manmatha on his bills due from T. G. S. N. R. Co. would be made over to Nutbehary. Mr. Banerjee for the Respondent has argued with great strenuousness that even if these entries are genuine, they do not assist the Plaintiff in any way. The Subordinate Judge has treated these entries as showing that the money of Manmatha was being deposited with Nutbehary and these entries do not indicate a joint fund of Nutbehary and Manmatha. In my opinion the significance of these entries is that the moneys of Manmatha's firm were being blended with moneys of Nutbehary's firm and they are not suggestive of joint ownership of the two firms. It appears from Ex. 4 which is the account book of the year 1916-17 of Nutbehary (Vol. II. p. 175 to p. 190), read with the Khatian or Ledger, p. 169, that Manmatha put in from the 4th of February, 1916 to the 20th of January, 1917 a sum of Rs. 15,002-11-0 and deducting payments which come up to 12,198-9-2, balance due to Manmatha is 2,824-1-9. It is said for the Respondent that the entries show that there was a relationship of debtor and creditor between Defendant No. 1 and Defendant No. 2. 15,002-11-0 and deducting payments which come up to 12,198-9-2, balance due to Manmatha is 2,824-1-9. It is said for the Respondent that the entries show that there was a relationship of debtor and creditor between Defendant No. 1 and Defendant No. 2. But that is not the case of Defendant No. 1 who contended that there was no such transaction between the parties. Indeed, it was the case of Nutbehary that there was no such book as Jabda and Khatian, i.e., the books of the type of Exts. 4 and 5--see his deposition page 461, where he says, "there was no Jabda or Khatian they are never kept in such firms." 28. It will be convenient at this stage to deal with the question of the non-production of relevant account books which would have thrown light on the questions at issue in the present case. The Appellants maintain that Defendant No. 1, Nutbehary, has withheld the books of his firm and that the explanation which he gives that the books of his firm were stolen by the Appellants is a belated explanation. It appears that the Jabda--Ext. 4, was filed by the Appellants on the 11th of June. 1928, and long after that date on the 14th of January, 1930, the Defendant No. 1 made an application calling for certain account books--see page 301, Vol. 1 and suggesting for the first time that the Plaintiff and the colluding Defendant, taking advantage of his absence on account of the house-entry ceremony which was performed at his Mudiali house, got hold of and removed all the khatas and other papers of his Sherista which used to be kept in the outer room and they are still in the possession of the Plaintiff and his brothers. On the other hand it has been pointed out on behalf of the Respondents that it would not be in the interest of Defendant No. 1 to remove the books; that on the 10th of February, 1928, Plaintiff put in an application in which he made a vague suggestion against Defendant No. 1 (see page 120) that he had removed all the articles of which an inventory had been made and that he had removed all the books that were kept in an almirah inside the Dur-dalan which was outside the inventory made. Here the word " books " does not refer to books of account but to other books. On the 21st of April, 1928, the Plaintiff filed an affidavit, stating that at the time the inventory was made by the Commissioner in the suit, no khatas relating to accounts of the joint contract businesses standing in the names of Defendants Nos. 1 and 2 were found and it was further alleged in the said affidavit that Defendant No. 1 had removed the khatas of the contract business to the Mudiali house and had not filed them in the suit. This latter statement was not to the knowledge of the Plaintiff but was said to be true to his enquiry--see page 140, Vol. I. In the evidence, however, of the Plaintiff he stated that he saw Panchanon, son of Defendant No. 1 taking the khatas or books of accounts, see page 362, lines 1-5. This evidence is contrary to the affidavit that the Plaintiff said that the removal of the khatas by Defendant No. 1 was not true to his personal knowledge but was true to his enquiry. The Respondents pointed out that in his application at page 142 the Plaintiff did not disclose the fact that Plaintiff and Defendant No. 2 had in their possession books Ext. 3 series, Exts. 4, 4 (a), 5 and 6. It appears that when Nutbehary went to the Mudiali house, he left all his money about Rs. 8,000 in his house at Fatehpur in the room which he had locked and on which a double lock was put by the Plaintiff and Defendant No. 2 and it does not seem likely that he would carry the books of account with him to the Mudiali house. It is difficult in these circumstances to come to the definite conclusion that Defendant No. 1 has deliberately withheld the books and to draw the inference that the books, if produced, would go against him, although I am inclined to take the view that it would be to interest of Defendant No. 1 to remove the books. At the same time it seems in our opinion to be established in this case that the Defendant No. 1 has not spoken the truth when he said that the Jabda and the Khatian Exts. 4 and 5 had no existence. At the same time it seems in our opinion to be established in this case that the Defendant No. 1 has not spoken the truth when he said that the Jabda and the Khatian Exts. 4 and 5 had no existence. It would also seem that it would be to the interest of Defendant No. 1 to remove the books of subsequent years of the type of Ext. 4 and Ex. 5, for it would be inconsistent with his case that there was no I lending of the income of the two firms. Very strong reliance has been placed by the learned Advocate-General on the admission made by Defendant No. 1 in a previous deposition, given in the year 1924, when Haridas, the father of the Plaintiff, was alive and when there was no dispute between the parties to the effect that Defendant No. 1 lived in joint mess with Defendant No. 2 and that his properties were joint. It is necessary to quote in extenso the said deposition--see Vol. II, page 280. The Defendant No. 1 said:-- My nephew Manmatha lives with me in joint mess and our properties too are joint, except the property in suit. Manmatha has purchased one or two other properties himself. I told Manmatha that the price of the lands in suit seemed to be too high. But he said that he would not grudge paying a higher price as the Hogal land in suit was contiguous to our Hogal lands. Those Hogal lands are the Ejmali property of Manmatha and myself, 1 had contracted to buy 7 or 7 bighas of land from Umasashi. 29. It is argued that by this admission Defendant No. 1 has given out the truth. There can be no question that an admission is the best evidence against the party making the admission and unless it is shown that it is untrue and is made under circumstances which does not make it binding on the party making it, must be presumed to be true. In the case of Chandra Kanwar v. Chowdhury Narpat Sing L. R 34 I. A. 27: s. c. I. L. R. 29 All. 184: 11 C. W. N. 331 (1806), their Lordships of the Judicial Committee of the Privy Council made the following weighty observations regarding the effect of an admission of fact in relation to the burden of proof of the fact. 184: 11 C. W. N. 331 (1806), their Lordships of the Judicial Committee of the Privy Council made the following weighty observations regarding the effect of an admission of fact in relation to the burden of proof of the fact. Lord Atkinson expressed himself thus:-- The learned Chief Justice in his judgment points out that the harden of proving that the adoption relied upon took place, rests on the Defendant. That is undoubtedly so, but it is difficult to conceive how she could, as against Makund Singh---prima facie at all events--discharge that burden more effectually than by proving his solemn statement under hand and seal that it did not take place. The proof of this admission shifts the burden, because, as against the party making it, as Baron Parke says in Slatterie v. Pooley 6 M. & W. 664 at p. 669 (1840):--'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 give evidence to rebut this presumption, but unless and until that is satisfactorily done, the fact admitted must be taken to be established. The law upon the point is clear. In Heane