JUDGMENT : S.K. Ray, A.C.J. - This appeal arises out of a suit for partition. The appellants are defendants 2 to 7 and 10. The trial Court decreed the suit on contest against defendants 1, 2 and 10 and ex-party against others, declaring plaintiff's ? the share in 'B' schedule property and directing partition of the same, and declaring that out of the 'C' schedule property comprising of movable only two sewing machines and two wooden almirahs are liable to be partitioned. The movables were directed to be sold and the sale proceeds to be divided amongst the parties in accordance with their shares. The parties were directed to divide amicably amongst themselves within three months from the date of judgment failing which the plaintiff will be at liberty to apply for a final decree, in which case, a civil Court commissioner is to be appointed to divide the properties in accordance with the directions contained in the judgment. 2. The parties are related to each other as will appear from the following genealogy. Defendants 3 and 4 are the sons and defendants 5 to 7 are the daughters of defendant no. 2. Counsel appearing for the opp. parties accept the correctness of the aforesaid genealogy. 3. The plaintiff's case in short is this. Arta (defendant no. 1) and Bhagaban, sons of Somanath (deceased) constituted a joint undivided. Hindu Mitakshara family and properties in schedules B and C are its joint ancestral properties. Bhagaban died in a state of joint-ness with his brother Arta, father of the plaintiff. His heirs as shown in the genealogy also continued in a state of joint-ness, with the members of the 1st branch, that is, plaintiff and defendant no. 1. After the death of his wife (mother of plaintiff), defendant no. 1 went astray and led an immoral life, lost his love and affection for the plaintiff and refrained from bestowing parental care on the later. This compelled the plaintiff to leave the family residential house and to seek shelter elsewhere. The defendant no. 1 sold a part of the suit properties to defendant no. 2 under a sale deed dated 24-4-1955 which is impeached as collusive, fraudulent and without consideration and the sale being not for payment of any antecedent debt is a void transaction and does not bind the plaintiff or his share in the joint family properties. The defendant no. 1 sold a part of the suit properties to defendant no. 2 under a sale deed dated 24-4-1955 which is impeached as collusive, fraudulent and without consideration and the sale being not for payment of any antecedent debt is a void transaction and does not bind the plaintiff or his share in the joint family properties. Plaintiff demanded partition but as that was refused, was compelled to file the suit. Plaintiff claimed ?th share out of schedule 'B' properties on the basis that he and father of defendant no. 2 are entitled to -/8/- and the defendants 2 to 7 are entitled to the balance -/8/-. As regards schedule 'C' plaintiff's case is that those are the assets of joint family shop and are partible. He, therefore claimed the relief of partition by metes and bounds and for a declaration that defendant no. 1's sale deed dated 24-4-1955 does not bind the plaintiff or his share in the joint family properties. 4. As indicated above the defendants 1, 2 and 10 contested the suit by filing written statements. The defence case short is that the suit properties are not ancestral properties of the family. Schedule 'B' properties are self-acquired of Arta (defendant no. 1), Bhagaban and Mukund, father of defendant no. 8, the same having been purchased jointly by a registered sale deed from one Jagu Baisakh and this property not being ancestral property is not liable to be partitioned. The branches of the family separated in mess about 40 to 50 years ago and each branch had separate shop business of its own thereafter and the properties in schedule 'C' are the separate properties of defendant no. 2. Another defence adopted is that assuming that the plaintiff got interest in the schedule 'B' properties, those properties having been vested in the State Government and defendant no. 2, alone having applied under sections 6 and 7 of the Orissa Estate Abolition Act and got the entire schedule 'B' properties settled with him, the plaintiff's interest therein must be taken to have lapsed as he failed to apply within the prescribed time. 5. The trial Court decreed the suit on a finding that the schedules 'B' and 'C' properties being the ancestral properties are liable to be partitioned. He found that the sale deed executed by defendant no. 1 in favour of defendant no. 5. The trial Court decreed the suit on a finding that the schedules 'B' and 'C' properties being the ancestral properties are liable to be partitioned. He found that the sale deed executed by defendant no. 1 in favour of defendant no. 2 in respect of -/8/- interest is not for legal necessity and would not bind the plaintiff so far as his interest is concerned. 6. The principal contention advanced in this Court is that the trial Court's finding with regard to character of the suit properties is vitiated on account of his relying upon the presumption that the suit properties are joint family properties and casting the onus on the contesting defendants to prove that those properties are the separate properties of Arta, Bhagaban and Mukund. 7. It is well settled that there is no presumption that a family, because, it is joint, possesses joint property or any property and when in a suit for partition, a party claims a particular item of the property to be joint family property, the burden of proving that it is so rests on the party asserting it. This onus may, however, be held to have been readily discharged, if there are appropriate circumstances appearing in the evidence in the case-vide Mulla's Hindu Law, 12 Edn., section 233(2). I find from the judgment of the trial Court that he was well aware of this legal position, because he has said that the onus is heavy on the plaintiff to prove the ancestral nature of the suit properties. The evidence in this regard comprises of the oral evidence adduced on both sides, the record of rights in respect of schedule 'B' properties and the inference deducible from the failure of defence case of acquisition of the properties jointly by