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2004 DIGILAW 230 (JHR)

Ayodhya Mahto v. Ram Dutt Mahto

2004-03-04

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of defendants-appellant has been preferred against the impugned judgment and decree dated 9.9.1988 and 20.9.1988 respectively passed in Title Appeal No. 69 of 1984 by Shri Jugal Kishore Prasad. 6th Additional District Judge, Palamau whereby and whereunder the said appeal was allowed and the judgment and decree dated 27.6.1984 and 11.7.1984 respectively in Title Suit No. 45 of 1982 passed by the Munsif, Palamau were set aside. 2. The plaintiff-respondent had filed-the said Title Suit for a declaration regarding the sale deed dated 27.8.1981 (Ext. 1/1) executed by original defendant No. 1 Machu Mahto in favour of defendants-appellant Saraswatia Devi and Manmatia Devi is void, illegal, inoperative and not binding upon the plaintiff-respondent in view of the fact that the property covered under the said deed is a joint family acquisition. 3. The case of the plaintiff-respondent is that one Shiv Balak Mahto was the common ancestor of the parties to the suit and he stands recorded in respect of the land of khata No. 46 in the Survey Records of Right. He had two sons, namely, Fakira Mahto and Chira Mahto and there had been separation long ago between Fakira Mahto and Chira Mahto and they were in exclusive enjoyment and possession half and half in respect of the land of khata No. 46. Chira Mahto aforesaid died leaving behind his four sons, namely, Triveni Mahto, Pran Mahto original defendant No. 1 Machu Mahto and Ramyad Mahto @ Peku Mahto and there had been a metes and bounds partition between them after the death of Chira Mahto. The plaintiff-respondent and defendant-appellant Ayodhya Mahto and Krishna Mahto are the sons of original defendant Lachu Mahto (since dead) and they are the members of joint Hindu Mitakshara Family and defendant-appellant Saraswatia Devi and Manmatia Devi are the wives of Ayodhya Mahto and Krishna Mahto aforesaid respectively and the ancestral land as well as the land purchased in the name of Machu Mahto as mentioned in Schedule A of the plaint are the joint family properties of the parties to the suit and the land detailed in Schedule B of the plaint acquired by Machu Mahto aforesaid is a joint family acquisition from the joint family fund in his name as karta of the joint family in which the plaintiff-respondent had also contributed. Original defendant No. 1 Lachu Mahto is an old man of 70 years and he was duped and in collusion with defendant- appellant Ayodhya Mahto and Krishna Mahto he has executed the sale deed in respect of Schedule B land aforesaid on 27.8.1981 in favour of defendant- appellant Saraswatia Devi and Manmatia Devi and a cloud has been cast upon the right title and interest of the plaintiff-respondent in respect thereof. It is also alleged that the said acquisition is not the self acquired property of Machu Mahto aforesaid. 4. The case of the defendant-appellant, inter alia, is that Chira Mahto died leaving behind his four sons Triveni Mahto, Pran Mahto, Machu Mahto and Peku Mahto and they all separated in mess and cultivation having their distinct share in the land of khata No. 46. The said Peku Mahto had no issue and he had become very old and he fell in need of money and he has sold the land of his share in khata No. 46 to Machu Mahto for a sum of Rs. 400/- and executed a sale deed (Ext. 1) in respect thereof on 29.8.1962 in favour of Machu Mahto who kept the said acquired land in his separate possession and had appropriated the income of the said acquired land exclusively. The further case of the defendants-appellant is that at the time of the acquisition of the said land Machu Mahto was separate from the plaintiff-respondent. It is also alleged that, thereafter, defendant- appellant Ayodhya Mahto and Krishna Mahto also separated from Lachu Mahto aforesaid and they were not given any share in the said acquisition made by Lachu Mahto. It is alleged that the said acquisition by Lachu Mahto is his self acquired acquisition from his own earning, by his service working as Khalasi in the Eastern Railway where he was getting Rs. 200/- per month as salary. It is also alleged that the income from the ancestral land was not even sufficient to meet the cost of the living of the family. 200/- per month as salary. It is also alleged that the income from the ancestral land was not even sufficient to meet the cost of the living of the family. The further case of the defendants- appellant is that Machu Mahto out of his own accord and to meet his cost of livelihood sold the suit land purchased by him from Peku Mahto to defendant- appellant Saraswatia Devi and Manmatia Devi for valuable consideration and put them in possession and the said transfer is legal and valid conferring valid title on the transferees aforesaid and they are absolute owner of the suit property by virtue of the said sale deed executed in their favour by Lachu Mahto. 