JUDGMENT : P. S. Mishra, J. - The plaintiff has preferred this appeal and contesting defendants 1 and 2 have preferred cross-objection against the JUDGMENT : and decree in Partition Suit No. 57/1970 / 11/1976 of the court of the Additional Subordinate Judge II, Daltonganj. 2. The plaintiff and all the defendants of the suit are members of a joint Mitakshar Hindu Family. The plaintiff and defendants 3 to 6 are full brothers, being sons of defendant no. 7 through their mother, defendant no. 8. Defendants 1 and 2 are also the sons of defendant no. 7 by another wife, since deceased. 3. It is admitted that defendant no. 7, that is to say, the father, is the karta. The family has owned and possessed lands in several villages. The plaintiff has alleged that formerly the ancestral property of the family consisted a proprietory share in village Harnamar, Daraon, Chothansa, Salatue, Sarja and Polpol; but after the intermediary interest vested in the State of Bihar under the Bihar Land Reforms Act, only Raiyati interest in the lands of the said villages, which were in the khas possession of the family, remained, making a grievance that defendant no. 7 has been favouring the two sons of his deceased wife, namely, defendants 1 and 2, has allowed them to occupy the joint family lands even in excess of their legitimate share including the joint family house in village Sarja. The plaintiff has sought partition. He has alleged that, besides the immoveable properties, there are several kind of moveable property also. 4. A further case has been made out by the plaintiff that there are two unmarried sisters, namely, Dulari and Sunita aged 11 and 7 years respectively and their marriage expenses have to be borne out by the family. 5. Contest has come only from defendant nos. 1 and 2. In their written statement they have pleaded inter alia, that in the year 1963, on account of ill-treatment of defendant no. 7, a proceeding under section 144 of the Code of Criminal Procedure had cropped up and in that proceeding there was a compromise between defendants 1 and 2 on the one hand and the plaintiff and defendant no. 7 on the other hand. By this compromise all the landed property as at village Sarja were exclusively given to defendants 1 and 2, except plot nos. 7 on the other hand. By this compromise all the landed property as at village Sarja were exclusively given to defendants 1 and 2, except plot nos. 1298, 516, 153, 158, 154, 148, 149, 161, 140, 150, 152, 155, 1241 and 145, which were retained by defendant no. 7 for himself and his other sons, wife and minor daughters, besides all other landed properties in other villages. They have further said that defendant no. 1 purchased 27 decimals of land in village Sarja covered by a sale deed dated 14.7.1959 appertaining to Khata no. 33 plot no. 501 and 6.80½ acres consisting of plot nos. 97, 98, 100, 630, 711, 772, 790, 791, 812, 819, 820, 625, 624, 644, 645, 826, 1001 of Khata no. 55 had been purchased by their mother, Srimati Sumitra Devi from her own fund. According to them the lands appertaining to these plots did not ever belong to the joint family. The lands belonging to Smt. Sumitra Devi have devolved upon defendants 1 and 2 only, and the lands purchased on 14.7.1959 belongs to defendant no. 1. They, however, accepted the existence of the joint family nucleus and acknowledged that there has been no partition metes and bonds. 6. The learned additional Subordinate Judge-II, Daltonganj, has decreed the plaintiff's suit for partition. Holding that the plaintiff and the defendants constitute a joint family and each one of them is entitled to a share to the extent of 1/9th of the entire suit properties, he has rejected the case of defendants 1 and 2 that they are entitled exclusively to the properties purchased by their mother, that is to say, the lands of village Chothansa appertaining to Khata no. 55 and that defendant no. 1 is entitled to exclusive title in the lands purchased in his name on 14.7.1959. He has rejected the plaintiff's case that, while partitioning the properties of the family, arrangement has to be made for the marriage of the two minor daughters of defendants no. 7 and has accepted a plea on behalf of defendants 1 and 2 that in the event of partition they should get the lands in village Sarja to the extent of their share and only surplus land beyond their shares should be allotted to any other person. 7. 7 and has accepted a plea on behalf of defendants 1 and 2 that in the event of partition they should get the lands in village Sarja to the extent of their share and only surplus land beyond their shares should be allotted to any other person. 