JUDGMENT S.J. Hyder, J. - This is a defendant's second appeal. The suit of the plaintiff-respondent No. I for a declaration that he was a co-sharer in the house in dispute and for joint possession over the same was decreed by the trial Court. The said decree had been affirmed by the last Court of facts, hereinafter referred to as `the Court of appeal'. 2. One Rameshwar Dayal had three sons- Kalka Prasad, Mata Prasad and Vishwanath Prasad. We are not concerned in this appeal with Vishwanath Prasad who died issue- less. Rameshwar Dayal had also a daughter named Smt. Kastura who had been married. Smt. Kastura had a son named Daya Kishan. Plaintiff-respondent No. 1 Badri Prasad is the son of Daya Kishan. Mata Prasad had three sons- Markandey Lal. Jagdamba Prasad and Raj Narain. Defendant-appellant No. 1 is the son of Markandey Lal whereas defendant-appellant No, 2 is Markandey Lal himself. Jagdamba Prasad was impleaded as defendant No. 3 in the suit and Bholanath son of Raj Narain was impleadecl as defendant No. 5. Kalka Prasad left behind two sons, namely, Lallan Prasad and Kashi Prasad, Kashi Prasad was impleadecl as defendant No. 1 to the suit and Lallan Prasad was impleaded as defendant No. 2. 'There is no controversy between the parties with regard to these facts. 3. The case of the plaintiff-respondent was that the husband of Smt. Kastura had died and she had been allowed to live with Rameshwar Dayal and his three sons and had thus become a member of the joint Hindu family so to say by co-option. It was further stated that on the death of Smt. Kastura, Daya Kishan and thereafter Badri Prasad, plaintiff-respondent No. 1. acquired the status of a member of the joint Hindu family. The plaintiff stated that Daya Kishan acting as a Karta of the said joint Hindu family purchased the house in dispute in the name of Kashi Prasad for a sale consideration of Rs. 200/- and a sale deed was executed by the transferor on July 9, 1945. According to the plaintiff, the house in dispute was the Joint Hindu family property in which he had ?rd share. He stated that shortly before the institution of the suit, the defendant- appellants Ramji Sahai and Markandey Lal threw away his goods from the said house and asserted their exclusive title to the same. According to the plaintiff, the house in dispute was the Joint Hindu family property in which he had ?rd share. He stated that shortly before the institution of the suit, the defendant- appellants Ramji Sahai and Markandey Lal threw away his goods from the said house and asserted their exclusive title to the same. It was on these allegations that the relief for declaration and joint possession was claimed by the plaintiff-respondent No. 1. 4. Markandey Lal and Ramji Sahai, defendants-appellants before this Court, alone contested the suit. They stated that the house in dispute had been actually purchased by Kashi Prasad from his own funds. It was further stated that on Aug. 1, 1960, Kashi Prasad had executed a gift deed of the house in favour of the appellant Ramji Sahai and that the appellants alone were in possession of the house in dispute after the said gift. The averment that Smt. Kastura had become a member of the joint Hindu family or that her son Daya Kishan or the plaintiff-respondent Badri Prasad were such members was specifically traversed. 5. It may be stated that Kashi Prasad, the alleged donor of defendant-appellant No. 1, filed a written statement supporting the stand taken by the defendant-appellant. He, however, abstained from taking any part in the proceedings. Jagdamba Prasad, grandson of Rameshwar Dayal, did not file any written statement but he nevertheless appeared as a witness for plaintiff-respondent No. 1. No other person impleaded as a defendant in the suit filed his written statement or contested the claim of the plaintiff-respondent. 6. The Two Courts below have concurrently come to the conclusion that Smt. Kaslura was married in the lifetime of Rameshwar Dayal. They have further found that her husband died during the lifetime of Rameshwar Dayal and thereafter Smt. Kastura started living with the family of Ranieshwar Dayal. They have further found that Smt. Kastura had become a member of the joint Hindu family of Rameshwar Dayal and after her death, her son Daya Kishan and on the death of Daya Kishan, Badri Prasad occupied that status. They also came to the conclusion that the house in dispute has hecn purchased by Daya Kishan from the funds of the joint Hindu family and the sale deed was obtained Benami in the name of Kashi Prasad. In consequence they have found the gift deed dated Aug. They also came to the conclusion that the house in dispute has hecn purchased by Daya Kishan from the funds of the joint Hindu family and the sale deed was obtained Benami in the name of Kashi Prasad. In consequence they have found the gift deed dated Aug. 1, 1960 executed by Kashi Prasad in favour of defendant-appellant No. 1 Ramji Sahai to be invalid. Finally they came to the conclusion that Badri Prasad had one-third share in the house in dispute as member of the joint Hindu family and he was entitled to the relief claimed. 