JUDGMENT 1. This is a defendant's (No. 1) appeal against a preliminary decree passed in a suit for partition of joint family properties. Before we enter into the question raised, we would indicate brief outline of the circumstances under which the present appeal arises. 2. One Raimohan Bhowmick, since deceased, who was a Hindu governed. by the Dayabhaga School of Hindu law died leaving him surviving the plaintiff Amiya Bhowmick whom he married for the second time after the death of his first wife, one son Sasanka bhowmick, defendant No. 1 and one maitrayee Debi, then a widow of his another son P. K. Bhowmick, since deceased. He also left considerable movable and immovable properties the widow Amiya Bhowmick instituted a suit for partition on or about 20th December, 1957 in respect of the properties both movable and immovable left by her husband against Sasankar and Maitrayee Debi. Her case briefly is that she along with the defendant no. 1 already obtained a successor certificate in respect of debts and securities mentioned in Schedule 'c' or the plaint but owing to the troubles created by defendant No. 1 it has become impossible for her to pay other debts or obtain mutation of names and there have been difficulties in the way of peaceful enjoyment and possession of joint residential house known as Maya Bhavan at Jadavpur and other immovable properties described in Schedule 'd', 'e' and 'f'. In spite of demand for an amicable partition, it is alleged that the defendant no. 1 did not agree in collusion with his father-in-law one J. C. Nath to such amicable partition. The plaintiff and each of the other two defendants are entitled to an equal l/3rd share in respect of the disputed properties and that is how a declaration of shares and partition of the properties ought to be effected. By a subsequent amendment of the plaint another Schedule 'g' was incorporated consisting of certain annuities, shares and immovable properties. The suit has been contested by the defendant No. 1 who filed one written statement and three additional written statements. Summary of pleadings omitted. 3. THE suit has also been contested by the defendant No. 2, the widow of the pre-deceased son of R. M. Bhowmick. The suit has been contested by the defendant No. 1 who filed one written statement and three additional written statements. Summary of pleadings omitted. 3. THE suit has also been contested by the defendant No. 2, the widow of the pre-deceased son of R. M. Bhowmick. She has substantially supported the case of the plaintiff and demanded partition of all moveable and immovable properties left by Raimohan Bhowmick and she claimed a separate equal and equitable allotment for her l/3rd share of such properties. 4. UPON these pleadings, quite a large number of issues were framed and besides the plaintiff who examined her on commission, as many as 9 witnesses were examined on her behalf of the defendants besides the witness J. C. Nath, who was also examined on commission, 7 witnesses were examined and substantial number of documents were adduced in evidence on either side. The learned trial Court on evidence on the issue as to the right of defendant No. 2 to inherit the disputed properties found her marriage with her deceased husband Pronob as valid and that she was entitled to inherit l/3rd share of all the disputed properties. On the question whether by re-marriage defendant No. 2 forfeited her right to the properties in suit, the learned trial Court took the view that by virtue of the relevant provisions of Hindu succession Act, 1956, defendant No. 2 became an absolute owner of the properties before her re-marriage and therefore she could not forfeit her right even though she married for the second time on 21st September, 1961 and accordingly, the learned trial court held that both defendant No. 1 and defendant No. 2 would be entitled to l/3rd share in the suit properties. 5. As to the nature of properties. the learned trial Court found that the immovable properties, the residential house known as Maya Bhavan including all connected lands, and other lands and buildings were not agricultural lands except only one item No. 5 under schedule 'g' of the plaint. 6. THE claim of money collected on the strength of Succession Certificate as described under Schedule 'c' was deleted from the plaint by an order dated 15. 1. 6l. As regards the properties mentioned in Item Nos. 1 to 7 of Schedule 'g' of the plaint claimed to be self acquired properties by the defendant no. 6. THE claim of money collected on the strength of Succession Certificate as described under Schedule 'c' was deleted from the plaint by an order dated 15. 1. 6l. As regards the properties mentioned in Item Nos. 1 to 7 of Schedule 'g' of the plaint claimed to be self acquired properties by the defendant no. 1, finding was that no sufficient income or fund from the state of the material grandfather was proved to have been received by him and accordingly, they were held to be the joint properties. Nevertheless, properties in Items Nos. 8 to 12 which included one Rifle and Double Barrel gun and some furniture were held to be personal properties of the defendant No. 1. The claim regarding properties mentioned in Item Nos. 2 to 7 in paragraph 13 of the original statement of the defendant No. 1, as held by the trial Court, was not pressed. 7. THE trial Court also disallowed the claim of the plaintiff in respect of alleged deposit of a sum of Rs. 71,000/-by her husband with J. C. Nath, father in-law of the defendant No. 1, as he was neither a party to the suit nor there was any evidence even to support the claim. The claim of the plaintiff as regards immovable properties described as Item No. 3 of the Schedule 'f' was also disallowed for the properties were sold to a third party who was not added as a defendant to the suit and the trial Court held that the suit was not bad for non-joinder of this third party, for, he was not interested in all the properties in the suit. The trial Court equally held that the suit was also not bad for non-joinder of the daughter of the defendant No. 2, as she had no share in she disputed properties. 8. ON the question of limitation and valuation of the suit and payment of Court Fees as also on the issue as to plaintiff's liability to account for her dealings with the income of the properties as claimed by the defendant no. 1, the trial Court held in favour of the plaintiff and accordingly decreed the suit in a preliminary form. That is how in short the appellant felt aggrieved and preferred the present appeal. 