JUDGMENT : Sugato Majumdar, J.: 1. The instant suit is a suit for declaration, permanent injunction and partition. 2. Plaint case may be summarized at first. The original Plaintiff no. 1 & 2 and the original Defendant no. 1 are brothers of the same blood. The original Defendant no. 1 was the eldest brother. The original Defendant no. 2 & 3 are the sons of the original Defendant no. 1. The original Defendant no. 4 is the wife of the original Defendant no. 2. The original Defendant no. 5 & 6 are the sister’s sons of the original Plaintiffs and the original Defendant no. 1. The original Plaintiffs and the original Defendant no. 1 were the sons of late Bhushan Chandra Mondal and they had their ancestral home in the district of Burdwan. All the sons of late Bhushan Chandra Mondal formed a joint Hindu family. These three brothers, namely, the original Plaintiffs and the Defendant no. 1, in their prime came to Calcutta to make fortunes. After coming to Calcutta, they started their first joint business under the name and style of M/S. Arnapurna Vegetable Stores in a shop-room at 50, Kali Krishna Tagore Street, Calcutta – 700007 out of the joint assets but in the name of the Plaintiff no. 1 as proprietor of the business. Out of the income of the business of the name and style of M/S. Arnapurna Vegetable Stores, a business of hardware was started of the name and style of M/S. Mondal & Co. in a rented shop-room at 46, Nalini Sett Road, Calcutta – 700007. This business was at all material time, another joint business, of the original Plaintiffs and the original Defendant no. 1. Telephone connection in this business was taken in the name of Asimananda Mondal, son of the original Plaintiff no. 2. 3. It is averred in the plaint that the Defendant no. 1 being the eldest brother, was the eldest member of the joint family and was treated with respect. All the family members submitted to the will, dictates and advice of the original Defendant no. 1 who remained in over all charges of the business as aforesaid and in control of income accrued therefrom. On advice and policy of the original Defendant no. 1, a go-down and store of hardware goods was hired at premises no. 3, Ratan Sarkar Garden Street, Calcutta – 700007. 1 who remained in over all charges of the business as aforesaid and in control of income accrued therefrom. On advice and policy of the original Defendant no. 1, a go-down and store of hardware goods was hired at premises no. 3, Ratan Sarkar Garden Street, Calcutta – 700007. The premises was taken on rent in the name of the original Defendant no. 5 who was a member of the joint family at that time. 4. Another shop-room-cum-go-down to store hardware goods was taken on rent in the name of the original Defendant no. 6 at premises no. 50, Kali Krishna Tagore Street Calcutta – 700007. The said original Defendant no. 6 was living in the joint family and the said business at 50, Kali Krishna Tagore Street, Calcutta – 700007, under the name and style of M/S. Joylakshmi Bhandar was started out of joint family fund, and the original Plaintiffs and the original Defendant no. 1 became jointly the owners of the business. 5. Joint family residential house along with another house property were purchased in the name of the original Defendant no. 1, as the head of the joint family out of joint family fund and joint family income. One of those properties was at premises no. 33, Mondal Street, Calcutta – 700006 being a structure erected on a land measuring about 3 cottah 2 chittacks 5 sq. ft. This house property was meant for joint family residence. The other property purchased out of joint family fund, in the name of the original Defendant no. 1 was at 34, Mondal Street, Calcutta – 700006 was meant for letting out to various tenants. According to the averments made in the plaint all the three brothers were joint landlords though rents were collected in the name of the original Defendant no. 1. Another house-property was also purchased in the name of the original Defendant no. 4 at the desire of the original Defendant no. 1 being the premises no. 17/2, Shib Talla Street, Calcutta – 700007. This property was also purchased out of joint family fund. It is averred that the original Defendant no. 4 had no right, title and interest in this property, but was a mere benamdar or name-lender. All these properties are joint family properties and the aforesaid businesses are joint family business; the original Plaintiffs and the original Defendant no. 1 had equal shares in them. It is averred that the original Defendant no. 4 had no right, title and interest in this property, but was a mere benamdar or name-lender. All these properties are joint family properties and the aforesaid businesses are joint family business; the original Plaintiffs and the original Defendant no. 1 had equal shares in them. 6. Apart from these, the original Plaintiffs and the original Defendant no. 1also acquired landed properties at their native place in the district of Burdwan out of joint family fund. It was policy of the original Defendant no. 1 to purchase the said properties in the name of his minor sons. 7. The original Plaintiffs and the original Defendant no. 1 also started two other businesses, one being a medicine shop of the name and style of M/S. Dipak Medical Hall at 36, Kali Krishna Tagore Street, Calcutta – 700007 in the name of the original Defendant no. 2 and the other being Sreeguru Paint Varnish Co. at the shop-room of M/S. Mondal & Co. at 46, Nalini Sett Road, Calcutta – 700007. This later business was in the name of the original Defendant no. 2. Both businesses were established and ran out of joint family fund belonging to the original Plaintiffs and the Defendant no. 1 equally. The original Defendant no. 2 was merely a name lender having no right, title and interest in the said business. 