v. Rogers 9 B. & C. 577 (1829) Bayley, J. in delivering the judgment of the Court lays it down that-- 'There is no doubt but that the express admissions of a party to the suit, or admissions implied from his conduct are evidence and strong evidence against him ; but we think he is at liberty to prove that such admissions were mistaken or were untrue and is not estopped or concluded by them unless another person has been induced by them to alter his condition. In such a case the party is estopped from disputing their truth as against that person (and those claiming under him) and that transaction, but as to third parties he is not bound.' In Newton v. Liddiard [1848] 12 Q B 926, Lord Denman approved and adopted this statement of the law, and Ex. party Morgan; in re Simpson L. R. 2 Ch Div. 72 at p. 89 (1876), and Trinidad Asphalte Company v. Coryat [1896] A. C. 587, in effect illustrate the same principle. There is here no suggestion of mistake. party Morgan; in re Simpson L. R. 2 Ch Div. 72 at p. 89 (1876), and Trinidad Asphalte Company v. Coryat [1896] A. C. 587, in effect illustrate the same principle. There is here no suggestion of mistake. And the question for the decision of their Lordships in effect resolves itself into this :--"Has Makund Singh proved satisfactorily that the admissions contained in the deeds to which he was a party are untrue in fact? In the opinion of their Lordships that question must be answered in the negative. 30. It is true that Defendant No. 1 has sought to explain away the admission and has suggested that there was mistake in making the admission. His explanation of the admission may best be put in his own words. He said:-- Manmatha had a gait with Gourmohan Ghose. I deposed in that suit. I was not a party to that suit. I had deposed that at the importunity of Manmatha, I said then of our properties except that of that suit being joint with Manmatha having in view only the propertied covered by mother's deed of release and the kobala executed by the Hazras. Land purchased from Hazras were covered by Hogals. I never purchased any other property on the same kobala with Manmatha." Part I, page 463. 31. The admission made by Nutbehary may be shown to have been made under a mistake of fact. On the other hand the weight of the admission increases with the knowledge and deliberation of the speaker or the solemnity of the occasion on which it was made. Nutbehary was deposing in a suit which was brought by the reversionary heir of Umasashi to set aside the sale of certain lands to Manmatha; Nutbehary had contracted to purchase those lands before but subsequently backed out of the contract and the purchase was made by Manmatha. A question was asked in cross-examination as to whether he was joint in mess and estate with Manmatha and in answer he said under oath that not only was Manmatha joint in mess with him but all his properties are joint with Manmatha except the property in suit and certain other lands. 32. It has been contended with great force by Mr. 32. It has been contended with great force by Mr. Banerjee for the Respondents that this admission is of no avail in the present case, for the issue in the present case is not whether Manmatha and Defendant No. 1 are joint in estate, but whether the Defendant No. 1 and his brother Haridas who was alive at the date of the admission was joint in estate and it is pointed out that both on the pleadings of the Plaintiff and Defendants Nos. 2 and 3, it is clear that they were claiming partition of the disputed properties on the footing of those properties being joint properties of Haridas and Defendant No. 1, it being their case that after the death of Haridas those properties have devolved on his sons. But although in the admission which must be strictly construed, Nutbehary was stating that all his properties are joint with Manmatha, he was evidently alluding to jointness with his brother Haridas--for, as he himself explained in the passage just quoted--that when he made the admission he had in view the properties covered by his mother's, i.e., Chintamoni's deed of release and the kobala executed by the Hazras. His mother's deed of release was the release of Chintamoni of the year 1911 (page 62), Vol. II, in favour of Haridas and Nutbehary. In making the admission, therefore, on his own shewing he was really intending to express jointness in estate with Haridas, although he said that he was joint with Manmatha--for, that was the question which was put to him by the cross-examining pleader in the suit in relation to Umasashi's land. 33. It would appear further from Ext. 2A, page 94, Vol. II, dated the 24th of November, 1922, that both Nutbehary and Haridas were joint with regard to their property belonging to the Mitras which they were selling to Panchanon Roy by the said document. In order to show that the property was really Nutbehary's property and Haridas joined in the conveyance merely because the purchaser wanted Haridas to join as he was living in commensality with his brother Defendant No. 1, evidence has been given of the clerk of the pleader who drafted the kobala in favour of Panchanon. In order to show that the property was really Nutbehary's property and Haridas joined in the conveyance merely because the purchaser wanted Haridas to join as he was living in commensality with his brother Defendant No. 1, evidence has been given of the clerk of the pleader who drafted the kobala in favour of Panchanon. The best evidence to prove this would have been that of the vendee Panchanon who has not been examined on behalf of the Defendant No. 1, although he was cited as a witness by him. It appears from the records of this case that Panchanon was cited as a witness by Defendant No. 1. The peon who went to serve the notice states in his return that he could not serve the notice as there was no identifier. This return was made on the 6th of August, 1928, and although there was plenty of time between the 6th of August, 1928 and the commencement of the hearing of the case in the early part of 1930, no attempt was made to effect service on him till the 7th of April, 1930, when a petition was put in that the summons might be given to the Defendant No. 1 for effecting service on Panchanon, (See page 378 of the original record of the case) and no explanation is given as to why Panchanon was not served. It is difficult to accept the evidence of the pleader's clerk that the land was purchased by Panchanan who refused to take anything unless Haridas also joined in it (page 579, Part I). He says that under the direction of both Nutbehary and Haridas, he inserted the name of Haridas in the kobala, although the name of Haridas did not occur in the draft. The draft has not been produced. The pleader Annada Babu who made the draft has not been called. It is difficult in these circumstances to accept evidence against the tenor of the deed which states that both Haridas who was living in joint mess with Nutbehary and Nutbehary, Defendant No. 1, announced their intention to sell. We are, therefore, unable to agree with the Subordinate Judge that there was no joint fund from which property sold by Ext. 2A was purchased by the two brothers. We are, therefore, unable to agree with the Subordinate Judge that there was no joint fund from which property sold by Ext. 2A was purchased by the two brothers. This transaction shows that the admission made by Nutbehary was not altogether untrue, for there were some properties at any rate which were being jointly possessed by Haridas and Nutbehary even in 1922 and this renders the explanation of Nutbehary of little value. 