JUDGMENT : G.K. Misra, C.J. - The following genealogy would show the relationship of the parties. Narasingh Nisanka. Bhagaban Balabhadra (D/3) Raghunath (D/5) Sanatan=Suka Dibya Radha Gangadhar (D/2) (plaff Bimbadhar (D/4) It is the admitted case of the parties that Defendant No. 5 had been adopted away from the family. In a partition in the year 1945, lands measuring 18.111 acres were allotted to the share of Narsingh under Ext. C, out of this, plot No. 876 with an area of 0.475 acre, plot No. 820 with an area of 0.738 acre and plot No. 894/948 with an area of 0,059 aore in Khata No. 94 of village Sananayapali totaling an area of 1.272 acre was not included in the suit for portion. Thus, 16.839 acres out of the lands falling to the share of Narasingh under Ext. G in a family partition with his agnates were the ancestral properties. The total properties in suit as described in Schedule B of the plaint constitute 39.208l acres. Lands measuring 16.839 acres which admittedly constitute the joint family properties being deducted, the residual properties asked for partition constitute 22.369? acres Plaintiff's case is that these properties were acquired out of the nucleus of the joint family properties, and as such, were partible. The contesting Defendants, on the other hand, contend that these properties were the self-acquisitions of Narasingh who by various documents made a gift and settlement of these properties and the suit for partition does not lie. Plaintiff's further case is that Defendant No. 4 is not the adopted son of Sanatan, her husband who died in 1949-1950. 2. As has already been stated, the contesting Defendants plead that Narsingh having disposed of the entire properties in Schedule B by various documents, a suit for further partition is not maintainable and that Defendant No. 4 was the adopted son of Sanatan. The settlement effected by Narsingh were by five registered documents executed on 24-9-1951. Ex. C is a deed of gift in favour of Defendant No. 4 in respect of 4.601 acres. Ext. B(2) is a settlement deed in favour of Defendant No. 1 whereby lands measuring 18.011 acres were settled on him. Ext. B(1) is a settlement deed in favour of Defendant No. 3 settling 10.4961 acres on him. Ext. B is a settlement deed in favour of Defendant No. 5 whereby lands measuring 4.835 acres were given to him. Ext. B(2) is a settlement deed in favour of Defendant No. 1 whereby lands measuring 18.011 acres were settled on him. Ext. B(1) is a settlement deed in favour of Defendant No. 3 settling 10.4961 acres on him. Ext. B is a settlement deed in favour of Defendant No. 5 whereby lands measuring 4.835 acres were given to him. Ex. 15(3) is a settlement deed in favour of the Plaintiff in respect of lands measuring 1.265 acres conferring a life estate on her. The lands covered by all these five documents are the subject-matter of lands as described in Schedule 13 of the plaint. 3. The learned Subordinate Judge recorded the following, findings : (1) Defendant No. 4 was not the adopted son of Sanatan;(2) lands measuring 22.369? acres were acquired out of the joint family nucleus, and as such, were partible and (3) Narasingh bad no power to effects settlement deeds and gift deed in respect of the joint family lands. On these findings, the learned Subordinate Judge decreed the Plaintiff's suit and directed partition of the properties in Schedule B into three equal shares, Plaintiff being entitled to one of them. Against the judgment and decree, Defendant No. 3 to 5 have filed this appeal. During the pendency of this appeal, Defendant No. 3 died and his legal representatives have been substituted. 4. After having heard learned Counsel with anxiety and care, we are satisfied that the finding of the learned Subordinate Judge regarding adoption cannot be disturbed. There is no document showing adoption and the evidence of giving and taking as discussed by the learned. Subordinate Judge is far from satisfactory. It is not necessary to repeat the reasonings which appealed to the learned Subordinate Judge. We agree with him that the alleged adoption has not been proved. 