5. In view of the pleadings of the parties the learned trial Court had framed the following issues for adjudication in the case ; (i) Is the suit as framed maintainable? (ii) Has the plaintiff got valid cause of action for the suit? (iii) Has the suit land been acquired from the joint family fund of the plaintiff and the defendant Nos.1 to 3 or the same is the self acquired property of defendant No. 1? (iv) Is the sale deed executed by defendant No. 1 dated 27.8.1981 legal, valid and proper and have the defendant Nos. 4 and 5 acquired title and possession by virtue of this sale deed? (v) To what relief or reliefs, if any, the plaintiff is entitled to get? 6. While deciding issue Nos. (iii) and (iv) the learned Court below has held that the plaintiff-respondent was separate from his father Lachu Mahto and his brothers for the last 20 to 25 years and the suit land has been acquired by Lachu Mahto from his self income and the plaintiff-respondent has not contributed anything in the said acquisition and the plaintiff-respondent has failed to discharge the onus that as a matter of fact the property in suit has been acquired from the joint family, fund, and as such the suit land under Ext. 1 is the self acquisition of Lachu Mahto and, therefore, the sale deed Ext. 1/a in favour of defendant-appellants Saraswatia Devi and Manmatia Devi is legahand valid. In view of the findings aforesaid the learned trial Court dismissed the suit of the plaintiff-respondent. 7. Being aggrieved by the judgment and the decree of the trial Court the plaintiff preferred title appeal No. 69 of 1984. 1/a in favour of defendant-appellants Saraswatia Devi and Manmatia Devi is legahand valid. In view of the findings aforesaid the learned trial Court dismissed the suit of the plaintiff-respondent. 7. Being aggrieved by the judgment and the decree of the trial Court the plaintiff preferred title appeal No. 69 of 1984. The lower appellate Court on reappraisal and re-appreciation of the evidence, oral and documentary, on the record reversed the judgment and decree of the trial Court and allowed the appeal and decreed the suit as per the impugned judgment. The appellate Court below came to the finding of the fact that the defendants-appellant have miserably failed to prove that there had been separation and partition between the plaintiff-respondent on the one hand and is father defendant No. 1 on the other hand before 1962 when the suit property was acquired by defendant No. 1 by virtue of Ext. 1 dated 29.8.1962 in the name of defendant No. 1. The learned Court below further held that the presumption of joint-ness between defendant No. 1, the father and the plaintiff-respondent being his son was not rebutted by the defendants and it has further been held that at the time of the acquisition of the suit land in the year 1962, the plaintiff-respondent was joint with his father and the joint family of the parties consisted of the plaintiff-respondent and the defendants-appellant Nos. 1 and 2 along with his father defendant No. 5. The learned appellate Court below has further held that the joint family of the parties had sufficient nucleus for the purchase of the suit property in the name of defendant No. 1, the karta of the joint family and further that defendant No. 1 was not in the service of the railway working as Khalasi and he had no other independent source of income and the suit property is not the self acquired property of defendant No. 1. It has also been held that the execution of the sale deed dated 27.8.1981 Ext. 1/a in favour of defendant Nos. 4 and 5 by the defendant No. 1 being the karta of the joint family without any legal necessity is ab initio void. In view of the findings afore- said the learned lower appellate Court allowed the appeal and has set aside the judgment and decree, of the trial Court and has decreed the suit of the plaintiff-respondent. 8. 4 and 5 by the defendant No. 1 being the karta of the joint family without any legal necessity is ab initio void. In view of the findings afore- said the learned lower appellate Court allowed the appeal and has set aside the judgment and decree, of the trial Court and has decreed the suit of the plaintiff-respondent. 