34. That the admission of Defendant that he had joint properties with Manmatha has basis in fact with regard to some of the properties has already been shown. Reference may also be made to another document Ext. A 22 (page 151--Vol. II), dated July, 1920, which, although standing in the name of Manmatha, was purchased from the joint funds of Manmatha and Nutbehary. At page 151 of Vol. II we have got an extract from the specification of consideration. Rs. 222-4 is the sum which Nutbehary had paid for redeeming the mortgage of the property in favour of the creditor Tincowri Dandapat. Now it will appear clear from the endorsement on the mortgage bond (Ex. 10) at page 136, Vol. II, that the sum of Rs. 222-4-0 was received by Upendra Nath Das with whom the bond was, because he had paid Rs. 195 to the original mortgagee and Nutbehary was subrogated to the place of the original mortgagee Tincowri Dandapat on payment to Upendra of Rs. 222-4. This amount was taken into account as consideration when Manmatha was purchasing the property from the widow of the mortgagor Rajendra named Nandaranee Dassee. The recital in Bengali to the effect " Paner andare apnar dara ukta maha janke dia uporokta mahajaner taka udhar kariachi," leave no doubt whatever that Nutbehary's Rs. 222-4 was part consideration for the deed in the name of Manmatha. The use of the word "apnar" shows that Manmatha and Nutbehary were taken to be identical persons for the purposes of the deed. It is true that Manmatha says that he has no knowledge about this purchase. He has throughout his evidence been maintaining the position that all the purchases in his name were made by Nutbehary. Perhaps he is not speaking the truth. The fact remains, however, that portion of the consideration money had been paid by Nutbehary and the document stands in the name of Manmatha. He has throughout his evidence been maintaining the position that all the purchases in his name were made by Nutbehary. Perhaps he is not speaking the truth. The fact remains, however, that portion of the consideration money had been paid by Nutbehary and the document stands in the name of Manmatha. The Subordinate Judge, in coming to the conclusion that this was Manmatha's exclusive property, has relied on the circumstance that when this property was subsequently sold to Nabakumar, the latter paid the consideration money to Manmatha, Defendant No. 2 (see p. 648). That would be so, for the deed ex facie stands in Manmatha's name. That is not inconsistent with the property being joint property as both Manmatha and Nutbehary were members of the same family. The Subordinate Judge has relied on the evidence of Rajendra, the pleader's clerk. Although he said in examination-in-chief that the consideration for Nandarani's kobala was paid by Manmatha, in cross-examination he admitted Nutbehary or his Sarkar paid the price of the kobala, although he corrected himself towards the end of cross-examination and stuck to his statement in examination-in-chief. Little reliance can be placed on the evidence of this witness towards the end of his cross-examination. The deed shows that the consideration was made up partly of payments made by Nutbehary and partly by Manmatha. These are little pieces of documentary evidence which, taken with other documentary evidence to which reference has been made, have the effect of establishing that Nutbehary was making no discrimination between purchases made in his name and those in Manmatha's name and supports the theory of the blending of the incomes of the two businesses and of the purchases of immovable properties from this blended fund. And this is one of the documents which shows that the admission made by Nutbehary was not untrue in fact. I am of opinion that the learned trial Judge failed to give due effect to the admission of Nutbehary in the year 1924 that all the properties except one were joint with Manmatha, the effect of which admission is reinforced by the documentary evidence, showing that Haridas and Nutbehary possessed some property jointly even in later times. 35. With reference to this admission it has been contended for the Respondent that its effect is counteracted by Manmatha's admission (Vol. II, page 278) to the following effect. 35. With reference to this admission it has been contended for the Respondent that its effect is counteracted by Manmatha's admission (Vol. II, page 278) to the following effect. "My uncle Nutbehary is now in the workshop of the I. G. S. N. Company. He too works as a contractor as I do under that Company." Reliance is placed on a statement in Phipson's Law of Evidence--6th Edition--Page 34, to the effect that conflicting presumptions neutralise each other and leave the case at large to be determined solely on the evidence given. The admission of Manmatha in our opinion in no way conflicts with the admission made by Nutbehary, for the admission amounts to this that they had separate businesses. That does not conflict with the statement of Nutbehary, that he and Manmatha had joint properties which may be the result of the blending of the earnings of the two brothers, in the two businesses to this limited extent that properties acquired out of the blended fund was the joint property of the family. It is argued for the Respondent that this case of blending was not made in the Court below. This comment does not seem to be right, for the Subordinate Judge deals with the question at page 652, line 14 of his judgment when he states: " The question is whether he blended the property to constitute a joint property " and his conclusion is that there was no such blending. Our attention is drawn to grounds 5 and 86 of the Memorandum of Appeal to this Court, the substance of which grounds is " that the trial Court was under a misapprehension as to the Plaintiff's case in holding that it was that properties acquired by different members of the family had been blended together whereas the Plaintiff's case was that all the properties had been acquired with the joint exertions and earnings of all the members and were all joint family properties." It seems to me that the Plaintiff was putting his case too high when he stated that the properties have been acquired with the joint exertions and earnings of all the member's and were joint family properties. The learned Advocate-General, appearing for Defendant No. 2 stated that his case was also not of blending and his case was that the contract businesses were joint. Here again the case was being put too high. The learned Advocate-General, appearing for Defendant No. 2 stated that his case was also not of blending and his case was that the contract businesses were joint. Here again the case was being put too high. It does not preclude the Court from giving a decree to the Plaintiff on the footing that Plaintiff failed to prove that the contract business of 1906 was joint family business but the evidence discloses that the Defendant No. 1 blended the earnings of Defendant No. 2 out of his business with his own separate account and the effect of such blending was to cause the income from the two businesses to become joint to the extent that any immovable properties which were purchased from such mixed fund were meant to be joint property of both brothers Nutbehary and Haridas. It is no doubt true that Defendant No. 2 claims that the first contract business started in 1906 by Nutbehary was joint family business and that started in his name in 1913 was also joint family business but in paragraph 11 of his written statement he makes the significant averment that " all amounts received on bills in the name of Defendant No. 2 in connection with the said business used to come into the hands of Defendant No. 1 and all the savings thereof after meeting all expenses, used to remain in the hands of Defendant No. 1 as the karta." This allegation of Defendant No, 2, except as to the kartaship of Defendant No. 1 has been proved by Exts. 4 and 5--the books of Defendant No. 1 for the year 1916-17--and it is significant that nearly the whole of the receipts for the years 1916 and 1917 which was in excess of Rs. 15,000 was put into the hands of Nutbehary by Manmatha. (Compare pages 128-170 of Vol. II). In arriving at the conclusion that Nutbehary mixed up his own earnings with Manmatha's earnings and by blending his self-acquisition with the joint family business--which Manmatha says his business was--and that the properties purchased from such joint fund were joint family properties of Defendant No. 1 and his brother, I am not departing from the elementary rule that parties must be tied down to their pleadings and it is not permissible to the Court to make a new case for the parties. Let me analyse the position. Let me analyse the position. The case of Defendant No. 2, who supports Plaintiff, is that business of 1906 was joint family business and that as such monies of that business were blended with the earnings of the business of 1913. On the other hand the case of Defendant No. 1 is that business of 1906 was not joint family business but was his own and there was no blending of his acquisitions with joint family estate. The Court comes to the conclusion that the contention of Defendant No. 1 that 1906 business was his own is right but there was blending of his self-acquisition with joint family estate. There would be nothing to prevent the Court from decreeing the partition suit on the footing that properties were joint by reason of the blending. It can proceed to deal with the case on the truth as disclosed by the evidence which was led on this point. 