8. It is averred in the plaint that the original Defendant no. 1 was custodian of the joint family fund, all the documents and gold ornaments of the Plaintiffs’ wives and daughters. The Plaintiffs had implicit faith on the Defendant no. 1. But the Defendant no. 1, in conspiracy with the other original Defendants attempted to grab the joint family properties. They also tried to oust the original Plaintiffs from the family residential house located at 33, Mondal Street, Kolkata – 700006, as well as from the joint family business. Facility to use the family cars was also withdrawn. The original Plaintiffs peaceful use and occupation of the joint family property was jeopardized by the defendants. Ejectment proceeding was also initiated against the Plaintiff for ousting them from the joint family residential house. 9. In view of the situation, the original Plaintiffs instituted the instant suit praying for accounts, discovery of assets of the original Defendant no. The original Plaintiffs peaceful use and occupation of the joint family property was jeopardized by the defendants. Ejectment proceeding was also initiated against the Plaintiff for ousting them from the joint family residential house. 9. In view of the situation, the original Plaintiffs instituted the instant suit praying for accounts, discovery of assets of the original Defendant no. 2 to 4, declaration that the immovable properties are joint properties of the original Plaintiffs and the original Defendant no. 1, the other Defendants being the name-lenders, declaration in respect of the businesses mentioned in the plaint, declaration of shares of the original Plaintiffs and the original Defendant no. 1, preliminary decree for partition, final decree for partition along with other prayers. 10. Defendant no. 1, 2, 3 & 4 filed written statement contesting the suit. It is not denied that the original Plaintiffs and the Defendant no. 1 were brothers. But it is denied that the Defendant no. 1 and the Plaintiffs belonged to a joint Hindu family or formed a joint Hindu family, or that after coming to Calcutta they jointly owned business or properties acquired out of joint family fund. It is stated in the written statement that during the lifetime of his father, late Bhushan Chandra Mondal, the original Defendant no. 1 came to Calcutta in the year 1924 to earn livelihood. At that point of time the original Plaintiff no. 1 was about 12 years old and the original Plaintiff no. 2 was 16 years old, and they remained with their father in their native place. On coming to Calcutta, the original Defendant no. 1 initially took employment in a firm named as “Nritya Gopal Gon”. After 3 – 4 years he became a working partner there. In the year 1934, the said partnership firm was dissolved. The original Defendant no. 1 started a new business which flourished gradually. The original Defendant no. 1 acquired new businesses and also purchased properties. 11. In or about 1934 – 35, the original Plaintiff no. 2 came to Calcutta and took employment in a shop located at Cornwallis Street, now named as Bidhan Sarani. 12. After sometime, the original Plaintiff no. 2 went back to his native village and started his own shop there. After few years he again came to Calcutta and started his own business. The original Defendant no. 2 came to Calcutta and took employment in a shop located at Cornwallis Street, now named as Bidhan Sarani. 12. After sometime, the original Plaintiff no. 2 went back to his native village and started his own shop there. After few years he again came to Calcutta and started his own business. The original Defendant no. 1 as an elder brother, provided shelter to him when he came to Calcutta to seek his carrier in the year 1950, the original Plaintiff no. 1 came to Calcutta. In the year 1951, the original Defendant no. 1 purchased house properties at premises no. 33 and 34 Mondal Street, Calcutta. The original Defendant no. 1 permitted the Plaintiffs and their family members to stay in the premises no. 33, Mondal Street, Calcutta on leave and licence which had been revoked subsequently. 13. It is further stated in the written statement that when the original Plaintiff no. 1 came to Calcutta in the year 1950, he started a business of the name and style of M/S. Arnapurna Vegetable Stores at 50, Kali Krishna Tagore Street, Calcutta as a sole proprietor. Tenancy of the shop-room was taken by the Plaintiff no. 1. Tenancy of the shop-room at 46, Nalini Sett Road was taken by the original Defendant no. 1 for his personal business. In or about the year 1961, the original Plaintiff no. 2 came to Calcutta. That time he had no room to reside. So he was allowed to reside in the said shop-room by the original Defendant no. 1. On request, the original Defendant no. 1 allowed the original Plaintiff no. 2 to start a business of iron and hardware goods in a portion of the said shop-room of the name and style of M/S. Mondal & Company. The said business was initially a partnership business, the original Plaintiff no. 2 and one Barindra Nath Chakraborty being the partners. On dissolutions of the said partnership business in the year 1972, the original Plaintiff became the sole proprietor. Thereafter, the original Plaintiff no. 2 gifted the said business in favour of the original Defendant no. 3 who accepted the same. Telephone connection was taken in the shop-room by the original Plaintiff no. 2 in the name of his son when the son was 15 years old in the year 1963. Neither the business of M/S. Arnapurna Vegetable Stores nor M/S. Mondal & Co. 2 gifted the said business in favour of the original Defendant no. 3 who accepted the same. Telephone connection was taken in the shop-room by the original Plaintiff no. 2 in the name of his son when the son was 15 years old in the year 1963. Neither the business of M/S. Arnapurna Vegetable Stores nor M/S. Mondal & Co. were joint family business. At all material point of time the original Defendant no. 1 as lawful tenant in respect of the shop-room located at 