Facts: D.K. Seth, J.: This appeal is directed against the judgment and decree dated 29th July, 1983 passed by the learned Subordinate Judge, Maldah in Partition Suit No. 81 of 1976. The plaintiff respondent has filed the suit for partition on the ground that his father Lakshman Mondal and Ramji Mondal were enjoying the properties sought to be partitioned jointly and that there was no partition and his request for partition having been refused, he has filed the suit for partition. According to him, some of the properties stood in the name of the parties and some stood in the name of the individual members. But those are all purchased from the income of the joint properties. Therefore, all these properties are joint properties, which are liable to be partitioned. 1.2. The defendant, Ramji Mondal, on the other hand, points out that the two brothers were joint but around 45/50 years ago there was an amicable partition between the parties and since then each of the brothers had been possessing the properties separately. According to him, each plot was being possessed by each of the brothers, one by one side of the property and other by the other side of the property. That some properties were purchased individually out of their own fund and some properties were also sold individually by the parties. 1.3. The parties went to trial and produced certain documents and the Trial Court found that the properties were joint and decreed the suit. Submission on behalf of the Appellant : 2. The learned Counsel for the appellant points out that the plaintiff has not been able to discharge the burden which lay upon him, to show that the properties purchased by Ramji Mondal were joint properties or that the properties were enjoyed by them jointly. It has further been contended that until and unless the plaintiff discharges his burden, defendant is not called upon to prove the same. She further contends that though in the Record of Rights some of the plots were shown to be as joint but the Records of Rights are documents of possession and it gives rise to presumption, which is rebut-table. It does not conclusively prove joint-ness of the property. The shares are not in dispute. She further contends that though in the Record of Rights some of the plots were shown to be as joint but the Records of Rights are documents of possession and it gives rise to presumption, which is rebut-table. It does not conclusively prove joint-ness of the property. The shares are not in dispute. It is also apparent from the evidence of PW1 that the properties were being held separately by each of them and that they were separate in mess and residence. The plaintiff has admitted that he has seen the brothers to possess the property separately even before the death of Lakshman Mondal, who allegedly died in 1362 B.S. Submission on behalf of the Respondent : 3. On the other hand, the learned Counsel for the respondent points out that the PW 1 has been able to prove that there was joint-ness in the property. Though they may be separate in mess and residence, even then, there could be joint-ness in the property. According to him, the presumption arising out of the Record of Rights have not been rebutted. It has also been denied that they had ever sold any property or had purchased any property. It is also denied that the properties purchased by Ramji were his own properties. On the other hand, he pointed out that the parties were in the habit of purchasing properties in individual names, though the same belong to the joint family. Presumption of jointness : 4. After having heard the learned Counsel for the parties, it appears that the plaintiff had made the statements that the properties were joint. Therefore, the burden lay upon him to prove that it were so joint. Properties standing in the name of individual persons does not mean, even if some other properties are joint, that these are joint properties. Learned Counsel for the appellant had relied on the decision in Srinivas Krishnarao Kango vs. Naryan Devji Kango & Ors., reported in AIR 1954 SC 379 . In the said decision, it was held that the existence of joint family does not lead to the presumption that property held by any member of the family is joint. The burden rests upon anyone asserting that any item of property was joint to establish the fact. In the said decision, it was held that the existence of joint family does not lead to the presumption that property held by any member of the family is joint. 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, then the burden shifts to the parties alleging self acquisition to establish affirmatively that the property was acquired without the aid of the income from the joint family property. Burden of proof: How discharged : 5. A person who asserts a particular fact has to prove the same in view of the provisions of sections 101 and 102 of the Evidence Act. The burden of proving fact lies upon the person, who will fail if no evidence is adduced. Until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom burden lay has been able to discharge his burden. Until he arrives at such a conclusion, he cannot proceed on the basis of the weakness of the other party. A person is capable of proving something if he has direct knowledge of a particular fact. Something what has happened long ago cannot be said to have been proved by a person, who does not claim direct knowledge or who on facts, admittedly, was of such an age that he could not be presumed to have acquired direct knowledge at that point of time. Then again such question is to be looked from the point of view as to how he had proved such facts. If the facts show something contrary to what is being sought to be proved, then he has to prove that apparent is not real. In such a case, he has to rebut the presumption of the apparent. If there are contradictory presumptions, then unless the predominating presumption is rebutted, a subservient presumption even if not rebutted, will not help such person. In such a case, he has to rebut the presumption of the apparent. If there are contradictory presumptions, then unless the predominating presumption is rebutted, a subservient presumption even if not rebutted, will not help such person. In a case where the whole presumption is based on the Record of Rights which is a document of possession and has only a rebut-table presumptive value, the same would not enable a person asserting a fact derived from the presumption of Record of Rights, unless it is supported by material supporting such presumption. When the other materials are contrary to such presumption and there is some admission, which goes against such presumption, it cannot be said that such person has been able to discharge the burden that lay upon him in order to call upon the other side to rebut such presumption derived from the Record of Rights. The principle applied : 6. As we find from the present case, the plaintiff had alleged jointness of the properties relying on the Record of Rights where the properties have been recorded in the name of both the ancestors of the parties in 8 annas each. Thus, a presumption is admitted to be drawn from the Record of Rights that the properties were joint. On the other hand, the defendant/appellant had claimed that there was partition before 45/50 years. In such circumstances, unless it is shown by cogent evidence, at least by any reliable witness and corroborated