Judgement JUDGMENT:- This is an appeal by the two plaintiffs who lost in both the Courts below. 2. The facts relevant for the purpose of this case may be stated as follows: The two plaintiffs and defendant No. 1 are uterine brothers; defendant No. 3 is the wife of defendant No. 1. The plaintiffs have mentioned some immovable properties in Schedules ka, kha, ga, gha and unga and some movable properties in Schedules Cha and Chha, to the plaint. Their case is that their father Late Janaki Nath Sarkar migrated to the district of Goalpara in Assam from the district of Jessore, East Bengal, now in Bangladesh, did timber business at Haltugaon and Kokrajhar and earned a lot of money. He died at Dhubri in 1939 when the plaintiffs were still minors living jointly at their original home with their mother. The plaintiffs allege that after the death of the father, defendant No. 1 acted as the Karta of the joint family and used to run the fathers business in the district of Goalpara. Defendant No. 1 with the money inherited from the father, it is alleged, ran the paternal timber business, but he did it in his own name while the two minors were at Jessore with their mother. He got his name mutated in respect of the `Ka and `Kha schedule lands. In 1945 the land of Schedule `Ka was sold in auction for arrear of land revenue and in that auction defendant No. 1 got an amount of Rs. 2,500/-, which he invested in the timber business. About 5 or 6 years after the death of the father, defendant No. 1 brought defendant No. 2 from his native place and continued to run the business as before. The plaintiffs further allege that with the income of the joint family business and property defendant No. 1 acquired properties mentioned in Schedules Ga and `Gha in the name of his wife, defendant No. 3; and although they are standing in her name, in fact the properties belong to the joint family of the plaintiffs and defendant No. 1. With regard to the properties mentioned in Schedule `Unga the plaintiffs case is that it is a residential plot of land in Ward No. 2 of Kokrajhar town and is the joint family property. With regard to the properties mentioned in Schedule `Unga the plaintiffs case is that it is a residential plot of land in Ward No. 2 of Kokrajhar town and is the joint family property. With regard to the properties mentioned in Schedules Cha and Chha, the plaintiffs allege that some of the items have been received by defendant No. 1 from the father and some acquired with joint family fund. As on demand defendant No. 1 has refused to give the plaintiffs their share, they have instituted the present suit for a declaration that they are entitled to two-third share of the properties, for partition and possession. 3. Defendant No. 1 has filed a written statement. He has traversed the allegations of the plaintiffs made in the plaint and denied them. He denies that the plaintiffs and defendant No. 1 were members of a joint family or that he was the Karta of any joint family. He avers that there never existed a joint family between them. He admits that the father did timber business, but the business had deteriorated before the death of the father and at the time of his death his business as well as financial condition was in such a bad shape that some days before his death, the father had to erect a house on a plot of land belonging to Forest Department at Haltugaon with the permission of the Department and live there. After the death of the father, the two plaintiffs used to be brought up in the family of the elder sisters husband and their mother also used to stay there. With regard to the `Ka schedule land the case of defendant No. 1 is that the property belonged to him and his father, but it was sold in the revenue sale as alleged by plaintiffs, but he denied that he received Rs. 2,500/- as alleged by the plaintiffs or any money in the revenue sale. With regard to the properties mentioned in Schedules `Unga, `Cha and `Chha, he has denied that these properties were either received from the father or acquired with the money received from any joint family fund. He claims that these properties are his self-acquired properties. With regard to the properties mentioned in Schedules `Ga and `Gha his case is that these are the self-acquired properties of his wife, defendant No. 3. He claims that these properties are his self-acquired properties. With regard to the properties mentioned in Schedules `Ga and `Gha his case is that these are the self-acquired properties of his wife, defendant No. 3. His case is that after the death of his father, he was in service, earned some money and started some ordinary business which he improved in course of time. After some time he did timber business and earned money with which he has acquired the suit properties mentioned in Schedules `Unga, `Cha and `Chha. The property of Schedule `Kha had been mortgaged by his father and was ultimately sold to the mortgagee for the mortgage money, and he received no amount at all by the sale. 4. Defendant No. 3 also has filed a written statement. Her case is that the properties mentioned in Schedules `Ga, and `Gha are her separate properties acquired with her own money which she received as dowry from her father and brother at the time of and after her marriage. 