JUDGMENT Rajendra Nath Sinha. 1. This is defendant’s appeal being aggrieved and dissatisfied with the judgment and decree dated 31.7.93 passed by the learned Assistant District Judge, 5th Court at Alipore, 24 Parganas(s) in Title Suit No. 180 of 1983. 2. The plaintiff/respondent No.1 together with his sons filed the suit seeking partition of the schedule properties by metes and bounds, and for accounts and other ancillary reliefs. The respective pleadings of the parties may be precisely stated hereinbelow in order to appreciate the entire background of the 'Lis' in between the parties. One Haraprasad Roy, paternal grand father of plaintiff No.1 and defendant No.1 purchased a piece of land measuring 6(six) cottahs 6½(six and half) chittaks with a kancha structure at 28, Dover Road, Calcutta 19, by a conveyance dated 25-01-04 in benami of his wife Smt. Basanta Kumari Dasi. Haraprasad died intestate in 1907 leaving behind his son Tarak Nath Roy and a daughter Ushabati Roy. Taraknath thereafter constructed two separate building and inducted some tenants therein. He died intestate in the month of October, 1949 leaving the two sons, plaintiff No.1 and defendant No.1 respectively. Both of them were minor and school going children. The family is stated to be governed by Mitakshara school of law as they migrated from the State of Central Provinces together with their personal law. 3. Ushabati after her marriage resided with the family of Taraknath her brother and on his death brought up his two nephews like her son and managed the entire household till her death on 25 August, 1971. She was a teacher headmistress of a girls high school, later on an employee of AG Bengal and by private tuition she earned money and spent the same for the family of the deceased Taraknath and later on for his sons. She supervised the whole family affairs and kept the joint mess of the family intact. By her care and guidance her nephews prospered in life and became mechanical engineers and obtained some other qualifications in life. She supervised the whole family affairs and kept the joint mess of the family intact. By her care and guidance her nephews prospered in life and became mechanical engineers and obtained some other qualifications in life. As the two brothers namely plaintiff No. 1 and defendant No.1 began to earn and the defendant No.1 who was 4 years older than the plaintiff No. 1 acted as a ‘Karta’ of the joint family and earnings of ‘A’ schedule properties were in his hand and thereafter came the other properties and business namely Usha Machinery, Troy tools, Ilora Machines all from the earnings of the whole family from different sources. It was stated in the plain that the entire plaint schedules 'B', 'C', 'D', 'E', 'F', 'G' and 'H' are all accretions from the nucleus of ‘A’ schedule property. Plaintiff No.1 i.e. Provat Roy the younger brother used to hand over his earnings to the elder brother defendant No.1 as he was the ‘karta’ of the undivided family. It has also stated that during the life-time of Ushabati the family arrangements were conducted peacefully but after her death misappropriation concealed of earnings from joint family non-payment of tax to municipal corporation ensured. Thus, plaintiff No.1 demanded partition and accounts of expenses on 4.6.74. As the defendant refused to render partition and accounts hence the suit. 4. The suit was contested by filing a written statement denying all the material averments. A short geneology as stated in the WS may be depicted hereinbelow: Haraprasad Roy, widow Basanta Kumari Dasi Son Daughter Tarak Nath Roy (wife Ushabati Roy Kamalbasini Roy) Sankar Prosad Roy (Dft.1) Provat Kumar Roy (Plaint. 1) (son) Bhaskar Roy (son) Gautam Roy Arindam Roy (Plaint.2) (Deft.2) It has been submitted that the ‘A’ schedule property (Dover Road) was purchased by Haraprasad Roy in the name of his wife Basanta Kumari Dasi. It has also been admitted that Ushabati Roy their 'pisima' devoted her whole life in all respects for the good of the parties and treated them as her sons and they prospered under her guidance and financial assistance. Tarak Nath Roy, father of the plaintiff No. 1 and defendant No.1, was poor and even after the death he left behind considerable loans to different persons and those loans were repaid from the personal funds of defendant No.1. One floor was constructed by the personal funds of defendant No.1. Tarak Nath Roy, father of the plaintiff No. 1 and defendant No.1, was poor and even after the death he left behind considerable loans to different persons and those loans were repaid from the personal funds of defendant No.1. One floor was constructed by the personal funds of defendant No.1. All the properties as mentioned in the schedule of the plaint save and except Troy tools have been constructed from the personal funds of defendant No.1 including Usha machinery and Ilora machine. It has been denied that the parties were governed by Mitakshara law but submitted that they adopted the Daya Bhag School of law herein, with details submitted that there was no nucleus arising out of ‘A' schedule property, but was burdened with loans and that other properties are self-acquired properties of the both two brothers and that the same were acquired by the respective party's initiative and avocation. 