Taruck Chunder Poddar and Others Vs Jodeshur Chunder Koondoo

Sir Richard Couch, Kt., C.J.@mdashThis suit was brought by the plaintiffs to have their rights under a miras (hereditary) lease obtained by their ancestors of a certain share of a tenure known by the name of Baran Moollah confirmed and declared; and their case was that Isserchunder, the father of the second defendant, an infant, Brijokishur, the father of the first set of plaintiffs, and Hurish-chunder, the father of the second plaintiff, being three uterine brothers while living jointly and in commensality, acquired, with the aid of their joint funds, a mokurari maurasi lease on the 15th of Chaitra 1264 (27th March 1858). The defence Bet up was that the lease was in fact granted by the lessors to Isserchunder after the dissolution of the commensality between the coparceners, and that at the time of the granting of the lease, there was a verbal stipulation to the effect that, upon the payment of the bonus-money, the lease would be returned to the lessor, and that the defendant received back the bonus-money.

2. It seems that the issues had been framed by the predecessor of the Munsif who tried the case, and that the latter modified them and framed amongst others this, "whether the miras lease in respect of the share of the mauza in dispute had been acquired by Brijokishur, the father of the first plaintiffs, Hurish-chunder, the father of the second plaintiff, and by Isserchunder, father of defendant No. 2, while they were living jointly and in commensality, and had been held by them in joint tenancy; and whether, after their decease, the second defendant and the plaintiffs had been jointly in possession of the property, or whether the plaintiffs had been dispossessed of the property in suit by the first defendants;" and, secondly, "whether Isserchunder, the father of the second defendant, had acquired a miras lease in respect of the property in suit after severance of the commensality with the fathers of the plaintiffs," which was really involved in the first issue.

3. The Munsif then tried the case, and he said in his judgment:--"It has been satisfactorily proved that the said Isserchunder and his brothers, Brijo and Hurishchunder, held the property in dispute jointly both while they were living in a state of commensality, and also after a severance of the commensality, and that, after their death, the present plaintiffs and the defendant have also held the said property jointly," and then noticing what is laid down in Mr. Norton''s work on Evidence See s. 590, 2nd edition, and stating that it appeared that the three brothers were living in a state of family partnership, he said "a heavy burden lies on defendant No. 1 to prove the fact of the separate acquisition of the property in suit, and the defendant No. 1 has totally failed to discharge the said onus." He then decreed in favor of the plaintiffs, ordering that they should recover possession of the share which they claimed.

4. The case came on appeal before the Subordinate Judge, and he, after noticing the decree the Munsif had made, said:--"With reference to the second issue, I find that it is admitted on all hands that the miras lease, in respect of the property in suit, was obtained in the name of Isserchunder. Therefore, under the precedents quoted in the margin Mussamut Soobheddur Dossee v. Boloram Dewan, W.R., Sp. No. 57; and Khilut Chunder Ghose v. Koonj Lall Dhur, ante, p. 194, the onus of proving the fact of the acquisition of the leasehold property by the three brothers, namely, Isserchunder, Brijokishur, and Hurishchunder, the ancestors of the plaintiffs, with the aid of the joint ancestral funds, and at a time when the three brothers were living in a state of family partnership, was upon the plaintiffs. I am of opinion that the plaintiffs have failed to discharge the said onus satisfactorily." And he decreed the appeal, setting aside the Munsif''s decision, and ordering the suit to be dismissed.

5. In his judgment he also said that it had been proved that the miras lease was acquired by Isserchuuder, who had paid the bonus necessary for obtaining it; and as there was no evidence to show that the fathers of the plaintiffs, or the plaintiffs themselves, had any interest in the said leasehold estate, "it is not at all necessary to put the defendant to strict proof of his title." He therefore threw upon the plaintiffs the burden of proving that the property had been acquired by the family jointly, instead of putting the burden of proof upon the defendant as the Munsif had, and the question raised in this special appeal, and upon which, seeing the small amount of evidence there is in the case, the decision of the suit really depends, is, upon which party ought the burden of proof to have been laid.