Arta, Bhagaban and Mukund by a registered sale deed and other incidental circumstances. P.W.1 who is aged 22 years at the time of his deposition in February, 1970, is the plaintiff himself. He is the only witness on his side. His evidence is that the disputed properties are the ancestral properties of Somanath and and his sons. Apparently this testimoney is based on the conduct of the members of the family in relation to the suit properties, that is to say, the way those properties were dealt with by the members of the family. His evidence is that the disputed properties are the ancestral properties of Somanath and and his sons. Apparently this testimoney is based on the conduct of the members of the family in relation to the suit properties, that is to say, the way those properties were dealt with by the members of the family. He was living in the family suit house for 17 to 18 years before he was driven out from it. D.W. 1 is the defendant no. 2. D.W.3 is defendant no. 1, father of the plaintiff. They deny that the suit properties are their ancestral properties. Their case is that the suit 'B' schedule property was the joint acquisition of defendants nos. 1, 2 and Mukund having been purchased by them jointly under a registered sale deed. According to D.W. 3, who is defendant no. 1, this purchase was made 43, years ago and about 13 years thereafter they separated. He thus establishes that at the time of acquisition of the suit properties ('B' schedule) the family was joint in status. He further asserts that the shares of the vendees in the registered sale deed in respect of schedule 'B' property had been specified. The deed was registered at Cuttack. D. w. 2 is an old man of 72 years. His evidence shows that the parties lived in in the purchased property for a number of years, together. D.W. 3's evidence is that their share in the suit properties have been noted in the record of rights. The oral evidence adduced by the defendants does not accord with the story gleaned from the entries in the record of rights in respect of the schedule 'B' properties. Schedule 'B' comprises of 5 nijot plots in khata no. 232, one plot in nijchasa khata no. 237, and 5 plots in Anabadi khata no. 242. The record of rights shows, that the share of Bhagaban and defendant no. 1 together is -/10/8 and that of Mukund is -/5/4 in respect of all the nijot plots in khata no. 232 and the single plot in nijachasa khata no. 237. Coming to Anabadi khata no. 242, plot 514 is shown to be in joint possession of the parties without specification of status. In regard to plot no. 1 together is -/10/8 and that of Mukund is -/5/4 in respect of all the nijot plots in khata no. 232 and the single plot in nijachasa khata no. 237. Coming to Anabadi khata no. 242, plot 514 is shown to be in joint possession of the parties without specification of status. In regard to plot no. 519, Bhagaban and Arta are recorded to be in sole possession to the exclusion of Mukund while in regard to the other 2 plots of that Anabadi khata, possession was recorded in the name of Mukund, father of defendant no. 3 alone. Thus in Anabadi khata no. 242 Arta and Bhagaban are shown to be in possession of 2? decimals and defendant no. 8's father in regard to 2? decimals, which shows that defendant no. 8's father had -/8/- share and defendant no. 1 and Bhagaban together had -/8/- share in anabadi khata no. 242. The defendants have failed to produce the registered sale deed in support of their position case of joint acquisition. They have given some evidence that the sale deed was destroyed by fire. If so they could have given secondary evidence of the same specially when the deed was registered in Cuttack Sub-Registrar's office and parties belong to Cuttack town and the suit was conducted in a Court at Cuttack. So far, no attempt was made to give secondary evidence by procuring a certified copy of the sale deed from the Sub-Registrar's office. They have also refrained from examining the heir of their alleged vender Jagu Baisakh, who is admittedly alive. Further, if, as the defendants say that this acquisition of schedule 'B' properties was made before the preparation of record of rights, it is inconceivable that their shares as noted in the sale deed should not be specified in the record of rights. The sale deed executed by defendant no. 2 dated 24-4-1955 shows that the vendor is selling -/2/- interest in schedule 'B' properties. The specification of -/2/- share of defendant no. 1 in that sale deed militates against the story of joint purchase by 3 brothers each entitled to ? share. The likely inference from all these features is Chat the defendants set up a false story of joint acquisition to resist the plaintiff's claim and that schedule 'B' properties came to the family by a mode unknown to them. 1 in that sale deed militates against the story of joint purchase by 3 brothers each entitled to ? share. The likely inference from all these features is Chat the defendants set up a false story of joint acquisition to resist the plaintiff's claim and that schedule 'B' properties came to the family by a mode unknown to them. All these also probabilise the plaintiff's complaint that defendant no. 2 has gained over defendant no. 1 and made him his willing instrument for the purpose of acquiring exclusive interest in the suit properties. The plaintiff, thus, in order to discharge his initial onus that the schedule 'B' is the ancestral properties has relied upon (a) his positive evidence; (b) acquisition of schedule 'B' properties while family was joint ; (o) failure on the part of the defendants to prove their positive case of joint acquisition which leads to an inference that this property had been acquired by their ancestors and had been recorded in, the names of different members of the family in the record of rights. Taking all these factors into consideration the trial Court to the conclusion that the schedule 'B' properties are the ancestral properties of the joint family. It is reasonable to hold that by all the aforesaid circumstances the plaintiff has readily discharged his onus. This finding of trial Court regarding schedule 'B' properties must be upheld as reasonable in the circumstances. 