Judgment :- 1. The short question arising for consideration in this Second Appeal is whether in the facts and circumstances of the acquisition made by two brothers Kandu and Raman who were followers of the Hindu Mitakshara Law in their joint names is joint family property or joint self acquisition? 2. The brief facts necessary for disposing of the appeal are as follows. 3. Deceased Kandu and Raman were the only sons of one Kelunny. They were admittedly followers of the Hindu Mitakshara Law. Kandu and Raman acquired the plaint schedule property along with other items of properties on lease hold right. Later they purchased the intermediary rights also. Subsequently they divided the property between themselves executing Ext. Ext. Al partition deed dated 4-2-1942. The plaint schedule property was allotted to the deceased Raman under Ext. Al exclusively with full rights of alienation. Raman and his wife died leaving their two children Madhavi and Aravindakshan about 14 years before the suit. Madhavi also died about 12 years before the suit. The first plaintiff is the husband of Madhavi and plaintiffs 2 and 3 are Madhavi's minor children. The defendants are the wife and children of Aravindakshan who also died 6 months prior to the suit. According to the plaintiffs the plaint schedule property was the separate property of the deceased Raman and as such they are entitled to half share in the property as the legal heirs of their mother Madhavi who was one of the children of Raman. On the other hand, according to the defendants, the plaint schedule property was joint family property of Kandu and Raman and on partition it was allotted to the "sakha" of Raman. Accordingly, their father Aravindakshan and Raman were having equal rights over the property and Madhavi could get only half right over the half share of Raman in the properties allotted to him under Ext. A I. Hence it was contended that the plaintiffs are entitled only to one-fourth share in the plaint schedule property. The suit was filed for partition of the plaint schedule property and for allotment of half share therein with profits from the date of the suit. 4. Both the courts below found that the properties acquired by Kandu and Raman are not joint family properties and as such the plaintiffs are entitled to half share in the plaint schedule property. The suit was filed for partition of the plaint schedule property and for allotment of half share therein with profits from the date of the suit. 4. Both the courts below found that the properties acquired by Kandu and Raman are not joint family properties and as such the plaintiffs are entitled to half share in the plaint schedule property. Accordingly, the preliminary decree passed by the trial court for partition of the properties into two equal shares and allotment of one such share to the plaintiff was confirmed by the lower appellate court as per the impugned judgment and decree. It is the correctness of the appellate decree and judgment that has been challenged in the above Second Appeal. 5. It is the admitted case of the parties that the plaint schedule property along with other properties were acquired by Raman and Kandu in the name of both prior to 1942. It is also an admitted fact that as per Ext. A 1 petition deed all the properties and liabilities owned by Kandu and Raman were partitioned between them and that the property in question was allotted to Raman with full rights of alienation. 6. Before I deal with the arguments advanced by counsel on behalf of the parties, I may briefly point out the nature of the pleadings and evidence adduced in the case. The plaint proceeded on the basis that the property was allotted to Raman exclusively as per Ext. Al and that Aravindakshan and Madhavi had equal rights over the property on the death of Raman. In answer to the said claim the defendants contended that Kandu and Raman were members of a joint Hindu family and the properties were acquired for the purpose of the joint family and on partition it was allotted to the "sakba" of Raman and as such his son Aravindakshan the predecessor of the defendants got an equal right along with Raman in the plaint schedule property. It has to be pointed out that there was no specific pleading to the effect that Kandu and Raman were residing together and acquired the property by their joint labour. Nobody was examined as witness in the case. There was no evidence at all to show whether they were living together as joint family members and have acquired the property by their joint labour. 7. Nobody was examined as witness in the case. There was no evidence at all to show whether they were living together as joint family members and have acquired the property by their joint labour. 