6. Now the Judicial Committee of the Privy Council, in Nilkristo Deb Barmano v. Bir Chandra Thakur 3 B.L.R., P.C., 13, sec 17; S.C., 12 Moore''s I.A., 523, see 540, have laid down the rule by which this Court must be guided. At page 540, their Lordships say:--"The normal state of every Hindu family is joint. Presumably every such family is joint in food, worship, and estate. In the absence of proof of division, such is the legal presumption; but the members of the family may sever in all, or any of these three things. The family in which a title to a kingdom exists in one member follows this general law, but it follows it in part only, for the succession to a kingdom is an, exception to it from the very nature of the thing, the family may have property distinct from that to which a sole heirship belongs, and may continue joint." These observations have reference to the particular case before their Lordships, but here they lay it down in most distinct terms that every Hindu family is presumably joint in food, worship, and estate; and the same law had been laid down, in a previous case of Naragunty Lutchmeedavamah vs. Vengama Naidoo , where it is said that the presumption with regard to a Hindu family is that it remains undivided. In another case before the Judicial Committee, Dhurm Das Pandey and Others vs. Mussumat Shama Soondri , we find the law laid down which is applicable to the case before us. Their Lordships say:--"It is allowed that this was a family who lived in commensality eating together, and possessing joint property. It is allowed that they had some joint property, and there can be no doubt that, under these circumstances, the presumption of law is that all the property they were in possession of was joint property, until it was shown by evidence that one member of the family was possessed of separate property. Such evidence may be received, but their Lordships are of opinion that such evidence has not been given in this case, with regard to any part of the property. Now what has been relied upon, with regard to a portion of the property, has been chiefly that it was purchased in the name of one member of the family, and that there are receipts in his name respecting it, but all that is perfectly consistent with the notion of its having been joint property, and even if it had been joint property, it still would have been treated exactly in the same manner. We have heard from the highest authority, from the authority of Sir Edward East and Sir Edward Ryan, whose most valuable assistance we have in this case (and it gives me a confidence that I should not otherwise have felt) that the criterion in these cases in India is to consider from what source the money comes with which the purchase-money is paid. Here there has been no evidence given that the appellant had any separate property, or that it was from his funds that any part of the purchase-money was paid; therefore I think that, so far on this part of the case, no difficulty can be entertained, and that the whole of the property must be considered as joint property." Now, with regard to what their Lordships say as to the family being possessed of property, and that the presumption of law is that all the property the family is in possession of is joint property, the rule that the possession of one of the joint owners is the possession of all would apply to this extent that, if one of them was found to be in possession of any property, the family being presumed to be joint in estate, the presumption would be, not that he was in possession of it as separate property acquired by him, but as a member of a joint family. It being so, until in this case it is shown that Isserchunder had acquired it separately, and it was property which could by law be treated as a separate acquisition, the presumption is that it was the joint property of the family. It was for the person who set up a different state of things from what is to be presumed to give evidence of it. It was the duty of the defendant to meet the presumption which arose from the state of the family, and the possession by one of them of the property. That appears to me to be the result of the judgments of the Privy Council which I have referred to.

7. There is no doubt a conflict of decisions in this Court upon this subject. I can see no way of reconciling them. We must follow what has been laid down by the Court of Appeal from this Court; and I may observe that, in decisions of this Court which are in conflict, the judgments of the Privy Council do not appear to have been noticed; in some they have not been noticed at all, in others I do think they have not been noticed in the manner they would have been if the attention of the Judges had been directed to them. I have no doubt it frequently happens in this Court that all the authorities bearing on the subject are not presented to the Court in the argument, and this sometimes leads to a conflict of decisions.

8. I have said there are various decisions in this Court which cannot be reconciled with the law, which I feel bound by the judgments in the Privy Council to lay down. The case of Khilut Chunder Ghose v. Koonj Lall Dhur Ante, p. 194, which was quoted to us, is certainly contrary to the decision of the Privy Council. As to the case of Dhunookdharee Lall v. Gunput Lall ⁽¹⁾, it may be said that facts were found there which rebutted the presumption, and so it cannot be considered as laying down any rule as to the onus of proof. So the case of Mussamut Soobheddur Dossee v. Boloram Dewan W.R., Sp. No. 57 is also contrary to the decisions of the Privy Council. I must adopt the judgment of the Court of Appeal rather than the law laid down in that case. The case of Koonjbeharee Dutt v. Khetturnath Dutt 8 W.R. 270 is consistent with the decisions of the Privy Council. It was argued before us, and reference was made to the case of Banee Madhub Mookerjee v. Bhugobutty Churn Banerjee 1b, that it was not shown here that there was any nucleus of property by means of which this acquisition by Isserchunder might have been made, and that at least the plaintiffs ought to have given some evidence of that. I must observe that what is said in that case about there being a nucleus of property is only a dictum; no doubt, it would be very useful for the plaintiffs to show that, but I cannot agree that they are bound to do it. That dictum seems to me to be inconsistent with the doctrine laid down by the Judicial Committee. There is one more case which I must notice that is directly opposed to the decisions of the Privy Council--Shiv Golam Sing v. Baran Sing 1 B.L.R., A.C., 164. With every respect for the learned Judges who pronounced that decision, I feel obliged by the superior authority of the Privy Council to differ from it. The law laid down by the Judicial Committee in 12 Moore''s I.A. 3 B.L.R., P.C., 13. There is a note by the Chief Justice to this passage in the margin of the original judgment to the effect that the words "12 Moore''s I.A." should be "3 Moore''s I.A." does not appear to have been presented to the learned Judges. Probably, if it had been, they would, whatever their own opinion might be on the subject, have considered that they were bound to follow it.