5. On the aforesaid the learned Court below framed as many as 11 issues and these were also decreed declaring the plaintiffs title to the extent of half share in the schedule properties of the plaint from ‘A’-‘H’. Two months time was given to the parties to get separate possession on partition by metes and bounds in default to get it done through Court by appointment of pleader commissioner. 6. This suit was heard analogously together with money suit No. 9/86 which was dismissed. The aforesaid decree was assailed before this Court on the grounds amongst others that the learned Court below failed to appreciate the entire materials on record and the evidences and that the same were not appreciated in its proper perspective and that the said decree was passed relying solely on the oral evidence of Shailabala ignoring all the other material evidences oral and documentary both. 7. It was been contended on behalf of the appellants in respect of the laws relating to devolution of interest including those of joint family and coparcenery property. The following references have been made in respect of Hindu Law Articles 220 (16th Addition, page 244-245 and 18th Addition page 377 V.1), Articles 221, 222, 227, 231, 231A and also reference made to section 2C (Hindu Gains of Learning Act, 1930). The following references of reported decisions were also made: 1. AIR 1942, Calcutta 553. 2. AIR 1965 SC-289, 3. 1992(1) SCC 76 , 4. 1992 SCC 717 . The following references of reported decisions were also made: 1. AIR 1942, Calcutta 553. 2. AIR 1965 SC-289, 3. 1992(1) SCC 76 , 4. 1992 SCC 717 . It has been contended on behalf of the appellant that the position of law as it stands that where there was no proof of sufficient nucleus the properties in the name of the parties cannot be joint property. In a suit for partition the initial burden is on the plaintiff that the property is joint family property where the plaintiff could successfully discharge that onus by showing that the joint family had sufficient nucleus for purchasing the suit properties, then the burden shifts upon the defendant to show that the properties standing in his name is self acquired property. The point has further been elaborated that even it is not enough to prove merely that there was some joint family property to serve as a nucleus but it must, however, be shown that the nucleus was such that the property in dispute would have been acquired with its aid. The existence of a insignificant nucleus is not enough to render subsequently acquired property a joint family property. It must be shown that the nucleus was such as could have been reasonably formed the basis of acquisition of property. It has further been argued that the existence of sufficient family asset so as to form a new asset is a question of fact. Such a fact can be proved by direct evidence or by circumstantial evidence. However, circumstantial evidence should be clear, unequivocal and clinching as otherwise there is every danger of the self acquisition of a person being lost to another who claims a share in it based on the past property of the family. 8. Learned Senior Counsel Sri Sudhis Dasgupta ably assisted by Sri Jyotirmoy Bhattacharya and Aniruddha Chatterjee has taken us through the entire evidences on record and documents which have been exhibited in course of trial. 9. It is the admitted position that the parties are governed by Mitakshara school of law, it was also not seriously urged as to those particular points as it is immaterial as the fight is in respect of the properties in between two brothers which has snow balled to their heir successors as well. 10. 9. It is the admitted position that the parties are governed by Mitakshara school of law, it was also not seriously urged as to those particular points as it is immaterial as the fight is in respect of the properties in between two brothers which has snow balled to their heir successors as well. 10. It has been contended that the admitted position is that Taraknath died in the year 1949 when the respondent No.1 and the elder brother were aged about 13 and 17 years old respectively. The admitted position also as evident from the evidences of Shailabala and as also of the PW.2 and DW.1 that is the two brothers read together with the deed of mortgages by Basanta Kumari and Taraknath Roy to one Atul Das and another. Thereafter other deed of mortgages by Taraknath in favour of Monmotho Nath Mojumdar and others goes to show that at the time of the death of Taraknath the only admitted family property was 28 Dover Road which was heavily burdened with the mortgage loans and also the family expenses as well. Even Taraknath himself died in 1949 after prolonged illness and little medical aid could be rendered to him for want of sufficient funds. It transpires from the evidences on record that the two sons of Taraknath were under the protection and care of their 'pisima' namely Ushabati and it is the unequivocal evidence of Shailabala and both the brothers that it was she who brought up, gave them proper education and thereby they became eventually mechanical engineers and also acquired success in other educational spheres. 