Amberson Marten, C.J.
1. We hold that the lower appellate Court has here erred in law in throwing the burden of proof upon the plaintiffs. The learned Assistant Judge quotes from Mulla's Hindu Law: 'Every Hindu family is presumed to be joint in food, worship and estate unless the contrary is proved. The burden of proof therefore lies upon him who alleges separation.' Accepting that proposition, the Judge in para. 7 of his judgment has held that 'the plaintiff's have not succeeded in showing that in 1894 Vaman was separate from his brothers Hari and Anant, and that consequently the land, Survey No. 17, belonged exclusively to him and after his death to his son, viz., their vendor Chintaman.'
2. We think that the above proposition of law is stated far too widely or at any rate cannot be accepted without qualifications. In Ram Kishan Das v. Tunda Mal I.L.R. (1911) All. 677 it was held that there is no presumption that a Hindu family has any joint property, and that it is necessary to establish the existence of a nucleus of joint family property before the property in the possession of any one member can be presumed to be joint family property.
3. Then, in Mayne's Hindu Law, 9th Edn., at pp. 375, 377, 378 and 380 the law is discussed and clearly enunciated. At p. 377 it is stated :-
It may now be considered as settled law that it is necessary to establish the existence of a nucleus of a Joint Family property before the property in the possession of any one member can be presumed to be Joint Family property. This is really a logical corollary to the rule...that there is no presumption that a family, because it is joint, possesses joint property or any property.
4. Then, in the next paragraph, he explains that to say generally of any particular property in the possession of any member of the family, that it is presumably joint estate, is to assert one or other of a great many different propositions:-
Either that in its present condition it was ancestral property, or that it wag acquired by means or with the assistance of ancestral property, or by means of joint labour, or joint funds, or both, or that it was acquired by a single member without aid from other funds or from other members, and then thrown into the common stock. Now, these propositions are each different in their probability, and different in the facts which would establish them.
5. Then, at p. 380 it is said :-
If a member of the family admitted a partition among some of the members, but asserted that the others had remained undivided, the onus would lie upon him to make out such a case.
6. In the present case, Shridhar, the father of Vaman, Hari and Anant, died before 1888, and consequently prior to the purchase of the suit property by Vaman in 1894. It does not appear that Shridhar left any property. On the facts as found, Anant, one of the brothers, had already separated.
7. In our opinion, the learned Assistant Judge wrongly applied the presumption that Vaman and Hari must have been joint in 1894. Then, after holding that the plaintiff had failed to rebut that presumption, he next finds that by 1918 Chintaman (the adopted son of Vaman) and Keshav (the son of Hari and the natural brother of Chintaman) had become separate. How and when they so became separate the learned Judge does not state. Prima facie the fact of their separation would be quite inconsistent with the fact which the Court had relied on as establishing a course of conduct over a series of years as between Vaman and Hari and Chintaman and Keshav which would make the property joint property.
8. Consequently we think the proper course to adopt is that taken in Bhagubai v. Tukaram (1905) 7 Bom. L.R. 169 where very much, as here, the proper issues had not been framed in the Courts below. In the present case, there was no appropriate issue at all in the trial Court, and in the lower appellate Court the learned Judge framed no issues whatever. The case of Bhagubai v. Tukaram resembles the present. There Sir Lawrence Jenkins stated the law in very much the same terms as those I have just stated from Ram Kishan Das v. Tundu Mal and from Mayne, and then sent down the issues for determination by the lower Court. Those issues are appropriate in the present case, as we do not see our way to decide the case on the present materials on our finding that the presumption of law was wrongly raised and applied by the lower appellate Court. Accordingly, we will send down the following issues for determination by the lower appellate Court :
1. Was there a nucleus of joint ancestral family property and if so, what was the same ?
2. Was the property claimed by the plaintiffs in this suit or any part thereof the self-acquired property of Vaman, or was it acquired under such circumstances as it became the joint property of Vaman and Hari ?
3. If it was the self-acquired property of Vaman, then did it subsequently become the joint property of Vaman and Hari by being voluntarily thrown by Vaman into the joint stock with the intention of abandoning his separate claims upon it ?
4. If it was or became the joint property of the brothers, was it subsequently partitioned ?
5. Whether Vaman and Hari ever constituted a joint Hindu family If so, when if at all did they separate ?
9. As Vaman died in 1899 and Hari died in 1908, for the purpose of answering these issues Chintaman will be regarded as joint with Vaman, and Keshav with Hari, and the acts of either Vaman or Chintaman on the one hand, and Hari or Keshav on the other will be considered by the lower appellate Court down to the date of suit.
10. Then both sides wish to adduce further evidence. The appellants desire to put in evidence the document referred to towards the end of the judgment of the trial Judge which was excluded on certain grounds. The respondents also wish to adduce evidence because they say that the issues in the Court below may have misled them into not calling certain evidence which they otherwise would have called. We, accordingly, give liberty to both sides to adduce further evidence. In that event the lower appellate Court will have power to send the issues to the trial Court to have the necessary further evidence taken, and then returned to the lower appellate Court which will record its findings in the usual way. Those findings should be returned to us within three months.
11. There was yet one further point raised in the case, viz., that even on the appellate Court's judgment the plaintiffs in any event should have been awarded joint possession of the property along with the defendants. But that point has not been fully argued here. I only mention it to show that it has been taken before us and has not been overlooked. The draft order to be shown to us.
12. My brother Patkar reminds me that although it is conceded in the judgment that Shridhar left no property, yet counsel for the respondents wants to have an opportunity of proving, if he can, that Shridhar did leave property, and that there was consequently a nucleus of joint ancestral family property.
13. Stay application continued.