36. Ext. (4)--With regards to Exts. 4 and 5 it remains to consider another argument of Mr. Banerjee, viz., that the entries of sums received from Manmatha (Defendant No. 2) in Nutbehary's books have no greater effect than entries of numerous other persons whose names appear in Exs. 4 and 5. We have already pointed out that no case was made by Defendant No. 1 that Manmatha was a mere creditor. In other words it is said that as moneys of these strangers cannot be regarded as blended with the estate of Nutbehary, so also moneys of Manmatha must be regarded as outside the estate of Nutbehary. But this argument is not conclusive--for, moneys of these people were not moneys of people sharing in the joint estate and were incapable of being blended in the manner suggested and they would remain moneys for which Nutbehary would be liable to account. But Nutbehary's own earnings stood in a different position and association with Manmatha's money would be sufficient evidence of their being blended. See the observations of the Privy Council in Suraj Narain v. Ratan L. R. 44 I. A. 208: s. c. 21 C. W. N. 1065 (1917) on a somewhat similar state of facts. 37. Exhibit 4a--the account book of 1016-17 was written partly by Manmatha, partly by Haripada and partly by Sashi Kuar, witness No. 4 for Defendants Nos. 2 and 3. 37. Exhibit 4a--the account book of 1016-17 was written partly by Manmatha, partly by Haripada and partly by Sashi Kuar, witness No. 4 for Defendants Nos. 2 and 3. The last witness swears that the accounts were kept in due course of business. The Subordinate Judge has rejected this book from evidence on the ground that it is not a regular account book and that it is fragmentary. It is further pointed out that nothing was entered on the credit side. It is also significant that all the income of the family was not entered. It has been contended by the Advocate-General that the Subordinate Judge was not right in brushing the book, Ext. 4a (pages 193-208, Vol. II), aside by saying that it is fragmentary and on the ground that there are no credit sides in the accounts. It is argued that these entries in the account book are relevant as admissions against Nutbehary, having been written by the agents of Defendant No. 1, and in support of this proposition reliance is placed on the cases of Reg. v. Hanmanta I. L. R. 1 Bom. 610 (1877) and Chandreswar v. Bisweswar I. L. R. 5 Pat. 777 at pp. 831-832 (1926) as also on a decision of their Lordships of the Judicial Committee in the case of Deputy Commissioner of Barabanki v. Ram Prosad L. R. 26 I. A. 254: s. c. I. L. R. 27 Cal. 118, 124; 4 C. W. N. 147 (1899). It has been laid down by their Lordships in the last case that a book of account may be said to be regularly kept although the book is not entered up from day to day or from hour to hour as the transactions take place. Assuming this book to be admissible in evidence, the entries in the said book do not help the Plaintiff very much. The entries relied on are the two entries, one of Rs. 500 spent under the direction of the Plaintiff and the other of Rs. 4 spent under the direction of Defendant No. 2. See page 196, Vol. II. These entries do not suggest that the sums in question were spent under the direction of the Plaintiff and Defendant No. 2, because they had control of the fund of Nutbehary in the year 1323 corresponding to 1916. 4 spent under the direction of Defendant No. 2. See page 196, Vol. II. These entries do not suggest that the sums in question were spent under the direction of the Plaintiff and Defendant No. 2, because they had control of the fund of Nutbehary in the year 1323 corresponding to 1916. They are quite consistent with the sums being Nutbehary's own money and having been spent under his orders which were conveyed to the writer of the account who spent the money through Plaintiff and Defendant No. 2. A great deal has also been made of the entry of Rs. 2 as expenses for preparing a plan for Hari Sndhukhan's land which Defendant No. 1 admits belongs to Manmatha and which the Commissioner found when he went to take the inventory in Nutbehary's room. It is argued for the Appellant that this shows that Hari Sarihukhan's kabuliyat which stood in the name of Manmatha alone, was really joint land of Nutbehary and his brother and the expense of Rs. 2 was being met from Nutbehary's fund, It has been pointed out by Mr. Banerjee for the Respondent that the print at page 205 omits a very important entry in the original at the top of the account showing that on the 30th of Baisakh the said Rs. 2 was paid back by Manmatha. In the circumstances the value of this entry seems to be nothing. 38. The next series of books relied on by the Plaintiff for the purpose of showing that the businesses were joint businesses are Exts. 6 to 6c--page 108, Vol. II and it is pointed out that the expenses as per establishment khata take into account the salaries of Sashibhushan Kuar and Govinda Ghoshal--the two joint Sarkars and one Durwan Sarmesh Khan who was a joint Durwan of the family--a fact which has been denied by Nutbehary. These books were made for the purposes of income tax. See evidence of Govinda Ghoshal--page 566. It is argued for the Respondent that these were false entries for income tax purposes and it is contended that these false accounts should not be relied on for the discovery of the truth. There is some force in this contention of the Respondent and in my opinion they are not conclusive on the question of the jointness of the two karbars. 39. There is some force in this contention of the Respondent and in my opinion they are not conclusive on the question of the jointness of the two karbars. 39. That the contract business of 1906 was not the joint business of the family will also appear from the entries in Exts. 3 to 3c which shows that Manmatha was receiving wages like any other labourer and that he drew his wages for 9-3 4 days of the month of December 1913, when he gave up his occupation as labourer and started the contract business of 1913. Some argument was advanced on behalf of the Appellants to the effect that as Manmatha and Haridas by their joint labour helped the Defendant No. 1 in carrying on the contract business and they did so as members of a joint family, the business must be held to be joint. It is said that the nature of this labour contract business was that the contractor must be a person competent to supervise the work of the employers and hold communication with European employees. Boats had to be repaired, steel sheets had to be moulded. No implements were required as all the materials were supplied by the Company. See the evidence of P. W. N. 9--page 339, lines 30-40. And that whatever money was required it would be necessary for paying wages and advances to the men employed and that this money was taken from Dinu Mistry's son--Haricharan as would appear from the Hatchitta--Ext. G--page 13, Vol. II, which covers the period 1909 to 1914. It thus appears clear that the contract business of 1906 was not implemented by joint funds and that whatever labour either Haridas or Manmatha did for which they received the wages were not labour as a partner or sharer in the partnership business and it cannot be said that the business was carried on by the joint exertions of Nutbehary and his brother or nephew. In a recent case Lord Buckmaster delivering judgment of their Lordships of the Judicial Committee observed:--" A member of a joint undivided family can make separate acquisition of property for his own benefit, and unless it can be shown that the business grew from joint family property, or that the earnings were blended with joint family estate, they remain free and separate." See Chetty v. Chetty 33 C. W. N. 435 : 49 C. L. J. 93 at p. 95 (P. C.) (1928). There is also authority for the proposition that where the business was carried on with the joint exertion with another member of a joint family but there is nothing to indicate that the exertion or labour contributed was as a partner or a person having pecuniary or proprietary interest in the business--the business cannot be regarded as a joint family business. See the observations of Mukerji, J., in Ashutosh Mukherji v. Tarapada Mukherji 58 C. L. J. 372 at p. 392 (1933). The question is whether Nutbehary's earnings were blended with the joint family estate, our conclusion being that Nutbehary's business carried on in partnership with Haricharan and started in 1906 was not the business of the joint family. 