46, Nalini Sett Road, Calcutta. The go-down located at 3, Ratan Sarkar Garden Street, Calcutta was acquired by the original Defendant no. 5 as a monthly tenant out of his own fund for his personal benefit. The original Defendant no. 5 had the possession of that tenancy. The original Defendant no. 5 had allowed the original Defendant no. 2 to use the go-down. The original Defendant no. 6 was a monthly tenant in respect of the premises no. 50, Kali Krishna Tagore Street. This tenancy was acquired by the Defendant no. 6 out of his own fund. In or about the year 1976, the Defendant no. 6 surrendered the tenancy and the original Defendant no. 3 became monthly tenant thereof. At all material point of time the business of the name and style of M/S. Joylakshmi Bhander belonged to the original Defendant no. 3. The said business was closed in or about the year 1973 – 74. Since then, the shop-room had been in the possession of the original Defendant no. 3, who allowed the original Defendant no. 2 to use the same. It is further averred in the written statement that two businesses of the name and style of M/S. Dipak Medical Hall and M/S. Sree Guru Paint Varnish Co. (Paint Me), at all material points of time were separate and personal business of the original Defendant no. 2. 14. A specific plea is taken in the written statement that the suit is barred by section 281A of Income Tax Act. The original Plaintiffs filed the suit without complying with conditions precedent to filing suit involving claim for benami as laid down in Section 281A (i) (a) (b) and (c) of the Income Tax Act. 15. 2. 14. A specific plea is taken in the written statement that the suit is barred by section 281A of Income Tax Act. The original Plaintiffs filed the suit without complying with conditions precedent to filing suit involving claim for benami as laid down in Section 281A (i) (a) (b) and (c) of the Income Tax Act. 15. In nutshell, the answering Defendants denied existence of joint family or properties and businesses; that the properties were acquired out of joint fund or that the original Plaintiffs had any right, title and interests in the properties or businesses in question. According to the answering Defendants, the suit is liable to be dismissed. 16. On death of the original parties, respective legal heirs were substituted. 17. On the basis of rival pleadings, the following issues were framed: 1. Was there any Hindu Joint Family consisting of the original Plaintiffs and the original Defendant no. 1 as alleged in paragraph 2 of the plaint? 2. Are the properties both immovable and movable including businesses mentioned in Schedule ‘A’ and ‘B’ to the plaint, jointly family properties of the Plaintiffs and the original Defendant no.1, since deceased? 3. Are the Plaintiffs and the original Defendant no. 1 since deceased, joint owners of the immovable and movable properties mentioned in Schedule ‘A’ and ‘B’ to the plaint, each having undivided equal 1/3rd shares therein? 4. Are the Defendants liable to render accounts in relation to the businesses run by them exclusively as also immovable properties let out to the tenants and other assets lying in their hands? 5. Is the Defendant no.4 a benamdar in respect of premises no. 17/2, Shibtolla Lane, Kolkata or was the said property acquired out of any fund of any alleged joint family as alleged in paragraph 7 of the plaint? 6. Is the suit barred as alleged in paragraph 29 of the written statement? 7. Is the suit barred by limitation? 8. To what relief, if any, are the parties entitled? Both the parties adduced oral and documentary evidences. Issue No.1, 2, 3, 4: 18. The principal pillar of argument of the Learned Counsel for the Plaintiff on the Issue No.1 is that all the businesses were funded out of the joint family fund and all the immovable properties were acquired out of such joint family fund. Both the parties adduced oral and documentary evidences. Issue No.1, 2, 3, 4: 18. The principal pillar of argument of the Learned Counsel for the Plaintiff on the Issue No.1 is that all the businesses were funded out of the joint family fund and all the immovable properties were acquired out of such joint family fund. Although businesses were initiated in the name of different family members or properties acquired in the different names, all were joint family businesses and properties and Sahadev Mondal, the original Defendant No.1 was at the helm of all. It is Sahadev Mondal at whose desire, will and instance properties were administered and managed and businesses were run. He referred to Ext.-A which are series of letters, bills and vouchers in the handwriting of Sahadev, being the balance sheet of M/S. Mondal and Company; Ext.-C, documents related to bills for supply of medicines to M/S. Dipak Medical Stores; all these bills were acknowledged and received by the present Plaintiff no. 2(c); Ext.-D which are sales tax forms in respect of M/S. Annapurna Vegetable Stores being filled up in own handwriting by Sahadev, the original Defendant No.1; Ext.-E series being handwritten letters of Sahadev, the original Defendant No.1 giving instructions to the manager of the joint family properties (Gomosta) on management and administration of the joint family properties. The Learned Counsel also referred to Ext.T series being documents relating to accounts of M/S. Dipak Medical Hall, handwritten by Sahadev Mondal, the original Defendant No.1; Ext.