5. The learned Assistant District Judge framed 14 issues of which only the first eight are material for the purpose of this appeal. They are as follows: "1. Whether the Ka, Kha and `Unga schedule property acquired and belonged to Late Janaki Nath Sarkar; and are those ejmali of the pltfs. and deft. No. 1 ? 2. Whether the defendant No. 1 ran the timber business by the ejmali fund by selling the property at Jessore and also by the money of sale of Schedule (ka); and whether the defendant No. 1 purchased the Ga and Gha (Original Bengali words omitted-Ed.) schedule lands by the ejmali fund and putting Usharani (wife of defendant No. 1) as benamdar in those purchases. 3. Whether Usha Rani was the owner of Ga and `Gha schedule lands or she was benamdar of defendant No. 1? 4. Whether the property Kha and Unga (Original Bengali words omitted-Ed. ) were self-acquired by defendant No. 1, or ejmali of three brothers? 5. Whether the moveable `Cha left by late Janaki Nath, and if these are in existence whether the `Chha (Original Bengali words omitted-Ed.) are self acquired of defendant No. 1 or acquired by ejmali fund? 6. Whether the radio mentioned in Cha (Original Bengali word omitted-Ed.) schedule belonged to Usharani, the wife of defendant No. 1 ? 7. 5. Whether the moveable `Cha left by late Janaki Nath, and if these are in existence whether the `Chha (Original Bengali words omitted-Ed.) are self acquired of defendant No. 1 or acquired by ejmali fund? 6. Whether the radio mentioned in Cha (Original Bengali word omitted-Ed.) schedule belonged to Usharani, the wife of defendant No. 1 ? 7. Whether the plaintiffs have title and interest and possession over the properties of `Ka, `Kha, `ga, `gha (Original Bangali words omitted-Ed.) schedules, and are they entitled to 2/3 of those? 8. Whether the plaintiffs are entitled to get 2/3 of the `Cha and Chha (Original Bengali words omitted-Ed.) schedule property?" The learned Assistant District Judge, after trial, dismissed the plaintiffs suit and his judgment and decree were, on appeal, upheld by the District Judge. Hence this second appeal. 6. The only point for decision in the case is whether the suit properties, or any of them, are the joint family property of the plaintiffs and defendant No. 1 as claimed by the plaintiffs. 7. Shri N. M. Dam, learned counsel appearing for the respondents, submits that the appeal is concluded by the findings of facts. On the other hand Shri K.P. Sen, learned counsel for the appellants, relying on a decision of this Court, reported in AIR 1975 Gauhati 30, submits that the learned District Judge has misconceived the principles of law involved as well as misapplied them to the facts of this case. 8. In the case of Guljan Bibi v. Nazir-uddin Mia (of Imphal Bench), reported in AIR 1975 Gauhati 30, this Court, interpreting Section 100 of the Code of Civil Procedure observed as follows: "A finding of fact however erroneous it may be, cannot be upset in a second appeal. But, the legal effect of proved facts, as well the application of the correct principles of law to a set of proved facts, is a question of law. A finding of fact arrived at on an erroneous application of the correct principles of law is a mixed question of law and fact and can be interfered with in a second appeal. Similarly, a perverse finding of fact can also be upset in a second appeal". 9. Let us examine the principles of law involved in the case and see whether they have been correctly appreciated and applied by the learned District Judge to the facts of the present case. Similarly, a perverse finding of fact can also be upset in a second appeal". 9. Let us examine the principles of law involved in the case and see whether they have been correctly appreciated and applied by the learned District Judge to the facts of the present case. In the case of Srinivas Krishnarao Kango v. Narayan Devji Kango, reported in AIR 1954 SC 379 their Lordships of the Supreme Court have held: "Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisition could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence on the case." In AIR 1955 SC 799 their Lordships have held: "Under the Hindu law, there is no presumption that a business standing in the name of any member is a joint family one even when that member is the manager of the family,..........." In AIR 1968 SC 1276 their Lordships have reiterated the law laid down in AIR 1955 SC 799 (supra) and have held: "It is well established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate." 10. The next question is upon whom does the burden of proof lie? Is it the burden of the plaintiffs to prove that the suit property is the joint family property as claimed by them or is it the burden of the defendants to prove that it was their self-acquired property as claimed by them? Mulla in his Principles of Hindu Law has summarized the law on the point as follows : "........ where a suit is brought by a Hindu for partition of property alleging that it is joint family property and the defendant contends that it is his self-acquired property, the question arises upon whom the burden of proof lies. The following are the leading rules on the subject: (1) Presumption that a joint family continues joint. - Generally speaking "the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption". In other words, "given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint" ... ...... - Generally speaking "the normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division, such is the legal presumption". In other words, "given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint" ... ...... If a joint family possessed property which was admittedly joint, the presumption would be that the property continues to be joint, and the burden would lie upon the member who claims it as his separate property to prove that there was a partition and that he got it on such partition ................ (2) No presumption that a joint family possesses joint property. - There is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, a party claims that any particular item of the property is joint family property, or when in a suit on a mortgage, a party contends that the property mortgaged is joint family property, the burden of proving that it is so, rests on the party asserting it, though circumstances may readily cause the onus to be discharged. To render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of a Court in the same way as any other fact, namely, by evidence ............... Where it is established or admitted that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired. Whether the evidence adduced by a party is sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and extent of the nucleus. An important element for consideration is the income which the nucleus yielded. A family house in the occupation of the members and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law but questions of fact to be determined on the evidence in the case. The wide proposition that once the ancestral nucleus is proved or admitted the onus lies on a member to prove that property acquired was his self-acquisition cannot be accepted as correct. The existence of some nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What is to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisition could be made. Or this may be shown from the nature and relative value of the nucleus itself. This is the second phase in the onus of proof which lies on the person who sets up the family character of the property ..................... 3) A member of a joint family who engages in trade can make separate acquisitions of property for his own benefit; and unless it can be shown that the business grew from a nucleus of joint family property, or that the earnings were blended with joint family estate, they remain his self-acquired property. Once however it is proved that the old family firm was joint or started with a nucleus of joint property, it is for the plaintiff who alleges it to be separate to prove it." 11. Once however it is proved that the old family firm was joint or started with a nucleus of joint property, it is for the plaintiff who alleges it to be separate to prove it." 11. In the instant case the parties are admittedly governed by the Dayabhaga System of Hindu Law. Defendant No. 1 has denied that there was any joint family between the father and the sons, far less between the brother themselves. There is no finding that the plaintiffs and the defendant No. 1, at the relevant time, were members of a joint family. Admittedly the suit properties are partly in the hands of defendant No. 1 and partly in the hands of defendant No. 3. There will be no presumption that they belong to the joint family, even if it is assumed that the family is joint. The burden is on the plaintiffs to prove that the properties belong to the joint family. They are to prove that the suit properties have been acquired by defendant No. 1 with joint-family fund or have been given rise to by a joint family nucleus, and further that the nucleus, if any, was sufficient to give rise to the suit properties. 12. The only admitted position is that Janaki Sarkar had some timber business in the district of Goalpara. The defendants case is that it has ceased to exist before his death. The concurrent findings of both the Courts below are that there is nothing on record to show that defendant No. 1 received any nucleus from his father. The learned District Judge has found. "There is however absolutely nothing on record to prove any of these facts. To the contrary from the documents on record it appears that the properties of Jessore were mortgaged to one Bhupendranath Dutta by late Janakinath himself by a registered deed executed in 1932. These properties were thereafter sold in 1943 to the aforesaid Bhupendranath Dutta whose consideration was earlier mortgage money". With regard to receipt of money from the sale of the Ka schedule property and its alleged investment in the business by defendant No. 1, the finding of the learned District Judge