7. The main argument advanced by counsel for the appellants-defendants is that since the property sought to be partitioned was acquired by two brothers who formed a joint Hindu family, it should be presumed to be joint family property in the absence of a clear indication of a contrary intention. He strongly relied upon the following passage from Mayne on, "Hindu Law", 12th Edn., Para.298, page 545. "It is now settled that when the members of a joint family, by their joint labour or in their joint business, acquire property, that property, in the absence of a clear indication of a contrary intention, would be owned by them as joint family property and their male issue would necessarily acquire a right by birth in such property." Counsel also relied upon the decision reported in Viswanathan v. Ramankutty, 1975 KLT. 434 as a case having similar facts and in which the above proposition bad been recognised and applied by this Court. On the basis of the above authorities it is contended that the courts below ought to have applied the presumption of law in favour of the defendants and should have found the property to be joint family property. The learned counsel also urged that some of the recitals in Ext. Al itself would show that the executants were treating the properties divided therein as joint family property. 8. The learned counsel for the respondents on the other hand strongly reiterated the contentions raised by his counterpart in the lower appellate court and advanced further arguments in support of the conclusion reached by the lower appellate court in the judgment appealed against. Counsel strongly relied upon the circumstance that there is no plea in the written statement that the acquirers of the property were living together at the relevant time and that the properties were acquired by the joint labour of the acquirers. It is contended that in the absence of necessary pleadings and proof regarding joint residence under the same roof and joint labour of the members of the family the presumption relied upon by the appellants' counsel cannot be applied in the instant case. It is contended that in the absence of necessary pleadings and proof regarding joint residence under the same roof and joint labour of the members of the family the presumption relied upon by the appellants' counsel cannot be applied in the instant case. He also pointed out that the fact that Raman and Kandu have partitioned the properties in 1942, a few years after the acquisition, reciting specifically that the allottees thereunder will have absolute right of disposal over the respective properties allotted to them, would show clearly their intention to treat the properties as their separate property. It is further contended that if the intention of the acquirers at the time of acquisition was to acquire the property for the benefit of the joint family, normally they would have acquired the same in the name of the eldest member of the family or the Kartha of the family. The learned counsel also contended that the recitals in Ext. Al instead of showing that the properties were treated as joint family property, would show unfailingly that the acquirers have treated the properties as their joint self acquisitions, even prior to the partition and wanted the same to be treated as such even after partition. These in short are the rival contentions. 9. The principles of law relied on by the learned counsel for the appellants in support of his argument is undoubtedly a settled one. There h practically uniformity of opinion among all the well known authors on this point. This uniformity has been noticed by Balagangadharan Nair, J. in the decision reported in Viswanathan v. Ramankutty, 1975 KLT. 434 which was also relied upon by the learned counsel in support of his contention. The learned judge bad quoted the relevant observations dealing with the above principle from the text books of Mayne, Mulla and Raghavachariar. For the purpose of this case the following observations made by N.R. Raghavachariar in his book "Hindu Law", 8th Edn., Para.548, page 212 seems to have a special relevance: "Property acquired by the joint exertions of the coparceners, though without the aid of ancestral assets, must be presumed to be joint family property. For the purpose of this case the following observations made by N.R. Raghavachariar in his book "Hindu Law", 8th Edn., Para.548, page 212 seems to have a special relevance: "Property acquired by the joint exertions of the coparceners, though without the aid of ancestral assets, must be presumed to be joint family property. But this presumption does not arise where the acquirers are only some of the members of the coparcenary, or where they are living separately, and not under the same roof as coparceners are ordinarily expected to live, and can be rebutted even when the acquisition is made by all the members by proof of intention on their part to treat the acquisition merely as a partnership property governed by Partnership Act in which case the share of one of the acquirers will, on his death, devolve on bis own heirs and not by survivorship, or as joint property with the incident of survivorship as between the acquirers, but without the right by birth accruing to their sons." (emphasis supplied) The above quoted passage would, according to me, clearly show the conditions subject to which alone the above presumption can be applied in a given case. In other words in the case of acquisitions without the aid of family nucleus the presumption of joint family property can be drawn only if it is established that the acquirers are living together under the same roof and the acquisition was made by joint labour. If that is the correct position of law, we have to see whether the said condition has been established in the instant case before applying the presumption. 