11. It is also in evidence that she herself was managing the family when the brothers began to earn, they used to make over their salaries to their 'pisima' who used to defray the expenses for the entire family. 12. It is further contended that the elder brother Sankar Roy acquired a brilliant academic career and he authored several books in this sphere of engineering/accounts and so on which led to the foundation of Illora publishing. 12. It is further contended that the elder brother Sankar Roy acquired a brilliant academic career and he authored several books in this sphere of engineering/accounts and so on which led to the foundation of Illora publishing. He started earning since 1954 as he was then employed in the Small Tools Private Ltd. He used to get paid as an examiner of institute of cost and accountants institute the salary certificates issued by company and institutes (Exhibit-R series) M/s. Illora Printers was a partnership firm started bi Ushabati having eight annas share with the other partners namely Shailabala and Ila Roy being the wife of Sankar Roy. Usha machinery was started by Sankar Roy in proprietorship business in May 1964 with initial capital of Rs.5,000/- drawn from his savings bank account. The plaintiff i.e. Provat Roy the younger brother used to work as commission agent of Usha machinery and he used to receive payment after signing vouchers. In 1975 Sankar Roy, the elder brother started his another business SP Roy Machine Tools Corporation. Troy Tools and Machinery Corporation is, however, admitted to be of the younger brother Provat Roy the plaintiff/respondent No.1 that it belonged to him alone. The purchase of property at Rs.45,000 from his cash balance and bank overdrafts. Precision engineering works (E-2 Schedule) is the business of Sankar's wife i.e., defendant No.4 (defendant/appellant No.4) Sankar Roy in his evidence denied having the properties left behind by Basanti Kumari or by Ushabati. (F.G. & H Schedule properties). 13. It has been contended on behalf of the appellants that had the gold ornaments to that extent as has been described in property schedule G and H then, presumably the mortgages for the purposes of raising construction at 28 Dover Road could not have been necessitated and that required medical aid would have been rendered to Taraknath then. It has further been a very pertinent piece of evidence of Shailabala as has been referred that at a certain point of time even Shailabala had to offer two pieces of tagas for pledging, so that some money be fetched by Ushabati as she wanted to treat her elder brother. Shailabala, however, lamented that when she wanted to get them back she was told that those have been sold away, and she got nothing from those tagas. This goes to show that the family was in dire need of funds. Shailabala, however, lamented that when she wanted to get them back she was told that those have been sold away, and she got nothing from those tagas. This goes to show that the family was in dire need of funds. That led to even taking to Shailabala’s taga and eventually selling of the same to meet the expenses of Taraknath’s treatment. 14. It has been contended that from the entire materials on record it goes to show the house rent income from 28 Dover Road was never the providence of making payment and/or acquiring such properties like that of Ellora Printing, Usha Machinery and S.P. Roychaudhury's Private Ltd. precision engineering and acquiring the property of Hazra Road. It has been contended that Shailabala's evidence cannot be treated as a gospale truth that the house rent income of 28 Dover Road being the nucleus of acquisition of all the rest properties in different aspects standing in the name of mostly Sankar Roy and in respect of one Troy tool in the name of the plaintiff No.1 Provat Roy. The oral evidence of Shailabala is nullified by the evidences on record i.e., the account books (Exhibit-'A', 'B', 'C', 'D', 'J', 'K', 'L', 'M', 'N', 0' series) goes to show how the property 'A' was encumbered by burden of loans. 15. Respondent No.1 Sri Provat Roy/plaintiff No.1 appeared in person while Sri Ghoshal, the learned Counsel advanced argument of behalf of other respondents. 16. The bone of contention of both the sets of the respondents are that the elder brother Sankar Roy had been die Karta of the joint family having properties and that his brother Provat Roy the plaintiff/respondent used to make over his salary earnings and after his return from Germany (where he had been for higher studies) used to earn a hefty amount and that the subsequent business started in the names of the respective brothers where income acquired by the nucleus provided from the joint family income inclusive of the house rent and that of the earnings of both the brothers and that as there was blending of the funds the businesses, thus, started be deemed to he joint family estate irrespective of the respective contribution of the parties. The citations as has been advanced are: 1. 