1. These appeals have arisen out of two separate suits but as they relate to the same property both appeals have been heard together. The property in dispute consists of a house which for the sake of convenience we will describe as house No. 2 situate in Muhalla Muftipur in the City of Gorakhpur.
2. The parties to the litigation are members of a family descended from one Ghisiawan Kasaudhan. The plaintiff in the suit out of which Appeal No. 1020 of 1923 has arisen was one Gaya Din, the father-in-law of Basant Lal, one of the members of this family. He seeks to attach a one-third share said to be the property of Ranbya. In the other suit which has given rise to Second Appeal No. 1662 of 1924, the sons of Basant Lal sue for the partition of a one-third share.
3. It is not disputed now, and indeed cannot be disputed, that in view of what was decided in a previous litigation, the descendants of Ghisiawan Kasaudhan constituted a joint Hindu family up till the end of the year 1913 when one of them, Bhairon, son of Chedi died. This house with which we are concerned appears to have been purchased on the 20th of November 1920, in the name of Mahadeo, son of Bhairon. The Additional Judge who decided the appeal from which Second Appeal No. 1662 has been brought was of opinion that although this house had been purchased in the name of Mahadeo it really was purchased with funds supplied by his father Bhairon. That is a finding of fact behind which the parties cannot go in second appeal.
4. The Courts below have come to conflicting decisions regarding the nature of this property now in dispute.
5. The case which was being put forward by Mahadeo was that the property was separate property which did not belong to the joint family. The other claimants to the property were asserting that the property was joint family property belonging to the joint family. We have, therefore, to decide now which view is correct on the evidence as submitted to the Courts below.
6. We start with the fact which cannot now be disputed that up till the death of Bhairon in 1913, the family descended from Ghisiawan was a joint Hindu family. We also have the fact that the house now in dispute was purchased in November 1910, some three years before the death of Bhairon. We also have the fact found by Mr. Ali Ausat, the Additional District Judge, that Bhairon supplied the funds for the purchase of this house.
7. It is to be mentioned here that before his death, Bhairon executed a Will by which he bequeathed the house now in dispute and two other houses to his son Mahadeo. It has been found in other litigation, that one of the houses so bequeathed by Bhairon was joint ancestral family property and the other members of this family have been already awarded their share in that house. A second house bequeathed by Bhairou was held to have been his separate acquisition as he had acquired it by collateral inheritance. The third house is the house with which we are dealing now.
8. Mr. Baijnath Das, the Additional District Judge who decided the appeal which has given rise to Second Appeal No. 1020 of 1923 held that this house in Muftipur should be treated as joint family property. He expresses his opinion in the following terms which are to be found at the end of this judgment dated the 8th of March 1923.
It has been definitely found in the former suit that the family had been joint till Bhairon's death in 1913. The acquisition in 1910, therefore, though in the name of one member was really an acquisition for and by the family. The defendant (i.e., Mahadeo) has failed to show whence the purchase-money came, the criterion in such cases.
9. We may say at once that the law is not correctly laid down in the passage which we have just referred to. The view of the law which has been taken in cases of this kind in this Court is laid down in Ram Kishen Das v. Tanda Mal 10 Ind. Cas. 543 : 33 A. 667 : 8 A.L.J. 723. There it was held that where it is proved that there is a joint family and where it is also proved that that joint family has some joint property, the presumption will arise that all property acquired while the family still remains joint is joint family property and that the onus of proving that any particular item of property alleged to be joint, is in fact separate property, will lie upon the person who asserts it to be so. It was not sufficient, therefore, to find as Mr. Baijnath Das did, that the family having been joint in 1913, it necessarily followed that the house now in dispute was joint family property. In order to arrive at that conclusion it was further necessary to And: that this joint family had at some time or other, some joint family property. That, as we have said, is the principle laid down in the case above cited, a principle which has been uniformly followed in this Court.
10. In the appeal decided by Mr. Ali Ausat and which has given rise to Second Appeal No. 1662 he has, in our opinion, laid the burden of proof on the wrong party. He finds in fact that there was some joint property belonging to this joint family, property which was in that family in the time of Chhedi who was the grandfather of the defendant Mahadeo. In his judgment, Mr. Ali Ausat finds that there was an ancestral house in this family during the lifetime of Chhedi and he further finds that Chhedi had mortgaged this house in the year 1876 for a sum of Rs. 125. That is a clear finding that this joint family did possess some joint property but Mr. Ali Ausat was of opinion that the parties who were claiming that this property was joint family property had to go further and prove that this bit of ancestral property was of sufficient value to justify the conclusion that the family was in possession and could have been in possession of joint family funds in the year 1910 when this house was bought. What Mr. Ali Ausat says is that although this house was in possession of the family in the lifetime of Chhedi nevertheless, there was no substantial nucleus of ancestral property which came into the hands of Bhairon at the time of Chhedi's death sufficient to enable Bhairon to live on it. On the principles laid down in the ruling reported as Bam Kishen Das v. Tanda Mal 10 Ind. Cas. 543 : 33 A. 667 : 8 A.L.J. 723 there was no duty on the plaintiffs to prove this. Once it was proved that there, was any joint property belonging to the family, the burden of proof shifted and it lay upon Mahadeo who was claiming the property as separate property to prove the case he was setting up. In our opinion he failed to discharge the burden which was upon him.
11. All that the learned Judge was able to find was that the money which had gone to purchase this house in the name of Mahadeo in the year 1910 was supplied by Bhairon but until it was proved that Bhairon had acquired this money in some manner which constituted it his separate property, the presumption arising from the existence of joint family and from the existence of ancestral family property must be that Bhairon was providing this money out of what was a joint family fund.
12. On the facts, therefore, as put forward by the Court below we have no doubt that it was rightly found that this house in dispute, house No. 2, in Muftipur Muhalla was joint family property which was liable to division. On this finding, therefore, Second Appeal No. 1020 of 1923 fails and is dismissed with costs including in this Court fees on the higher scale.