40. The next question for consideration is, when did he blend his earnings with the joint family estate? The first document shortly after the contract business was the purchase of the land covered by pottah granted by one Dwarkanath Adak to both Nutbehary and Haridas, his brother, by Ext. AA2, dated the 18th December, 1904, for a term of five years. Before the expiry of the lease, the superior interest is transferred to Nutbehary alone for a sum of Rs. 2,500. There is a recital in the deed of sale which is dated the 31st October, 1907--Ext. A-21, page 43, Vol. II, which would seem to suggest that the sale was being made to the same person or persons who held the leasehold interest. The material part of the recital is this:-- I have been in enjoyment end possession thereof on paying rent thereof into the Zemindar's sarkar and after letting out the same to you as a thicca tenant on realising rent from you. 41. From this recital it would appear that the sale was being made to the same person or persons who had the leasehold interest. 41. From this recital it would appear that the sale was being made to the same person or persons who had the leasehold interest. In order to get rid of the effect of this recital, Nutbehary started the theory that Haridas surrendered the lease. The reason he gives is as follows:-- A garden land was taken lease of in the name of us both the brothers after that. This was 25 or 26 years ago and I had not become a contractor till then. I was probably at Barisal then. My brother took the lease. He took it in two names as I did not pay for the land taken in his own name only before. On my return home brother wanted money for it but I refused. So the land was surrendered and was not cultivated. I refused to pay as I was the only working man and the cultivation of the lands would result in loss. We had no garden then and there was no cultivation or sale of vegetables by us. 42. It is not possible to accept this view, for there is no reference to this surrender in the deed of sale and the real effect of the recital is that the purchase was really being made by the same person who held the lease in the name of one of the lessees. Nutbehary said that he settled tenants on this land but no tenants have been examined. In 1906, about December, it is the case of Nutbehary that he started a modi or grocer's shop for helping his brother and the brother's son, and it is said that Defendant No. 1 supplied the funds for this shop. In paragraph 14 of the petition of objection for the appointment of a Receiver Defendant No. 1 admits that he set up the modi shop with his own money and placed the same in charge of the Plaintiff and Defendants Nos. 2 and 3 under the control of Defendant No. 2 and that some properties had been acquired in the name of Defendant No. 2 from out of the income of shop as also with money given by the Defendant. This shop is admittedly conducted by the nephews without any remuneration. It was in charge of Chunilal till his death in 1824 after which it was placed in charge of the Plaintiff. This shop is admittedly conducted by the nephews without any remuneration. It was in charge of Chunilal till his death in 1824 after which it was placed in charge of the Plaintiff. It is also admitted by Defendant No. 1 " that the funds of mudi shop and Manmatha's firm remained in the iron safe on the ground floor," Vol. I, p. 456, lines 10-12. Articles worth Rs. 275 to Rs. 325 would come every month from the modi shop for the use of the joint family. These are circumstances from which inference might legitimately be drawn that Nutbehary was bringing his separate self-acquisitions into the joint family estate even prior to the contract business of 1913. In 1911 they get the land of Raimoni by deed of release from their mother and this is a further addition to whatever joint property they had before 1911. The fact that some of the properties acquired before 1911 stand in the name of Nutbehary alone would have been of great importance and materiality in helping the case of Nutbehary that he kept his acquisition separate but for the fact admitted by him that benami transactions were a habit with him. It also seems to be likely that between 1906 and 1913 when he was earning about Rs. 250 a month, the needs of the joint family consisting of himself and his brother were great and could not be sufficiently met with the income of whatever little property the brothers jointly possessed and in these circumstances it is likely that Nutbehary should have brought his separate acquisitions into joint family accounts. It also appears that some of the properties acquired in the name of Manmatha were being treated as joint properties of Nutbehary and Manmatha. The land which is known as Idris Gazi's land was sold to Manmatha for Rs. 333 by Ext. A20, Vol. II--p. 139 on the 21st of December, 1915, and yet this land was entered in a deed of release in Nutbehary's favour for the lands of Domjur--see page 466. It is true that Nutbehary states that he did not ask Haripada Jati to enter the land of Idris Gazis in it but that explanation can hardly be accepted, for the kobala of Idris Gazis was found with Nutbehary when the Commissioner went to take an inventory of the documents in Nutbehary's possession. See p. 108, Vol. It is true that Nutbehary states that he did not ask Haripada Jati to enter the land of Idris Gazis in it but that explanation can hardly be accepted, for the kobala of Idris Gazis was found with Nutbehary when the Commissioner went to take an inventory of the documents in Nutbehary's possession. See p. 108, Vol. I. Then again we find that even in 1925 a kabuliyat was executed in favour of Manmatha for a monthly rent of Rs. 26-4 in respect of 21 rooms, although it is admitted that this property was Nutbehary's. The explanation which Nutbehary gives with regard to his kabuliyat (page 156--Vol. II) is that this kabuliyat was taken on the advice of Sashi Sarkar for avoiding income tax. See p. 466, lines 10-12, Vol. I. All these transactions point to the conclusion that the admission of Nutbehary in 1924 meant that all the immovable properties acquired were joint with Manmatha or Haridas. It has been pointed out that Manmatha was acquiring properties in his own name and reference is made to a deed of sale dated the 10th February, 1926, executed by Nafarchandra Das in favour of Manmatha of Rs. 1,800. See Ext. A-10, Vol. II, page 161. On behalf of Defendant No. 2, it has been sought to be made out that this was really a benami transaction for Manmatha's relation, Bijoy. We are not at all impressed with the evidence relating to the benami character of the deed. This property must also be included in the suit for partition if it has not already been included and our orders to effect partition of the other properties to be stated presently will apply to this property also. 43. In the schedule to the plaint was included in plot No. 1 of schedule (ka) of immovable properties 3 bighas out of 9 bighas of land on which stand 9 pucca buildings and which is let out to tenants and on which there is a tank with pucca ghat. This land was made the subject-matter of a gift by Chintamoni, the mother of Defendant No. 1, in favour of Panchanan, the son of Defendant No. 1. Much argument was addressed at the Bar to show that this was joint family property and that the gift to Panchanan was not a real transaction. This land was made the subject-matter of a gift by Chintamoni, the mother of Defendant No. 1, in favour of Panchanan, the son of Defendant No. 1. Much argument was addressed at the Bar to show that this was joint family property and that the gift to Panchanan was not a real transaction. It is unnecessary to go into this question as Panchanan is not a party to the suit and it is conceded both by the learned Advocate-General and Mr. Bose that no relief can be given to the parties in this suit in the absence of Panchanan. The claim of the Plaintiff, therefore, with reference to this 3 bighas of the gifted land must be dismissed. 