8. This Court while admitting the appeal for hearing formulated the substantial question which runs thus : "Whether the findings of the lower appellate Court, with regard to the Jointness of the family and acquisition of land as mentioned in schedule "B" of the plaint, are based on legal appreciation and the materials available on the record of the case?" 9. Assailing the impugned judgment of the learned Court below it has been submitted by the learned counsel for the defendants-appellant that the learned appellate Court below had arrived to an incorrect finding of fact regarding the existence of the joint family between the parties as well as the acquisition of the suit land by defendant No. 1 Machu Mahto as karta of the joint family from the joint family fund and for that the learned Court below did not meticulously consider the evidence on the record in proper perspective and there is an apparent error of record in the impugned judgment regarding the joint family having possessed of about 30 acres of land to form a sufficient nucleus for the acquisition of suit land by virtue of Ext. 1 whereas the admitted position is that Machu Mahto had got only 3.78 3/4 acres of land by virtue of the partition between his brothers i.e. 1/8th share only in the land of khata No. 46 which was the joint family property of their common ancestor Shri Balak Mahto as recorded in Survey Records of Right. Elucidating further it has been submitted that PW 2 in para 6 has deposed that the plaintiff has his separate house which he had constructed 5-6 years ago on Gairmazarua land and in para 7 he has deposed that the yield of the joint family land used to be divided equally between the parties for the last 20-25 years and PW 3 has also deposed that the plaintiff- respondent has his separate mess and PW 4 in para 6 has also deposed that defendant Nos. 4 and 5 are in cultivating possession of the suit land which they had acquired from defendant No. 1, Machu Mahto and the learned appellate Court below did not consider the aforesaid evidence in the impugned judgment and has drawn a wrong inference regarding the existence of the joint family between the parties. In support of his contention reliance has been placed upon the ratio of the case of Santosh Hazari v. Purushottam Tiwari. AIR 2001 SC 965 : 2001 (2) JCR 1 (SC) and Madhukar and Ors. v. Sangram and Ors., AIR 2001 SC 2171 : 2002 (1) JCR 274 (SC). It has also been contended that the payment of the rent jointly by Triveni Mahto of the entire land of khata No. 46 cannot be a circumstance to come to the finding regarding the existence of joint family between the parties when admittedly already metes and bounds partition has taken place between Triveni Mahto, Pran Mahto, Machu Mahto and Peku Mahto all sons of Chira Mahto long long ago in respect of the properties which Chira Mahto has got on partition with his brothers Fakira Mahto. It has also been submitted that the learned appellate Court below has committed an error in disbelieving the evidence of DW 1 Ram Dutt Mahto, the defendant-appellant, regarding the fact that Machu Mahto was in service in the railway as Khadasi having a monthly salary of Rs. 200/- only on the wrong assumption that Machu Mahto was not getting pension after his retirement. It has also been submitted that in the absence of the evidence on the record regarding production of vegetable in the ancestral land of the joint family of the parties, the learned appellate Court below has wrongly come to his finding regarding the acquisition of the suit land by Machu Mahto from the sale proceeds of the vegetables grown on the joint family land. It has further been contended that there was no case of the plaintiff-respondent in his plaint regarding the sale deed Ext. It has further been contended that there was no case of the plaintiff-respondent in his plaint regarding the sale deed Ext. 1/A having been executed by Machu Mahto without any legal necessity as well as tainted with fraud but inspite of that the learned appellate Court below has arrived to a finding to that effect and lastly a declaratory suit simplicitor without any consequential relief for declaration of the sale deed as void and illegal is not at all tenable under Section 34 of the Specific Relief Act. Thus the impugned judgment is unsustainable. 