1. [After holding that the plaintiff had not been adopted into a different family, the court proceeded:]
The next point urged is that the District Judge was in error in deputing to the commissioner the enquiry as to what items of property were in possession of the defendants and their title thereto. It is pointed out that the judge virtually transferred the trial of every issue except the first issue to a commissioner thus investing him with much larger powers than can be legally delegated under Section 392 of the Code of Civil Procedure. On this point we are constrained to hold that the objection must prevail. We are of opinion that 'a local investigation requisite for the purpose of elucidating any matter in dispute' presupposes the existence of some independent evidence on record which requires to be elucidated and that a court is not at liberty under Section 392 to delegate to a commissioner the trial of any material issue which it is bound to try. This was the view taken by another bench of this court in Second Appeal No. 1149 of 1887 (unreported) and is in accordance with the view taken by the High Court of Calcutta in Iswarchandra Das v. Jugal Kishor Chuckerbutty 4 B.L.R App 33. See also Bindabun Chunder Sirkar Chowdhry v. Nobin Chunder Biswas 17 W. R 282 and Buroda Churn Base v. Ajoodhya Bam Khan 23 W. R 287. Earlier cases have been quoted which go to show that evidence taken by a commissioner may legally be treated as evidence, but in the case before us no evidence was taken by the judge before the issue of the commission on any issue except the first. We are of opinion that Section 392 does not authorize the whole-sale delegation of these important issues for investigation to the commissioner and that the local investigation contemplated by that section has reference to questions relating to the identification of lauds, their physical features, market-value, and estimate of profits, but not to questions of title to and possession of the lands themselves.
2. We must therefore set aside the decision of the District Judge upon these issues and remand the case in order that they may be properly determined. In so doing we may point out that the issues themselves require amendment, and that fresh issues should be framed as to the different plaint items so as to leave the parties no room for misconception as to the burden of proof. With regard to items which are admitted to be family property the only question can be as to plaintiff's proportionate share. Other items are claimed as belonging to the family the possession and existence of which 1st defendant denies. As to these the burden would be on plaintiff. Then again there are properties of which 1st defendant admits the possession but alleges to be self-acquired. As to these the onus is on him. Proper issues' have to be framed with reference to the allegations in the written statement. The plaintiff must prove subsisting outstanding debts due to the family and we observe that it is alleged one debt due to the family has been discharged.
3. We observe also that the judge decreed partition of jewels of the value of Rs. 150 merely on the ground that 1st defendant's wives were wearing some of that value. That reason is manifestly insufficient when the jewels worn by the ladies are alleged to be their stridhanam.
4. The District Judge has made no provision for debts due by the family. It is admitted on both sides that he was also in error in decreeing mesne profits for six years before suit when only mesne profits from date of suit were prayed for in the plaint.
5. With reference to C. M. P. No. 170 of 1892 we are of opinion that the proportionate share to be decreed to plaintiff must be that to which he is entitled 011 the data of the final decree. No final decree has yet boon passed since no issue except the first has been tried. As the father has died during the pendency of these proceedings the plaintiff is apparently at the present moment entitled to one-fourth share. We must set aside the decrees of the court below in both appeals and remand the suit in order that the District Judge may frame and. try fresh issues and after recording findings on them pass a fresh decree for partition.
6. The costs hitherto incurred will be provided for in the final decree.