44. The admission made by Nutbehary in the deposition in the previous suit cannot affect moneys lent out by Nutbehary either on mortgages or on promissory notes and the claim of the Plaintiff for partition and accounts of the money-lending business as described in schedule " ga " must be dismissed. There was plenty of money in the hands of Nutbehary which he might have disposed as he liked and which he need not have incorporated in the joint fund. 45. A few words need be said about the oral evidence in the case. It has already been stated that not much weight was attributed to the oral evidence at the Bar for reasons already referred to. It has been said on the one hand that there are several matters on which Nutbehary's evidence cannot be accepted on the ground that he has been contradicted by unimpeachable documentary evidence. The first matter is his denial of exchange of the land with Rakhit's and incidents relating thereto. On the 11th October, 1915, it appears that some plots were sold to Nutbehary and Manmatha jointly by the Hazras (p. 62, Vol. II). Nutbehary's case is that he did not pay for Manmatha's plot which was 7 cottahs in area. The plot taken for Manmatha was exchanged for the two plots belonging to the Rakhits (Vol. II, p. 143). These two plots had land of the family on three sides. The other plot that he was getting was the pathway. By this exchange the family got the pathway and the land was surrounded by Nutbehary's land. The deed of exchange put an end to the quarrel. There was a criminal case. II, p. 143). These two plots had land of the family on three sides. The other plot that he was getting was the pathway. By this exchange the family got the pathway and the land was surrounded by Nutbehary's land. The deed of exchange put an end to the quarrel. There was a criminal case. It is said Nutbehary is lying where he feigned ignorance of the criminal case and the exchange, for when the Commissioner went to make the inventory, a certified copy of Rakhit's deposition in the criminal case was found in his room--see p. 483, line 21. The second matter on which he is said to be lying is his statement about the physical condition of Haridas. The third matter on which he is lying is that the contracts under I. G. N. R. Co. used to be taken on two names. It is pointed out from the evidence of clerk of the Company who speaks of the books of the Company that there was no contract in two names--see p. 329, Vol. I and 398, line 30. The fourth matter where he is said to be lying is that there was no jabda, p. 461. It is said that Ex. 6 shows the existence of an establishment khata. The fifth matter on which he is said to be lying about the dismissal of Haripada Jata, one of his agents who has proved the books (467, line 30). This is not put to Haripada at all. And the last and the most important matter on which he is said to be lying is his denial that Manmatha signed the partnership deed of 1906 for him. In the certified copy the name of Manmatha Nath Roy appears and we had to send for the original from the legal representative of Haricharan Das, partner of Defendant No. 1, and we found that it bore the name of Defendant No. 2 and the name of Nutbehary was signed through Defendant No. 2. There is considerable force with regard to this comment on Nutbehary's evidence. He has not come out with the whole truth in the case. 46. Similarly, our attention has been drawn to a number of statements, of Manmatha which are far from the truth. There is considerable force with regard to this comment on Nutbehary's evidence. He has not come out with the whole truth in the case. 46. Similarly, our attention has been drawn to a number of statements, of Manmatha which are far from the truth. As little reliance has been placed on oral evidence at the bar, we have to accept such parts of the oral evidence as fit in with the documents and we have discussed the same already. 47. It often happens in joint families consisting of several brothers under the Dayabhaga system of Hindu law where the income from the ancestral property is small that one or two of the brothers whose earnings are considerable, contribute from their large earnings to the upkeep of the families of the other brothers whose earnings are small and where income from the joint estate is small, but this circumstances alone can lead to no inference whatever that the brothers contributing wanted to make their self-acquisitions a part of the common stock. The self-acquisitions or properties acquired from their self-acquisition with the earnings of the wealthy brothers remain their own. But where, as here it is shown by Ext. (4) that the earnings of Manmatha from the contract business of 1913 which he admits to be joint business are put into the hands of Defendant No. 1 and are mixed up with his fund (1915-17) and where it is shown that joint properties are being acquired in the name of both Haridas and Nutbehary in 1922 and where later it is shown that there is an admission taken with the explanation of Defendant No. 1--that all the properties except one are joint with Manmatha which means Haridas, no doubt is left that the immovable properties acquired up to the date of the admission are joint family properties of both of Haridas and Nutbehary, Defendant No. 1. This admission must be strictly construed and must refer to the immovable properties acquired. The admission cannot affect moneys advanced on mortgages by Defendant No. 1 or on promissory notes or the businesses, viz., the contract businesses which were going concerns at the date of the suit. It has already been stated that the Plaintiff and the Defendants Nos. This admission must be strictly construed and must refer to the immovable properties acquired. The admission cannot affect moneys advanced on mortgages by Defendant No. 1 or on promissory notes or the businesses, viz., the contract businesses which were going concerns at the date of the suit. It has already been stated that the Plaintiff and the Defendants Nos. 2 to 3 have failed to establish that any circumstances existed, giving rise to the inference that there was any joint family estate in the separate earnings of the two brothers Defendant Nos. 1 and 2 from the two contract businesses and that the earnings of Nutbehary from the said business of 1906 were moneys which he was at perfect liberty to use in any manner that he thought fit. At the same time it would be quite consistent with the principle which regulates joint family estates that he should in fact have brought them into the joint property and made them part of the whole. The books of Defendant No. 1 of 1916 and 1917, Ext. 4, show that he was blending the moneys of Manmatha's private earnings from his contract business with his own earnings. The absence of books of the type of Ext. 4 subsequent to the year 1916-17 down to the institution of the suit in 1927 rendered it very difficult to determine whether this state of things continued subsequent to 1916-17. It is difficult to determine whether the Plaintiff and Defendants Nos. 2 and 3 or the Defendant No. 1 have spirited away these books or have secreted them and we have therefore to fall back on oral evidence and to accept the same in so far as they are consistent with the admission made by Defendant No. 1 in 1924 that all the properties except the one named in Umasashi's suit were joint properties of Nutbehary and Haridas. Sashibhusan Kuer, the fourth witness for Defendants Nos. 2 and 3 who served under Defendants Nos. 1 and 2 since 1321, B. S., corresponding to 1914, wrote Ext. 4 which is described as the jabda khata (380, line 29). He says that Defendants Nos. 1 and 2 purchased properties worth about Rs. 80,000 and that all these properties were acquired with the income of the two contract businesses. 