10. In contra, it has been submitted by the learned counsel for the plaintiff-respondent that the case of previous partition between the plain tiff- respondent on the one hand and defendant No. 1 Machu Mahto along with his other two sons on the other hand prior to the acquisition of the suit land by virtue of Ext. 1 on 29.8.1962 is palpably false and incorrect and has not been proved by any legal evidence on the record and admittedly at that time the plaintiff- respondent was a boy of 10-12 years old and the learned appellate Court below has rightly rejected the case of previous partition as alleged by the defendants-appellant in view of the presumption of the law regarding the existence of the joint family between the father and his sons. It has also been submitted that there is no evidence on the record to substantiate the fact that defendant No. 1 had any source of income except from the joint family property which he had got on partition between his brothers and further there is also no evidence on the record to substantiate the fact that defendant No. 1 Machu Mahto was in the railway service and thus it has been rightly held by the learned appellate Court below that it is not the self acquisition of defendant No. 1 Machu Mahto rather the suit property has been acquired in the name of defendant No. 1 as karta of the joint family from the joint family fund which has sufficient nucleus to acquire the said land In view of the fact that its consideration was only Rs. 400/-. 400/-. Relying upon the ratio of the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and Ors., (1999) 3 SCC 722 , it has been submitted that it is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court is binding on the High Court in second appeal. Adopting any other approach Is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. It has also been submitted that the appellate Court below has properly scrutinized and considered the evidence on the record and has exercised its discretion in the judicial manner and it cannot be termed to be an error either of law or of procedure requiring any interference in the second appeal. It has also been submitted that there is no application of Section 34 of the Specific Relief Act in this case in view of the existence of unity of title and possession over the disputed property in question between the parties to the suit being the members of a joint Hindu Mitakshara Family and coupled with the finding of the fact of the appellate Court below regarding the joint possession of the plaintiff-respondent over the suit property and, therefore, the declaratory suit filed by the defendant- respondent is quite maintainable and the learned Court below has rightly allowed the appeal and had decreed the suit filed by the plaintiff. Viewed thus the impugned judgment cannot be said to be unsustainable. 11. Viewed thus the impugned judgment cannot be said to be unsustainable. 11. For appreciation of the substantial question as formulated vide order dated 4.11.1993 of this Court we have to advert to the background of this case. The suit land which was transferred by defendant No. 5 Machu Mahto in favour of his two daughter-in-laws i.e. defendant Nos. 4 and 5 (appellant Nos. 3 and 4 here in this appeal) by virtue of the sale deed dated 27.8.1981 (Ext. 1/a) which he has acquired by virtue of the sale deed dated 29.8.1962 (Ext. 1) from Peku Mahto is part and parcel of khata No. 46 of Tauzi No. 2 situate in village Jamdiha in the district of Dalton-ganj. Shiv Balak Mahto is admittedly the ancestor of the parties to the suit and he stood recorded in respect of land of khata No. 46 in the Survey Records of Right. Said Shiv Balak Mahto died leaving behind his two sons Fakira Mahto and Chira Mahto and there has been a metes and bounds partition between them in respect of the land of khata No. 46, each getting half share therein. The branch of Fakira Mahto has no relevance regarding the matter in controversy in this suit, Chira Mahto had fours sons, namely, Triveni Mahto, Pran Mahto, defendant No. 1. Machu Mahto and Ramyad Mahto @ Peku Mahto and there has also been a partition between them by metes and bounds after the death of Chira Mahto and each son of Chira Mahto got 1/4th share i.e. 1/8th share each in the land of khata No. 46 as recorded in the name of Shiv Balak Mahto aforesaid. There is no dispute in respect of the fact that each son of Chira Mahto got 3.78 3/4 acres of land in their respective share. Ramyad Mahto @ Peku Mahto was issueless and he executed a sale deed dated 29.8.1962 (Ext. 1) in respect of the entire land of his share in favour of defendant No. 1 Machu Mahto for a consideration of Rs. 400/- and defendant No. 1 Machu Mahto came in possession over the said land. Plaintiff Ram Dutt Mahto and defendant No. 2 Ayodhya Mahto and defendant No. 3 Krishna Mahto (appellants Nos. 1 and 2 here in this appeal) are the sons of defendant No. 1 Machu Mahto. 