-U being documents filed in the Office of the Settlement Officer in respect of the properties belonging to Khatian No.139 and Dag No.281. Apart from these, the Learned Counsel referred to other exhibits and oral testimony of P.W.1 to establish his point. According to the Learned Counsel for the Plaintiff, the only point required to be established is the nucleus of the properties to prove jointness of the family. Evidence adduced on behalf of the plaintiffs proves togetherness and jointness of the family including ancestral properties of the original parties. Written statement contained evasive denial of the plaint case. 19. According to the Learned Counsel for the Plaintiff, the only point required to be established is the nucleus of the properties to prove jointness of the family. Evidence adduced on behalf of the plaintiffs proves togetherness and jointness of the family including ancestral properties of the original parties. Written statement contained evasive denial of the plaint case. 19. Referring to the observations of the Supreme Court of India [V.D. Dhanwate vs The Commissioner of Income Tax, ( AIR 1968 SC 683 )], the Learned Counsel argued that it cannot be contended that if a coparcener of a Hindu Joint Family takes any aid from family funds in making any acquisition, however slender it may be, the acquisition in question should be considered as family acquisition. Referring to observations made by the Supreme Court of India in Bhagwant P Sulakhe vs Digambar Gopal Sulakhe & Ors. ( AIR 1986 SC 79 ), it is submitted that the character of any joint family property does not change with severance of the status of joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned by metes and bounds among the co-sharers. By unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property. The Learned Counsel for the Plaintiffs also referred to a decision of the Supreme Court of India, Shreya Vidyarthi vs Ashok Vidyarthi & Ors. [ (2015) 16 SCC 46 ] to sinuate his argument. 20. Per contra, the Learned Counsel for the answering defendants argued that under Dayabhaga law there cannot be a Joint Hindu family consisting of father and the sons. Referring to the evidence on record, it is submitted that the original Defendant No.1, namely Sahadev Mondal came to Calcutta in 1924 for earning livelihood, which is admitted by P.W.1. His father was living at that point of time. At least till the death of Bhushan Chandra Mondal, since deceased, there could not have been any joint family. Even after 1928, the original Plaintiffs and the original Defendant no.1 were not residing together; neither were they residing together in commensality, nor were joint in food nor in worship and estate. His father was living at that point of time. At least till the death of Bhushan Chandra Mondal, since deceased, there could not have been any joint family. Even after 1928, the original Plaintiffs and the original Defendant no.1 were not residing together; neither were they residing together in commensality, nor were joint in food nor in worship and estate. The original Plaintiff no.2 came to Calcutta for a short period in the year 1934-35, took up employment in a shop and after sometimes returned back to his native place. Referring to the depositions of the parties, the Learned Counsel submitted that the original Plaintiffs and the original Defendant no.1 never resided together at least till 1950, nor lived in commensality. The original Plaintiff no.2 and the original Defendant No.1 at least did not reside together in commensality till 1961. It is pointed out by the Learned Counsel that in his examination-in-chief, the original Plaintiff no.1 completely abandoned his plaint case, as averred in Para.2 & 3 of the plaint, and adopted the case made out in the written statement. It is further argued that the fact that Sahadev, the original Defendant no.1 earned money and accumulated his own funds and resources prior to the original Plaintiff arrival at Calcutta for the first time in 1950, is supported from material evidences. There is no evidence that businesses were started out of common family fund. The Learned 21. Counsel referred to Ext.-1 which is a letter containing the statements of the original Plaintiffs and the original Defendant No.1 to the effect that the relation between them is brother but they are not members of the same family within meaning of West Bengal Food Grains Procurement (Levy) Order, 1975 and that each of them cultivated the respective lands separately and each of them were living separately and holding property separately. According to the Learned Counsel, this admission undermines the plaint case of existence of joint family property. 22. The Learned Counsel for the answering defendants referred to a Division Bench judgment of this Court in Gouranga Sundar Mitra & Anr. Vs Mehendra Narayan Mitra & Ors. (AIR 1927 Cal. 776) to submit that under the Dayabhaga there cannot be a joint family consisting of the father and the sons, because so long as the father is alive he is the master. Vs Mehendra Narayan Mitra & Ors. (AIR 1927 Cal. 776) to submit that under the Dayabhaga there cannot be a joint family consisting of the father and the sons, because so long as the father is alive he is the master. The sons may acquire separate properties of their own but they have no concern whatsoever with the joint family property, if any property can be so called during the lifetime of the father. He also referred to Hemchandra Ganguli vs Matilal Ganguly (AIR 1934 Cal. 68) in support of his argument. The Learned Counsel also referred to the observations of the Supreme Court of India in Commissioner of Wealth Tax, West Bengal vs M/S Biswanath Chatterjee & Ors. [ (1976) 3 SCC 385 ] in further support of his argument. 23. I have heard rival submissions. 24. Two issues are raised by the Plaintiff, one is existence of Joint Hindu Family and the other is existence of joint family property. In order to establish the case, P.W.1 deposed that on death of their father Bhushan Chandra Mondal a joint family was formed with Sahadev, the original Defendant no.1, at the helm of the same. It is in his testimony that joint family was headed by Sahadev and he took all decisions regarding management and administration of joint family properties. P.W.1 referred to various exhibits, as stated above, namely bills, entries in books of accounts, sales tax challans prepared by Sahadev in his own handwriting to demonstrate that it is Sahadev who being the head of the family conducted all businesses by his own will and dictates although the businesses were opened in names of different members of the family. All these evidences were relied upon to establish existence of joint family. 