1, the trial Court held in favour of the plaintiff and accordingly decreed the suit in a preliminary form. That is how in short the appellant felt aggrieved and preferred the present appeal. It appears that before the suit was finally disposed of considerable properties both movable and immovable including shares and securities, cash, monies etc. were excluded from the plaint schedule. There is no dispute in this case that after such alteration of different schedules of the plaint only some properties that formed the subject-matter of the suit remained to be partitioned, if at all, between the parties. Of these properties (i) Item no. 4 of Schedule "a" relates to a small amount in a current account of r. M. Bhowmick in Gauhati branch of the then Lloyds Bank Ltd. (ii) Items nos. 2. 3, 5, 6, and 7 of Schedule "b" relates to certain shares of several limited companies (iii) money in currency notes of Rs. 71,000/- under Schedule "d" alleged to be deposited with j. C. Nath by R. M. Bhowmick (iv)Item No. (i) under Schedule "e" being mortgage money of Rs. 12,500/-due to R. M. Bhowmick; (v) Item Nos. 1 and 4 of Schedule "f" consists of immovable properties namely, two storied residential building known as "Maya Bhawan" together with in considerable area of land and tin-shed go downs and other structure on another portion of land respectively and (iii)all properties both movable and immovable consisting of two 15-year annuities, fixed deposit, shares of several companies and several plots of non-agricultural land as described, two guns, other brassware, utensils, electric fans and furnitures etc., under Schedule 'g'. 9. IT would thus appear from the above enumeration of the properties which are sought to be partitioned there is little difficulty with regard to the movable properties, namely monies, shares, securities, annuities or other furnitures or fixtures excepting those that are claimed by the defendant No. 1 as self-acquired properties, if the plaintiff or the respondent No. 2 who was the widow, are held to be the legal heirs of R. M. Bhowmick. 10. AS regards immovable properties, however, apart from the claim and respect of several items of the properties as the personal properties of the present appellant, the further question which really appears to be the most important question sought to be pressed is whether these immovable properties are agricultural lands. 10. AS regards immovable properties, however, apart from the claim and respect of several items of the properties as the personal properties of the present appellant, the further question which really appears to be the most important question sought to be pressed is whether these immovable properties are agricultural lands. For, in that case, succession having opened at a date prior to the commencement of Hindu Succession act both the widows could not have inherited even in their limited right the agricultural lands under the Hindi women's Right to Property Act. The other question of substantial importance is whether the properties as claimed by the present appellant are not joint but his self-acquired properties. Before we proceed further we must notice, at this stage that a compromise petition as between the plaintiff and the present, appellant was filed by virtue of which certain portions of some of the immovable properties were given to her absolutely. In other words, the dispute between the mother and the son was amicably settled, but as the respondent no. 2, the widow of the pre-deceased son Pronab was not a party to the compromise, all questions in controversy remain open and require determination in the present appeal. The real contest, however, is now between the present appellant and the respondent No. 2. So far as the plaintiff is concerned there is no dispute that she as the widow of her deceased husband is entitled to inherit the properties except agricultural properties, if any, left by her husband along with her son the present appellant. But the right or status of the respondent No. 2, widow of the pre-deceased son to inherit such properties is very much disputed. In the first place, it is said that her marriage with the deceased brother of the present appellant was not a valid marriage though solemnised under Special marriage Act (Act III of 1872) It, however, appears that no such plea was taken in the written statement filed by the appellant nor any issue was framed on such an important question. It is well-established that the Court ought not to look into evidence or adjudicate any such question on a plea not taken in the pleadings by the parties concerned, (see A.I.R. 1930 P. C. 57 (10) Md. Siddique v. Mt. Saran and Ors. It is well-established that the Court ought not to look into evidence or adjudicate any such question on a plea not taken in the pleadings by the parties concerned, (see A.I.R. 1930 P. C. 57 (10) Md. Siddique v. Mt. Saran and Ors. In this case, it further appears that in the pleading both of the plaintiff and the present appellant the marriage in question clearly appears to have been admitted as valid marriage for, it is specifically stated in paragraphs 1 and 2 of the plaint that the respondent No. 2, the widow of the pre-deceased son and plaintiff are each entitled to l/3rd share in the properties left by the plaintiff's husband and there is no denial to this specific: and clear statement by the present appellant in any of his written statements. All that is said in the first, written statement in paragraphs 36 and 37 is that all the properties described in Schedule to the plaint did not belong to R. M. Bhowmick and the plaintiff was not entitled to 1/3rd share of the properties which were agricultural lands as described in schedule "e' and "f" of the plaint, and in the third additional written statement the present appellant has denied the right of the widow to inherit only on the ground of her re-marriage and not on the ground of invalid marriage with her former husband, the deceased brother of the present appellant 11. IN these circumstances, it was not open to the Court to go into and adjudicate the question as to validity of the marriage. But even if we go into such question, we are unable to take a view different from that of the trial court. Mr. Hitter's contention that at the time of marriage the widow was not a Hindu but a Christian cannot be accepted. The Certificate of Marriage adduced in evidence in this case on behalf of the defendant shall be deemed to be conclusive evidence under the law of the fact that a marriage under the special Marriage Act has been solemnised and all formalities regarding the signatures of the parties have