7. I have stated briefly the facts, indicated controversy between the parties and noticed the findings recorded by the learned Additional Subordinate Judge, because learned counsel for the parties appearing before me, have not questioned either the partition or the entitlement of anyone of the plaintiffs or the defendants of their respective shares. But they have addressed me on questions relating to the constraint introduced upon the court preparing the final decree by ORDER :ing that Sarja lands would go to the defendants 1 and 2, and or in not making any provision for the marriage of the two minor sisters of the plaintiff, and the question whether the learned Subordinate Judge has correctly held that defendants 1 and 2 are not entitled to claim exclusive right in respect of the property belonging to their mother and the property purchased by defendant no. 1. 8. Mr. N. K. Prasad, learned counsel for the appellant, has drawn my attention to paragraph 38 of the JUDGMENT : of the learned Subordinate Judge, where he has dealt with the question of allotment of Sarja lands to defendants 1 and 2. The learned Subordinate Judge has said that it is very difficult to believe that the contesting defendants had made any improvement in the lands of village Sarja, that they have failed to prove beyond all doubts that they have constructed a new house but has said, ".. ......However when admittedly these contesting defendants are residing in the same at village Sarja and they are cultivating the lands of village Sarja which were given to them in the year 1963 by their father in the course of some family arrangements, then I think that in all fairness they should be allowed to remain in possession of the said lands and the said house of village Sarja. As such at the time of allotting the shares to all the parties of the suit, the pleader should give the said lands and the said house of village Sarja in their share. As such at the time of allotting the shares to all the parties of the suit, the pleader should give the said lands and the said house of village Sarja in their share. But in case the said lands were found to be less than the shares of these defendants in the entire joint family properties, then, they may be given firstly the other lands of village Sarja and thereafter the land of other villages. But in case the lands which are in possession of the contesting defendants are found more than their share, then the pleader commissioner will give out of the said lands of village Sarja to other shares but in such a case at the time of allotment, he will keep 6.82 acres of lands of plot no. 54 in the share of these contesting defendants………" 9. Mr. N. K. Prasad has submitted that such a course, while granting a preliminary decree to constrict the considerations of equitable partition, has got the effect of denying to the plaintiff-appellant and other co-sharers, besides defendants 1 and 2, their right to advance claims based on the nature of the land value of the land, convenience of the parties and other similar pleas. 10. Mr. Debi Prasad, learned counsel appearing for the contesting defendants 1 and 2, has however, submitted that a fair consideration has been given by the learned Subordinate Judge to a fact fully established that defendants 1 and 2 were forced to live separately in village Sarja in the year 1963 and since they have been living in that village they have undoubtedly acquired a sort of equitable preferential claim of allotment of Sarja lands to them. This controversy, however, should not cause any detailed deliberation. The fact that defendants 1 and 2 are living in village Sarja is not in doubt; that some lands, according to the plaintiff, in excess of their shares, according to them less than their shares are given to them for cultivation and occupation is also not in doubt. There is no reason why, while allotting shares to the parties, the Pleader Commissioner, appointed by the Court for the said purpose, or the court itself, shall not give weightage to this fact and consider allotment of Sarja lands to defendants 1 and 2 equitably. There is no reason why, while allotting shares to the parties, the Pleader Commissioner, appointed by the Court for the said purpose, or the court itself, shall not give weightage to this fact and consider allotment of Sarja lands to defendants 1 and 2 equitably. But before they do so, they are also required to consider several other aspects, such as the fact that Sarja is one of the ancestral villages of the plaintiff and the defendants and the plaintiff and his brothers, like defendants 1 and 2 may be equally interested in getting some possession in village Sarja. The learned Subordinate Judge has also said that all the lands of the joint family property should be partitioned, according to the shares of the plaintiff and the defendants equally, and allotted to them. If he felt concerned about defendants 1 and 2 being deprived of Sarja lands and/or denied what they have been allowed to retain by a family arrangement, he should have constrained himself, as expression of such concern, even by way of observations, are at times unwarranted and result in miscarriage of justice. His observations have got the effect of forestalling the adjudication in course of the preparation of the final decree. In my JUDGMENT :, there is substance in the contention of Mr. N. K. Prasad in this regard. 