400/- and defendant No. 1 Machu Mahto came in possession over the said land. Plaintiff Ram Dutt Mahto and defendant No. 2 Ayodhya Mahto and defendant No. 3 Krishna Mahto (appellants Nos. 1 and 2 here in this appeal) are the sons of defendant No. 1 Machu Mahto. Defendant No. 4 Saraswatia Devi and defendant No. 5 Manmatia Devi are the wives of defendant Nos. 2 and 3 respectively. Defendant No. 1 Machu Mahto executed a sale deed dated 27.8.1981 (Ext. 1/a) in respect of the land which he had acquired from Peku Mahto aforesaid in favour of his two daughter-in-laws i.e. defendant Nos. 4 and 5 for a consideration of Rs. 5.000/-. The controversy arose between the parties due to the execution of this sale deed (Ext. 1/a) by Machu Mahto. The plaintiff-respondent has challenged the said sale deed on the ground that the acquisition by virtue of Ext. 1 is a joint family acquisition from the joint family fund by defendant No. 1 as karta of the joint family consisting of his three sons aforesaid and he had no right to sell the said land. The case of the defendants-appellant is that the plaintiff-respondent has separated from his father defendant No. 1 and there had been a partition between them much prior to the acquisition of the land vide Ext. 1 in which the defendant-respondent got 1 bigha 14 kathas out of the ancestral land and he did not get any share out of the acquired land as the said acquisition was the self acquired property of defendant No. 1 purchased from his self income as he was an employee of the Eastern Railway working as Khalasi getting a monthly salary of Rs. 200/-. Their further case is that 10-15 years prior to this suit defendant Nos. 1 and 2 had also separated from defendant No. 1 and there has been partition between them in which they also did not get any share in the acquired land and the suit property always remained in exclusive cultivating possession of defendant No. 1 who had subsequently sold the same by virtue of Ext. 1/1 in favour of defendant Nos. 4 and 5 for valuable consideration. 12. It is pertinent to mention here that in second appeal the jurisdiction of this Court stands confined to only substantial question of law. 1/1 in favour of defendant Nos. 4 and 5 for valuable consideration. 12. It is pertinent to mention here that in second appeal the jurisdiction of this Court stands confined to only substantial question of law. It is well settled that the finding of fact is not open to challenge even if the appreciation of evidence is erroneous and sufficiency or adequacy of evidence to support a finding of fact is a matter for decision of the Court of fact i.e. the 1st appellate Court and such finding cannot be questioned in second appeal if the 1st appellate Court applied its mind independently and considered the reasoning of the trial Court and gave its reason for not agreeing with the finding of the trial Court and in such a situation the finding of the 1st appellate Court cannot be interfered in the second appeal. The question of appreciation and this appreciation of evidence is always the question of fact and it does not come under the realm of substantial question of law unless the finding recorded by the 1st appellate Court is perverse. However, In view of the substantial question as formulated vide order dated 4.11.1993 by this Court there is no option but once again to look into the evidence on the record adduced by the parties, but before doing so it is relevant to state that a joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters and the joint family is the normal condition of the Hindu society and a joint family is ordinarily joint not only in estate, but also in food and worship. This existence of joint estate is not an essential requisite to constitute a joint family and a family which does not own any property may, nevertheless, be joint. Where there is joint estate and the members of the joint family becomes separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as separation. A Hindu gets a joint family status by birth and the Joint family property is only an adjunct to the joint family. Where there is joint estate and the members of the joint family becomes separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as separation. A Hindu gets a joint family status by birth and the Joint family property is only an adjunct to the joint family. A Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in the joint and coparcenary property and their sons, grandsons and great grand sons of the holder of the joint family for the time being, in other words, the three generation next to the holder In unbroken male descent. The essence of a coparcenary under the Hindu Mitakshara law is unity of ownership and possession. The ownership of the coparcenary property is for the whole body of coparceners and according to true notion of an undivided family governed by Hindu Mitakashra law no individual member of the family, whilst it remains undivided, can predicate of the joint and undivided property, that a particular member has a definite share and it is only on a partition that a