been complied with. Mr. The Certificate of Marriage adduced in evidence in this case on behalf of the defendant shall be deemed to be conclusive evidence under the law of the fact that a marriage under the special Marriage Act has been solemnised and all formalities regarding the signatures of the parties have been complied with. Mr. Mitter however, argues that as parties to the marriage are required to sign a declaration in the Forms specified before the solemnisation of marriage, onus lay on the widow on producing such declaration to prove that the declared her to be a hindu while marrying the deceased brother of the appellant. Since, in this case, it is submitted, she has failed to produce such declaration adverse inference ought to be drawn against her and the Certificate of Marriage could not operate as conclusive of a valid marriage. This argument, in our opinion, is wholly misconceived, firstly because, the appellant himself produced the marriage Certificate from which it appears, as found, we think, rightly by the trial Court, that she adopted a Hindu name Maitrayee Bhowmick and not In her former Christian name; secondly because, the declaration even if it was essential pre-requisite of a valid marriage under the Act, it was not for the widow but for. the present appellant to get such declaration produced from the custody of Marriage Officer to show either that in the declaration she did not declare herself to be Hindu or it was not properly made. It is, therefore, clear that no adverse inference could be drawn against the widow for non production of such declaration made by the parties prior to the solemnisation of their marriage. On the contrary, because of the failure of the appellant to cause production of the declaration, it would be perfectly legitimate to conclude that the widow duly declared herself to be a hindu in the declaration prior to the marriage and the marriage was duly certified in accordance with the provisions of the Act. Three decisions one of the Judicial Committee 48 f. A. 381 (8) Kamwati v. Digbi-jai Singh, and two of the Madras High Couit in 67 M. L. J. 389 (5) Guruswami Nadar v. Irulappa konar, and A.I.R. (1937) Mad. 12 b. Ramayya v. Mrs. J. Elizabeth, we think, are of no assistance to the appellant in this case. Three decisions one of the Judicial Committee 48 f. A. 381 (8) Kamwati v. Digbi-jai Singh, and two of the Madras High Couit in 67 M. L. J. 389 (5) Guruswami Nadar v. Irulappa konar, and A.I.R. (1937) Mad. 12 b. Ramayya v. Mrs. J. Elizabeth, we think, are of no assistance to the appellant in this case. For, in the first mentioned case the Judicial Committee held that Hindu convert to Christianity who died a Christian and intestate could not elect to continue to be bound by Hindu Law in the matter of succession and in the two Madras decisions it has been clearly held that no formal conversion is a prerequisite to a person becoming a Hindu". All that is said is that a person who was a convert to Christianity became by re-conversion a Hindu must prove by cogent and clear evidence that he adopted the ways of a Hindu and observed the hindu mode of life. So, this is purely a question of fact and must be decided on proper evidence adduced in support of the plea, if taken, by the parties but this is neither the case of the plaintif1 nor of the present appellant. On the other hand, the Evidence, adduced in this case and on the admission of the parties, it seems clear that the widow was accepted as a Hindu wife and she lived all along with her husband adopting the ways and mode of life of a hindu. The first contention made by Mr. Mitter, therefore, fails 12. THE next point decided by the trial Court is that in view of the pro visions of Section 14 (1) of the Hindu succession Act, the respondent No. 2, even though remarried on 21st September, 1961, was still entitled to get l/3rd share of the suit properties, if they are not agricultural lands as the married, admittedly, long after the succession to the disputed properties opened on 1st November, 1955, when R. M. Bhowmick died. The appellant, it appears, challenged the right of the widow to inherit the properties in his third additional written statement but there also no specific issue was framed as to the effect of re-marriage on her right to succession to the disputed properties. The appellant, it appears, challenged the right of the widow to inherit the properties in his third additional written statement but there also no specific issue was framed as to the effect of re-marriage on her right to succession to the disputed properties. The provision of Section 2 of Hindu widow's Re-marriage Act was set mp against the widow's right to get l/3trd share wherein it is provided, inter alia, that a Hindu widow on re-marriage would cease to have any right, title or interest, in her former husband's properties. Section 2 of the act provides : "all rights and interests which any widow may have in her deceased husband's property by way of maintenance, or by inheritance to her husband or to his lineal successors or by virtue of any will or testamentary disposition conferring upon her, without express permission to re-marry, only a limited interest in such property, with no power of alienating the same, shall upon her re-marriage cease and determine as if she had then died; and the next heirs of her deceased husband, other persons entitled to the property on her death, shall thereupon succeed to the same". From a fair reading of the above provision it seems clear that the rights and interests of properties devolving on a widow by way of maintenance or by inheritence or by virtue of a will or testamentary disposition etc. relate to properties of deceased! husband and not to the properties of his father. Necessarily, therefore, this section has no application to the facts of the present case. For here, in the instant case, the right of the widow is concerned with the estate of the father of the deceased husband and not of her husband. So, the widow or he pre-deceased son inherited the properties left by the father in like manner as a son" as there is no son surviving of such pre-deceased son under the first proviso to Section 3 (1) of the hindu Women's Right to Property act. As there is no dispute that in this case the widow has inherited the properties before the commencement of the Hindu Succession Act, it is dear that this right: or interest devolving on her was limited interest known as "hindu Women's Estate" under Section 3 of the same Act with right, however, of partition as a male owner. As there is no dispute that in this case the widow has inherited the properties before the commencement of the Hindu Succession Act, it is dear that this right: or interest devolving on her was limited interest known as "hindu Women's Estate" under Section 3 of the same Act with right, however, of partition as a male owner. Therefore, the precise question is whether this limited interest of the widow ripened into an absolute interest by virtue of Section 14 (1) of the Hindu Succession act immediately after it came into operation. 