JUDGMENT :- This is a plaintiffs Second appeal in a suit for partition. The parties are brothers. The dispute relates to a house, the site of which was purchased on 21st August. 1941 for of consideration of Rs. 1,000/- in the joint name of both the brothers. The construction of the house began in 1947 and was completed by 1948. The defendants case was that the house belonged to him exclusively. He had purchased the land from his own separate funds, but the mother of the two brothers. the father being dead, desired that the name of the plaintiff should also be entered in the sale deed and the defendant acquiesced in the wishes of the mother, on the assurance that the plaintiff would pay his share but that was never paid. 2. It is undisputed that there was no partition between the brothers at any time after their fathers death and they had continued to remain joint in estate. It is a different matter that both the brothers were employed and besides the ancestral property they had taken up employment to eke out their livelihood. The family to which they belonged possessed some 34 bighas, 14 biswas of agricultural land. The case comes from district Meerut. It does, however, appear that the whole area of the land did not belong to the two brothers, and, according to the lower appellate Court, the share of Naubat Ram the father of the two brothers, came to about four bighas of land in that holding. 3. The principal issue on which the parties went to trial was whether the plaintiff had a half share in the house at item No. 1 of the plaint. The property of which partition was sought in the suit consisted of two houses. There was no dispute with regard to the house described at item No. 2 at the foot of the plaint. The dispute was confined to the house at item No. 1 at the foot of the plaint. The Trial Court found that there was no nucleus with the family from which the land beneath the house could have been acquired it being admitted by the plaintiff that he did not contribute any money towards the purchase of the land. It has been noticed above that the land was purchased for Rs. 1,000/- only. The Trial Court found that there was no nucleus with the family from which the land beneath the house could have been acquired it being admitted by the plaintiff that he did not contribute any money towards the purchase of the land. It has been noticed above that the land was purchased for Rs. 1,000/- only. The Trial Court found that the plaintiff got employment for the first time in the year 1942 as a Tube-well Operator. His salary was Rupees 18/- per month and was claimed to have risen to Rs. 50/- by about 1947 but according to the trial court the plaintiff was in the grade of Rs. 18-1-50 and, therefore, his salary in the year 1947 would have been about Rs. 24/per month. The Trial Court did not, therefore, believe the plaintiff and held that he had completely failed in proving that he contributed anything towards the construction of the house in suit. It was contended for the plaintiff before the Trial Court that it was for the defendant to prove that he was possessed of sufficient funds, that the land for the house had been acquired and the house had been built by him from out of his own funds exclusively, but according to the Trial Court, that was a wrong approach and the burden lay upon the plaintiff to show that the house in dispute had been acquired out of joint funds or with the help of a joint family nucleus, and as such it was for the plaintiff to show that it was so. This is followed by the Trial Courts finding that the plaintiff failed to prove that he had contributed anything to- wards the construction of the house or there was any such nucleus with the help of which a house worth Rupees 29,000/- could have been constructed. In the result the Trial Court held that the plaintiff had no share in the house shown as item No. 1 and decreed the suit only for the partition of the house shown at item No. 2 at the foot of the plaint. The claim for partition of the house shown at item No 1 at the foot of the plaint was expressly dismissed. 4. The lower Appellate Court affirmed the said judgment and decree of the Trial Court hence this second appeal. 5. The claim for partition of the house shown at item No 1 at the foot of the plaint was expressly dismissed. 4. The lower Appellate Court affirmed the said judgment and decree of the Trial Court hence this second appeal. 5. According to the judgment of the lower Appellate Court the three grounds on which the plaintiff claimed a half share in the house at item No. 1 of the plaint also, hereinafter referred to as the house in dispute, were : (1) There is ancestral property in village Udaipur, Tahsil Hapur, giving an annual income of Rs. 500/-. which was solely realised by the defendant and used by him for the construction of this house. (2) The house was constructed in parts and was let out to various tenants. This rental income, according to the plaintiff, was also realised by the defendant and was used for the construction of the home. (3) The plaintiff had also contributed the amount for the construction of this house from the savings of his earnings. The points raised by the lower Appellate Court for its determination were : "1. Was there any joint family nucleus, if so was it available to the defendant and was it sufficient for the purchase of the land and construction of the house thereon ? 