member of the joint family becomes entitled to a definite share. The Apex Court has observed in the case of State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330 . "..........That according to the Mitakshara school of Hindu law, all the property of a Hindu Joint family is held in collective ownership by all the coparceners in quasi corporate capacity. The incidents of coparcenary are ; first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners and sixthly, that the interest of a deceased member passes on his death to the surviving coparceners." Here it is relevant to mention that coparcenary property is liable to be partitioned and every coparcener is entitled to a share on partition. Partition is a severance of joint status and as such it is a matter of individual volition. To constitute partition all that is necessary is a definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severally and the said definite and unequivocal indication of his intention should be to the knowledge of the person affected and once a member of the joint family has clearly and unequivocally intimated to the other members of his desire to severe himself from the joint family, his right to obtain and possess his share is unimpeachable whether or not the other members of the joint family agree to a separation of the joint status. Article 260 of the Mulla Hindu Law (16th edition) mandates that no coparcener can alienate even for value his undivided interest without the consent of the other coparceners. It is equally relevant to mention here that generally speaking the normal estate of every Hindu family is joint and In the absence of proof of division such is the legal presumption. In other words "given a joint Hindu family the presumption is, until the contrary is proved, the family continued joint" and the presumption of union is the greatest in the case of father and sons. A Hindu even if he be joint may possess separate property and such property belongs exclusively to him and no other member of the coparcenary and not even his male issue acquires any Interest in it by birth and he may sell it or may give a gift of it or bequeath it by will to any person he like and the self acquired property is not liable to partition and on his death Intestate it passes by succession to his heirs and not by survivorship to the surviving coparceners. Where a suit is brought by Hindu to recover property alleging that it Is his self acquired property and the defendant contents that it Is joint family property or where a suit is brought by a Hindu for partition of property alleging that it is joint family property and the defendant contents that it is his self acquired property the question arises against whom the burden of proof lies. It has been stated in Article 233 of the Principles of Hindu Law by Mulla (16th Edition) at :-- "....where it is established or admitted 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, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmative that the property was acquired without aid of the joint family. But no such presumption would arise if the nucleus is such that with its help the property claimed to be joint could not have been acquired. In order to give rise to the presumption the nucleus must be such that with its help the property claimed to be joint could have been acquired." It has also been stated that: ".....Where however, the existence of the nucleus is shown and no other source of income is disclosed, the presumption may be made that the nucleus was sufficient to enable the property to be acquired. Such being the presumption, if any member of the family claims any portion of the property, as his separate property, the burden lies upon him in any such case to show that it was acquired by him in circumstances which would constitute it his separate property." In the case of Mallesappa Bandeppa Desai and Anr. v. Desai Mallappa @ Mallesappa and Anr., AIR 1961 SC 1268 the Apex Court has thus observed : "......In our opinion there is no doubt that where a Manager claims that any, immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners." 13. I have summarized above the settled principles of law which have their application in respect of the issue involved between the parties. The onus of proof must in such a case be placed on the manager and not on his coparceners." 