13. MR. Roy has contended on behalf of Respondent No. 2, the widow, that though she inherited the property in limited interest under the Hindu women's Right to Property Act, 1/3rd undivided share in the properties left by the father of the deceased husband, section 14 (1) of the Hindu Succession act would be attracted and she shall be deemed to have been holding such properties in respect of her 1/3rd undivided share as full owner thereof and not as a limited owner. It is said that once she became full owner of the disputed properties, she could not be divested of her such absolute right by her subsequent re marriage which occurred long after the Hindu Succession act came into force. In support of his contention Mr. Roy has relied on two decisions of Bombay High Court in A.I.R. 1958 Bom. 244 (15) Ramchandra v. Sukhram and A.I.R. I960 bom. 463 (21) Yamunabai v. Ram Maharaji reliance is placed on a decision of the supreme Court in A.I.R. 1968 S.C. 365 (20) Sukh Ram v. Gouri shankar and A.I.R. 1968 Rajs. 139 (2)Shuri Bai v. Champi Bai. It is unnecessary for the purpose of the present case to examine in details the above decisions for the two decisions of the Bombay High Court and the decision of the Rajasthan High Court deal with question relating to widow's right of succession to her deceased husband's properties either directly or indirectly and the scope of Sections 4 and 14 (1) of the Hindu Succession act and its consequential effect or impact upon Section 2 of Hindu Widow's re-marriage Act. In the Supreme court decision what happened was that the widow inherited the property of her husband who along with his brother constituted a Hindu Joint Family governed by the Mitakshara Law of the Benares School in 1952 sold 1/2 share of a house and a shop belonging to the joint family to a third party on December 15, 1956. In that context, the Supreme Court on a construction of Section 14 (1) of the hindu Succession Act with special reference to the word "possessed" has held that although a male member of a Hindu family was subject to restriction qua alienation in the interest of the joint family property, a widow acquiring interest in that properties by virtue of Hindu Succession Act was not subject to any such restriction and therefore she became the full owner on June 17, 1956 when the Act came into operation and therefore was competent to sell "that interest for her own purposes, without consent of male coparceners of her husband". While there cannot be any doubt or difficulty in following the proposition laid down by the Supreme Court, the question, however, is very different in the instant case from that which is actually decided by the Supreme Court. We are concerned with the right of succession of a widow relating to the properties left by the father of her deceased husband after her re-marriage. Under Section 24 of the Hindu Succession Act, relied on by Mr. Roy, a widow of a pre-deceased soni ''shall not be entitled to succeed to the property of the intestate as such widow, if on the date succession opens, she has re-married". It is, therefore, clear that two things are necessary before a widow becomes entitled to succeed to the property of the intestate. Firstly, the widow must be related to the intestate as the widow of a pre-deceased son or the widow of a pre-deceased son of a pre-deceased son or of a brother and secondly such widow has not re-married on the date succession relating to the property of the intestate opens. Necessarily, therefore, where the widow on the date the succession opens has not re-married would be entitled to succeed to the property of the intestate. Necessarily, therefore, where the widow on the date the succession opens has not re-married would be entitled to succeed to the property of the intestate. Here the widow, there is no dispute, inherited and possessed the property of the father-in-law in her share in limited interest as the widow of a pre-deceased son and there after by virtue of operation of the provision of Section 14 (1) of the Hindu succession Act, she became entitled to hold as such widow these properties as full owner thereof for she was remarried admittedly long after the succession opened and- the Hindu Succession act came into operation. In our opinion, therefore, the widow got those properties absolutely which she was entitled to inherit under the Hindu women's Rights to Property Act and by her subsequent re-marriage she can not be held to have lost her right, title and interest in those properties as absolute owner thereof. This, however, is subject to two other questions namely (i) as to whether the properties in question or any portion thereof are agricultural lands or (ii) whether such properties or any portion thereof are self-acquired properties as claimed by the appellant. 14. ON the first question we need not repeat or enumerate over again the items of the properties both movable and immovable sought to be partitioned. The appellant's case substantially is that item Nos. 1 and 4 of schedule "f" of the plaint which, as already seen, consist of a two-storied residential building known as Maya bhavan together with a considerable area of land and tin-shed go down and other structures on another portion of the land respectively and some properties in Schedule "g" are all agricultural lands. There can be no dispute on the proposition laid down by the federal Court in A.I.R. 1941 F. C. 72 (6) In re Hindu Women's Rights to property Act, 1937-that a Hindu widow was not entitled to inherit agricultural lands under the Hindu Women's rights to Property Act. The learned trial Court relying on the principles enunciated in a Bench decision of this court in (12) Nilgobinda v. Rukmini debi A.I.R. (1944) Cal. 421 held that those properties were not agricultural lands. The learned trial Court relying on the principles enunciated in a Bench decision of this court in (12) Nilgobinda v. Rukmini debi A.I.R. (1944) Cal. 421 held that those properties were not agricultural lands. In Rukmini Debi's case (supra)the several tests, inter alia, as to what are agricultural lands have been laid down