JUDGMENT
1. In this case one Shib Dayal brought a suit for recovery of a moiety of certain properties by partition against his uncle Raghubar Dayal's sons, Maharaj Prasad and Matru Lal. On Shib Dayal's death were substituted his sons Roshan Lal and Mukat Behari Lal. The properties were six in number. For the purposes of this appeal it is not necessary to specify them other than by their numbers 1 to 6. It is admitted that about the year 1893 there was a partition of the zamindari property. The question at issue in this case was whether these other six properties were ancestral and therefore the plaintiff was entitled to a moiety thereof, or whether they were, in fact, the self-acquired properties of the defendants or their father Raghubar Dayal. After the case had been remanded by the lower appellate Court for a decision as to whether the properties were ancestral or not, the lower appellate Court gave the plaintiff a decree as regards the properties Nos. 3 and 6 holding them to be ancestral and dismissed his suit as regards Nos. 1, 2, 4 and 5 on a two-fold ground that the plaintiff had failed to prove that those four properties were ancestral and that the defendants had been in possession over them within 12 years of the institution of the suit. The latter part of this finding we consider to be surplusage. In our opinion, it would have sufficed for the lower appellate Court to have held that the plaintiff had failed to prove that they were ancestral properties. Certain objections have been taken before us here as regards the statement of Matru Lal, son of Raghubar Dayal, and a further statement made in Ex. 2. No objection has been taken in regard to these matters in the grounds of appeal, but altogether apart from that we consider that their import and effect was purely a question of evidence and the lower appellate Court was entitled to give them such weight as it thought fit.
2. The real question that has seriously been argued before us is that the burden of proof was wrongly thrown upon the plaintiff. The lower appellate Court said the plaintiff has failed to prove by any satisfactory evidence that the property in suit is the joint ancestral property of the parties." We think that the lower appellate Court was right in laying the burden on the plaintiff. It is clear that the allegation that the property was ancestral was the only title upon which he came to Court and it was obviously for him to prove it. For the contrary proposition we are referred to by the appellants' Counsel to the case of Kundan Lal v. Shankar Lal (1913) 35 All 564. The case there is clearly distinguishable. It dealt with a case in which there had been no partition at all between the parties and the simple question whether the family being completely joint in every way and never having gone through a partition of any sort, the presumption was that any property held by an individual member of the family belonged to the joint family or not. We have here a totally different proposition. There had admittedly been a partition and the plaintiff was claiming that certain other properties were ancestral properties and that they had not been partitioned. The initial presumption certainly is that where there has been a partition it is complete and it is certainly clear here that it was for the plaintiff to prove his title. He failed to do that and we think that his suit was rightly dismissed as regards the four properties in regard to which he failed.
3. The result is that this appeal fails and is dismissed with costs, including in this Court, fees on the higher scale.