2 and 3 who served under Defendants Nos. 1 and 2 since 1321, B. S., corresponding to 1914, wrote Ext. 4 which is described as the jabda khata (380, line 29). He says that Defendants Nos. 1 and 2 purchased properties worth about Rs. 80,000 and that all these properties were acquired with the income of the two contract businesses. It would appear from a true copy of the statement of income of Nutbehary and Manmatha from April 1914 to March 1928 (Ext. DD) that Nutbehary was earning between 1914 and 1928 large sums which varied between Rs. 52,660 and Rs. 1,39,176 a year. This statement has been proved by witness No. 12 for Defendant who made it from the record of the income tax return kept in the office of the I. G. N. R. & Co. (see p. 528). It appears from the same paper that the income of Manmatha varied between Rs. 13,384 to Rs. 88,084 during those years. The admission of Nutbehary taken along with the evidence of Sashibhushan Kuar that all the properties were acquired with the income of the two joint businesses would go to show that Nutbehary has brought his own earnings into joint property to this extent that the immovable properties acquired from the blended fund were regarded by him as joint. 48. The next question for consideration is what would be the share of the parties in the joint properties. A question was raised in the Court below that even if the properties be joint properties, then Nutbehary alone is entitled to 2/3rd share of the same as the properties have been acquired by his exertions. In the view which the Subordinate Judge took, it was not necessary to decide the question. It has now become necessary to determine it. A question was raised in the Court below that even if the properties be joint properties, then Nutbehary alone is entitled to 2/3rd share of the same as the properties have been acquired by his exertions. In the view which the Subordinate Judge took, it was not necessary to decide the question. It has now become necessary to determine it. The question was discussed in a very early case by Chief Justice Peel of the Supreme Court--see Goorucharan Doss v. Goluckmani Dassi 1 Fulton 164, 165 (1843), where the law is stated thus:--"The authorities establish, and the uniform course of practice in this Court is conformable to them, that the sole manager of the joint stock is thereby entitled to no increased share, and that skill and labour contributed by one joint sharer alone in the augmentation or improvement of the common stock establishes no right to a larger share, that the acquisition of a distinct property, without aid of the joint funds or joint labour, gives a separate right and creates a separate estate, that the acquisition of a distinct property, with the aid of joint funds, or of joint labour, gives the acquirer a right to a double share, and prevents the character of separate estate from attaching to such an acquisition, and lastly that the union with the common stock of that which might otherwise have been held in severalty gives it the character of a joint and not of a separate property. Upon an attentive review of the authorities and a careful reconsideration of them and of the reasons upon which the decision of this Court was given, I can see no ground for varying the decree upon this point which the Court has already made." The question was considered by the Judicial Committee in the case of Soorajmani Dasee v. Dinobandhu Mallik 6 M. I. A. 526 at p. 539 (1857) the rule is stated thus:--"On a partition it is divisible equally, no matter by what application of the common funds, or by whose exertions it may have been made; the single exception to the rule being that on the acquisition by one co-sharer of a distinct property with the aid only of the joint funds, the acquirer may take a double share in that property. The case cited of Goorucharan Das v. Goluckmoni Dasee 1 Fulton 164, 166 (1843) and the authorities there collected and enforced abundantly prove both the rule and the exception, the increment arising from the accumulations of undrawn income is obviously within the general rule." 49. It has been contended by the learned Advocate-General that this rule has no application where the self-acquisition is blended with the common stock. We do not think that this rule would apply to the circumstances of the present case where, according to our finding, Nutbehary's earnings were mixed up with the earnings of Manmatha in the contract business and immovable properties were purchased with the mixed up fund. In the absence of anything stated in the sale deeds it must be taken that Nutbehary and Haridas were equally interested in the purchased properties. The shares therefore of the parties in the said properties will be as follows:--Plaintiff 1/6th, Defendant No. 2, 1/6th and Defendant No. 3, 1/6th, while the remaining half is declared to belong to Defendant No. 1. 50. With reference to the homestead Mr. Banerjee has not supported the order of the Subordinate Judge that the homestead measuring 3 bighas 4 cottahs cannot be divided and the reasons on which the conclusion is based and to which reference has been made already. 51. The Subordinate Judge is of opinion that the house on the 3 bighas 4 cottahs of homestead land cannot be divided as it is the self-acquired property of Nutbehary. We have stated already that the property is joint including the buildings on the same. Even if the building on the homestead has been erected at the cost of Nutbehary, he cannot claim compensation for it. The true rule in cases of this kind is that " if one joint tenant or tenant-in-common covers the whole of the estate with valuable improvements so that it is impossible for the co-tenants to get his share of the estate without including a part of the improvements so made, the tenant making the improvement would not be entitled to compensation therefor, notwithstanding they may have greatly added to the value of the land, because it would be the improver's own folly to extend his own improvements over the whole estate and because it would be unjust to permit a co-tenant at his pleasure to charge another co-tenant with improvement he may not have desired. In such a case the improver stands as a mere volunteer and cannot, without the consent of his co-tenant, lay the foundation of charging him with the improvements." See Ram Charan Mitra, Tagore Lectures on Partition, p. 417. We think, therefore, that the homestead with the buildings must be divided in the shares mentioned before. 52. It remains to consider the position why we are dismissing the suit for partition of the business of 1913 which Manmatha, Defendant No. 2, admits to be joint family business. The answer is simple. In that business according to our finding, Defendant No. 1 is not interested and Defendant No. 1 also disclaims all interest in the same; consequently that business cannot, form the subject-matter of this suit for partition which must relate to properties in which Plaintiff and Defendants Nos. 2 and 3 on the one hand and Defendant No. 1 on the other are jointly interested. 53. The next matter to be considered is about the Plaintiff's claim regarding the Mudiali house, property No. 20 of schedule ka, which is the most valuable of all the properties. In our opinion this claim should be dismissed. It appears from the evidence that so far as the Mudiali house is concerned, it was built out of Nutbehary's own earnings which he did not blend with common stock and he never treated this house as joint. When the house-warming ceremony was performed, neither the Plaintiff nor Defendants Nos. 2 and 3 accompanied Defendant No. 1 to the Mudiali house and this is a circumstance of great significance, although Plaintiff in his evidence says that all went to the Mudiali house. Defendant No. 2, however, is clear in his evidence that Nutbehary removed to the Mudiali house which was his (Defendant No. 1). The following passage in Manmatha's deposition is very significant. My uncle has great confidence on me, my father and brothers. Uncle would love us all and take care of us. This continued unabated up to the time of his going to Mudiali house in Asar 1334 B. S. Chuni's daughters lived with him from before. I told him to send her to our house, yet he got her married in Sraban 1336 B. S. at his own cost at his Mudiali house ; on that night my daughter was also married at our Fatehpur house. Page 417, lines 10 to 18. 54. I told him to send her to our house, yet he got her married in Sraban 1336 B. S. at his own cost at his Mudiali house ; on that night my daughter was also married at our Fatehpur house. Page 417, lines 10 to 18. 