substantially as follows : (a) Agricultural land includes "any interest in agricultural land whether that interest, be that of the superior proprietary namely, the Zamindar or of the tenure-holder, under tenure holder or of the rayat or under-rayat". (b) To determine whether or not land in dispute is agricultural land, the physical character of the land must be considered i.e., (i) The land actually used for raising by cultivation food crops for men and beasts, as also other crops like Jute, Hemp, Cotton, flax etc. (ii) Marketable commodities raised by labour of man are no doubt agricultural land. (iii) The threshing floor, irrigation tanks, land containing cattle sheds for plough, cattle etc. (iv) Site of the hut where the cultivator lives. (v) The general nature and character of a piece of land which is lying waste must be the determining factor. (vi) A piece of fallow land in the middle of agricultural fields must be taken to be agricultural land. (vii) land lying unused but capable of being used having regard to its general nature and character for cultivation purposes with human labour and skill. (viii) Lands used as orchards or for farming or used as accessory for or in connection with the above purposes. (ix) Dwelling houses other than those used for residence of cultivators or farmers should be regarded as non-agricultural property. In the two other decisions cited by Mr. Mitter, one of the Supreme court in A.I.R. (1957) S.C. 768 (3)L. T. Coomar v. Benoy Kumar and the other of the Madras High Court in A.I.R. (1944) Mad. 401 (17) Sarojini devi v. andri Krishna, the terms "agricultural purposes" and "agricultural operations" in connection with the agricultural income under the Income Tax act, 1922, were explained. It is not necessary for our present purpose to go into these cases in detail for the tests laid down in the above Calcutta decision substantially on the question as to what is agricultural land find support from the view taken in these two decisions. It is not necessary for our present purpose to go into these cases in detail for the tests laid down in the above Calcutta decision substantially on the question as to what is agricultural land find support from the view taken in these two decisions. We would, therefore, proceed to examine the evidence adduced in this case to see whether the nature and character of the properties in item Nos. 1 and 4 of Schedule "f" and Item Nos. 4 and 5 of schedule "g" satisfy the above tests of "agricultural lands". 15. IT appears that the learned trial court though correctly accepted the point of time i. e. the date of death of R. M. Bhowmick when succession opened as the material date for determining as to whether these properties were agricultural lands held, however, that none of the properties excepting item no. 5 of Schedule "g" was agricultural land. The reasons mainly being that though the open land in or around Maya Bhavan was being used for growing crops and vegetables and other marketable commodities, the physical character of the land was used for residential purposes by constructing a dwelling house which cannot be held to be agricultural land. The other structure namely, sheds and go downs outside Maya Bhavan and two other buildings could not be held to be agricultural lands as they were not, in any way, connected with agricultural operation. We shall consider first therefore whether the entire open land in or around residential house Maya Bhavan is agricultural land. 16. NOW, it is undisputed that on a part of C. S. Plot No. 417 comprising more or less 6 Cottahs of land under khaitan No. 4 as described in item No. 1 of Schedule "f", two-storied building Maya Bhavan stands and rest of the lands carrying certain structures and sheds are surrounded by a compound wall. In the relevant settlement Record of Rights, interests in some of these c. S. Plots covering the entire area of these lands have been shown as that of 'korfa tenant' and in C. S. Plot No. 417 as that of an occupancy raiyat. We need not go into details regarding the definition of "raiyat" or the meaning of "occupancy Raiyat" or a "korfa tenant" which means an under-raiyat i. e. a tenant holding either immediately or mediately under a Raiyat. We need not go into details regarding the definition of "raiyat" or the meaning of "occupancy Raiyat" or a "korfa tenant" which means an under-raiyat i. e. a tenant holding either immediately or mediately under a Raiyat. Broadly speaking the rights of these different classes of tenant are governed by the Bengal Tenancy Act and primarily they hold land for the purpose of cultivating it by themselves or by members of their family or by servants or labourers etc. In other words, they hold land only for agricultural purposes. It is therefore clear that on the basis of the entries made in the Record of Rights, it must be presumed that the physical character of the lands was agricultural and the tenants were settled for cultivation of these lands. It appears, during the preparation and final publication of revisional settlement Record of Rights there were certain disputes between the present appellant and the respondent no. 1 regarding the nature of the interest they had in these lands and ultimately when the matter came up before this court in its revisional jurisdiction, the judgment of the appellate tribunal below was set aside on a finding amongst other things that the interest of the last owner was that of an occupancy Raiyat and therefore the widow, namely, the present respondent no. 1 was not entitled to inherit any of these lands. It was further held that if any pucca structures have been raised on such lands that was merely an improvement on the land but nevertheless, the right remained as that of an occupancy raiyat. There are, as we have already noticed, certain factory sheds and go downs on a portion of the disputed land though outside the compound wall of Maya Bhavan and with regard to these structures, it was further held that "if an occupancy Raiyat has used a land for a purpose which is not within his powers, he may be liable to ejectment by his landlord but he cannot get higher right by his own commission. Therefore, his right with regard to the entire land must be recorded as that of an occupancy Raiyat but it may also be recorded that the structures are there". It is true that in this judgment the High Court also at the same time made it clear that the present respondent no. Therefore, his right with regard to the entire land must be recorded as that of an occupancy Raiyat but it may also be recorded that the structures are there". It