Henry Richards, Kt. C.J.
1. This appeal arises out of a suit in which the plaintiff sought a declaration that certain house property which had been attached in execution of a decree against his son, Makhan Lal, was the sole property of the plaintiff and therefore not liable to attachment and sale.
2. The facts as found by the court below are as follows. Jawahir Lal had three sons, Mangal Sen, Mohan Lal and Bhupat Lal. Mangal Sen died first, leaving a son, Kundan Lal, the plaintiff in the present suit. Mohan Lal died next and then Bhupat. Neither Mohan Lal nor Bhupat left issue. Two of the houses were acquired in the name of Mohan Lal. The third house was acquired in the name of Kundan Lal, the plaintiff, in the year 1890. The court below has found, and in second appeal we are bound by its finding, that Mangal Sen, Mohan Lal, Bhupat and the plaintiff, Kundan Lal, constituted a joint undivided Hindu family. The next finding is not very clear, but we take it to be this, that there was no evidence given that the ancestor Jawahir Lal had any ancestral property, or that Mangal Sen, Mohan Lal and Bhupat took any property by survivorship upon the death of Jawahir Lal. Under these circumstances the lower appellate court affirmed the decree of the court of first instance and dismissed the plaintiff's suit, holding that the property attached was joint family property.
3. The appellant contends that from the mere fact that Mangal Sen, Mohan Lal, Bhupat and Kundan Lal constituted a joint Hindu family, it must not be presumed that the property which was acquired in the name of Mohan Lal was joint property; and that therefore it must be taken that Kundan Lal inherited the houses which wore acquired in the name of Mohan Lal and did not take them by survivorship, and that therefore the property was in his hands not as ancestral or joint family property in which his son took any interest. In support of this contention the case of Gurumurthi Reddi v. Gurammal (1908) I.L.R., 32 Mad., 88 is cited, also the cases of Ram Kiskan Das v. Tunda. Mal (1911) I.L.R., 33 All., 677 and Shiu Golam Sing v. Baran Sing (1868) 1 B.L.R., A.C. 164 and several other cases. In the case of Ram Kishan Das v. Tunda Mal the facts were not unlike the facts of the present case, except that in that case it was the decree-holder who brought the suit for a declaration that the property which he had attached was liable to attachment and sale.
4. The respondent contends that on the finding that Mangal Sen, Mohan Lal, Bhupat and Kundan Lal constituted a joint Hindu family, it ought to be presumed that the property which was acquired in the name of Mohan Lal was joint family property.
5. In the absence of authority to the contrary, it seems to me that on principle there ought to be a presumption that property in the possession of a joint Hindu family, even though acquired in the name of a particular member of that family, is joint family property. The very idea, it seems to me, of a joint undivided Hindu family is complete unity of interest and joint possession of all property. No doubt members of a joint Hindu family can acquire and own separate property, but it would seem to me that this is some what abnormal and exceptional condition of things which ought to be proved. It must be remembered that there can be joint family property which is not ancestral. Such seems to have been the opinion of Sir RICHARD COUCH in the case of Taruck Chunder Totadar v. Joodheshteer Chunder Kundoo (1873) 19 W.R., C.R., 178. However this may be, the case of Ram Kishan Das v. Tunda Mal (1911) I.L.R., 83 All., 677 is an authority that where it is not proved that there was any nucleus of ancestral property, there is no presumption that property acquired in the name of any individual member, or in his possession, is joint family property, and some dissent is passed against the view taken by Sir RICHARD COUCH in the case already mentioned. It seems to me, however, that it is unnecessary in the present case to express any view on the correctness of the decision of Ram Kishan Das v. Tunda Mal, because I think that in the present case it is necessary for the plaintiff to establish the proposition that where property has been acquired in the name of a member of a joint and undivided Hindu family, there is not only no presumption that the property is joint, but that there is actually a presumption the other way, viz., that the property is separate, This, I think, would be a very great expansion of the decision of Ram Kishan Das v. Tunda Mal. It seems to me that the plaintiff coming into court and seeking a declaration that property which was acquired at the time the family was joint, it lay upon him to show that the property was the separate property of the individual member of the family in whose name it was acquired. It may be urged that the more fact that the property was acquired in his name raises some presumption that it was his separate property. It seems to me that such a contention has no force. It is well known that property which is undoubtedly joint is acquired in the name of individual members of the family. A joint family frequently consists of a largo number of members, many of whom may be infants of tender years or absent. In many cases it would be practically impossible to acquire the property in the names of all the family. It is common knowledge that joint property is seldom acquired in the names of all the members and not always in the name of the manager. This being so, and the normal and natural condition of the family being one of complete unity of interest, I cannot hold that any presumption arises from the mere fact that the property has been acquired in the name or names of one or more members of the joint family. If this view be correct, the plaintiff ought to have proved that the property was acquired with the separate property of Mohan Lal, or at least that after its acquisition he held it as separate property excluding the other members, I may mention here that it was assumed in the arguments that if the houses acquired in the name of Mohan Lal were joint, the property in the other house was joint also.
6. For these reasons I would confirm the decision of the court below and dismiss the appeal.
7. I should like to add a few words. There are three houses in dispute, one purchased in the name of Kundan Lal in the year 1890 and two purchased in the name of Mohan Lal in the years 1839 and 1860. With regard to the first of these houses there is a plea in the memorandum of appeal that, in as much as this house was purchased by a father during the minority of his sons, they cannot possibly have any share there in. It seems to me worth pointing out that no attempt has been made to support by argument the proposition of law here suggested. There seems on the contrary a clear presumption, unless and until the contrary is proved, that the property purchased by Kundan Lal during the minority of his sons was purchased by him out of funds which formed the joint family property of himself and of his sons.
8. As regards the two houses acquired in the name of Mohan Lal I wish to say only this much, that I might have found some difficulty in distinguishing the present case from that reported in I.L.R.,3(sic) A11., 677, if this were a suit in which Mohan Lal himself, or a transferee from Mohan Lal, was contesting a claim based upon a plea that the said houses had all along been the property of the joint family of which Mohan Lal was a member. As the facts stand, all that we know is that these houses have belonged, for over seventy years and over fifty years respectively, to persons who were members of the same joint family and have devolved amongst members of that family with nothing to show that anyone of them ever, expressly or by implication, claimed them as his self-acquired property. It seems to me that there is a presumption that the property thus devolved by survivorship and not by inheritance, and that this presumption is not rebutted by the mere fact that the purchase deeds of 1839 and 1860 stand in the name of Mohan Lal alone. I agree with the learned Chief Justice that some further evidence should have been tendered by the plaintiff, in order to entitle him to succeed in this suit. I concur in the proposed order.
9. The order of the Court is that the appeal is dismissed with costs.