John Edge, Kt., C.J. and Brukitt, J.
1. This appeal has arisen in a suit in the plaint in which the plaintiffs alleged that the defendants and they (the plaintiffs) were members of a joint Hindu family; that no separation had taken place, and that the property in suit was joint. They claimed partition, and a declaration for maintenance of possession with regard to some of the property alleged to have been in their possession. The real question in the suit was whether or not the plaintiffs were entitled to share in the property of one Paljhan Singh. The plaintiffs are the sons of one Manohar Singh who died before 1864. The defendants are the sons of one Harnandan Singh who died on the 16th December 1891. Paljhan Singh died about 1885. Manohar Singh, Harnandan Singh and Paljhan Singh were brothers, and at one time were members of a joint Hindu family descended from their father Gauri Singh. Paljhan Singh left a widow, Nago Kuari, who died on the 3rd of May 1891. As we have said, the plaintiffs alleged in their plaint that the family was still joint. If that were a true statement of fact they would have been entitled to the relief for which they asked. The plaintiffs, however, by their evidence contradicted the allegations in their plaint, and by that evidence sought to prove a separation between the plaintiffs on the one part and Harnandan Singh on the other after the death of Paljhan Singh, the separation being alleged to have taken place about six months after the death of Paljhan Singh, i.e., about 1886. The defendants pleaded, and by their evidence sought to prove, that some twenty to twenty-five years before suit and after the death of Manohar Singh, the plaintiffs on the one side and Paljhan Singh and Harnandan Singh on the other, separated, Paljhan Singh and Harnandan Singh. remaining joint inter se. If that defence is established, the plaintiffs' case claiming to share the property of Paljhan Singh fails. The Subordinate Judge found the issue as to separation in favor of the defendants, and, with the exception of a small portion of the relief asked for by the plaintiffs, the right to which portion was not disputed, he dismissed the plaintiffs' suit. From that decree the plaintiffs have brought this appeal.
2. The first question for consideration is--on whom is the onus of proof in this case? Undoubtedly the presumption is that a joint Hindu family continues joint, unless it be admitted by the parties or proved by evidence that a separation has taken place. It is contended on behalf of the plaintiffs-appellants that that presumption applies in this case, and that unless we are satisfied that the defendants have made out their case, the plaintiffs are entitled to a decree in appeal. We do not agree with that contention. If it had not been proved by either side or admitted by the parties here that prior to the time when this suit was instituted the descendants of Gauri Singh had separated, the presumption to which we have referred would apply, and that presumption in this case would have been that at the commencement of this suit the descendants of Gauri Singh were still members of a joint family. It is, however, common ground, not on the pleadings, but on the evidence produced by both sides, that the descendants of Gauri Singh had separated prior to the commencement of this suit. For the plaintiffs it is contended that we should presume that the family remained joint until after the death of Paljhan Singh, even if we did not believe the evidence given on behalf of the plaintiffs to prove that the separation which took place was after the death of Paljhan Singh. In our opinion, the plaintiffs having, by their own evidence, destroyed the presumption that this family was, at the commencement of the suit, a joint family, it lies upon the plaintiffs to prove a separation at such a period in the family history as would entitle the plaintiffs to the relief which they sought, and they are in the same position under the circumstances of this case as would be any other plaintiff who sought to dispossess a defendant in possession of property, i.e., the plaintiffs have to prove their case. This view appears to us to be consistent with the principle of the decision of the Calcutta High Court in Obhoy Churn Ghose v. Gobind Chunder Dey I.L.R. 9 Cal. 237, at p. 243.
3. The remainder of the judgment is occupied entirely with a discussion of the evidence in the case, and is therefore not reported.--ED