1. The plaintiffs are the sons of Nathua and seek to challenge the validity of a mortgage effected by Musammat Rukmin, the widow of Dhundi, and Musammat Lachhmi the widow of Radha Kishan, in favour of Bhola Singh on the 13th of June, 1914. They also ask for a declaration that the property mortgaged was not liable to sale in execution of a decree for interest due on that mortgage which had. been obtained by Bhola Singh against the said ladies in 1920.
2. The main question for consideration was whether Nathua was living jointly with Dhundi and Radha Kishan, their first cousins, at the time of the death of the last two persona. It was not disputed that the property mortgaged was the ancestral property of the family to which Nathua, Dhundi and. Radha Kishan belonged. The trial Court found that the family was joint at the time of the death of Dhundi and Radha Kishan, and that the names of Musammat Rukmin and Musammat Lachhmi were only entered by way of consolation, The question of legal necessity was not gone into, but it was held that the plaintiffs as the sons of Nathua and the surviving members of the joint Hindu family aforesaid were solely entitled to the disputed property, and that the said ladies had no right to mortgage the same. The lower Appellate Court held that the family was separate at the time of the death of Dhundi and Radha Kishan, and that the possession of the widows was in any case adverse from more than 12 years, and gave them a good title to make a mortgage of the disputed property. In the course of its judgment the lower Appellate Court refers to the entries of the names of the widows in the revenue papers and that of Nathua in separate shares and to certain transactions 'entered into by Nathua in 1912 and by his widow Rajo in 1914 dealing with a one-third share of the family property, and relying on these two facts and on the evidence adduced in.: the case, it seems to have come to the conclusion that the separation of the family was established. As pointed out by their Lordships of the Privy Council, in Bhagwati Kunivar v. Mohan Singh a definition of shares in revenue and village papers affords, by itself, but a very slight indication of an actual separation in a Hindu family, and certainly in no case it can be legarded, standing alone as sufficient evidence upon which to find, contrary to the presumption in law as to jointure, that the family to which such a definition referred had separated. It has been pointed out to us that the dealings to which the lower Appellate Court has referred and the oral evidence on which it has relied, deal exclusively with the state of aifairs as they existed during the past 15 years. Dhundi died about 43 years ago. Radha Kishan died about 40 years ago, and any separation that may have since taken place between Nathua and the widows of Dhundi and Radha Kishan cannot affect the title of Nathua to the property in dispute by right of survivorship, if there was a joint family at the time when Dhundi and Radha Kishan died. Given a joint Hindu family, the presumption is, until the contrary is proved, that the family continues joint, That presumption is peculiarly strong in the case of the sons of one father and gets weaker as the branches multiply. Nathua, Dhundi and Radha Kishan vvere descended from a common grandfather, and the ordinary presumption that the family was joint must, therefore, apply to the case. The evidence to which the lower Appellate Court refers appertains to the dealings of Nathua and the two widows with certain other persons during the last 15 years and is of no help in determining whether Dhundi and Radha Kishan had separated before their death. The lower Appellate Court has wrongly placed the onus of proving jointness on the plaintiffs. The onus really lay on the defendants to prove that their husbands had, separated from Nathua prior to their death. There was no such evidence produced in this case. The possession of the widows cannot be adverse, because Nathua was a co sharer in the village and also a lambar-dar and he was really the person, in possession of the property. The appeal is, therefore, allowed, the decree of the lower Appellate Court is set aside, and that of the Court of first instance restored with, costs here and hitherto including fees in this Court on the higher scale.