11. On the question, however, of no provision made in the decree for the marriage of the two unmarried sisters of the plaintiff, although Mr. N. K. Prasad is right in contending that in the event of partition of the joint family properties, the nucleus, before it is broken, is required to provide for the marriage expenses of the unmarried daughters of the family, yet I find force in the contention of Mr. Debi Prasad that in the instant case the defendants 1 and 2 have no obligation to part with any of the properties of their share for the said purpose. It is an admitted position that after defendants 1 and 2 were separated in mess and residence and they were by a family arrangement given some lands in village Sarja, defendant no. 7 sold about 84 acres of lands belonging to the joint family. 12. There have been some arguments before me that defendant no. It is an admitted position that after defendants 1 and 2 were separated in mess and residence and they were by a family arrangement given some lands in village Sarja, defendant no. 7 sold about 84 acres of lands belonging to the joint family. 12. There have been some arguments before me that defendant no. 7 was not competent to transfer the said 84 acres of land, a list whereof has been incorporated in paragraph 15 of the written statement filed on behalf of defendants 1 and 2. According to Mr. Debi Prasad, it is obvious that defendants 1 and 2 were separated, although there has been no partition by metes and bounds and with their separation the co-parcenery stood severed. He has drawn my attention to a statement made in the written statement, and not denied by the plaintiff and/or any other person, that defendants 1 and 2 served a notice upon defendant no. 7 intimating him that any sale made by him, in respect of the joint properties, would be deemed to have been made out of his own share and in case of partition such sales would be adjusted out of the shares of defendant no. 7. Apparently, Mr. Debi Prasad's contention has got sufficient force. One will be inclined to think that such transfers made by defendant no. 7 should be adjusted to his share in the joint family property. But defendants 1 and 2 have not, for reasons best known to them, pursued this aspect of the case and have in a way abandoned their case that the transfers made by defendant no. 7 after 1963 should be treated to be transfers made by defendant no. 7 out of his own share only without in any manner affecting the properties of the shares of other coparceners/members of the joint family and/or to hold that the transfers made by defendant no. 7 are without any legal necessity and without the consent of the coparceners and/or the members of the joint family. Since defendants 1 and 2 have led no evidence and have, in fact, advanced no claim to seek adjudication about this aspect of the case, it is not possible to entertain Mr. Debi Prasad's contention at the appellate stage about the validity of transfers made after 1963 and/or to hold that the transfers made by him should be adjusted out of his shares alone. 13. Debi Prasad's contention at the appellate stage about the validity of transfers made after 1963 and/or to hold that the transfers made by him should be adjusted out of his shares alone. 13. Yet I am of the view that the only way to recognise the transfers made by defendant no. 7 after 1963 as valid would be to assume that he made such transfers for meeting expenses for the marriage of the daughters and such other legal obligations. Defendants 1 and 2, who are deprived of a legitimate right to claim a share in the said 84 acres, have some satisfaction that disposition of the properties, even touching their shares, were made to meet the marriage expenses of their sisters. For the said reasons I am inclined to uphold the findings recorded by the learned Subordinate Judge in this regard. 14. Now coming to the question, whether defendants 1 and 2 are entitled to claim exclusively the land purchased in the name of their mother Smt. Sumitra Devi or not, certain facts have to be noticed. Exhibit A/1 is the sale deed no. 862 dated 3.3.1944. It shows Sumitra Kuer as the transferee of the lands described therein, which are the same as the lands claimed by defendants 1 and 2 measuring 6.80½ acres. According to the defendants, the said purchase was made by her from her Stridhan. Since it was an acquisition by the Stridhan, according to defendants 1 and 2, it was her exclusive property. The defendants have examined the brother of Sumitra Kuer as D.W. 7. He has deposed that his brother-in-law (defendant no. 7) had started torturing his sister after contracting a second marriage. He, for that reason, got 7 acres 31 decimals of land purchased for her. There is no evidence on behalf of the plaintiff and/or any other person to the contrary. The learned Subordinate Judge has, however, rejected the case of defendants 1 and 2 in this regard primarily on the basis of the fact that although defend ant no. 1 had claimed that mutation was done in the name of defendants 1 and 2 for the said land and they paid rent for the same, yet no rent receipt had been filed on their behalf. 