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Punnu and anr. Vs. Musammat Kousa and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All146; 40Ind.Cas.463
AppellantPunnu and anr.
RespondentMusammat Kousa and ors.
Excerpt:
hindu law - joint family--money advanced by one member--presumption--burden of proof. - .....held that it lay upon the plaintiffs to prove that the money advanced on the mortgages were out of joint family funds. he declined to record any finding on, the question of jointness or separation. we think that if the family was found to be joint and if it was proved that there was joint family property belonging to the family, then the onus of showing that the money advanced on these mortgages was the self-acquired property of govind would lie upon the defendant his daughter. before finally deciding the appeal we think it necessary to refer issues to the court below. we accordingly refer the following issues:(1) were plaintiffs and govind members of a joint hindu family and did they own joint property?(2) was the money advanced on these mortgages the separate property of govind?2. in.....
Judgment:

1. This and the connected Appeal No. 1128 of 1915 arise under the following circumstances. Two mortgages were made in favour of one Govind, since deceased. The purchaser of the equity of redemption from the mortgagor paid into Court the amount due upon the two mortgages under Section 83 of the Transfer of Property Act. The present suit has been brought by the plaintiffs alleging that they and Govind constituted a joint Hindu family and that accordingly the defendant No. 1, the daughter of Govind, had no interest therein. The Court of First Instance found that the family was joint but nevertheless dismissed the suit of the plaintiffs. The plaintiffs appealed contending that if the finding that the family was joint was accepted, then the suit ought to have been decreed. The defendant Musam-mat Kausa filed an objection to the finding that Govind and the plaintiffs were joint. The lower Appellate Court apparently accepting the finding of the Court of First Instance that the family was joint, held that it lay upon the plaintiffs to prove that the money advanced on the mortgages were out of joint family funds. He declined to record any finding on, the question of jointness or separation. We think that if the family was found to be joint and if it was proved that there was joint family property belonging to the family, then the onus of showing that the money advanced on these mortgages was the self-acquired property of Govind would lie upon the defendant his daughter. Before finally deciding the appeal we think it necessary to refer issues to the Court below. We accordingly refer the following issues:

(1) Were plaintiffs and Govind members of a joint Hindu family and did they own joint property?

(2) Was the money advanced on these mortgages the separate property of Govind?

2. In dealing this last mentioned issue the Court will bear in mind what we have said above as to the onus of proof. The Court will decide these issues on the evidence already on the record. Ten days will be allowed for filing objections.


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