2. Had the plaintiff contributed towards the costs of the land and the construction of the house ?" On the first point the lower Appellate Court recorded the following findings : (i) There was no joint family nucleus, from which the land could be purchased. (ii) The plaintiff did not pay any part of the sale consideration. (iii) The joint family was not in possession of the agricultural land, which was not leaving any surplus alter meeting the needs of the family and therefore, no money was available from the joint family property to the defendant, which could be used for the purchase of the land or for the construction of the house thereon. On the second point the lower Appellate Court recorded the finding that with a meagre salary of Rs. 18/- Per month, it could not have been possible for the defendant (plaintiff ?) to save anything and he could not have contributed anything for the construction of the house or for the purchase of the land. On the second point the lower Appellate Court recorded the finding that with a meagre salary of Rs. 18/- Per month, it could not have been possible for the defendant (plaintiff ?) to save anything and he could not have contributed anything for the construction of the house or for the purchase of the land. It then proceeded to consider the third point, though not formulated by it in so many words on the argument raised on behalf of the plaintiff-appellant, that the defendant had failed to establish his means and as the house was constructed on the joint land, it must be held that it is joint property and was constructed jointly by the two brothers. According to the lower Appellate court the argument was not convincing. In the own words of the lower Appellate Court. "Firstly it is admitted by the plaintiff that the defendant had purchased the house in the name of his wife. This house was purchased for Rs. 8000/-. The plaintiff has not filed suit regarding this house. It follows therefore, that the defendant had purchased this house out of his own savings. This alone shows that the defendant has sufficient means, Secondly the defendant had been in service from 1929. He had paid the entire sale consideration about the purchase of the land. This also shows that the defendant has been saving money from his earnings, and by 1947, when he started constructing the house he must have saved sufficient amount. Thirdly it is true that the land was purchased in the plaintiffs name also, but the evidence discloses : (i) that the plaintiff had not contributed towards the sale consideration. (ii) that the defendant was in services at that time. (iii) that the ancestral property was yielding no income, and under these circumstances, the statement of the defendant that the plaintiffs name was mentioned as desired by his mother, must be believed. The house was constructed by the defendant, even it was let out to different tenants and the defendant has been realising rent, this fact cannot help the plaintiff and the house will remain the private property of the defendant." 6. The house was constructed by the defendant, even it was let out to different tenants and the defendant has been realising rent, this fact cannot help the plaintiff and the house will remain the private property of the defendant." 6. Learned Counsel for the plaintiff-appellant in this Court urged that the burden of proving whether the house in dispute was coparcenary property between the two brothers or was the separate and self acquired property of the defendant had been completely misplaced by the two Courts below and the findings arrived at by them were erroneous and vitiated in law. Learned Counsel pointed out that the Trial Court had even referred to the decision of the Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango ( AIR 1954 SC 379 ), but had completely misapplied the ratio of that case. The lower Appellate Court did not refer to any decision. Referring to the decision of the privy Council in Appalaswami v. Survanarayanamurti (AIR 1947 PC 189 at 192), the Supreme Court quoted the following statement of the law on the point from that case: "The Hindu law upon this aspect of the case is well settled. 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." 7. In the present case the land was acquired in the joint names of the parties. The plaintiff does not say that he contributed any money for the purchase of the land. According the defendants case as set out in the lower Appellate Courts judgment, Naubat Ram, the father had died in 1919 when the plaintiff was hardly about two years and the defendant was six years of age. They were brought up by their uncle. Their financial condition was bad as Naubat Ram had left debts. Money had to be raised for the marriage of the sister of the parties. They were brought up by their uncle. Their financial condition was bad as Naubat Ram had left debts. Money had to be raised for the marriage of the sister of the parties. In this financial background the plaintiff was brought up by his sister and the defendant went to his material grandfathers place. The ancestral land at village Udaipur was never in possession of the parties but was in possession of their cousins Ram Phal and Ram Prakash who never paid a pie out of this property. The defendant after passing middle school examination in 1928 went to Baghpat, where he worked as clerk and also carried on business in Arhat, and from the income of that business he cleared off the debts of the family and the plaintiff was also married, in 1939 he started business in Hapur, and although the land which was purchased in 1941, was purchased by the defendant from his own funds, but the plaintiffs name was inserted in the sale deed at the instance of their mother on the assurance that the plaintiff would pay his share of money, but the same was not paid. According to the defendant the plaintiff started living in a portion of the house in dispute in 1956 as tenant, but he paid no rent. 8. The existence of the ancestral holding of agricultural land at village Udaipur was admitted. The defendants contention was that it was in the possession of Ram phal and Ram Prakash. According to the plaintiff it yielded an income of Rs. 500/- per annum. 9. The lower appellate court has recorded the finding that the plaintiff and the defendant had not received cash profit from the agricultural land and whatever profit accrued was paid to them, according to their share in kind, and the same was used by the family and that, therefore, the plaintiff could not be believed when he said that surplus grain and gur was sold by the defendant and the money was used for the construction of the house or the purchase of the land. 10. 