25. It is in the evidence of PW 1 that Sahadev, namely, the original Defendant no. 1 came to Calcutta in the year 1924 to 1925 when their father Bhushan Chandra Mondal, since deceased, was alive. Bhushan Chandra Mondal expired in the year 1928. It is in the evidence of PW 1 that Sahadev never returned to his native village, making it evident that before or after death of their father, Sahadev was not in his native village although, the Plaintiffs were living there. In the year 1934 to 1935, Plaintiff no. 2 came to Calcutta started joint business with original Defendant no. It is in the evidence of PW 1 that Sahadev never returned to his native village, making it evident that before or after death of their father, Sahadev was not in his native village although, the Plaintiffs were living there. In the year 1934 to 1935, Plaintiff no. 2 came to Calcutta started joint business with original Defendant no. 1 but on failure on business returned to his native village. Evidence of P.W.1, here, is at variance with the plaint case that three brothers, in their prime came to Calcutta to make fortunes and that after coming to Calcutta, they started their first joint business under the name and style of M/S. Arnapurna Vegetable Stores. It is in oral testimony of P.W.1 that Sahadev, the original Defendant No.1 came to Calcutta in the year 1925-26 and joined in the service of a Jaminder. Mrityunjay, the original Plaintiff No.2 made visit to Calcutta once in a while. It is evident that Sahadev, namely, the original Defendant no. 1 did not live along with the Plaintiffs neither in their place of nativity nor in Calcutta. It is in oral testimony of P.W.1 that the business of M/S. Annapurna Vegetable Store was started by the original Plaintiff No.2 and the Defendant No.1, namely Mrityunjay and Sahadev respectively, in the year 1945. Oral testimony of P.W.1 contradicts pleading in this respect belying the veracity of testimony. 26. During lifetime of the father there was no joint family consisting of father and the sons. Under the Dayabhaga there cannot be a joint family consisting of the father and the sons because so long as the father was living he is the masters. This is observations of the Division Bench of the Calcutta High Court in Gouranga Sundar Mitra and Another Vs. Mahenddra Narayan Mitra and Ors., [AIR (1927) Cal 776]. Division Bench of Calcutta High Court in Hemchandra Ganguli v. Matilal Ganguli (AIR 1934 Cal 68) observed: “It is now well-recognised that, under the Dâyabhâga school of Hindu law prevalent in Bengal, there cannot be a joint family consisting of the father and the sons. The sons may acquire separate property having no concern with the joint family property, if any property can be called joint family property during the lifetime of the father. The sons may acquire separate property having no concern with the joint family property, if any property can be called joint family property during the lifetime of the father. It must also be taken to be well established that brothers living in commensality are not members of joint Hindu family governed by the Dâyabhâga, so as to enable the brothers to claim the self-acquisition of a brother in more affluent circumstances as acquisition of a joint family, unless these other brothers proved that they had also contributed to the acquisition of the property claimed by them as acquisition by the joint family.” 27. Mode of living in joint families under Dayabhaga School is that they are joined in food, worship and estate. In several Dayabhaga families the members are separate in food and worship. They allow property to be managed by a common manager and divide the net income among themselves. There is another class of families in which ancestral properties consists of a dwelling house or other properties yielding income and the members live abroad for earing their livelihood by service or profession. These families are also to be deemed separate. It is not uncommon also that a prosperous and affluent member of the family may, with all his expertise and experiences, extends help to other family members whether in running their own business or otherwise. This does not make a joint family. Sahadev might have done this. But this itself does not prove existence of a joint family business. A joint family must be joined in food, worship and commensality. 28. It is in the evidence of the P.W1 himself that the original Defendant No.1 was living in Calcutta prior to death of their father and the Plaintiff no.2 had occasionally visited Calcutta whereas the Plaintiff No.1 was in the place of nativity. It is in evidence that the original Defendant no. 1 resided with his family at 25, Darpa Narayan Tagore Street, till 1943 there is no evidence that Plaintiffs or any of the Plaintiffs resided therein. It is in the evidence that after 1942 to 1943 the original Defendant no. 1 started residing with his family at premises no. 70/3 Ratan Sarkar Garden Street, DW 1 stated in evidence that original Plaintiff no. 1 first came at that residence in the year 1950 where the original Defendant no. 1 had permitted the original Plaintiff no. It is in the evidence that after 1942 to 1943 the original Defendant no. 1 started residing with his family at premises no. 70/3 Ratan Sarkar Garden Street, DW 1 stated in evidence that original Plaintiff no. 1 first came at that residence in the year 1950 where the original Defendant no. 1 had permitted the original Plaintiff no. 1 to reside considering the fact that he is a brother. These circumstances and material evidence does not indicate or raise any presumption that there is a joint Hindu family as averred by the Plaintiff. 