by independent witness, it is very difficult to presume joint-ness solely on the basis of the Record of Rights, the presumption whereof is rebut-table. This presumption may be utilized to support the contention of jointness by the plaintiff, provided he is able to show discharging of the burden that there was jointness. The recording of the properties in 8 anna share in each would not support the case of jointness unless it is shown that the property alleged to be acquired by one individual out of the joint fund or that the consideration money was paid from the income derived from the joint property. Normally, the presumption is against a person, who claims a property standing in the name of an individual to be a joint property standing in the benami of that person. Normally, the presumption is against a person, who claims a property standing in the name of an individual to be a joint property standing in the benami of that person. There is also a presumption in such a case that the property belongs to the person in whose name it is standing until the contrary is proved. The burden lies upon him, who contends otherwise. Until such burden is discharged, the other side is not required to prove that apparent is the real. Conduct of the parties: Disruption of jointness : 7. All those questions are questions of fact, which are to be covered from the materials on record. The conducts of the parties are relevant factors, which are to be taken into account. A jointness can be disrupted by mutual arrangement and such facts are to be discovered from the conduct of the parties as to whether there was any intention to separate themselves. If it can be shown from the conduct of the parties that the properties are being held separately and were enjoyed separately and that the income out of such properties are being applied exclusively by each of the parties for themselves, it leads to a presumption that the parties had intended to separate themselves and that by arrangement the jointness was disrupted, even though in the Record of Rights, the same may not have been reflected and that the parties had been acting upon the same for a long continuous period and that for a long period, there was no claim of jointness in between the parties and there is nothing to show any act of jointness between themselves. 7.1. In Mudigowda Gowdappa Sankh & Ors. vs. Ramchandra Revgowda Sankh (dead) by his legal representatives & Ors., reported in AIR 1969 SC 1076 , it was held that even by agreement, the coparceners can effect disruption in the joint family status, but it has to be gathered from the conduct of the parties and the intention to separate themselves. Applying this test in the present facts and circumstances of this case, we find that there was an intention to disrupt the jointness by virtue of separate possession as well as acquisition of property individually by each of the brothers. 7.2. Applying this test in the present facts and circumstances of this case, we find that there was an intention to disrupt the jointness by virtue of separate possession as well as acquisition of property individually by each of the brothers. 7.2. In the present case, it was admitted by the PW1, the plaintiff that they had been possessing the properties separately right from the time of his father. Therefore, if there is separate possession of the properties, in that event, it indicates that each of them had separate income out of their separate possession. Therefore, any of them could have acquired the properties independently. Admittedly, they had acquired one property, as is apparent from Exhibit-2, wherein he has mentioned that it was purchased out of his own fund. Thus, even though in the Record of Rights the names were recorded jointly but still then, the admission of the plaintiff that the properties were being possessed separately right from the time of his father, makes it difficult to presume jointness of the property until and unless it is so shown by cogent evidence. Except the plaintiff himself no other witness was examined by him to support him. It is also found that the PWI was aged about 55 years in 1983. Therefore, the partition, which had taken 45 years before 1976, the plaintiff was of tender age. In his own deposition, he has not claimed knowledge about the partition. On the other hand, the defendants had examined some other independent witnesses not related to the parties. They had supported the claim of the defendant that the parties were possessing the property separately. It was also supported by the plaintiff himself. Thus, there being nothing to show that the properties purchased by individuals were out of the fund derived from the joint family property, on the other hand, on admission of the plaintiff, the properties having been in separate possession of the parties, it could very well be presumed that they had separate fund out of which the properties were purchased as back as in 1941. The conduct of the two brothers possessing separate properties for themselves clearly shows that they were treating the properties to have been partitioned between themselves and there was no joint possession. It is not necessary that every partition is to be made through documents. Admittedly, in each of the property, they were in separate possession. The conduct of the two brothers possessing separate properties for themselves clearly shows that they were treating the properties to have been partitioned between themselves and there was no joint possession. It is not necessary that every partition is to be made through documents. Admittedly, in each of the property, they were in separate possession. Thus, by conduct, it appears that there was partition, which has not been rebutted by the plaintiff and that the plaintiffs evidence was not sufficient to discharge the burden, which he wanted to prove. 7.3. In Pawan Kumar Gupta vs. Rochiram Nagdeo, reported in (1999) 4 SCC 243 , cited by the learned Counsel for the appellant, it was held that the property standing in the name of a particular person unless it is proved contrary, shall be deemed to have been purchased by him and not a transaction in benami. In any event, from the documents by which such transactions were made, does not indicate that these lands were purchased on behalf of the joint family or on behalf of two brothers. Conclusion : 8. As discussed above, in the present case, we find, that the properties were being held separately by the two brothers, which had been seen by the plaintiff himself, one of whom had died long before and that there is no material to show that any of the party had by their conduct shown jointness and that the income derived from the respective properties were treated as joint funds. On the other hand, the plaintiff himself had admitted that the properties were held separately and he had never stated that the income used to be accumulated jointly. 8.1. In the circumstances, we are unable to agree with the finding of the learned Trial Judge though the properties were joint. Order : 9. In the result, the appeal is allowed. The judgment and decree dated 29th July, 1983 passed by the learned Subordinate Judge, Maldah in Partition Suit No. 81 of 1976 is hereby set aside, The Partition Suit No. 81 of 1976 stands dismissed. There will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied within 7 days. Joytosh Banerjee, J.: I agree. Appeal allowed.