10. If the evidence had been appraised from the proper viewpoint, the lower appellate court ought to have taken into consideration the facts that the parties were living joint in the year 1941 when the land was purchased and having been purchased in the joint names of the parties, it was for the defendant to establish that the consideration for the purchase of the land was advanced by him entirely from his own resources and self acquired funds with the intention of purchasing the property as separate property and the name of the plaintiff as a co-purchaser was no better than that of a Benamidar. In the absence of any such plea the joint family being there, the joint family lands which yielded some income in some form being there, and the land having been acquired in the joint names of the two brothers by the defendant who was the elder of the two and was presumably the Karta of the family the land so acquired could only be deemed to be coparcenary property between the brothers. It seems to me that being conscious of this position, the defendant set up the case that the plaintiffs name had been joined as a purchaser at the instance of the mother and on the assurance that the plaintiff will contribute his share of the price, but he did not do so. Assuming that it was so, the land must be deemed to have been purchased as joint property on the plaintiffs assurance that he would contribute his share of the price. Not keeping the promise to contribute towards the share of the price by the plaintiff will not make the land which was purchased as joint property, the separate property of the defendant on the plaintiffs failure to contribute his share of the purchase price. At best the defendant could claim recovery of 1/2 of the purchase price of the land from the plaintiff but on no theory could the land which was purchased as the joint property of the parties become the separate property of the defendant on non-payment of his share of the price by the plaintiff. 11. The two Courts below have examined the plaintiffs sources of income and have found on the theoritical calculations that the plaintiff was not in a position to contribute anything towards the construction of the house. 11. The two Courts below have examined the plaintiffs sources of income and have found on the theoritical calculations that the plaintiff was not in a position to contribute anything towards the construction of the house. It has, however, been found that the plaintiff was employed as Naib Patwari in Tassil Hapur. The defendant was also employed originally as Ajit of a Kanungo at a salary of Rs. 13/- Per month; and according to the Trial Court, although the defendants salary was only Rs. 13/- per month, pat Ram (P.W. 1) had to admit that he, their mother and the entire family of the defendant lived on the earnings of the defendant. The plaintiff was educated by the defendant. The defendant married himself and the plaintiff as well, and all this was done by the defendant on a salary income of Rs. 13/- per month, but curiously enough the inference drawn from all this is that the financial position of the family was miserable, and the plaintiff had no means to contribute towards the construction of the house which was valued at Rs. 29,000/- and that there was no nucleus with the family from which the house could have been constructed although the parties had a share in a joint ancestral holding of agricultural land, the total area of which about 34 bighas and the share of the parties therein, about 4 bighas. Neither of the two courts below enquired into the extent of the defendants income and means to find out whether the defendant could have had sufficient money from out of his self acquired incomes so as to be able to have purchased the land and constructed the house in dispute from out of it. There is a further fact to be noticed in this connection, that the defendant had purchased another house in the name of his wife for Rs. 8000/-. The plaintiff did not claim that house but it would be relevant to take account of it in determining whether the defendant could have sufficient funds from out of his own self acquisitions so as to be able to build the house in dispute from out of them exclusively. 8000/-. The plaintiff did not claim that house but it would be relevant to take account of it in determining whether the defendant could have sufficient funds from out of his own self acquisitions so as to be able to build the house in dispute from out of them exclusively. I may in this context also observe that a perusal of the judgment of the Trial Court shows that the plaintiff had addressed an application to the District Magistrate complaining that the defendent who had entered in Government service in 1946 had constructed a building worth Rs. 40,000/and purchased a house worth Rs. 8000/in the name of his wife and had lodged a report of theft of ornaments worth Rs. 10,000/- the complaint being that defendant was in the habit of doing illegal work as a reader to the Bench Magistrate. According to the trial court the application "provides a clue to the prosperity of the defendant and it is possible that he earned money by fair means or foul and spent the same in the construction of the house," Further, according to the Trial Court, this did not "advance the cause of the plaintiff for he had to prove his own case. 12. In the case of Srinivas Krishnarao Kango v. Narayan Devi Kango ( AIR 1954 SC 379 ) the acquisition of the property, in question was made by one Siddopant who was a Tahsildar in the State of Hyderabad. After noticing that he had been in service for a period of 40 years before he retired on pension, the Supreme Court observed that "though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. In the present case too, both the brothers were working at the Tahsil level. The plaintiff had even alleged, by a written application to the District Magistrate that the defendant, his brother, was making money by illegal gratification. That was, however, during the pendency of the suit giving rise to the present second appeal and one cannot say on that basis that the defendant had been making money by illegal gratification. The plaintiff had even alleged, by a written application to the District Magistrate that the defendant, his brother, was making money by illegal gratification. That was, however, during the pendency of the suit giving rise to the present second appeal and