Judgment O.N.ASTHANA, J. 1. This is the first civil appeal against the judgment and decree of Sub-Judge 2nd, Gaya dated 26th November, 1979 in Original Suit No. 59 of 1977. By this judgment and decree the trial Judge decreed the suit of the plaintiff Karoo Pandey for partition awarding half share in the landed properties mentioned in Schedule B of the plaint. 2. The pedegree of the parties is as follows:Rangalal Pandey (died in 1926)Binda Pandey (died in 1976) = Smt. Gulab Devi (died in 1950)Shree Pandey (died in 1974)Janardan Pandey = Lalo DeviSumitra DeviKaroo PandeyArjun PandeyDayanand Pandey 3. Plaintiff Karoo Pandey pleaded the case that father Ranglal Pandey and his three sons Binda Pandey, Shree Pandey and Karoo Pandey were living in the state of jointness, and Ranglal Pandey died in 1926 and his three sons Binda Pandey, Shree Pandey and Karoo Pandey lived in the state of jointness, and Binda Pandey being the eldest became the Karta of the family and managed the entire family affairs in properties; that Shree Pandey died in 1974 in the state of jointness with his brothers, and Shree Pandey left behind his son Janardan Pandey and his daughter Sumitra Devi; Smt. Gulab Devi wife of Binda Pandey died in 1950 A.D. and soon after her death Binda Pandey took Bairag and other elder son Shree Pandey started managing the joint family affairs; Shree Pandey died in 1974 A.D., and his son Janardan started managing the family affairs; that Binda Pandey died issueless in the year 1976 in the state of jointness with his brothers. 4. Further the plaintiff Karoo Pandey pleaded that he and his brothers belong to Brahmin family and they had all along been earning from Puja-Path and Jajmani besides carrying family cultivation, and thus their small family had ample earnings and substantial savings and their family had ample money as joint family fund, and out of that joint family fund the properties were purchased in the name of family members, and were put in the common joint family pool. According to the plaintiff the parties constitute a joint Hindu family and they hold the properties of Schedule B (agricultural land) as joint properties. The plaintiff has prayed partition claiming half share pleading that the defendant Janardan Pandey had not been given the share and the house Chaukidari dues were not being paid by the defendant. 5. According to the plaintiff the parties constitute a joint Hindu family and they hold the properties of Schedule B (agricultural land) as joint properties. The plaintiff has prayed partition claiming half share pleading that the defendant Janardan Pandey had not been given the share and the house Chaukidari dues were not being paid by the defendant. 5. The defendants filed written statement pleading that after the death of Ranglal Pandey, Karoo Pandey separated from his two brothers Binda Pandey and Shree Pandey dividing the parental properties in the year 1934 A.D. and thus Karoo Pandey separated finally by metes and bounds dividing the ancestral lands and house and in residence, mess and worship taking one- third share; and the properties which fell in the share of Karoo Pandey were being shown in Schedule II of the written statement; that the other two brothers Shree Pandey and Binda Pandey remained joint as before, and this defendant Janardan was a small child when his mother died and this Janardan Pandey was brought up by his elder aunt Smt. Gulab Devi who had no issue, and Smt. Gulab Devi and Binda Pandey loved this Janardan Pandey as their son. This Janardan Pandey performed the Sradh ceremony of Binda Pandey; that after the aforesaid partition in the year 1934 Shree Pandey and Binda Pandey acquired landed properties in different villages out of their personal earnings; that after the partition in 1934 Binda Pandey and Shree Pandey never acted as Karta of the family of Karoo Pandey or Karoo Pandey; that Smt. Gulab Devi was teacher in local District Board School till her death, and Shree Pandey was in service of Gayawal of Gaya and he (Shree Pandey) was performing the duty of bringing pilgrims in the Gayawal and thus Shree Pandey was making individual earnings out of this service at Gaya; that Binda Pandey was earning personally from Puja-Path; that these properties were purchased by Smt. Gulab Devi, Binda Pandey and Shree Pandey from their own earnings and they were their personal properties, which had been included by the plaintiff in the schedule attached with the plaint; that the properties given in Schedule A of the additional written statement were passed on to the daughter-in-law Smt. Lalo Devi defendant No. 2, who looked after her father-in-law Shree Pandey and elder father-in-law Binda Pandey and Smt. Lalo Devi had remained in possession over these landed properties for more than twelve years and her name had been mutated over these lands and she had been paying rent individually to the landlords and thereafter to the State. 