13. I have summarized above the settled principles of law which have their application in respect of the issue involved between the parties. It is the consistent evidence of PW 5, the plaintiff-respondent and his witnesses that the plaintiff-respondent is not separate with his father defendant No. 1 and is still joint with him being a member of the joint family and there has not been ever metes and bounds partition between them and there is unity of title and possession of the entire family properties which defendant No. 1 has got on partition between his other three brothers and the cultivation of the joint family land is still being done jointly. PWs 1, 2, 3 and 4 have also deposed that there has not been any partition between the parties and they are cultivating the land jointly. PW 1 in para 6 of his cross-examination has deposed that cultivation is joint in respect of the joint family land of the parties but the plaintiff has his separate mess. However, it has not been elicited in his cross-examination as to when there had been a separation in mess of the plaintiff-respondent from his other brothers. He has also deposed in para 5 of his evidence that plaintiff-respondent was also jointly cultivating the acquired land in question. PW 2 in para 6 of his crossexamination has deposed that the yield of the joint family land is divided between the parties since last 20-25 years. He has also deposed that the plaintiff-respondent has his separate house for the last 5 or 6 years. PW 3 has deposed that defendant No. 1 is the karta of the joint family consisting of himself and his sons and he has not separated from his son and he has also not acquired any land in the estate of separation. He has also deposed that there has not been any partition between defendant No. 1 and his sons, though in para 3 of his evidence he has deposed that the plaintiff-respondent has his separate mess since the execution of Ext. 1/a by defendant No. 1. The evidence of PW 4 Laxmi Mahto appearing in para 2 of his evidence that defendant No. 1 had right to dispose of the property does not mean that the property under Ext. 1/a by defendant No. 1. The evidence of PW 4 Laxmi Mahto appearing in para 2 of his evidence that defendant No. 1 had right to dispose of the property does not mean that the property under Ext. 1/a is his self acquired property. It, therefore, appears that the evidence aforesaid of the witnesses examined on behalf of the plaintiff-respondent does not at all give an impression or an inference of the fact of separation and partition having been taken place between plaintiff-respondent on the one hand and the defendants-appellant and defendant No. 1 on the other hand. The onus to prove the disruption of the joint family between the plaintiff-respondent on the one hand and the defend ants- appellant and defendant No. 1 on the other hand prior to 29.8.1962 when the suit property was acquired is on the defendants-appellant. Defendant No. 1 Machu Mahto has not taken oath for the defendants in this case. There is no documentary evidence on the record to evidence the factum of separation and partition as alleged by the defendants-appellant. DW 1, the defendants-appellant in para 5 of his evidence has deposed that when the suit land was acquired by virtue of Ext. 1 on 29.8.1962 the plaintiff-respondent was separate from his father having his separate mess and cultivation and defendant No. 1 Machu Mahto was separately cultivating the suit land and it was never blended with the joint family land. In para 11 of his cross-examination he has deposed that plaintiff- respondent got 1 bigha 14 kathas of land out of the ancestral property which was 3.78 3/4 acres. It, therefore, appears that in the said partition defendant No. 1 Machu Mahto and his wife who were alive have not got an inch of land in their respective share. Therefore, this evidence of defendant No. 1 totally belies the factum of separation and partition as alleged by him. Furthermore there is an unimpeachable evidence on the record to belie the case of previous partition as set up by the defendants-appellant. According to the case of the defendants- appellant the partition had taken place prior to the acquisition on 19.8.1962. No specific period of the said separation or partition has been disclosed in the written statement. Furthermore there is an unimpeachable evidence on the record to belie the case of previous partition as set up by the defendants-appellant. According to the case of the defendants- appellant the partition had taken place prior to the acquisition on 19.8.1962. No specific period of the said separation or partition has been disclosed in the written statement. The evidence on the record adduced by the witnesses of the defendants-appellant is that separation and partition had taken place 20-25 years prior to the institution of the suit and as per calculation it comes between the year 1957-1962. Admittedly the plaintiff-respondent was a minor at that point of time and this aspect of the matter does not at all lends support to the case