one cannot say on that basis that the defendant had been making money by illegal gratification. But in the society in which we are living, the possibility that both the brothers were making money by accepting illegal gratification as government servants, cannot be ruled out and the fact that the plaintiffs salary was only Rs.18/- per month or that the defendants salary was only Rs. 13/- Per month does not afford any measure of their means. The fact remains that both of them were married and probably had children also and between the two of them two houses were acquired, one by the defendant in the name of his wife for Rs. 8000/- on which the plaintiff does not lay any claim, and the other on land purchased in the joint names of the parties for Rs. 1000/- in the year 1941, and built gradually from 1947 onwards and let out to tenants and in a portion of which the plaintiff was also living without payment of any rent. The conclusion is irresistible that the salary income of the two brothers could not have been the source of these acquisitions. The defendant claimed that he was doing business but there is nothing in the Judgments of either of the two courts below as to what the extent of that business was and as to how the defendant, a government servant was carrying on business. The two things are incompatible, I am not suggesting that government servants do not carry on business. 13. Looking at the case in this background of facts the only manner of resolving the controversy between the parties was to first find out whether it was for the plaintiff to prove that the house in dispute was joint family property or that it was for the defendant to prove that it was his self-acquired property In view of the fact that the land was acquired in the joint names of the parties even the initial burden of the plaintiff of proving that the house in dispute was joint family property was easily discharged. It was for the defendant to explain how the land came to be acquired in the joint names if it was not the joint property of the brothers. The explanation given by the defendant has been noticed above, and discussed too. It is impossible to say that the land was the separate or the self-acquired property of the defendant. It was the co-parcenary property of the brothers although the plaintiff did not contribute anything towards its purchase. Once the land on which the house in dispute was constructed is found to have been the co-parcenary property of the two brothers, the burden again lay on the defendant to show that the house was his self-acquired property. Even if the entire cost of construction had been contributed by the defendant from his own earnings, the house raised on land belonging to the two brothers as coparcenary property would be co-parcenary property inasmuch as the defendants act of mixing up the fruits of his self acquisitions with co-parcenary property would bring about a blending of the same, and the law is that co-parcenary property does not blend in any self-acquired property of a co-parcener but the self-acquired property of a co-parcener blends with the co-parcenary property. 14. Even apart from this principle of blending, the defendant was the Karta of the family. The joint family did have property in the form of agricultural lands and an ancestral house which could very well have been the nucleus from which the money for purchasing the land or building the house in dispute could have come. It is not the law that the whole of the money required for the same must be proved to have actually come out from such nucleus, or that the nucleus was sufficient to have yielded all the necessary funds for acquiring the property in dispute. It is sufficient in law to find that there was a nucleus which could have been the source of the acquisition. It is not necessary to prove that the nucleus was in fact the source of the acquisition. Once the existence of such a nucleus is proved, it is for the person contending that the property is his self-acquired property to prove affirmatively that he acquired it from his own self-acquired funds. It is not sufficient for him to show or to suggest that it could have been acquired from his self acquisition. Once the existence of such a nucleus is proved, it is for the person contending that the property is his self-acquired property to prove affirmatively that he acquired it from his own self-acquired funds. It is not sufficient for him to show or to suggest that it could have been acquired from his self acquisition. He must prove it positively as a fact that the source of the acquisition of the property in dispute was his self-acquired income or fund. 15. I have narrated the facts and extracted the findings of the two courts below in sufficient detail to show that the burden of proof was perverted by them. The law was not correctly appreciated and applied to the facts and the result has been that the findings of both the courts below are vitiated and wrong. It was not disputed that the plaintiffs share was ½ In the result the suit for partition deserves to be decreed in toto. There is no question of any accounts being rendered by the defendant to the plaintiff. Even it the property was joint, the defendant as the Karta was not bound in law to render any account of the income of the property to the plaintiff. The appeal succeeds and is allowed. The decree dismissing the suit for partition of the house at item No. 1 of the plaint is set aside and in substitution of the preliminary decree under appeal, the suit for partition is decreed in respect of both the houses at items Nos. I and II of the plaint. The plaintiffs share is declared to be 1/2 and on a proper application for preparation of final decree being made to it the trial court shall issue a commission for preparing a scheme of partition of the two houses in suit and after dividing the two houses between the plaintiff and the defendant into two equal portions by a final decree, the trial court shall proceed to put the parties into possession of the respective portion allotted to each one of the two parties. In the circumstances the parties shall bear their own costs throughout. Appeal allowed.