is true that in this judgment the High Court also at the same time made it clear that the present respondent no. 1 would be entitled to raise the question in the present suit as to whether the last owner acquired any right under the West Bengal Hon agricultural tenancy Act, 1949 in respect of these identical lands. But that case has never been made out by her in the Court below. We thus find that over the disputed question as to the nature of the right of the tenant holding these lands, it must be presumed in view of the decision of this Court that these lands were being held as occupancy raiyat and must necessarily be presumed to be agricultural lands. It is true that on several tests laid down in nilgobinda's case (supra) even if, the interests in these lands are shown to be that of occupancy raiyat that may not always conclusively establish that in fact the lands were at the material time agricultural lands. Even if it is so, it is on the respondents and not on the appellant to prove by clear evidence that these lands were not actually being used or capable of being used for cultivation purposes or for carrying on agricultural operation. But we do not think except the Maya Bhavan structures which is, admittedly, the dwelling house of the parties and several other structures and sheds and go downs built on another portion of these lands outside the compound of Maya Bhavan, the respondents could shows that the rest of the lands were being used for purposes other than cultivation. It is, however, said that none of these lands was shown to be in the Record of Rights as agricultural lands. On the contrary, the class of these lands, as will appear from the entries made in the Record of rights, was shown to be high lands or homestead and also contained in some of them pucca structures. It is, however, said that none of these lands was shown to be in the Record of Rights as agricultural lands. On the contrary, the class of these lands, as will appear from the entries made in the Record of rights, was shown to be high lands or homestead and also contained in some of them pucca structures. We are, however, satisfied from the evidence on record that major portion of the open lands around Maya Bhavan was actually being used for cultivation purposes for, although the respondent No. 1 denied her knowledge about the cultivation of these lands, there is no dependable witness, though as many as 9 witnesses were examined on her behalf who came forward either to support her statement or give any independent testimony either on the nature of the lands or for the actual purposes for which they were being used at the material time when succession opened with the death of R. M. Bhowmick. Discussion of evidence Omitted The learned Court below also relied on the testimony of these wit nesses and other evidence adduced by the present appellant to show that vegetables and other crops used to be grown on the open land of "Maya bhavan" compound but it took the view that by such cultivation, the physicial character of "Maya" Bhavan" which was the dwelling house together with the open lands could not change the basic nature and convert the land into agricultural lands. In our opinion, this was not a correct approach to determine as to whether the entire open, land around Maya Bhavan as also the land upon which the structures were built were basically not agricultural lands. For, applying the tests laid down in the above Bench decision of this Court, the physical character of the entire land in dispute must be held to be agricultural land and not non-agricultural land though, it is true that on a small portion covering an area of 4 to 5 Cottahs a two-storied building for residential purposes was constructed. So, if the physical character of the land is agricultural, the residential house built on a part thereof cannot change such character and transform into non-agricultural, land. So, if the physical character of the land is agricultural, the residential house built on a part thereof cannot change such character and transform into non-agricultural, land. This apart there is no evidence in this case to establish that such a large area containing about 6 to 7 Bighas of open land though covered by a compound wall was necessary for the convenient use of the house in such a way as to form part of the dwelling house. We are therefore unable to hold in agreement with the learned Court below that the entire open lands in or around the Maya Bhavan building were not agricultural lands at the material time. In our opinion, the entire open lands in and around the residential building or other structures were agricultural lands but at the same time we hold that the residential building Maya Bhavan itself cannot be held as agricultural land for clearly R. M. Bhowmick did not use this building for residence as a cultivator or a farmer. We also hold that other structures, sheds and go downs in a portion of the land described in the same schedule item No. 4 are also not agricultural lands for, there is no evidence to show that they were being actually used at the material time for farming or for carrying out agricultural operations. This being so, the respondent Nos. 1 and 2 must be held to have been entitled to inherit 1/3rd share each of the residential building Maya Bhavan and the other tin-sheds, go downs and structures as described respectively in schedule "f" of the plaint and not the open lands in and around Maya Bhavan and these structures. We, however, add that for the convenient use and enjoyment of this residential building Maya Bhavan some more open lands are necessary for the purpose of court-yards, compounds and passages. Having regard, therefore, to the situation, extent and area of the residential building Maya Bhavan, we think 5 Cottahs of open land forming more or less uniform area around Maya Bhavan with a common 10 ft. wide passage all along leading to the public road would be necessary and they are to be defined and demarcated at the time of final partition by metes and bounds. Equally, for the purpose of convenient use of other sheds, structures, go downs etc. uniform area of 10 ft. wide passage all along leading to the public road would be necessary and they are to be defined and demarcated at the time of final partition by metes and bounds. Equally, for the purpose of convenient use of other sheds, structures, go downs etc. uniform area of 10 ft. of land on all sides thereof with passages maintaining the same width of 10 ft. leading to the public road must be defined and demarcated. As regards the partition of the dwelling