1 had claimed that mutation was done in the name of defendants 1 and 2 for the said land and they paid rent for the same, yet no rent receipt had been filed on their behalf. The learned Subordinate Judge has particularly referred to the discrepancy about the area of the land in the evidence of D. W. 7 and the sale deed dated 3.3.1944. He has commented upon the evidence of D. W. 7 and said that he could not disclose when and where he had given the consideration money of the said deed and further that he had not signed in the said sale decd either, as a witness or as an identifier. The sale deed had been filed not by defendants 1 and 2 but by the other defendants. The plaintiff, on the other hand, had produced two rent receipts, exhibits 3 and 3/a to show that his father used to pay rent for the said land too. The said land was in the cultivating possession of the joint family. On these facts found by him, the learned Subordinate Judge has held that it has not been proved by defendants 1 and 2 that the land in village Chothansa is not the joint property of the family. 15. Mr. Debi Prasad, learned counsel for the respondents 1 and 2, has submitted that there is no presumption that where property stands in the name of a female member of a Hindu family, it is a common property of the family—the presumption is otherwise. He has submitted that it is incumbent on a person, who asserts that it is tile property belonging to the joint family, to prove that the land had been acquired by the nucleus of the joint family. As there is no evidence on behalf of the plaintiff-appellant to substantiate his claim that the property belongs to the joint family, the usual presumption, that ostensible is the real, should be accepted. He has drawn my attention to a decision of Ismail, J., in Budhia v. Raghu (A.I.R. 1973 Orissa 85), in which it has been pointed out that when an acquisition is made in the name of a coparcener of a joint family having sufficient nucleus, there is a presumption that the properties standing or acquired in the name of that male members are joint family property. That presumption will arise so long it is not shown that the said properties are separate properties of that particular member. But there is no such presumption in case of acquisition made in the names of female members of the joint family. This view has again been reiterated in Gava Dei and another v. Gangadhar Mallik and others (A.I.R. 1978 Orissa 107). In Narayaaa v. Krishna [(1885) I.L.R. 8 Madras 214] the law has been stated in the following words:- "There is not, so far as we are aware, any case in which it has been held, that, where property stands in the name of a female member of a Hindu family, it is to be presumed that it is the common property of the family, and that, it is incumbent on a person who asserts that it is the property of the lady in whose name it stands to prove it. Nor is there any ground on which such a presumption could be founded. Where a family lives in coparcenary, the presumption which exists in the case of male members arises from the circumstance that they are coparceners. On the others band, the ladies are not in an undivided family coparceners; whatever property they acquire by inheritance or gift is their separate estate, and although it is not unusual for property to be transferred in the name of a female member to protect it from the creditors of the male members, or to place it beyond the risk of extravagance on the part of the male members, such dealings are exception and can afford no ground for a general presumption." Faced with this concluded legal position. Mr. N. K. Prasad submitted that atleast on the record of this case there is sufficient evidence to show that the property for all purposes remained in the hands of the joint family and was utilised for the entire family. Rent receipts produced by the plaintiff, which show that his father had paid rent, go to show, according to Mr. Prasad that the family treated the property as belonging to it and not belonging to Sutnitra Devi. Rent receipts produced by the plaintiff, which show that his father had paid rent, go to show, according to Mr. Prasad that the family treated the property as belonging to it and not belonging to Sutnitra Devi. To destroy, in my opinion, the presumption that should follow a transaction of this kind in the name of a female member, the plaintiff was required to discharge his onus by firstly showing that the acquisition was by the nucleus of the family and that