29. Existence of joint Hindu family, even if it is assumed, does not prove existent of joint property. This is settled law that there may be joint Hindu family without joint property or members of the family may have their separate properties. Privy council in Randhi Appalaswami Vs. Randhi Suryanarayanamurti [(1947) SCC OnLine PC 42], speaking for the Bench Sir John Beaumont observed: “Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is 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, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.” 30. Relying on this observation Three Judges’ Bench of the Supreme Court of India in Shrinivas Krishnarao Kango Vs. Narayan Devji Kango & Ors., [(1954) 1 SCC 544 observed: “10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. In Randhi Appalaswami v. Randhi Suryanarayanamurti, 1947 SCC OnLine PC 42 : (1947) 60 LW 412 : ILR 1948 Mad 440, the nucleus of Rs.7220 included 6/16th share in a rice mill and outstandings of the value of Rs 3500, and as the acquisitions in question were made during a period of 16 years it was possible that the joint family income might have contributed therefor. But in the present case, the finding of the courts is that the income from the lands was not sufficient even for the maintenance of the members, and on that, they were right in holding that the plaintiff had not discharged the initial burden which lay on him. But even if we are to accept the contention of the appellant that on proof of the existence of the watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold on the facts that that burden had been discharged.” 31. Three Judges’ Bench in Narayana Raju (Dead) By His Legal Representative Vs. G. Chamaraju & Ors., ( AIR 1968 SC 1276 ) was confronted with the issue of joint family business. The relevant observation of the Supreme Court of India is: “It is well established that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact.” 32. Again, in Baikuntha Nath Paramanik Vs. Sashi Bhusan Pramanik [ (1973) 2 SCC 334 ] Three Judges’ Bench of the Supreme Court of India observed: “When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions.”. 33. In Commissioner of Wealth Tax, West Bengal Vs. Biswanath Chatterjee & Ors., [ (1976) 3 SCC 385 ] the Supreme Court considered the authorities on dayabhaga referring to the text of Jimuta Bahana. It was observed that anyone parcener is proprietor of his own wealth, partition at the choice even of a single person is deducible. It is explained and elucidated that heritage does not therefore, become the joint property of the heirs or the joint family of the last owner but becomes a fractional property of the heirs in well-defined shares. That is why, Mitakhsara is designated as the school of aggregate ownership while dayabhaga as known as the school of fractional ownership. This is the reason, further explained, according to the Bengal School, sons become tenants in common and not joint tenants in respect of the estate inherited by them from their father. 34. Coming to the case in hand, several factual aspects should be considered. The original Plaintiff being P.W. 1, both in the plaint as well as in oral testimony, consistently reiterated that all the business were funded from joint family fund and the properties, subject matter of the present suit, were also purchased out of family fund. Even it is stated P.W. 1 that the immovable property located at Mondal Street, although purchased in the name of Sahadev was funded out of joint family fund; P.W. 1 and Mritunjoy handed over Rs.40,000/- to Sahadev for purchasing the said piece and parcel of the property. Even it is stated P.W. 1 that the immovable property located at Mondal Street, although purchased in the name of Sahadev was funded out of joint family fund; P.W. 1 and Mritunjoy handed over Rs.40,000/- to Sahadev for purchasing the said piece and parcel of the property. It was stated that a sum of forty thousand rupees was kept in an iron chest and was yield of family business. The statement was contradicted in course of cross examination that Sahadev purchased the said immovable property at 33 & 34 Mondal Street on mortgage. When confronted with the question whether the Plaintiff was able to prove the books of accounts of the business or business which yielded such a huge amount of money of Rs.40,000/-, he failed to show any documents or produced any evidence. It is in the evidence of P.W. 1 that his father was a cultivator. What is missing in the evidence of P.W. 1, is aggregate income of the immovable properties. There is no evidence as to how the joint family fund was created. There is no mention of any income from properties at native place. Plaint case was that all the three brothers started a business at Calcutta of the name and style of M/S. Annapurna Vegetable Stores which is the source out of which another business of the name and style of M/S. Mondal & Co. was opened. This evidence was contradicted by P.W.1 himself, firstly. Secondly, a sweeping and evasive statement of existence of a joint family fund without any material details failed to establish that there existed a common nucleus, a joint fund, source of funding joint family business of purchase of joint family properties. It was observed by the Supreme Court of India in Shrnivas Krishnarao Kango’s case (supra) that important thing to consider is that income which the nucleus yields. The building in occupation of the members may not yield any income failing to constitute a nucleus out of which acquisitions can be made. In P.S. Sairam v. P.S. Rama Rao Pissey, [ (2004) 11 SCC 320 ], referring to G. Narayana Raju ‘s case (supra) it was observed by the Supreme Court of India: “7. Crucial question in the present appeal is as to whether business which was conducted by Defendant 1 was his separate business or it belonged to joint family, consisting of himself and his sons. Crucial question in the present appeal is as to whether business which was conducted by Defendant 1 was his separate business or it belonged to joint family, consisting of himself and his sons. It is well settled that so far as immovable property is concerned, in case the same stands in the name of individual member, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business.” 