house "Maya Bhavan" we would, however, add that as the respondent no. 2 by her re-marriage has become a stranger to the undivided family though the properties, as have been found, stood vested in her by operation of law both the appellant and the respondent no. 1 would be entitled to pray for proper directions for buying up her share of the dwelling house in accordance with the provisions of S. 4 of the Partition Act. 17. NOW, as regards the immovable properties described in Schedule "g" of the plaint in item No. 4, there are two buildings erected covering almost total area of 10 Cottahs of land. So, even though, the interests of these lands were recorded in "raiyati Stithiben" right, it has been used actually for building purposes and it is nobody's case that these were at any or at the material time used as agricultural lands. Regarding item No. 5, it appears that there was no structure built upon any portion of this land and the basic character of this land, it could not be disputed, is paddy land and though it was lying unused, it could not be said to be incapable of being used as agricultural land. We, therefore; hold in. agreement with the learned trial Court that immovable properties in item No., 4 of Schedule "g" are non-agricultural lands but that of item No. 5 of same Schedule are agricultural lands. Therefore, so far as the ' property in item No. 5 is concerned1, the respondent nos. 1 and 2 did not acquire any interest at the time when succession opened but so far as the property in item No. 4 i$ concerned, though not agricultural, the appellant has claimed it to be his personal property. Therefore, so far as the ' property in item No. 5 is concerned1, the respondent nos. 1 and 2 did not acquire any interest at the time when succession opened but so far as the property in item No. 4 i$ concerned, though not agricultural, the appellant has claimed it to be his personal property. We would therefore pass on to see whether the claim of the appellant, with regard to this property as also several other properties as his self-acquired properties, has been established. 18. NOW, with regard to the immovable properties in item No. 4 of schedule "g", it is undisputed that the document of conveyance stands in the name of the appellant. In the pleading there is nothing to indicate that this property though it stands in the name of the appellant belonged really to his father and that the appellant was merely a benamdar. It is well-established that in case of a, benami transaction burden lies heavily on the person who alleges that the person who appears as owner on the face of the document is not the real owner but merely a benamdar (See (11) Nawab azimat v. Hardwari Mai 13 M. I. A. 395, (13) Normal Chandra v. Mohammad 25 LA. and I. L. R. (1965) 1 Cal. 207 (14) Radhagobinda Rai, v. Durga rani Dass. It is equally well-established that there is no presumption that a family because it is joint possesses joint property or any property see (19) Srinibis v. Narayan A.I.R. 1954 S.C. 379. So, in a suit for partition if a party claims any particular item of property as a joint family property the burden of proving jointness lies on the party asserting it. Reference may be made to the two decisions of die Judicial Committee in (1) Annamal Chetty v. Subramaniyan chetty A.I.R. (1929) P. C. 1 and (7)Jogi Reddy v. Chinnabhi Reddy 56 la. 6. Applying the well-established principles, therefore, to the facts of the present case, clearly, the onus of proof that the immovable property described in item 4 is a joint family property lay heavily on the respondent no. 1 and we think that by mere denial of the claim made by the appellant or by mere evidence of denial as to the source of consideration and other connected matter, such onus could not be discharged. 1 and we think that by mere denial of the claim made by the appellant or by mere evidence of denial as to the source of consideration and other connected matter, such onus could not be discharged. In law, the appellant must be presumed to be the real owner of the property and not merely a namelender unless the respondent no. 1 could satisfactorily prove by positive evidence that the consideration was paid for purchase of the disputed property not by the appellant but by his deceased father. In the instant case, apart from the plea of benami not being taken in the pleading there is no evidence adduced by the respondent No. 1 to show that the consideration for the purchase of this immovable property was given by the father of the appellant. Even if the evidence adduced by the appellant on his part as to source of consideration may not be wholly convincing or free from suspicion that cannot, in our opinion, absolve the respondent No. 1 from discharging the burden of showing that it was the appellant's father and not the appellant who was the real owner of the property. The learned Court below applied correctly the principle of onus of proof in a benami transaction while dealing with the case of some share in the Eastern Paper mills Ltd. worth Rs. 5,000/- which were though in the name of the appellant claimed by the respondent No. 1 as belonging to his father as real owner. This was because there was no satisfactory evidence adduced by the respondent No. 1 to prove that the consideration for purchasing these shares were paid by the appellant s father. But in deciding the identical question relating to the transaction in respect of the immovable property item 4, the learned trial Court failed to consider if any evidence or at any rate any satisfactory evidence was adduced by the respondent No. 1 or 2 to prove the source of consideration for purchase of the immovable, property or that the entire money for construction of the disputed buildings upon the land were given by the appellant's father. It appears, again, that although no evidence was adduced by the respondents to prove the consideration, the learned trial Court; seems to have rejected the evidence adduced on behalf of the appellant or. a mere surmise or suspicion. It appears, again, that although no evidence was adduced by the respondents to prove the consideration, the learned trial Court; seems to have rejected the evidence adduced on behalf of the appellant or. a mere surmise or suspicion. We are, however, on re-'assessment and review of the entire evidence adduced on behalf of the appellant inclined to take e view different from that of the trial court, discussion of evidence omitted We therefore, hold that the immovable properties in item No. 4 of schedule "g" of the plaint are the separate self-acquired properties at the appellant. 