1. Defendants 1 and 2 are the appellants in this first appeal against the judgment and decree dated 31st August, 1955 of Sri B. K. Das, Subordinate Judge of Baripada, arising out of a suit for partition brought by the plaintiff. The plaintiff and defendant No. 1 are two brothers. Defendant No. 2 is the wife of defendant No. 1. The properties sought to be partitioned are described in three schedules of the plaint. Schedule A refers to immovable properties and Schs. B and C are in respect of movables.
It is to be noted here that the Suit for partition in respect of B and C schedule properties has been dismissed by the learned Subordinate Judge and there being no cross-appeal, to that extent the judgment of the learned Subordinate Judge is final. This appeal by the defendants is only in respect of the immovable properties described in three items appertaining to schedule A.
The learned Subordinate Judge has allowed a decree in favour of the plaintiff for partition in respect of his half share in respect of all the items. It is further to be noted that so far as item A(III) property is concerned, defendant No. 1 had in the meantime transferred it in favour of his wife (defendant No. 2) in discharge of the dower debt as asserted by him (defendant No. 1). So defendant) No. 2 has been made a party to the suit for partition.
2. It would be relevant to give the description of the properties in respect of which a decree for partition has been made by the learned Subordinate Judge. Item A(i) property was purchased on the basis of a Kabala (Ex. B-1) dated 4th June, 1930 standing in the names of both plaintiff and defendant No. 1 and it was for a consideration of Rs. 300/-. The property appertaining to item A(ii) was purchased on the basis of a Kabala (Ex. B-2) dated 20th June 1944.
It stands only in the name of defendant No. 1, the consideration being Rs. 710/-, The properties appertaining to item A(iii) are covered by four kabalas. The first Kabala is of the year 1928, the second is dated 3-12-37, the third is dated 20-3-40 arid the fourth is in the month of May, 1944. The total consideration for all these transactions is Rs. 204/- and all of them, are in the name of defendant No. 1 alone.
It is to be noted that the father of the plaintiff and defendant No. 1 was only a post-peon. He died leaving no properties of his to be inherited by the plaintiff and defendant No. 1. These properties which are sought to be partitioned were acquired subsequent to the death of their father which occurred in the year 1920 when the plaintiff was aged only 12 and the defendant No. I was 15.
3. The plaintiff's version is that all these properties were acquired from out of the joint family funds belonging to the plaintiff and defendant No. 1. Both of them were tailors owning one joint shop. Defendant No. 1 was the karta as asserted by the plaintiff and defendant No. 1 was in charge of the management of the affairs of the shop and also of the family and out of the joint income, the properties were acquired and as such they are partible between the plaintiff and defendant No. 1; that the subsequent transfer in favour of defendant No. 2 does not affect the interest of the plaintiff and as such the properties appertaining to item A(iii) also are equally partible.
4. The defence, on the contrary, is to the effect that there were no joint funds; that defendant No. 1 had his own earnings and out of his separate income and funds he acquired the properties described in items A(ii) add A(iii), Regarding item A(i) property, acquired by both the brothers, defendant No. 1 asserts that he had paid a sum of Rs. 200/- towards its consideration while the plaintiff had contributed only Rs. 100/-. So defendant No. 1 is entitled to a proportionate share in respect of this item A(i) and he is living separately there.
5. The learned Subordinate Judge has found that defendant No. 1 was the karta of the family and he was in charge of the joint family funds and as such he has allowed a decree for partition in respect of all the item of properties of Schedule A.
6. The learned Subordinate Judge has committed a serious blunder and illegality on account of which the entire judgment has been vitiated. Even though the plaintiff and defendant No. 1 happen to be 2 brothers and they are Mahomedans, the learned Subordinate Judge during the whole course of his judgment has practically been obsessed by a notion of Hindu joint family, conception of Karta and joint family funds.
It is an undisputable position of law that if the title-deeds stand in the names of certain persons, the persons who are vendees must be presumed to be the owners of the properties in respect of the purchases. So far as item A(i) is concerned, undoubtedly this stands in the name of both, the plaintiff and defendant No. 1. Manifestly the property must belong to both the plaintiff and defendant No. 1. The consideration is Rs. 300/-and there is no recital indicating how the two vendees contributed towards the consideration. As such it is to be taken that the consideration was paid equally by the two vendees and the two vendees are entitled to equal shares. The property, therefore, described in item A(i), is subjected to partition as decreed by the learned Court below.