6. The trial Judge arrived at the findings that there was no partition amongst the three sons in the year 1934, add the three sons remained joint; that all the lands besides the land in the name of Lalo Devi is a joint family acquisition and is liable to be partitioned; that the lands in the name of Binda Pandey and his wife Smt. Gulab Devi are joint family acquisitions and that the family members are represented by heads as party to the case and thus there is no non-joinder of partition. 7. Advocate for the appellant urged that a member of joint Hindu family may possess separate property. They belong exclusively to that individual member unless they are purchased or acquired out of income or with the assistance of ancestral property. 8. The questions arise in this appeal, whether the properties standing in the name of the individual members of the family were purchased or acquired from the income of the ancestral property. 9. They belong exclusively to that individual member unless they are purchased or acquired out of income or with the assistance of ancestral property. 8. The questions arise in this appeal, whether the properties standing in the name of the individual members of the family were purchased or acquired from the income of the ancestral property. 9. The defendants have disclosed specifically in Schedule I to the written statement that four plots of the two villages Hasanpur and Chakand totalling 86 decimals was the land recorded in the cadastral survey in the name of the father Ranglal Pandey. Further the Schedule II of this written statement disclosed that 1/3rd area of this plot was allotted in all four parental plots to Karoo Pandey in the partition of 1934 A.D. 10. Except the land of Schedule I of the written statement which were parental properties, the other lands had been purchased in the name of individual members including the ladies Gulab Devi and Lalo Devi. The onus is on the plaintiff to prove that the sale consideration of the sale deeds were paid out of the joint family funds. 11. The plaintiff Karoo Pandey P.W.1 stated that his son Arjun Pandey is working since 1962 A.D. and he purchased some lands from his income in the name of his parents and that land has not been included by him in this partition suit. There is general statement of the plaintiff that there were savings in the family from the earnings of Jajmani and Puja-Path and from that savings the lands were purchased in the names of Gulab Devi and Binda Pandey and in the name of Lalo Devi. This vague statement is not enough to prove that the properties purchased in the name of Binda Pandey, his son wife Gulab Devi and daughter-in-law of the family Lalo Devi were acquired from the income of the ancestral property. In cross-examination the plaintiff stated that Smt. Gulab Devi was a school teacher till her death and he does not know what was her salary and earnings and that he did not give any kind of help to Gulab Devi and Binda Pandey for the purchase of lands by them. 12. Plaintiff Karoo Pandey P.W.1 has admitted that after the death of Binda Pandey there had been separation in mess and living. The plaintiff stated further that the agricultural lands were not partitioned. 12. Plaintiff Karoo Pandey P.W.1 has admitted that after the death of Binda Pandey there had been separation in mess and living. The plaintiff stated further that the agricultural lands were not partitioned. The plaintiff stated that he and his brothers were making earnings jointly from the joint family Jajmani and Puja-Path. Muneshwar P.W.2 and Mahesh Singh P.W.3 had stated that all the cultivation were being carried jointly by their brothers, and after the death of Binda, the other two brothers started living separately, and they also separated in the mess. Munshi Singh P.W.4, Ram Charitra P.W.6 and Hari Singh P.W.7 who are the nephews and uncle have stated on oath that all the three brothers, namely, Karoo Pandey, Shree Pandey and Binda Pandey were coming to their house to perform Puja-Path and Purohiti. No documentary evidence like horoscope and fixing of the date of marriage or the date for some other religious function are on record prepared by three brothers. On the other hand Hari Singh P.W.7 has stated that the plaintiff Karoo Pandey is living permanently at his family temple and performing Puja-Path at least for the last twenty three years. This shows that the plaintiff Karoo Pandey was earning separately. Further these witnesses/family members Hari Singh, Ram Charitra and Munshi Singh probably had come forward to support the alleged cause of his Pujari Karoo Pandey. 