19. AS regards the properties described in Items 1, 2, which are equally claimed by the appellant as his separate properties, we cannot agree with the finding of the learned trial Court that the appellant has failed to prove that they are his separate properties. First of all item 1 consists of two 15 year annuities of Rs. 28,000/- each and item 2 is a fixed deposit account of Rs. 24,000/- with a Railway Co-operative society both kept in the joint name of R. M. Bhowmick and Sasanka or either or survivor. It is undisputed that the entire amount under these two items has already been collected and appropriated by the appellant. The learned Court below took the view that the term "either or survivor" meant that it was the survivor who would collect the money but as the appellant could not establish his own means sufficient to enable him to deposit such heavy amounts with the Bank or the co-operative Society, the respondent no. 1 and respondent No. 2 must be held to have their respective share in these monies and appellant was liable for the amount of their shares. We, however think apart from the question whether the monies did really belong to the appellant or his father, there cannot be any partition of the properties which are not in existence. These moneys have already been collected and appropriated by the appellant and therefore at best as a co-owner he is bound to render account for appropriation of the whole amount which is joint property. (See (9) Mahesh Nara Van v. Naubat Pathak 1 C. L. J. 437. These moneys have already been collected and appropriated by the appellant and therefore at best as a co-owner he is bound to render account for appropriation of the whole amount which is joint property. (See (9) Mahesh Nara Van v. Naubat Pathak 1 C. L. J. 437. But the instant suit is merely a suit for partition without any prayer for account against the appellant without any further relief by way of decree for such amount in favour of the plaintiff as may be determined in her share on such accounting by the appellant. Such being the position, the prayer for partition of these two items is wholly misconceived and no decree can be passed for partition of properties in the shape of monies which are now non-existent. 20. IN the view of the matter we have taken, it is not necessary to go into other question whether the monies under Items 1 and 2 belonged to the appellant or his deceased father. But even if we would have entered into such question we could not have been able to persuade ourselves to disagree with the view taken by the trial Court on this aspect of the matter. It is true, in cases where monies are deposited in joint account with further direction by the depositors upon the bank for payment to "either or survivor", broadly speaking, after the death of one of the depositors, as observed by the judicial Committee in (4) Guran Ditta and Anr. v. Ram Ditta I.L.R. 55 Cal. 944, a resulting trust arises in favour of the deceased depositer in absence of a proof of contrary intention. But such resulting trust can only be presumed in favour of a deceased depositer if and when it is clearly established by evidence that the monies in question belonged exclusively to such deceased depositer. This view finds support from a decision of this Court in (18) Slwntimoyee v. Bengal Central Bank 53 C. W. N. 680 where Chatterjee J. on a review of long line of cases, inter alia, observed at p. 684 as follows: "unless it is established or proved the principle laid down by the Judicial committee in the above cases cannot apply. No attempt has been made before me to establish these facts and, therefore, these Privy Council judgments have no application to this case. No attempt has been made before me to establish these facts and, therefore, these Privy Council judgments have no application to this case. There is no question of any resulting trust in favour of the husband's estate in the absence of proof that all these monies were the husband's monies. " Therefore, in the instant case, the first question would be whether the monies deposited belonged exclusively to the deceased husband of the respondent No. 1 and unless this is proved the question of resulting trust in favour of the deceased could not arise. In this case, as appears, there is no satisfactory evidence to prove that the monies deposited in the joint account belonged exclusively to the deceased husband of the respondent No. 1 for except the oral testimony of the respondent no. 1 there is no other reliable supporting evidence to prove conclusively that monies belonged to the husband of the respondent No. 1. Even then, we do not express any final opinion on this point of fact, for, this question requires a decision, if at all in properly framed suit for accounts; and for other consequential reliefs. We therefore leave this point open to be decided in a proper suit for accounts which may be instituted if not otherwise barred. Paragraphs not relevant for the purpose of the report omitted for the reasons, however, already given this appeal partially succeeds. 21. ACCORDINGLY, the appeal is allowed in part. The judgment and the decree of the trial Court is modified to this extent that the entire open land except uniform area of 5 Cottahs of such land around "Maya Bhawan" with a 10 ft. wide passage connecting the public road in item (i) and except lands around the go down and structures maintaining a uniform width of 10 ft. The judgment and the decree of the trial Court is modified to this extent that the entire open land except uniform area of 5 Cottahs of such land around "Maya Bhawan" with a 10 ft. wide passage connecting the public road in item (i) and except lands around the go down and structures maintaining a uniform width of 10 ft. on all sides and also a 10 ft passage connecting all the structures and go down's with public road of Item (iv) of Schedule "f" and Items 1, 2 and 4 of Schedule "g" shall be excluded from partition and further, the appellant and the respondent No. 1 or either of them shall be at liberty to apply for buying up the share of the respondent No. 2 of the dwelling house "Maya Bhawan" in accordance with the provisions of Section 4 of the partition Act before a Commissioner is appointed to effect partition of this property by metes and bounds. In all other respects, the preliminary decree passed by the trial Court shall stand. There will be no order as to costs in this appeal. In view of the judgment passed today there will be no older upon, the two applications dated 7.6.73 and 12.3.73, which are disposed of accordingly.