1. The first point urged in this second appeal is that the lower Courts were wrong in re-trying the whole case as the judgment of the High Court cannot be said to have upset the concurrent findings of two Courts. This contention is untenable in view of the clear wording of the judgment of the High Court:
As the discussion on the question of adverse possession has proceeded on a wrong view of the law, we think the safe course is to reverse the judgments of the Courts below and remind the suit to the Court of first instance for disposal in the light of our observations.
2. It is clear from this that the learned Judges who decided the second appeal set aside the judgments of both the lower Courts and directed the case to be re-tried.
3. The next point urged is that the purchase in the name of one brother was for benefit of the whole family and the property purchased should not be considered as the sole property of the person in whose name the sale was taken. As the learned Judge observes, it is not proper to apply the principles governing the Hindu joint family system to a Mahomedan family. The plaintiff and defendant 1 are brother and sister. Their father died in 1878. Then there were other children of the father living. The children were minors and their paternal uncle managed the property on their behalf. He purchased some property in the name of defendant 1; items 4, 8 and 9 were purchased so far back as 1881, 1880 and 1879, respectively. The contention of Mr. Jagannadha Dass is that, inasmuch as the property was purchased in the name of a minor, it must be taken to have been purchased for the benefit of the whole family. Children in a Mahomedan family are not co-owners in the sense that what is purchased by one person enures for the benefit of another. There is evidence that some cash was left by the father and a portion of it was utilized for the purchase in defendant 1's name. So far as the amount taken from the general estate was concerned, defendant 1 had taken money and wasted it, or if he had purchased any trinket or trifle, it cannot be said that he purchased it for the benefit of the family. When accounts are taken the family would be entitled to debit against him the amounts he had taken. The fact that the property was purchased by him with money taken from the father's estate would not make the property the common property of the family. The judgment of the District Judge is correct, and the second appeal fails and is dismissed with costs.
4. There is no question of law in the memorandum of objections. The learned Judge's finding is supported by the evidence on record. The memorandum of objections is dismissed with costs.