13. The plaintiff Karoo Pandey had not pleaded that their Jajmani and Purohiti was joint, and the same be partitioned. This gives rise to the inference as well that the three brothers were having their own separate mode of earning, and their Jajmani etc. was not joint. 14. It is held that the plaintiff-respondent Karoo Pandey failed to prove that the properties purchased in the names of individual members of the family were acquired out of the income of the joint family. 15. On the other hand the evidence on record shows that Smt. Gulab Devi and her husband Binda Pandey both were earning individually, and Shree Pandey too was earning individually, and the properties were purchased in individual names of the vendee purchasers from their own personal earnings. 16. Advocate Commissioner was appointed by the trial Court. He inspected the plots at the spot. 16. Advocate Commissioner was appointed by the trial Court. He inspected the plots at the spot. This Advocate Commissioner found that the old joint family plots in which 1/3rd share was given to Karoo Pandey (shown in Schedule II of the written statement) in the partition in the year 1934 A.D. had permanent mend in all these plots dividing 1/3rd (in the share of Karoo Pandey) and 2/3rd (in the share of Shree Pandey and Binda Pandey). This factual position at the spot has been shown in the report by the Advocate Commissioner, Ram Kishore Narain Singh D.W.30. This factual position at the spot goes to support the defence case raised by Janardan Pandey that the parental properties were divided in the year 1934 and finally be metes and bounds and the 1/3rd share in each plot was allotted to Karoo Pandey, and the two brothers Binda Pandey and Shree Pandey remained joint holding 2/3rd land together in those old family property. 17. Kameshwar Singh D.W.2 has stated on oath that the partition of the ancestral land took place in the year 1934 between the three brothers Karoo Pandey, Shree Pandey and Binda Pandey and Karoo Pandey was given 1/3rd land in each plot dividing raising the mends in plots, and the other two brothers Shree Pandey and Binda Pandey remained joint. Shree Pandey and Binda Pandey started paying rent 2/3rd of their share separately to the landlord and later to the State Government, and Karoo Pandey started paying 1/3rd share of rent separately to the landlords and later to the State Government. This separate payment of rent by Karoo Pandey, and Shree Pandey and Binda Pandey separately goes to strengthen the case of the defendant that it was final partition of the ancestral properties in the year 1934 where Karoo Pandey got allotted his 1/3rd share separately, and Shree Pandey and Binda Pandey remained joint together. Ramji Singh D.W.9 stated on oath that in 1934 A.D. a partition took place between Karoo Pandey on one side and Shree Pandey and Binda Pandey on the other side and Karoo Pandey was allotted separate 1/3rd share in each plot of the ancestral property raising permanent mend and that Shree Pandey and Binda Pandey remained joint. 18. Ramji Singh D.W.9 stated on oath that in 1934 A.D. a partition took place between Karoo Pandey on one side and Shree Pandey and Binda Pandey on the other side and Karoo Pandey was allotted separate 1/3rd share in each plot of the ancestral property raising permanent mend and that Shree Pandey and Binda Pandey remained joint. 18. Advocate for the plaintiff-respondent urged that Kameshwar Singh D.W.2 and Ramji Singh D.W.9 stated that they acted as Panchas, but there is neither any deed for the appointment of Panchas nor any award of the Panchas and that the Panchayat (arbitration for partition) had not been pleaded in the plaint. It is a matter of common knowledge that elders in the village are called upon and they willingly assemble to see that amicable partition is arrived at between the family members themselves; and that is why these witnesses have stated that they were present at the time of this partition in 1934 A.D. as Panchas. There is nothing to discredit the depositions of Ramji Singh D.W.9 and Kameshwar Singh D.W.2. 