5. The finding of the learned Subordinate Judge that the settlements under Exts. B(2), Band B(3) cannot be sustained. A chart was supplied to us by Mr. Misrs showing the different ancestral lands covered by the five registered deeds executed by Narasingh on 24-9-1951. Ext. B(2) in favour of Defendant No. 1 comprises 11.701 acres of the ancestral lands : Similarly, Ext. B(1) in favour of Defendant No. 3 covers 3.782 acres of ancestral lands. Though the Plaintiff is entitled to one-third interest of the ancestral lands, she was given no land out of the ancestral lands under Ext. Ext. B(2) in favour of Defendant No. 1 comprises 11.701 acres of the ancestral lands : Similarly, Ext. B(1) in favour of Defendant No. 3 covers 3.782 acres of ancestral lands. Though the Plaintiff is entitled to one-third interest of the ancestral lands, she was given no land out of the ancestral lands under Ext. B(3). Narasingh had no power to deprive the sharers out of the joint family lands. These settlements cannot therefore be upheld and the learned Subordinate Judge rightly held that these settlement deeds cannot construe the basis of title of the person in whose favour a settlement was effected. 6. Now, we would address ourselves to the main question in this case as to whether lands measuring 22.369? acres were the self-acquisition of Narasingh. Out of this, 12.088 acres were Sarbarakari lands which on the abolition of the Sarbarakari system in 1949 were settled with Narasingh on raiyati basis. In paragraph 2 of the plaint, there is a clear averment that out of the properties in Schedule B, some of the lands were ancestral and the rest were the acquisitions of Narasingh from the ancestral nucleus. There is a further averment that these lands were blended with joint family properties. The theory of nucleus and blending cannot go together. When there is an averment of joint family nucleus, the onus is on the Plaintiff to plead and prove that not only there was existence of nucleus but its extent was not that out of it, the properties alleged to have been acquired could be acquired. The adequacy and sufficiency of the nucleus must be established. The theory of blending pre-supposes that the acquisition were self acquisitions and the acquirer blended the properties with the joint family properties with a clear intention that they would lose their character of self-acquisitions and be treated as joint family properties. Plaintiff, therefore, took a very inconsistent stand in the plaint itself. During arguments, however, Mr. Mohanty confined himself to the theory of nucleus. As has already been stated the joint family properties falling to the share of Narasingh under Ext. C which have been brought into the hotchpot were 16.839 acres. It transpires from evidence that lands measuring 14 acres out of 18.111 acres were jungle lands. During arguments, however, Mr. Mohanty confined himself to the theory of nucleus. As has already been stated the joint family properties falling to the share of Narasingh under Ext. C which have been brought into the hotchpot were 16.839 acres. It transpires from evidence that lands measuring 14 acres out of 18.111 acres were jungle lands. Plaintiff has failed to prove that was the income from these jungle lands and whether there was surplus in the family income from out of which about 9 acres and odd were acquired for over a period of 27 years from 1922 to 1949. Doubtless, the consideration paid over each acquisition was not considerable, but it is well known that the money value was very high, particularly before 1942. A chart of the various acquisitions was supplied to us by Mr. Misra showing the dates of acquisitions in chronological order. The evidence in this case is extremely meagre and unacceptable that there was any surplus out of the usufruct of the ancestral lands belonging to Narasingh. We are, therefore, satisfied that Plaintiff has failed to prove that the disputed properties of 9 acres and odd were acquired with the help of joint family nucleus. They must accordingly be treated as self-acquisitions of Narasingh. 12.088 acres of Sarbarakari lands must be treated as self acquisitions of Narsingh. Sarbarakars in Khurda had under the Government no heritable or transferable right in their office of Sarbarakar in the Sarbarakari jagirs. They were liable to be dismissed for misconduct and on dismissal they lost all right to occupy any Sarbarakari jagirs and on the termination of a settlement they were bound to enter into a fresh engagement with the Government if they wished to be continued in the office of Sarbarakar see in Paramananda Das v. Kripasindhu Roy AIR 1918 P.C. 121 . In view of this legal position, the Sarbarakari Jagir lands which were settled with Narasingh in 1949 on raiyati basis on the abolition of Sarbarakari system are his self-acquisitions. 