7. But different consideration will arise on the same principle regarding the other properties which, as I have already indicated, were purchased on the basis of Kabalas standing in the name of defendant No. 1 alone. Prima facie therefore defendant No. 1 is to be taken to be the owner in respect of the properties covered by those kabalas. One significant feature also is to be noted in this connection that even though, as asserted by the plaintiff, the two brothers were living jointly, they had a common fund and that they were contributing towards the considerations of the Kabalas and defendant No. 1, being the Karta, purchased the properties in his name alone, it does not stand to reason why the Kabala Ex. B-1 for Rs. 300/- appertaining to item A(i) should stand in the names of the plaintiff and defendant No. 1 It is also to be noted that there is an earlier Kabala (Ex. B) of the year 1928 which stands only in the name of defendant No. 1 while Ex. B-l of the year 1930 stands in the names of both the plaintiff and defendant No. 1. It is further significant that in respect of the properties purchased in the name of the defendant No. 1, they have been recorded in the name of defendant No. 1 in the Khatian and the property purchased in the names of both the brothers has been recorded in the khatian in the names of both the plaintiff and defendant No. 1. These significant features lead us to conclude that the properties standing in the name of the defendant No. 1 should be taken to have been purchased by defendant No. 1 and the plaintiff has no share in them.
8. The learned Subordinate Judge has come to the finding that there was one joint tailoring shop belonging to both the brothers and it was from out of the income of this tailoring shop that the properties were purchased by defendant No. 1 who was the Karta of the family. We will avail of this occasion to clarify the position that the relationship between the members of a Muhammadan family is distinct. from that of the members or the Hindu family.
The presumption of Hindu law regarding the joint family, joint family property or joint family funds has got to be completely forgotten in deciding cases between the parties who are Muhammadans. The plaintiff in this case can take advantage of the position that the purchase by defendant No. 1 can be taken to be on his behalf also provided he is able to show sufficient materials on record to make out and establish a case of either partnership by express term or by implication on account of the conduct of the parties, or that there was relationship of principal and agent or any fiduciary relationship between the parties.
If only the plaintiff has been able to make out a case of partnership or agency or fiduciary relationship then only he can take advantage of the provision of Indian Trusts Act and the provisions arising out of the relationship of partners or principal and agent. In that event only he can be allowed to argue the position that defendant No. 1 purchased these properties for the benefit of both. It is to be mentioned further that before a decree can be passed in his favour, the plaintiff has further to establish that the defendant No. 1 had made use of the common fund of the parties in making these purchases or that he took advantage of his fiduciary relationship in these transactions. We shall, therefore, have to scrutinise the evidence on record from that angle of vision only while completely forgetting the principles of Hindu law.
(After scrutinising the evidence his Lordship concluded:) In these circumstances, therefore, in our view it has got to be found that the plaintiff has failed to make out the case of his joint title with, defendant No. 1 in respect of the properties covered by items A(ii) and A(iii). The suit therefore in respect of these two items must stand dismissed along with the movables. But the plaintiff is entitled to a decree for partition in respect of the property covered by item A(i).
9. Mr. Roy, appearing on behalf of the appellants, however, contends that defendant No. 1 has put substantial structures at his own expenses on a part of the property purchased on the basis of the Kabala (Ex. B-1). The plaintiff asserts that defendant No. 1 had not put these structures from out of his own fund, but the property is joint and the structures were also by the joint fund. In our view as there is no Substantial evidence from either side so far as this aspect of the case is concerned, a partial decree would be passed for partition in respect of the aforesaid property covered by item A(i).
As to whether defendant No. 1 had put a substantial structure on a part of the joint property or that he is in separate possession in respect of any portion after making a permanent structure is a matter which would be considered at the final decree stage where only the Court will use his discretion to pass an order that separate possession of the parties should be respected as far as possible without substantial detriment to the interests of the parties.
10. The appeal, therefore, is partly allowed as indicated above and the parties are to bear their own costs throughout.
11. I agree.