1964, Supreme Court Appeals 593 2. AIR 1954, Supreme Court 375 3. AIR 1958, Allahabad 42 4. The citations as has been advanced are: 1. 1964, Supreme Court Appeals 593 2. AIR 1954, Supreme Court 375 3. AIR 1958, Allahabad 42 4. AIR 1972, Supreme Court 2531 5. AIR 1937, P.C. 61 corresponding to 41 CWN 613. 6. AIR 1942, P.C. 13 corresponding to 46 CWN 613. It has been contended that the buildings erected on lands belonged to the joint family or addition made to the dwelling house of the coparcenery with his own money would form part of the family property. 17. Business grew up with the assistance of the joint family property or joint family funds or that the earning of such business were blended with the joint family estate is joint property. Both the sides however relies on the reported decision in AIR 1965, Supreme Court, page 289. Besides quite a large number of decisions has been cited but all these are on the footing about these aforesaid propositions, thus, need not be discussed in detail. 18. The admitted position of law is that the ancestoral property must be sufficient to form the nucleus which could have provided funds for acquiring other businesses and valuable properties as has been advanced by the learned Counsel for the appellant. The question is essentially one of fact and it is for the plaintiff who alleges acquisition of the same out of the family properties nucleus and if that burden is discharged initially only then it is shifted to the persons in whose name the properties stand and/or who claims the same as self-acquired properties. 19. After hearing both the sides it appears that the property as alleged to be purchased in benami of Basanta Kumari by Haraprasad as early as on 25.01.04 (ext. 67.B). They had their son Tarak Nath and daughter Ushabati. It is also on evidence that Basanta Kumari bequeathed certain portion of the said suit A schedule property in favour of Ushabati Roy for defraying her expenses as she used to be in her father's family despite her early marriage. She, however, bequeathed the same by way of deed of relinquishment. Whether the properties were in benami of Basanta Kumari and/or whether the parties were governed by Mitakshara or not has not been seriously disputed by both the sides as it would not effect materially in respect of both the side's status. She, however, bequeathed the same by way of deed of relinquishment. Whether the properties were in benami of Basanta Kumari and/or whether the parties were governed by Mitakshara or not has not been seriously disputed by both the sides as it would not effect materially in respect of both the side's status. As they are under two different factions and difference in between different spheres of personal laws will effect a little. Thus, in that event the finding in respect of the different two propositions as arrived at by the learned Trial Court is accepted. 20. Now, let us proceed to go through the documents Ext. 'A' series are the original hand note executed by Taraknath from 1933 to 1939. Exhibit 'B' series is the account book of establishment maintained by Ushabati from 10.10.49 to 27.3.53. Exhibit C series are the certified copies of the decree obtained by the decree holders as they sought to recover the loan advanced to Roy's from time to time. Exhibit D, E and E-1 show the original cash vouchers of M/s. Usha Machinery showing payment of commission paid to Sri P.K. Roy. Ext. F is the original certificate for money receipt issued by the plaintiff No.1 P.K.Roy in favour of the respondent No.1 Sankar Prosad Roy describing him as the proprietor of Usha Machineries and the receipt is dated 30.12.71. Ext. G-I series are the sales tax declaration form issued by the plaintiff No.1 Provat Kumar Roy as proprietor of M/s. Troy Tools and Machineries Corporation to M/s. Usha Machinery dated 31.7.73. Exhibit J. series are of considerable importance as it relates to the account books of joint establishment maintained by Ushabati from 28.5.53 to 30.4.64. Exhibit 'O' series is the deed of conveyance in respect of premises No. 8/2/1 Hazra Road is in favour of Sankar Prosad Roy dated 13.12.69 wherein it is found that the plaintiff No.1/respondent No.1 Provat Kumar a signatory as a witness. The trade licenses of Usha Machinery, M/s. S.P. Roy Machine Tools Corporation Hazra Road property, thereafter the Income Tax assessment orders of Sankar Prosad has also been filed (Ext. 0' series). 'K' series are the receipts of royalties honorarium salaries of Sankar Pros ad Roy. Exhibit 'Y' is a book written by the plaintiff No.1. The trade licenses of Usha Machinery, M/s. S.P. Roy Machine Tools Corporation Hazra Road property, thereafter the Income Tax assessment orders of Sankar Prosad has also been filed (Ext. 0' series). 