7. Learned counsel appearing for the defendants appellants has rightly not disputed the finding of fact that Smt. Kastura became a widow during the lifetime of her father and she was being maintained by Rameshwar Dayal and his sons. He has, however, contended that this act of charity on the part of Rameshwar Dayal and his sons could not lead to the conclusion that Smt. Kastura or her progeny became entitled to the benefits of a member of the joint Hindu family. Learned counsel submitted that a joint Hindu family is a creature of law and except in the case of adoption, no stranger, much less a female, could be introduced in that family. 8. I have given serious consideration to the submission of the learned counsel and I feel inclined to agree with him. There is good authority to which I shall presently refer in support of the proposition urged by him. However, before referring to the submission of the learned counsel, it may be stated that the main events in the case put forward by the plaintiff-respondent took place before the coming into force of the Hindu Succession Act of 1956 and this appeal will, therefore, have to be decided untrammelled by the changes introduced in law by the said Act. 9. Mulla in Hindu Law, 1959 Edition, has stated at page 322 that joint family property is synonymous with coparccnary property. At page 314, he has stated that coparccnary is a much narrower concept than a joint Hindu family and again at page 305 he has stressed that coparcenary is purely a creature of law and that it cannot be created by the act of parties, save in so far that by adoption a stranger may be introduced as a member thereof. At page 319 he has stressed the fact that no female can be a coparcener under a Mitakshara Law. He has pointed out that even a wife, though she is entitled to be maintained out of the husband's property, is not her husband's coparcener. In view of the observations from Mulla's Hindu Law, the view taken by the two Courts below about the status of Smt. Kastura and her son and her son's son appear to be clearly erroneous and legally unsustainable. In State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330 the law is stated thus (at p. 1333) : "A coparcenary under the Mitakshara School is a creature of law and cannot arise by an act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter." 10. The law declared by the Supreme Court is in accord with the authoritative dictum from Mulla's Hindu Law to which reference has already been made. 11. It has been held by the Court of appeal that the property in dispute was purchased from the funds belonging to the joint Hindu family which have been withdrawn from the Bank by Daya Kishan. This finding is based on the ground that Daya Kishan had taken a loan from the Bank of a sum of Rs. 200/- about a week prior to the execution of the sale deed. The Court of appeal has also come to the conclusion that the earnings of Kashi Prasad were insufficient for the acquisition of the property. The reasons given by the Court of appeal appears to be largely speculative. Be that as it may, the fact remains that there is no evidence worth the name from which it could be gathered that the earnings of the joint Hindu family went into the acquisition of the property. In Mudigowda Gowdappa Sankh v. Ramchandra Revgowda Sankh, AIR 1969 SC 1076 . Ramaswami, J. speaking for the Court stated that there was no presumption that a Hindu family merely because it was joint was possessed of any joint property. The burden of proving that any particular property is joint family property is, therefore, in the first instance, upon the person who claims it as a coparcenary property. Ramaswami, J. speaking for the Court stated that there was no presumption that a Hindu family merely because it was joint was possessed of any joint property. The burden of proving that any particular property is joint family property is, therefore, in the first instance, upon the person who claims it as a coparcenary property. It was further stated that if possession of a nucleus of the joint family property was either admitted or proved, any acquisition made by it member of the joint family is presumed to be joint family property. There was no evidence of any joint family nucleus on which the presumption of the property being a joint family property could be founded. In my opinion, the finding recorded by the Court of appeal on this aspect also is infirm and must he set aside. 12. Finally it may be stated that the plaintiff-respondent had not pleaded any case of Benami. The said question was not put in issue and the parties were not required to lead evidence thereon. The two Courts below have devoted much time and attention on the investigation of this point which was wholly (sic) he looked into in support of it plea which is not founded in the pleadings. 13. In view of the above discussion, this appeal must succeed. 'the result is that this appeal is allowed. The suit of the plaintiff-respondent No. I Badri Prasad is dismissed. The defendants-appellants shall be entitled to their costs of the two Courts below. The costs of this Court shall be easy.