35. The Plaintiff failed to establish that there was income from the properties in their native place which yielded sufficient income to constitute a nucleus or having sufficient money to fund businesses as well as to purchase of immovable properties. It is in evidence that Sahadev that is the original Defendant no. 1 was in Calcutta since 1924 to 1925 under initially working under Nittya Gopal Goon and subsequently acquired the partnership business. The initial burden was on the Plaintiffs to show that there was a nucleus sufficient to purchase properties or fund businesses. The Plaintiff failed to discharge the burden of proof in this regard. 36. The Learned Counsel for the Plaintiff referred to various decisions to demonstrate that the general doctrine of Hindu Law is that the property acquired by a karta or a coparcener with aid or assistance of joint family assets is impressed with the character of joint family property. The Plaintiff failed to show that there was an acquisition of property by individual member out of a nucleus or common fund. The ratio of the decisions referred to by the Learned Counsel for the Plaintiff is not applicable in the instant case as the Plaintiff failed to establish existence of any joint family nucleus. Questions were put to the Plaintiff in course of cross-examination as to whether the immovable properties at their native place is a debutter property or not. But he could not reply, he said that he could not remember. Suggestions were given to him in course of cross-examination that there was no joint family or properties purchased out of joint family fund. He said that all the properties were maintained by Sahadev. The Defendant produced a letter. But he could not reply, he said that he could not remember. Suggestions were given to him in course of cross-examination that there was no joint family or properties purchased out of joint family fund. He said that all the properties were maintained by Sahadev. The Defendant produced a letter. The Plaintiff admitted, in course of cross-examination, that properties mentioned in Schedule A of the plaint, were acquired by the three brothers with self-earned money and not a joint family property; this are not parental property. Ext. 1 is a letter of objection addressed to the requiring authority under the West Bengal Food Grains Procurement (Levy) Order, 1975 were the original Plaintiffs and original Defendant no. 1 alleged that they were living separately and were cultivating their lands separately. It is also contended in the said letter that relation between them where brother but they were not members of the same family. 37. Evidences adduced by the Plaintiff failed to establish that the properties contained in the Schedule A of the plaint and business run were joint family properties purchased out of joint family fund. Therefore, the issue no. 1 is decided against the Plaintiff. 38. As observed above, that there existed no joint property it is clear and evident that Defendants are not liable to render any account in relation to the business run by them expressively as also the immovable properties let out to tenants and other assets. These issues are also decided against the Plaintiff. Issue No.5, 6,7 & 8: 39. Issue no. 5 to 8 are considered together. The suit was instituted in the year 1979 when Benami Transaction Prohibition Act, 1988 was not in operation. The said Act had no retrospective effect. It is trite law that when a plea of benami is taken burden of proof lies on the person, who asserts so that the property is benami. In Jaydayal Poddar Vs. Bibi Hazra [(1974) 1 Supreme Court Cases 3] speaking for the Bench, Justice R. S. Sarkaria succinctly, laid down the principle of law: “6. It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. Bibi Hazra [(1974) 1 Supreme Court Cases 3] speaking for the Bench, Justice R. S. Sarkaria succinctly, laid down the principle of law: “6. It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, it any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.” 40. It is further clarified that these indicia are not exhaustive and their efficacy varies according to the facts of each case. But the source wherefrom the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another. It is further clarified that these indicia are not exhaustive and their efficacy varies according to the facts of each case. But the source wherefrom the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another. This principle of law was subsequently referred to in Thakur Bhim Singh vs. Thakur Kan Singh [ (1980) 3 SCC 72 ] where the Supreme Court of India laid down: “18. The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc.” 41. In Valliammal Vs. Subramaniam 23 (2004) 7 SCC 233 , this issue was against considered by the Supreme Court India. Six parameters were discussed referring to Jaydayal Poddar’s Case (supra) it was observed that it is well-settled that the intention of the parties is the essence of benami transaction and money must have been provided by the party invoking the doctrine of benami. 