10. On the question of establishing the conditions required to be proved before applying the presumption regarding joint family property, the learned author Mulla has observed in his treatise on Hindu Law as follows: "When is 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. 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 been 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 gale 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. There is at times undiscriminated use of the expression presumption in this context. It is to be understood to indicate those presumptions of fact which may be said to arise in considering whether the burden of proof has or has not been discharged by a party. It is not as if there is any general solvent for all cases." Thus it is clear that the condition required to be satisfied before applying the presumption to the facts of a particular case has to be established just like any other fact by pleading and adducing evidence regarding the same. In the instant case there is no plea taken or any evidence adduced regarding the joint residence and joint labour of the acquirers, namely, the two brothers who according to the appellants formed a joint family. In the absence of any plea and evidence it is difficult to accept the contention of the appellants that merely because the acquirers are the two brothers who formed themselves into a joint family, the presumption regarding joint family property should be applied in the instant case. 11. In this connection it may not be out of place to refer to the origin of this rule of presumption as noticed by the Privy Council in the decision reported in Neelktsto Deb Burmono v. Beerchunder Thakoor, (1869) 12 M. I. A. 523. The Judicial Committee bad in the above decision observed as follows: "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, but the members of the family may sever is all or any of these three things." 12. The Judicial Committee bad in the above decision observed as follows: "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, but the members of the family may sever is all or any of these three things." 12. If this is the origin of the rule it is only reasonable and proper that the above principle is applied only in cases where there is clear evidence regarding the fact that the members of the family responsible for the acquisition are actually joint in "mess, worship and estate". This is because the rule itself is based upon one of the peculiar concepts of pristine Hindu Law, namely that joint family is the normal unit for holding property and individual ownership is an exception. In the circumstances, according to me, even incases where there is justification for applying the said rule, it will be an anachronism to apply the same in these days when the entire system of joint family have been statutorily abolished more than a decade ago in Kerala and individual ownership has become the common rule. It is interesting to note in this connection that Niyogi, J. of the Nagpur High Court also felt as early as in 1931 that it is an anachronism to apply the above rule in the changed circumstance then in existence. In the decision reported in Ramsingh v. Sitaram, AIR. 1931 Nagpur 37 the learned judge after referring to the above rule observed as follows: "It may be conceded that the rule had justification in an age which according to the archaic notion of law, was averse to recognition of an individual as a distinct unit from the family and regarded self-acquisition as an exception. But to apply the rule to the vastly altered economic conditions and mode of living obtaining today will be nothing short of an anachronism" 13. The second contention based upon the recitals contained in Ext. Al also, according to me, is bound to fail. The various recitals in the document would only go show that the two brothers have jointly acquired the properties both movable and immovable with the intention of enjoying them in definite shares or in definite proportion and they were enjoying the same as such till it was partitioned under Ext.-Al. Al also, according to me, is bound to fail. The various recitals in the document would only go show that the two brothers have jointly acquired the properties both movable and immovable with the intention of enjoying them in definite shares or in definite proportion and they were enjoying the same as such till it was partitioned under Ext.-Al. This will be clear from the recital in Ext.Al to the effect that: The above recital would clearly indicate the intention of the acquirers to hold and enjoy the properties in definite shares or proportion and would be sufficient to exclude the application of any presumption of joint family property. The recital to the effect that they were having certain movable assets acquired jointly and they have already partitioned such jointly owned -movable assets may not be sufficient to hold that they were treating their properties as joint family property and it is as joint family property they have partitioned their assets under Ext. Al. In this view of the matter the said contention also is bound to fail. In the light of the above discussion, I find that there is no merit in the Second Appeal and it is only to be dismissed. The Second Appeal is hence dismissed. No costs. Dismissed.