of previous partition as set up by the defendants-appellant. The learned appellate Court below had viewed that the ancestral property is about 30 acres which prima facie is not supported by the materials on the record and in spite of this the finding of the learned appellate Court below disbelieving the case of the defendants-appellant regarding previous partition does not stand vitiated. Therefore, it cannot be said that the learned Court below has not properly appreciated the evidence on the record for coming to the finding of the fact that the defendants-appellant has not been able to prove the case of previous partition as set up by them. The learned Court below has properly appreciated and appraised the evidence on the record for coming to the finding in respect thereof and I see no illegality therein. 14. The suit property was acquired on 29.8.1962 through Ext. 1 by defendant No. 1 Machu Malito as karta of the joint family aforesaid of his three sons. Admittedly the joint family was possessed of 3.78 3/4 acres of land. Therefore, there was nucleus in the joint family for the said acquisition. The case of the defendants-appellant is that Machu Mahto aforesaid was fn the Railway service working as Khalasi on the monthly salary of Rs. 200/-per month and from that income the suit property was acquired by him. There is also no chit of paper on the record to evidence the fact that Machu Mahto aforesaid was ever in service in the Railway working as Khalasi and to have his separate income for the acquisition of the suit land. 200/-per month and from that income the suit property was acquired by him. There is also no chit of paper on the record to evidence the fact that Machu Mahto aforesaid was ever in service in the Railway working as Khalasi and to have his separate income for the acquisition of the suit land. Machu Mahto has not taken oath to substantiate the fact that he was ever in service in the Railway working as Khalasl The evidence of defendant-appellant as well as of his witnesses in respect thereof has rightly been discarded by the learned appellate Court below. There is no evidence to show that Machu Mahto has his own separate fund or he has any other source of income and he has acquired the suit property from his separate fund without any aid from the joint family fund. Here in this case the sale deed Ext. 1/a is only for Rs. 400/-and the joint family of the parties was possessed of 3.78 3/4 acres of land and as such there was nucleus in the joint family of which defendant No. 1 was the karta and from the said nucleus the suit property has been purchased in his name and in this view of the matter the said acquisition is definitely a joint family acquisition and it is a joint family property of the parties. Here in this case there is evidence on the record to show that the joint family had nucleus. There is no evidence on the record brought by the defendants-appellant to show that there was some other source of income to defendant No. 1 and in such a situation the presumption is that the nucleus was sufficient to enable the property to be acquired. The learned Court below has properly weighed and considered the evidence on the record for coming to the finding that the said acquisition is not the self acquired property of defendant No. 1. The learned appellate Court below has dealt with all the issues and the evidence on the record for recording the finding and has assigned cogent reasons in the impugned judgment for coming to his finding regarding the matter in controversy. Therefore, the ratios of the case of Madhukar and Ors., (supra) and Santosh Hazari, (supra) are of no help to the defendants-appellant in this case. Therefore, the ratios of the case of Madhukar and Ors., (supra) and Santosh Hazari, (supra) are of no help to the defendants-appellant in this case. The finding of the lower appellate Court below as per the evidence on the record cannot be said to be erroneous being contrary to the mandatory provisions of law or its settled position on the basis of pronouncements made by the Apex Court or based upon inadmissible evidence or arrived at without evidence. The learned appellate Court below has properly scrutinized and considered the evidence on the record and has exercised its discretion in a judicial manner and it cannot be termed to be an error of law or of procedure requiring an interference therein in this appeal. I, therefore, see no reason to interfere with the impugned judgment of the learned Court below. 15. There is no merit in the appeal and it fails. The impugned judgment of the learned Court below is hereby affirmed. The appeal is dismissed. No order as to costs in the facts and circumstances of this case.