8. With regard to 'C' schedule, plaintiff's case as already stated is that these are assets of the joint family business. Here again the law is that there is no presumption that the business carried on by the members of the joint family is a joint family business or that the business standing in the name of even a manager of the joint family business. The plaintiff has to show from the evidence on record, the onus being on him, that the family had a joint family business since long and the articles mentioned in the schedule 'C' are the join family assets liable to be partitioned. The plaintiff has stated that since the age of 17 or 18 years he has found a shop on the suit land where all the brothers were carrying on tailoring shop business and they used to live upon the income of the business. Defendant no. The plaintiff has stated that since the age of 17 or 18 years he has found a shop on the suit land where all the brothers were carrying on tailoring shop business and they used to live upon the income of the business. Defendant no. 2 admits that there is a tailoring shop in the land comprised in the schedule 'B' of the joint family and it was purchased by his mother. He does not however disclose as to who was the original owner of that shop. Since Schedule 'B' properties belong to the joint family, there is a strong presumption that the shop standing on a part of the ancestral properties in the joint family business shop. The family of the parties is a trading family. They are Pataras by caste. This is dear from the sale deed Ex. C. The evidence is that plaintiff's father and defendants 1 and 2 were carrying on business. According to the defendants 1 and 2 they had no business prior to their separation and defendant 2 set his business about 12 years back. This story of defendant 2 was not in the written statement and on the contrary in para 11 of his written statement defendant 2 has stated that the different branches of the family had separated about 40 to 50 years ago and had separate shops and business since then. If so, the suit shop business being there for 40 to 50 years, it was never stated by defendant 2 himself. This lends support to the plaintiff's case of the existence of the tailoring shop business in the family since a long time of course, there is no categorical evidence to show the source of the capital for this business. But the fact remains that there is a tailoring shop business carried on in the family for the last 40 to 50 years. Thus considering the facts that the family is a trading family, that the tailoring shop business was in existence since 40 to 50 years, and that defendant no. 2 put forth an untrue defence, it is more reasonable to conclude that the schedule 'C' properties are the assets of the joint family business. Thus considering the facts that the family is a trading family, that the tailoring shop business was in existence since 40 to 50 years, and that defendant no. 2 put forth an untrue defence, it is more reasonable to conclude that the schedule 'C' properties are the assets of the joint family business. We do not think it proper to differ from the finding arrived at by the trial Court that two sewing machines and two wooden almirahs in Schedule 'C' are the joint family movable properties liable to be partitioned. Of the Schedule 'C' properties, lot no. 3 was not accepted to be the joint family properties by the trial Court and that finding, not having been challenged here, stands. 9. The last contention is that the suit is barred under section 39 of the Orissa Estates Abolition Act. This contention proceeds on the assumption that Schedule 'B' properties being an estate and intermediary interest in respect thereof, which resided with all the family members, having been abolished, it vested in the State. The plaintiff did not apply under section 6 of the Orissa Estates Abolition Act, and his interest lapsed while defendant no. 2 alone made an application under that section and got the entire Schedule 'B' properties settled in his name. There is no controversy here that plaintiff and defendants 1 and 2 were ex-landlord and that defendant 2 alone applied under section 6 of the Orissa Estates Abolition Act for settlement of the land in his name and that it was accordingly so settled. By the time of application under section 6 of the Orissa Estates Abolition Act, Schedule 'B' was the ancestral property of plaintiff and defendant 2. It has been held by this Court that where any land is held by a number of co-sharers intermediaries on the date of vesting, it shall be deemed to be settled by the State Government not only with the co-sharer who is in actual possession of it but in favour of all the co-sharers, and so even though defendant no. 2 alone applied under section 6 of the Estates Abolition Act and got the properties settled with him, that settlement would ensure to the benefit of the other co-sharers. 2 alone applied under section 6 of the Estates Abolition Act and got the properties settled with him, that settlement would ensure to the benefit of the other co-sharers. Thus, not with standing the fact that the land has been settled with defendant 2 exclusively, that would not deprive of the plaintiff, who is to be considered to be co-settle with defendants no. 1 and 2 in respect of Schedule 'B' properties, of his share therein and the plaintiff is entitled to carve out his interest in the same by partition. 10. All the points urged by the appellants having failed, this appeal is dismissed, but there will be no order as to costs of this Court. 11. It will, however, be made clear that the plaintiff's case in substance, is that he had -/4/- interest in the suit property on the basis that the entire property belongs to the branch of Somanath Sahu. The balance share would belong to defendants 1, 2 and 10. Defendant 1 having sold his interest to defendant 2, the latter would be entitled to former's interest. Defendant 8 did not contest the suit and remained ex-party. The trial Court decreed the suit on the footing that defendant 8 had no interest at all. This decision has not been challenged by defendant 8 here, though he had been impleaded in this appeal. Rightly or wrongly, the decision of the trial Court impliedly denying any share to defendant no. 8 in the suit properties would be binding on him. B.K. Patra, J. - I agree. Final Result : Dismissed