'K' series are the receipts of royalties honorarium salaries of Sankar Pros ad Roy. Exhibit 'Y' is a book written by the plaintiff No.1. Respondent Provat Kumar Roy the younger brother, dedicated to his elder brother Sankar Prosad Roy describing him as proprietor Usha Machinery published in the month of June 1967 when none conceived of such an impending suit in between them. 21. On perusal of the entire evidences on record it appears that Taraknath the predecessor of the present parties left behind the only 28 Dover Road house property with a portion of life estate to Ushabati. Taraknath however died in the year 1949 leaving behind Provat Roy, the plaintiff No.1, elder brother of Sankar Prosad Roy and the widow sister Ushabati. She was an educated lady happened to be a headmistress and also sometime an employee in the office of Accountant General Bengal, maintained the family and brought up her two nephews by employing the rental income derived from the tenants. Both the brothers completed their academic career took employment and continued the same till April 1964 and 1968 respectively while Provat Kumar was in West Germany a business named Usha Printers and Publishers was started in the form of a partnership. It further transpires that the Taraknath and a postal pass-book as apparent from ext. Nand its portion since 26.1.77 to 30.1.79 * (* Date in the judgment is illegible.) goes to show that he was far from solvent one not to speak of any affluence as it goes to show from ext. M series that instalments were paid as against the decretal dues in T.S. No. 45/57 to Monomotho Nath Mojudmar which was taken beforehand for the purposes of raising construction on the suit 'A' schedule property at 28 Dover Road. Exhibit 'J' series together with B and B4 goes to show the family expenses and it appears that both ends could be met by considerable efforts and it is admitted position that Ushabati earned considerable money from her personal income. Plaintiff No.1 deposed to the effect that his father Taraknath had gold ornaments of his wife, of his mother and brother as he made over those gold ornaments to Ushabati before his death. Plaintiff No.1 deposed to the effect that his father Taraknath had gold ornaments of his wife, of his mother and brother as he made over those gold ornaments to Ushabati before his death. However, no scrap of paper is shown except in locker of UBI at Deshapriya Park Branch wherefrom it can be ascertained that no such gold ornaments were there. It further appears as has been argued by the learned counsel for the appellants that had such gold ornaments as described in the schedule F, G, H then Taraknath ought not to die without proper medical care and comfort and Shailabala's taga ought not to have been taken by Ushabati and subsequent selling of the same for the purposes of defraying the expenses of Taraknath Roy's treatment. This aspect however cannot be disbelieved. Plaintiff in his argument contended that he returned from West Germany in February 1963 and joined concerns as against salary ranging from Rs. 750 to Rs. 1250/- and he worked up to 1968. He used to hand over the salary to defendant No.1 and sometimes to Smt. Ushabati Roy. He got married in 1966. In course of his evidence has also asserted that Sankar Prosad Roy, the elder brother was the Karta of the joint family and have had dominion over the entire amount. He claimed that prior to his going to Germany it was decided to start a business from the joint family fund and as per verbal discussion the business was started in 1962 when he had been in West Germany. It is no where shown as to wherefrom the amount for initiation of the said business came from. As it is the admitted position that Ushabati the wife of Sankar Roy and Shailabala (deft. No.5) were the partners. It is evident that books written by Sankar Prosad Roy used to be published from Ellora Printers and Publisher and it began to grow up its income gradually. Sankar Prosad Roy was in service till 1964 and according to PW.2 i.e., plaintiff No.1evidence they jointly started a manufacturing concern named Usha Machinery in the suit premises taking two rooms in the ground floor and Ushabati had great contribution in starting and developing the same and Rs. 500/- was given by her. Sankar Prosad Roy was in service till 1964 and according to PW.2 i.e., plaintiff No.1evidence they jointly started a manufacturing concern named Usha Machinery in the suit premises taking two rooms in the ground floor and Ushabati had great contribution in starting and developing the same and Rs. 500/- was given by her. Sankar Prosad Roy have had no service at that time and it was in his name as proprietor but in fact, it was a Joint one of the two brothers. According to him the enlistment of Usha Machinery with the ordnance factories, railways, heavy engineering corporation and so on were duly to his efforts. According to him (PW.1, plaintiff No.1) at the instance of his elder brother he resigned from service in April 1968 when he was drawing a salary of Rs. 1250/- plus car allowance. The plaintiff No.1 in his evidence claimed that in its entirety all the schedule properties have been begotten and/or are accretion from that of A schedule properties. He has also deposed to the effect that in 1949 when Taraknath, his father died, his rental income was Rs. 