54. The underlined words in this passage make it clear that Defendant No. 2 admitted in the most explicit terms that the Mudiali house was his, i.e., Nutbehary's and use of the word " his " with reference to the Mudiali house is in contrast with the use of the word " our " in connection with the Fatehpur house. This admission of Manmatha with reference to the Mudiali house neutralizes the effect of the admission of Nutbehary in 1924, if it could refer to include the land on which this house was built. Besides it would seem that the house was built after the date of the admission. Nutbehary never wanted to treat this as joint property and the Defendant No. 2 accepted this position. The Plaintiff is not telling the truth when he said that they all went to the Mudiali house on the house-warming ceremony day. Chuni's daughter who was living with him from before alone accompanied Nutbehary. The fact that on the house-warming day only the members of Nutbehary family came to the Mudiali house leads to the irresistible inference that this was his own house built out of his self-acquisition which he did not blend with the common stock. 55. I will now summarize my conclusions on the Questions that emerge for decision in these two appeals. (1) There was no nucleus of ancestral property at the date the contract business of 1906 was started. (2) Nutbehary, Defendant No. 1 and his brother, Haridas, had some joint estate, although very small. (3) The burden lay on Defendant No. 1 of showing that the business was not the joint family business, and that burden has been most effectually discharged. (4) That Nutbehary did bring his separate acquisitions into joint property as some of the transactions which were in the name of Defendant No. 1 were really meant for the joint family; that the grocer's shop which was started by Defendant No. 1 was really meant for the joint family. (4) That Nutbehary did bring his separate acquisitions into joint property as some of the transactions which were in the name of Defendant No. 1 were really meant for the joint family; that the grocer's shop which was started by Defendant No. 1 was really meant for the joint family. (5) That in 1913 separate contract business was started by Defendant No. 2 (Manmatha) and there is evidence that the earnings from the business were blended with the earnings of Defendant No. 1 (Nutbehary). This separate business is said by Defendant No. 2 (Manmatha) to be joint family business. (6) That the immovable properties were purchased from this mixed up fund and such properties which stood either in the name of both Defendants Nos. 1 and 2 must be treated as joint. (7) That the case of blending is no new case. It was submitted for consideration to the Court below and evidence has been directed to this question. (8) That books have been secreted by both sides and it is difficult to ascertain whether Defendant No. 1 has removed books of type of Ex. 4 for years subsequent to 1916-17 although it would be to his interest to do so. (9) That the oral evidence is conflicting and was not greatly relied on at the Bar and our conclusions are based on such oral evidence as fit in with the documents which can be relied on. (10) That Ex. (a) series of books contain interpolations. (11) That Exs. 4 and 5 are genuine. (12) That the money-lending business was the exclusive business of Defendant No. 1 from his own income which was large, and portions of which were intended to be kept distinct. (13) That Plaintiff, Defendants Nos. 2 and 3 will have 1/6th share each in immovable properties (ka) except Panchanan's gifted land and the Mudiali house and the plaint to be amended by inclusion of Manmatha's purchased land from Nafar Das. (14) That the doctrine of 2/3rd share which is sought to be applied to Defendant No. 1's (acquisitions) does not apply as there was blending of the income of the two businesses. 56. (14) That the doctrine of 2/3rd share which is sought to be applied to Defendant No. 1's (acquisitions) does not apply as there was blending of the income of the two businesses. 56. Having regard to the findings arrived at above, we direct that all the properties mentioned in schedule " ka " except the three bighas of gifted land in favour of Panchanan and the Mudiali house item No. 20 be divided amongst the parties according to then respective shares as determined before; that the land purchased by Manmatha from Nafar Das be also divided according to the same shares; that the claim of the Plaintiff regarding the two contract businesses as by their amended plaint be dismissed; that the claim of the Plaintiff to the grocer's shop be decreed in the same shares and the claim of the Plaintiff to the movables mentioned in schedule " kha " of the original plaint be decreed in the same shares; that a Commissioner be appointed to carry into effect this preliminary decree for partition. The claim for accounts is dismissed as we are not satisfied that Nutbehary was karta of the joint family. The claim for the money-lending business is also dismissed. 57. Each party will bear their own costs throughout. [Mr. Justice McNair concurred and delivered a separate judgment, dealing solely with the evidence in the case. His Lordship concluded as follows:--] 58. The one outstanding fact remains that Nutbehary did in 1924 admit that his properties were joint, an admission which is destructive of his case that his properties were not joint. The admission was not a mistake, it was deliberate and I am convinced that the respondent did by his admission in 1924 intend to convey that he was a member of a joint family which was the owner of joint property. An elaborate argument has been placed before us by both Appellant and Respondent on the doctrine under the Dayabhaga that where a property has been acquired by one co-sharer with the minimum of aid from the joint family funds, the acquirer may take a double share in that property on partition. In my view this doctrine is not applicable, for I hold that most of the properties in schedule ka to the plaint have been acquired through the blending of the Respondent's separate funds with those of the joint family. 59. In my view this doctrine is not applicable, for I hold that most of the properties in schedule ka to the plaint have been acquired through the blending of the Respondent's separate funds with those of the joint family. 59. From this category must be excluded the money-lending business carried on by Nutbehary and the Mudiali property. 60. The money-lending business was undoubtedly Nutbehary's own business. He started it in 1914 in his own name at a time when there was no suggestion that there was any family estate other than the property comprised in the cultivating leases and it is not suggested that they produced any income which could have been blended with Nutbehary's separate funds in order to create the business. 61. There is no evidence to connect the Mudiali house with joint funds. The house was only completed in 1927 and Nutbehary went there in order to perform some religious ceremony which partook of the nature of a consecration or house-warming. Had it been the consecration of a new joint family property, it is inconceivable that some member of Haridas's branch would not have accompanied him so as to be represented at the ceremony. 62. There must also be excluded from partition any properties which stand in the name of Nutbehary's son Panchanan, for he has not been made a party to the suit. The evidence does not establish that Nutbehary was karta of the joint family and in view of my finding that the money-lending and contractor's business were the Respondent's separate property, there is no necessity for directing an account to be taken. 63. In conclusion I think it right to state that we have suggested to the parties the desirability of arriving at some kind of settlement, but without avail. Counsel for all the parties have agreed that it is most unfortunate that the members of the family should be wasting their substance in litigation and I am satisfied that they have used their best efforts to effect a reconciliation. There can be no doubt that the Respondent was the originator of the family fortune and it is admitted that he has treated his nephews from their infancy with the greatest liberality; it is, to say the least of it, unfortunate that they should now embark on a ruinous litigation in order to obtain from him a larger share than they have already received. The legal aspects of the case have been set out at length by my learned brother and I am entirely in agreement with him as to their purport and application. I agree that a decree should be made in the manner set out in his judgment.