Burkitt and Blair, JJ.
1. This is a second appeal in a partition suit. The reply of the defendants to that suit was that the great hulk of the property sought to be partitioned was their self-acquisition, and that it did not belong to the joint family. It was admitted that some of the property scheduled in the plaint was joint property.
2. At the hearing in the first Court the Subordinate Judge very properly placed on the defendants the onus of proving that the property claimed by them was their self-acquired property. The defendants refused to accept the ruling of the Court in that matter. They persisted in their contention that the onus lay on the plaintiff, and declined to call any evidence in support of their case. They contented themselves with putting in certain sale-deeds and such like documents. As to those papers it is sufficient to refer to the case of Gajendar Singh v. Sardar Singh Weekly Notes, 1896, p. 23. Such documents unsupported by any parol evidence, are insufficient to establish the defendants' case. The first Court gave the plaintiff a decree. On appeal the District Judge has reversed that decision. He held that the onus of proof lay on the plaintiff. In so holding we have no doubt he was entirely wrong, and we say so on the authority of Dhurm Das Pandey v. Mussamat Shama Soondri Dibiah (1843) 3 Moo. I.A. 229, and of the High Court of Bengal in the case of Gobind Chunder Mookerjee (1874) 22 W.R., C.R., 248, and the cases cited therein. We hold that as the defendants set up their separate acquisition in a suit for the partition of a joint family, which admittedly was possessed as such of some property, the presumption of law was that the whole of the property of each individual belonged to the common stock. The burden of proving separate self-acquisition lay on the person asserting it. In our opinion therefore the decision of the Judge was absolutely wrong. We set aside his decree dismissing the suit.
3. It was urged for the respondents that we should now remand the record so as to give them an opportunity of putting in their evidence. We refuse to adopt that course. The defendants had ample opportunity to produce their evidence. They absolutely refused to submit to the ruling of the first Court and declined to produce evidence. They have only themselves to thank for the consequences. We refuse to assist them. The suit then was practically undefended and was properly decreed by the Court of First Instance in the absence of any evidence for the defence. That was a right decree. We restore it, and (setting aside the decree of the Lower Appellate Court) we allow this appeal with costs.