235 and expenses was Rs. 225, in 1950 the income was Rs. 280/- and the expenses was Rs.145 in 1955 the income was Rs.280/- and the expenses was Rs.190/-. In subsequent years however since 1968 the incomes were raised to Rs.1920/- and the expenses came down to Rs.390/430/450 and so on. However, it appears that in support of the same the rental incomes of Rs.230/- in the year 1947 has no where been substantiated, more so Sankar Prosad Roy was then repaying the loan amount as has been decreed in the mortgage suits. And it is palpably uncommon if not an unreasonable accounts in respect of 1968s income and expenses as deposed by him up to 1974. We are to bear in mind that in the meanwhile both the brothers got married and having children presumably but the expenses as has been shown was a very meager one, more so they having a car as well. Plaintiff No. 1 in course of deposition asserted that up to 1962 the savings from "rental income was Rs.16,000/-, in 1694 it was Rs. 25,000/- and in 1969 it was Rs. 68,000/- and at the beginning of the present suit i.e. September 1974 it was Rs. 1,50,000/-. Plaintiff No. 1 in course of deposition asserted that up to 1962 the savings from "rental income was Rs.16,000/-, in 1694 it was Rs. 25,000/- and in 1969 it was Rs. 68,000/- and at the beginning of the present suit i.e. September 1974 it was Rs. 1,50,000/-. However, no document has been submitted and/ or no tenant has been examined by him to show the quantum of "rent paid by the said tenant. The assertion of rental income to joint family was the nucleus of all the joint family business which was started at 28 Dover Road, his personal contribution by labour providing his car, type-writing machines etc. form part a nucleus and with the entire properties. He, however, admitted that his father had a loan of Rs. 14,000/- in the market and that his brother i.e. Shiboprasad did not pay the loan from his own money but the same was paid from the joint family which consisted of rental income and income by both the brothers. It has been, further, asserted that there was no mutual arrangement of inducting tenants and realization of rent therefrom by the respective brothers and whatever rent he received from the tenants were never used by him for personal enjoyment. He has claimed that he saved the money and invested the same in the joint family business. That has also no where been substantiated by way of any vouchers or any other documents about accumulation of his own funds which could have been invested in the business stated namely the Usha Machineries and others. It has also asserted by the plaintiff No. 1 that his father died in the year 1949. Since his death Ushabati did not superintend the financial matter. She looked after the internal affairs till she died in 1971. This part of evidence also could not be appreciated or can be related since in the year 1949 his elder brother Shiboprasad Roy was aged about 17 years and also a student. Who then looked after the properties and managed the family? Shailabala's (PW.1) evidence is eloquent in this aspect. She has categorically stated and admitted that the lady Ushabati being the 'pisima' of both the brothers who prospered under her protection and care, used to look after the family and the family could be run while in distress after the death of Taraknath even when he was living and undergoing treatment. Shailabala's (PW.1) evidence is eloquent in this aspect. She has categorically stated and admitted that the lady Ushabati being the 'pisima' of both the brothers who prospered under her protection and care, used to look after the family and the family could be run while in distress after the death of Taraknath even when he was living and undergoing treatment. Shailabala admitted that Ushabati was a lady of great personality and it was for this reason that she, Sankarbabu and Pravatbabu used to fear her very much. Shailabala has deposed that she had neither seen nor heard about giving loan by Hiralal, Dulalda but she knew that 'pisima' used to give/lend money for running Tarakbabu's family expenses. She also admitted that at the time of Tarakbabu's death he had to incur loan as the family expenditure could not be met from the house rent received. She could not say about the same but knew that 'pisima' used to run the family and she used to apply her own intelligence. 