7. The aforesaid finding, however, does not affect the Plaintiff's case. Narasingh died in 1951. Succession to the self acquisitions of Narasingh must be governed by the Hindu women's Right to Property Act, 1937. u/s 3 of the Act, the widow of a pre-deceased son will inherit the separate property of the father-in-law as if she was a son. 7. The aforesaid finding, however, does not affect the Plaintiff's case. Narasingh died in 1951. Succession to the self acquisitions of Narasingh must be governed by the Hindu women's Right to Property Act, 1937. u/s 3 of the Act, the widow of a pre-deceased son will inherit the separate property of the father-in-law as if she was a son. Plaintiff is therefore entitle to one third interest in the self-accusations of Narasingh. 8. Mr. Misra then contends that the gift made in favour of Defendant No. 4 under Ext C should be upheld after excluding the portion of the joint family property which was covered thereby. The contention is acceptable. Under Ext. 0, lands measuring 4.601 acres were conveyed by Narasingh in favour of Defendant No. 4. Out of this, plot No. 483 in Khata No. 71 in village Srirampur with an area of 1.125 acre constitutes the ancestral land which Narsingh could not have gifted away. This 1.125 acre must be excluded from 4.601 acres. Ext. C stands valid in respect of the residual 3.476 acres and this property belongs to Defendant No. 4 as his own separate property. 9. Mr. Misra further contends that the settlement under Ext. B must equally be sustained. As has already been stated, Defendant No. 5 had been adopted away. He is therefore not entitled to a share in the properties in Schedule 8 and must be treated as a stranger. The recital in Ext. 8 shows that Raghunath obtained meagre properties from his adoptive father, and accordingly, the natural father Narasingh wanted to settle some lands on him. This document includes some of the ancestral lands covered by Ex. C. Those are plot No. 662/1123 with an area of 0.033 acre and plot No. 662 with an area of 0154 Bore in khata No. 94 in mouza Sanayapali and plot No. 1279 within area of 0.044 acre in khata No. 166 in mouza Thanapali. Some argument was advanced by Mr. Mohanty that this document was the outcome of fraud, but as is well known, fraud in a civil proceeding must be established beyond reasonable doubt as in a criminal proceeding see in AIR 1941 93 (Privy Council) . There is absolutely no material on record to show that any of these documents was executed on account of fraud being practised on Narasingh. There is absolutely no material on record to show that any of these documents was executed on account of fraud being practised on Narasingh. As Raghunath (Defendant No. 5) is a stranger to the family by virtue of his adoption, this settlement was bona fide and we uphold the same in respect of the lands covered thereby excluding the aforesaid three plots within an area of 0.231 acre. 10. We would sum up our conclusions now, (1) Defendant No. 4 had not been adopted by Sanatan; (2) the settlement deeds Exts. B(1), B(2) and B(3) in favour of Defendant No. 3, Defendant No. 1 and the Plaintiff respectively are set aside; (3) the documents Exts. Band C are valid subject to exclusion of the properties as indicated in the judgment and (4) 22.3691 acres were the self acquired properties of Narasingh. 11. Out of the properties mentioned in Schedule B, 3.476 acres would be the separate property of Defendant No. 4 under Ext. C and. 4.604 acres would be the separate property of Defendant No. 5 under Ext. B, the total being 8.080 cores. There properties would be excluded from 39.208? acres mentioned in Schedule B. The residual property of 31.1281 acres would be partitioned amongst Plaintiff, Defendant No. 1 and the legal representatives of Defendant No. 3 in three equal shares Plaintiff being allotted one of them. 12. In the result, the appeal is allowed in part as indicated above. The judgment of the learned Subordinate Judge is modified accordingly. In the circumstances, parties will bear their own costs throughout. B.K. Ray, J. 13. I agree.