19. The other witnesses Vyas Singh D.W.5, Ram Naresh D.W.6, Jugeshwar D.W.28 and Basudeo D.W.29 stated on oath that they had seen from their childhood that Karoo Pandey, and Shree Pandey and Binda Pandey were living separately and they were making separate earnings and Karoo Pandey was carrying cultivation separately on his 1/3rd area of plots, and Shree Pandey and Binda Pandey were living jointly and were carrying cultivation together on the 2/3rd area of these joint family ancestral plot. The other witnesses Ramadhin D.W.27, Basudeo Bhagat D.W.26, Baijnath Lal D.W.23, Nand Kishore D.W.13 have stated on oath that they had seen from their childhood that Karoo Pandey was living separately and was carrying his cultivation separately, and that Binda Pandey and Shree Pandey were living jointly and they were carrying cultivation jointly and they were also making their individual earnings. 20. Nand Kishore Singh P.W.13 and Ram Naresh Singh D.W.6 have stated on oath that they purchased the lands from Lalo Devi and Lalo Devi got that land from Binda Pandey. Nand Kishore Singh P.W.13 has also stated on oath that he purchased one Bigha land from Karoo Pandey. 21. Lallan Prasad D.W.24 has formally proved the voter list, and this voter list shows that Karoo Pandey was living separately. Nand Kishore Singh P.W.13 has also stated on oath that he purchased one Bigha land from Karoo Pandey. 21. Lallan Prasad D.W.24 has formally proved the voter list, and this voter list shows that Karoo Pandey was living separately. Learned Advocate for the plaintiff-respondent Karoo Pandey urged that the payment of rents of the land separately, living separately, and the members of the family earning separately is no proof that the family disrupted and the partition took place; and that the members of the joint family holding joint family properties often make private arrangements to live separately and even to carry cultivation separately for their convenience. 22. Jageshwar Maharaj P.W.18 and Bindi Lal D.W.20 proved that Shree Pandey was making his own personal earnings working as servant of Gayawal in Gaya City for twenty years or more. 23. The payment of rent jointly by Binda Pandey and Shree Pandey, the various exchange deeds and sale deeds Exhibit Series H and B are the documentary evidence which go to show that Shree Pandey and Binda Padeny remained in the state of jointness and in the partition of 1934 A.D. from brother Karoo Pandey alone separated. 24. The depositions of the witnesses Ramji Singh and Kameshwar Singh D.W.9 and D.W.3 established that the joint family properties were divided firstly and permanently in 1934 A.D., and also in pursuance of that partition Karoo Pandey started paying rent to the landlords separately relating his 1/3rd share; that these facts separate living, the separate mess, and the individual earnings of the family members go to strengthen that the final partition took place relating the joint family properties in the year 1934 A.D., where Karoo Pandey got separated his 1/3rd share finally by metes and bounds. 25. It is held that partition took place in the year 1934 A.D. relating the joint family properties inherited from the time of the father and this partition in 1934 was the final partition where the plaintiff-respondent Karoo Pandey got separated his 1/3rd share finally. 26. The other properties acquired later by Gulab Devi, Lalo Devi and Binda Pandey are their self-acquired properties. The plaintiff-respondent Karoo Pandey failed to prove that these properties acquired in the individual names were acquired from the joint family funds. 27. Defendant-respondent Karoo Pandey has no right to claim partition. 28. The appeal is hereby allowed with costs of the two courts. The plaintiff-respondent Karoo Pandey failed to prove that these properties acquired in the individual names were acquired from the joint family funds. 27. Defendant-respondent Karoo Pandey has no right to claim partition. 28. The appeal is hereby allowed with costs of the two courts. The judgment and decree of the trial court awarding half share to Karoo Pandey in the properties and awarding the relief of partition stands set aside.Appeal allowed.