19. Let us now proceed to see as to whether the other schedule properties were purchased in the name of Sankar Prosad Roy or Roy's self acquired property or it is the joint family property. Sankar Prosad examined himself as D.W.1. He has denied that any gold ornaments were made over to his paternal grandmother or him mother's ornaments. He has further deposed that since 1949 to 1964 the average rent proceeds they could derive might be Rs.150 to 160 per month. He, however, stated that he passed mechanical engineering and started earning since 1954. Afterwords, he passed cost accountancy and industrial management. He also earned by consultancy services, private tuition and also by writing books from where he used to receive royalty from the publishers. He has deposed that Elora Printer ('D' schedule property) and Publisher was a partnership firm started by his pisima having 8 annas share, rest two were held by his wife and Shailabala in 4 annas share. He also deposed that average expenditure was Rs.252 to 260 used to be incurred monthly from 1949 to 1964 and the short fall was supplied by his pisima. He started Usha machinery, a proprietory business in 1964 with initial capital invested by him from savings bank account. He repaid 2/3rd of paternal debt and 1/3rd was repaid by the plaintiff i.e., Provat Kumar Roy. He started Usha machinery, a proprietory business in 1964 with initial capital invested by him from savings bank account. He repaid 2/3rd of paternal debt and 1/3rd was repaid by the plaintiff i.e., Provat Kumar Roy. In the year 1975 he started another business named S.P. Roy Machine Tools Corporation and he has filed related papers. Troy tools and machinery corporation was the plaintiffs own business. He has denied that it was so started in his name for fiscal reason. He himself purchased the Hazra Road property ('B' schedule property) at Rs. 45,000/- from his cash balance and back draft. Plaintiff No. 1 Provat Kumar Roy had the knowledge of the same all through and a signatory as a witness in baina and the deed. He has further asserted in affidavits that he never blended himself earning money in the joint family fund or that he managed the family fund as karta. Pricision Engineering Works ('E 2' schedule property) was started in July 1974 by his wife Smt. Ila Roy. He has filed connected papers. He has also deposed about his claim of Rs. 16,000/- from the plaintiff No. 1 in connection with a suit filed for recovery of money to that extent (money suit No.9 of 1986). 20. It transpires that the evidence of Sankar Prosad Roy has been substantiated not only by his oral evidence alone but also from the relevant paper documents. Exhibit 'Q' series are the income assessment orders of Sankar Prosad Roy from 1965-66 to 1976-77. Exhibit 'Q' is the assessment orders dated 20.3.70 for the assessment year 1965 wherefrom we find that Sankar Prosad Roy has filed the return as proprietor Usha Machinery. In that assessment an amount of Rs. 15,000/- was added back by the Assessing Authority. Exhibit 'Q l' is the order of appellate assessment commissioner of incomes tax. The appellate order itself goes to show that out of that Rs. 15,000/-, Rs.8,500/- was taken as loan from appellant's earning Smt. Ushabati Roy who died on 26.8.71. It further transpires that the details of payment (loan) made by Smt. Ushabati itself ranging from 13.5.64 to 5.1.65. Exhibit 'Q 2' series is the assessment order in respect of 1966-67 order of assessment. This assessment order also shows about income from other sources as royalty from books and honorarium. It further transpires that the details of payment (loan) made by Smt. Ushabati itself ranging from 13.5.64 to 5.1.65. Exhibit 'Q 2' series is the assessment order in respect of 1966-67 order of assessment. This assessment order also shows about income from other sources as royalty from books and honorarium. Exhibit 'Q 3' is the assessment for the year 1970-71 wherefrom it appears that income from house property to the extent of Rs. 855/- less corporation tax Rs.232 and other professional income etc. together with royalty were furnished. Exhibit 'Q 4' is the assessment order for the year of assessment 1976-77 is the house property income from Hazra Road of Rs. 11,000/-. Business income from Usha Machinery and S.P. Roy Machine Tools Corporation (Ext. 'E l' schedule property). Exhibit 'R' series goes to show about the salary certificate of Sankar Prosad Roy since 1958-59 to 1962-63 wherefrom it appears that he used to earn annually ranging from 7.5.30 to 2.10.30 respectively per annum. Besides, that exhibit 'R 5'-'R 25' goes to show that Sankar Prosad Roy's earning in dual capacity and heads from royalty from his books, honorarium from the institute of Costs Works Accounts of India as a examiner of answer script and for receipts of honorarium for contributing articles in noted periodicals. 21. Ellora Printers and Publishers as it appears from Ext. 'V', is the registration certificates issued by the Register of Firms, goes to show about partners Ushaboti, Shailabala Roy and Illa Roy having 50 per cent and 25 per cent each respectively. Corporation trade licenses are also in their favour. Exhibit 'S' goes to show that the plaintiff No.1 Provat Kumar Roy received royalty of Rs. 272/- for his book 'work examines in engineering' for the year 1969-70 and 1970-71. The receipt is dated 18.9.72. This particular book was dedicated to his elder brother wherein he was so described as the proprietor of Usha Machinery (appears from Ext. ‘Y’). 22. Smt. Illa Roy the defendant/appellant No.4 income tax assessment order for the year 1976-77 is apparent from Exhibit 'X'. Her income has shown therein is from Ellora Printers and Publishers (share of profit as per return). The assessment order also goes to show that the assessee started a new business in the name of M/s. Pricision Engineering Works in the year 1974 and introduction of the capital has been explained. 