42. These principles of law, so laid down, was again reiterated and discussed in Binapani Paul vs. Pratima Ghosh and Ors. [(2007) 6 Supreme Court Cases 100] referring to Thakur Bhim Singh’s Case (supra) as well as the four indicia laid down therein. It was observed by the Supreme Court of India in this case that the four factors should have to be considered cumulatively. [(2007) 6 Supreme Court Cases 100] referring to Thakur Bhim Singh’s Case (supra) as well as the four indicia laid down therein. It was observed by the Supreme Court of India in this case that the four factors should have to be considered cumulatively. The Court in this case considered the relationship of the parties, namely, husband and wife primarily motive of the transaction i.e. security for the wife and seven minor daughters as they were not protected by the prevailing law and the legal position at that material point of time. 43. Coming to the case in hand, as discussed above, except fleeting statement, the Plaintiffs failed to furnish any iota of evidence to establish that there existed a joint family nucleus which is the source of fund and out of that fund properties were purchased benami. P.W.1 stated in evidence that the original Plaintiffs provided money to the extent of Rs. 40,000/- to the original Defendant No.1 out of business income of M/S. Annapurna Vegetable Store which served as joint family fund. Money handed over to the original Defendant No.1 out of that fund was utilized by him to purchase the properties located at 33 and 34 Mondal Street. At that material point of time that sum was a hefty one. P.W.1 failed to furnish any books of accounts of the business to show that the business was thriving enough to yield that hefty amount of surplus. On the contrary, evidence was adduced to establish that Sahadev, the original Defendant No.1 purchased the said properties at 33 and 34 Mondal Street on mortgage. In fact, in spite of hackneyed refrain of existence of an imaginary joint fund or joint family property, no evidence was adduced by the Plaintiffs to establish that, as observed earlier. The Plaintiffs failed to prove existence of any fund out of which a property was purchased in benami. Therefore, it is not proved that the properties and business, as mentioned in the plaint and as claimed in the plaint, were not subject of any benami transaction. 44. Issue No.5 is decided against the Plaintiffs. 45. Section 281A of the Income Tax Act was repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988), section 7 (w.e.f. 19-5-1988). Therefore, it is not proved that the properties and business, as mentioned in the plaint and as claimed in the plaint, were not subject of any benami transaction. 44. Issue No.5 is decided against the Plaintiffs. 45. Section 281A of the Income Tax Act was repealed by the Benami Transactions (Prohibition) Act, 1988 (45 of 1988), section 7 (w.e.f. 19-5-1988). Original section 281A provided that no suit to enforce any right in respect of any property held beanami whether against the person in whose name the property is held or against any other person, shall be instituted in any court by or on behalf of a person (hereafter in this section referred to as the claimant) claiming to be the real owner of such property unless (a) the income, if any, from such property has been disclosed in any return of income furnished by the claimant under this Act; or (b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth-lax Act, 1957 (27 of 1957); or (c) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income-tax Officer. Analyzing this provision on its terms, it is clear that two conditions need be fulfilled to attract its application. In the first place, the right to be enforced must be in respect of a property held in the name of the benamidar and, secondly, such a claim must be made by or on behalf of a person claiming to be the real owner. As discussed above, the Plaintiffs failed to establish that the properties were purchased in benam or that the businesses were funded out of joint family nucleus. Therefore, in my opinion, the suit is maintainable and is not hit by the provision of then existing section 281A of the Income Tax Act. 45. Issue No.6 is decided in favour of the Plaintiffs. 46. In Mansharam Chakraborty Vs. Gonesh Chakraborty [17 CWN 521 (Cal)] it was observed by the Division Bench of this High Court that cause of action in a suit for partition of joint property is a recurring one. Although it is not proved that the property is joined yet the cause of action is based on claim of joint property. 46. In Mansharam Chakraborty Vs. Gonesh Chakraborty [17 CWN 521 (Cal)] it was observed by the Division Bench of this High Court that cause of action in a suit for partition of joint property is a recurring one. Although it is not proved that the property is joined yet the cause of action is based on claim of joint property. In decisions of Mansharam Chakraborty’s case was relied upon by the Supreme Court of India in Syed Shah Gulam Ghose Mohi-uddin Vs. Syed Shah Ahmed Mohi-uddin Kamisul ( AIR 1971 SC 2184 ): “The cause of action of partition of properties is said to be a “perpetually recurring one” (See Monsharam Chakravarty v. Ganesh Chandra Chakravarty [17 CWN 521 : 16 IC 383]” 47. Therefore, Issue no. 7 is decided in favour of the Plaintiff. 48. In view of discussion made in forgoing paragraph, it is observation and findings of this Court that the Plaintiff has failed to establish that there is a joint family and existence of any joint nucleus having sufficient money to fund the businesses and purchased the property. The Plaintiff failed to produce any title deed of the immovable properties; nor he attempted or sought for production of such documents. When confronted with the questions of title and ownership on the properties at their native place, the Plaintiff failed to answer whether these properties were debutter or not. As such, the Plaintiff failed to establish any joint property by cogent evidence entitling him to relief prayed for. Therefore, the Plaintiff is not entitled to any relief. 49. Issue no. 8 is, therefore, decided against the Plaintiff. 50. In nutshell, for reasons discussed above, the Plaintiff is not entitled to any relief as prayed for and the suit must fail. 51. Accordingly, it is ordered that this suit is dismissed on merit without any costs. 52. The instant suit is disposed of accordingly.