is, "there is no iota of evidence to support the same". The learned District Judge has considered Ext. Ja and found that certain land was attached in 1937 for arrears of a sum of Rs. The learned District Judge has considered Ext. Ja and found that certain land was attached in 1937 for arrears of a sum of Rs. 88/- and there is nothing to show any receipt of money from this land. The learned counsel appearing for the appellants could not bring to my notice any evidence, oral or documentary, to show that the finding of the learned district Judge was contrary to the evidence on record. With regard to the Kha schedule land the learned District Judge has held that the plaintiffs have failed to show that the Kha schedule property was a part of ancestral property. With regard to the `Unga schedule property the learned District Judge has observed that the case of the plaintiffs in the plaint was that the house mentioned in the Unga schedule was the house constructed by the father and that it was a paternal house, but during trial they sought to make out a new case, namely, that the house at Kokrajhar was constructed by the plaintiffs out of the materials of the house constructed by the father at Haltugaon. He, therefore, declined to believe the plaintiffs case. The learned District Judge has found that even assuming that this house mentioned in schedule Unga was the joint property of plaintiff No. 2 and defendant No. 1, there is absolutely no evidence to show that it was a property of the joint family of the plaintiffs and defendant No. 1. Learned counsel for the appellants contended that the finding in this regard of the learned District Judge was perverse as he omitted to consider, according to counsel, a vital document, namely, Ext. 3. But the judgment of the learned District Judge shows that this document has been considered and the learned District Judge has found that Ext. 3 is a deed of mortgage executed by one Chittaranjan in favour of one Binode Behary and in that document the plaintiff No. 2 claimed to be the owner of half share of the property. So he has found that this claim of the plaintiff No. 2 that he was entitled to half share, completely domolishes the plaintiffs case in the plaint that it was the joint family property. So he has found that this claim of the plaintiff No. 2 that he was entitled to half share, completely domolishes the plaintiffs case in the plaint that it was the joint family property. With regard to the properties mentioned in Schedules `Cha and `Chha of the plaint, the learned District Judge has found that there is no evidence on record to show that movable properties mentioned in these two schedules were either the paternal properties or properties acquired from any joint family fund. The plaintiffs case with regard to the properties mentioned in Schedules Ga and `Gha, as stated above is that the properties standing in the name of defendant No. 3 is really the properties purchased by defendant No. 1 in her name with joint family fund, in other words their case is that defendant No. 3 is a benamdar. On this point, the plaintiffs had to prove that the property, though standing in the name of defendant No. 3, was purchased by defendant No. 1 with the joint family fund. But the concurrent finding is that there is no evidence on record to show that the lands of Schedules Ga and Gha were purchased by defendant No. 1 in the name of defendant No, 3, and that the consideration money was paid from the joint family fund. 13. Learned counsel for the appellant have led me through the evidence of Indoprobha Biswas, a witness of the plaintiffs examined on commission, and referred to the letters written by defendant No. 1 to plaintiff No. 2, and Ext. 2 series showing receipt by defendant No. 1 of money sent by plaintiff No. 2. Learned counsel submits that this money sent by plaintiff formed the nucleus that gave rise to the suit properties. The learned Courts below have considered these pieces of evidence and came to the concurrent findings that the money sent by plaintiff No. 2 to defendant No. 1 was money advanced by Induprova, who was not a member of the alleged joint family, but a relation of the parties. The finding is that this money did not come from the joint family fund. Both the Courts below concurrently held, and in my view, correctly, that the plaintiffs failed to prove that the suit properties were acquired by any joint family fund. 14. The finding is that this money did not come from the joint family fund. Both the Courts below concurrently held, and in my view, correctly, that the plaintiffs failed to prove that the suit properties were acquired by any joint family fund. 14. This second appeal is concluded by findings of facts; and even if they are erroneous, they cannot be upset in a second appeal. It does not appear, that the learned District Judge either misconceived the principles of law involved or committed any error in their application to the facts of the present case. 15. This appeal has no force and is dismissed. As the parties are near relatives, I leave them to bear their own costs. Appeal dismissed.