23. Her income has shown therein is from Ellora Printers and Publishers (share of profit as per return). The assessment order also goes to show that the assessee started a new business in the name of M/s. Pricision Engineering Works in the year 1974 and introduction of the capital has been explained. 23. Considering all the materials on record it appears that the suit properties schedule 'B', 'C', 'D', 'E1', 'E2' all are the self-acquired properties of the parties in whose name it stands and the 'E' schedule property i.e. the Troy tools and machinery has been cancded by Sankar Prosad Roy that it was the self-acquired property of Provat Kumar Roy, the plaintiff No. 1. It is in evidence that in 1964 Sankar Prosad Roy left his job and plaintiff No.1 left his job in the year 1968. Thereafter, the respective businesses started by both the brothers as apparent from the discussions above. 24. On the other hand, the plaintiff has made a sweeping submissions in respect of accumulation of nucleus and therefrom acquisition of the other suit properties namely the business concerned. 25. But on the sum total of the entire evidence as has been discussed above and from the surrounding circumstances which may be stated in brief that both the brothers do have separate earnings from gains of science and by their own exertions. While the elder brother Sankar Prosad Roy appears to have earned since 1954 to 1964 and left the job then began to take part in business activities, so is in respect of the younger brother Provat Kumar Roy, after returning from Germany in the year 1966 worked in a firm and thereafter left the job in 1968 and began his business activities and has also wrote some books thus gained royalty therefrom and worked as commission agent on behalf of Usha Machinery as has been shown in Ext. 'D', 'E', 'E-1' series. Ext. 'F' is a certificate issued, by the plaintiff No.1 himself that he made an advance of Rs. 5,000/- by cheque on 8.10.68 and received it back on 15.5.69 by cheque. Exhibit 'H' also goes to show that he received a hefty commission of nearly Rs.14,300/- paid to him by his dada Sankar Prosad Roy. 'D', 'E', 'E-1' series. Ext. 'F' is a certificate issued, by the plaintiff No.1 himself that he made an advance of Rs. 5,000/- by cheque on 8.10.68 and received it back on 15.5.69 by cheque. Exhibit 'H' also goes to show that he received a hefty commission of nearly Rs.14,300/- paid to him by his dada Sankar Prosad Roy. Learned senior counsel for the appellants has drawn the attention of Hindu Gains of Learning Act and the provision of section 231A of Hindu Law & Hindu Gains of Learning Act which goes to show that "notwithstanding any custom, rule or interpretation of the Hindu Law, no gains of learning shall be held not to be the exclusive and separate property of the member of the joint family who acquires them merely by reason of – (a) his learning having been, in whole or in part, imparted to him by any member, living or deceased, of his family, or with the aid of joint funds of his family, or with the aid of the funds of any members thereof, or (b) himself or his family having, while he was acquiring such learning been maintained or supported, wholly or in part, by the joint funds of his family, or by the funds of any member thereof." In other words, by virtue of Hindu Gains of Learning Act, 1930 it was established that whatever earned by virtue of professional or occupational excellence requiring special training or so be not held a joint family property even when special training or excellence was imparted at the expense of joint family member. 26. However, we do not lay much stress on this point as it is not the case that as Sankar Prosad Roy gained prominence in the sphere of learning of science and engineering being brought up in the family thus all his acquisitions become joint family property. 27. The suit in short is that all the suit properties ranging from 'B' to 'H' are not the accretions from the ancestral family property as in schedule 'A' namely 28 Dover Road. 28. We having concluded on behalf of the same as per discussions above we are inclined to hold that the suit properties 'B' to 'H' do not come within the purview of the joint family property thus not subject to partition in between the parties. 28. We having concluded on behalf of the same as per discussions above we are inclined to hold that the suit properties 'B' to 'H' do not come within the purview of the joint family property thus not subject to partition in between the parties. However, in respect of the suit property schedule 'A' is subject to partition as both the sets do have the moiety share ½ each sets. 29. In the result the appeal succeeds in part. The suit be decreed in part in respect of 'A' schedule property only. The other directions contained in the impugned decree and judgment stands and the impugned judgment is modified to that extent. However, keeping in view of the nature of the suit parties to beer respective costs. Aloke Chakrabarti, J.: I agree. Appeal succeeds in part.