although acquired in her name for all purposes it was a property belonging to the joint family. A female member in a joint Hindu family has a peculiar status. Although aright to hold property as Stridhan by women is recognized and they do hold such properties, yet they live under the shadows of the male members. A wife, for all practical purposes, is dominated by the husband and husband's' domain embraces all her affairs including the properties belonging to her. If defendant no. 7 had assumed such a position and had obtained control upon the properties belonging to his wife, there is nothing unusual in it. Merely by appropriation of the produce by the family, it cannot be said that the family acquired the property and/or Sumitra Devi lost her title. Those who are entitled to inherit from her undoubtedly inherited the property and defendants 1 and 2, being her sons, are the legal owners of the properties purchased in her name. True D.W.7 has, rather, deposed in a casual manner. His deposition is not consistent either with the contents of the sale deed or the existing facts, namely, that the properties was under the control of Sumitra Devi’s husband and not her exclusive control as indicated by D.W.7 in his deposition. Yet as the burden lay upon the plaintiff to adduce evidence to prove that although purchased in the name of Sumitra Devi it was the purchase by his father, namely, defendant no.7 and by the family, he has not been able to adduce any evidence in this regard; no decree can be granted for partition in his favour. 16. So far as the property purchased by defendant no. 1 is concerned, obviously it was purchased prior to 1963. There is no doubt that the family had sufficient means to acquire a property, like one acquired in the name of defendant no. 16. So far as the property purchased by defendant no. 1 is concerned, obviously it was purchased prior to 1963. There is no doubt that the family had sufficient means to acquire a property, like one acquired in the name of defendant no. 1 in the year 1959; the presumption shall be as indicated above, that defendant no. 1 was the junior member of the coparcenery, it was in the year 1963 or thereafter. The presumption will be that the purchase was by the coparcenery and not by defendant no. 1 alone. The burden, therefore, is upon defendant no. 1 to show that it was a purchase by him and for that he shall be required to prove not only that it was a purchase in his name but further that he had sufficient means to pay the purchase money, that he paid the purchase money, that he obtained delivery of possession, that joint family never came in possession of the said property and such other things that may be necessary to rebut the presumption. Defendant no. 1 has led no relevant evidence in this regard. The learned Subordinate Judge has rightly said that the sale deed dated 14.7.1959 (Ext. A) although standing in the name of defendant no. 1, shows a purchase by the joint family when admittedly the family was joint in 1959 and no specific evidence has been led by the contesting defendants to prove conclusively that they had purchased the said lands out of their independent income. 17. I have examined the matter only in such aspects in which learned counsel appearing for the parties have addressed me. No other contentions have been raised before me. Since, I have found that the learned Additional Subordinate Judge has committed error in putting constraints upon the Pleader Commissioner to be appointed by the court to allot lands of village Sarja to defendants 1 and 2, the appeal has to be allowed to that extent. Since I have taken the view that sufficient joint family assets were left in the hands of defendant no. 7, who disposed them off without consent of defendants 1 and 2, and the only way to justify such transfers by defendant no. Since I have taken the view that sufficient joint family assets were left in the hands of defendant no. 7, who disposed them off without consent of defendants 1 and 2, and the only way to justify such transfers by defendant no. 7 of the properties belonging to the joint family is that he did so to meet legal expenses, like marriage expenses of the minor daughters, the appeal to that extent has to be dismissed. As I have found that defendants 1 and 2 are entitled to the property covered by the sale deed no. 862 dated 3.3.1944 (Ext. A/1), the cross-objection has to be allowed to that extent. As I have found, however, that defendant nos. 1 and 2 have not been able to prove that purchase made in the name of defendant no. 1 on 14.7.1959 (Ext. A) is their self acquisition, the cross-objection has to be dismissed to that extent. 18. In the result both the appeal and the cross-objection are allowed in part, as indicated above. The JUDGMENT : and decree of the Second Additional Subordinate Judge, Daltonganj, Palamau shall stand modified accordingly. There shall be no ORDER :as to costs.