9. The result of a consideration of the authorities appears to me to be that the Subordinate Judge was wrong in what he laid down as to the onus of proof. He improperly put upon the plaintiffs the onus of proving that (to use his own words) "the property was acquired with the aid of joint funds, and at a time when the brothers were living in a state of family partnership." That is opposed to the authorities which this Court is bound to follow, and on that account his decision must be reversed, and the case must be sent back to him for retrial. The costs of this appeal will follow the result of the suit.

(1) Before Mr. Justice L.S. Jackson and Mr. Justice Mitter.

The 8th July 1868.

Dhunookdharee Lall (Plaintiff) v. Gunput Lall (Defendant).^*

Hindu Law--Joint Family Property--resumption--Burden of Proof.

Baboo Debendro Narain Bose for the appellant.

Mr. R.E. Twidale for the respondent.

The following judgments were delivered:--

Jackson, J.--It is satisfactory to find that in this case our order of remand has produced from the Additional Judge a judgment infinitely more satisfactory and convincing than the judgment which came before the Court when the case was last heard.

It now appears that he has found as a fact, and it is not alleged that the evidence is not sufficient to warrant that finding, that the joint family property to which the plaintiff and defendant were entitled was not sufficiently large after supporting the members of the family to leave any surplus funds from which the property in suit could have been acquired, and it appears that the two brothers Gunput and Onpooch were at that time pursuing lucrative employments, the plaintiff himself being a minor..

In this state of facts, affording no ground for the usual presumption as to joint family estate, the plaintiff could not succeed. I entertain no doubt speaking for myself that our judgment remanding the case was perfectly just and right, and I have the satisfaction of seeing that it has borne fruit in the shape of a judgment which we are able to affirm.

The special appeal therefore will be dismissed with costs.

Mitter, J.--I am of the same opinion. It is admitted that the property in dispute was purchased by the defendant (respondent.) The plaintiff''s case, however, was that the purchase was made with joint funds belonging to himself and the respondent.

It is true that, in a case of this nature where the defendant pleads self-acquisition, the onus of proving such acquisition lies on the defendant. But all that the Hindu law requires the defendant to prove in such a case is that the property which he claims as his own was acquired "without detriment to the paternal estate," or in other words, without using the paternal estate, or the proceeds thereof. The defendant having shown that, in acquiring the property in suit, he did not use any property which belonged to the joint family, the presumption of joint ownership is at once rebutted, and it is for the plaintiff to show that the property was acquired in the manner alleged by him.

His case in the Court below was that the defendant received his education from the joint estate, and that he is consequently entitled to participate in every property that has been acquired by the defendant by the aid of such education. But this contention is nowhere sanctioned by the Hindu law, and I see nothing in justice to recommend it.

It is a mistake to say that, in every case in which a Hindu pleads separate acquisition, it is incumbent on him to show the source from which the money came. No doubt, as remarked by their Lordships of the Privy Council, in the case of Dhurm Das Pandey and Others vs. Mussumat Shama Soondri , the source from which the money comes is the "chief criterion" for determining as to whether a particular property is joint or separate, but their Lordships never said that it is the only criterion so as to render it obligatory on the party who pleads self-acquisition to give evidence of the particular source from which the money was derived.

The appeal ought therefore be dismissed with costs.

There is a note by the Chief Justice to this passage in the margin of the original judgment to the effect that the words "12 Moore''s I.A." should be "3 Moore''s I.A."

* Special Appeal, No. 3462 of 1867, from a decree of the Additional Judge of Tirhoot, dated the 23rd September 1867, reversing a decree of the Sudder Ameen of that district, dated the 22nd June 1865.