Arnold White, C.J.
1. This is an appeal by the plaintiffs--(and there is also a Memorandum of objections) against the decree in a suit by certain members of a family governed by the Aliyasantana law to recover on behalf of the family certain properties which the plaintiffs allege belonged to the family and were acquired out of family funds. The members of the family are to be found in the pedigree which is set out in the judgment of the learned Subordinate Judge. One Chennamma is the ancestress. She, I suppose, may be described as the founder of the family. She is found by the learned Subordinate Judge to have died in the year 1883. She left certain daughters who pre-deceased the parties to the suit. She left a daughter by name Timmakke who is the 1st plaintiff in the suit. Timmakke has several children who are the other plaintiffs to the suit. Chennamma also had a daughter called Akku, older than Timmakke. She is the 6th defendant in the suit. This Akku has a son who is the 7th defendant in the suit. The only male child of Chennamma was Devapparai. He died 1902. His widow is the 1st defendant. The 2nd, 3rd, 4th and 5th defendants are her children. Then there are two other defendants, the 6th and the 7th to whom I have already referred. They take the side of the defendants and they hare been made defendants in the suit.
2. Shortly before Devapparai's death, he executed a conveyance, which is Exhibit VIII in the case, by which he purported to convey the whole of the properties in dispute to his wife the 1st defendant and to his children, the defendants Nos. 2 to 5. The properties which came down from Chennamma and which are admitted to be family properties are described in paragraph 32 of the judgment of the learned Subordinate Judge. I need not repeat what he has said with regard to them. The mode in which the properties in dispute were acquired--properties which the plaintiffs say Devapparai in fraud of his family conveyed just before his death to his wife and children, is described in paragraph 36 of the judgment. The first issue in the suit is 'Whether the deceased Devapparai was the de, facto manager of the family of plaintiffs and defendants Nos. 6 and 7 ?' The finding as to that by the learned Judge is in the affirmative and I do not think that is contested. Even if it is contested, I think the finding is right. What the Judge actually finds is first in paragraph 25: 'The conclusion that I come to is that both Devapparai'--the only male--'and the 6th defendant'--his elder sister--'managed'. Then in dealing with the second issue he says: 'Devapparai has been found to have been one of the de facto managers of the family'. So I think his finding comes to this : that Devapparai and the 6th defendant were both de facto managers and that the 6th defendant by virtue of her position as the eldest member of the family was the de jure manager.
3. Then the second issue is 'whether the plaint items Nos. 1 to 4 were acquired by the said Devapparai from his private funds and from the private funds of 1st defendant'--that is his wife--'or were they acquired from family funds as alleged by plaintiffs.' The final conclusion at which the learned Subordinate Judge arrived with reference to this issue is in the nature of a compromise. He finds that the total value of the property is Rs. 7,000 and to the extent of Rs. 1,820 it was acquired out of family funds and out of the private funds of Devapparai to the extent of the balance. So it works out that the plaintiffs get a decree for the properties which they claim in the ratio of 91 to 350. Both sides are dissatisfied with this. The plaintiffs contend that they are entitled to a decree in the terms of their plaint. The defendants say that the suit ought to have been dismissed in its entirety.
4. Now in dealing with the case the learned Subordinate Judge puts it thus under the second issue in paragraph 29: 'As Devapparai has been found to have been one of the de facto managers of the family, there is a presumption in law that his acquisitions were made with the funds of the family and for its benefit.' I am not sure that in so putting it as a presumption of law, the learned Subordinate Judge has not put it too high in favour of the plaintiffs ; and if it be a presumption of law I do not think it can be said that that presumption has been rebutted. Because, if it is a presumption of law,--even supposing there was no evidence beyond the facts that Devapparai was the manager, that the family was undivided and that he acquired these properties even in his own name--if it is a presumption of law, then, I think, it would follow that the plaintiffs were entitled to succeed. What the Subordinate Judge has done is this: he has not relied upon or considered for the purpose of this question, the evidence adduced on behalf of the defendants against whom the presumption exists; but he has considered the evidence on behalf of the plaintiffs in whose favour the presumption exists; and he has come to the conclusion that on their own evidence the family income would not have been sufficient to acquire the lands in question. Therefore, he says the presumption of law which exists in the plaintiffs' favour is rebutted. I am inclined to think there is a fallacy in that process of reasoning. Now what are the proved and admitted facts here P The family is undivided ; Devapparai was one of the managers,and the property was acquired in his name. I think it must be taken on these facts--(I do not know that Mr. Lobo would contest this)--that the onus is on the defendants. I do not put it as a matter of presumption. I think that on these proved and admitted facts the onus is on the defendants to show that these properties were in fact acquired out of the private funds of Devapparai. And the question is: Has this onus been discharged ?
5. Let us just see with reference to this question of the discharge of the onus what was the case set up by the defendants themselves. First I take the written statement. The plea set up was that the properties were 'acquired by Devapparai for the 1st defendant,' that is his wife and his children with funds belonging to 1st defendant mostly and his own. Then the second issue raised the same question and the issue is 'whether plaint items Nos. 1 to 4 were acquired by the said Devapparai from his private funds and from the private funds of 1st defendant.' Then if we turn to the conveyance executed by Devapparai to his wife and children just before his death, we find this recital: 'The first among you'--that is his wife 'having occasionally given to me money to be augmented, I have augmented the same and along with some money of my own I have on your behalf in my name purchased our property'--the property in question. The defendants wholly failed to prove the case which they set up in their written statement, which they raised in the issues and which is recited in the conveyance to them. The learned Subordinate Judge deals with this question in paragraph 38. He says: 'No attempt has been made on the side of these defendants to show that any funds of theirs were entrusted with Devapparai, and the whole evidence on their side has been directed to show he had acquired money from his father, and that he got a dowry (badi) of Rs. 2,000 at the time of his marriage with 1st defendant.' So we must take it that the recital in Exhibit VIII is a false recital, or, at any rate, a recital, which the defendants never attempted to prove. One witness, who, one would have thought would be a material witness for the purpose of proving this recital for the defendants, if the defendants had been in a position to establish the fact therein referred to, was the 1st defendant herself, and she was never examined. Then, is the evidence that was adduced on behalf of the defendants sufficient to discharge the onus What are the findings with regard to that The Subordinate Judge says in paragraph 38 that the whole evidence on their side has been directed to show that he had acquired money from his father, and that he got a dowry (badi) of Rs. 2,000 at the time of marriage with the 1st defendant. As to this all that the learned Subordinate Judge could say is: 'it seems to me probable that something was given by the father, for the 1st plaintiff'--who was Devapparai's sister--'has also private properties to the value of about Rs. 6,000.' That is all he says as to the de fondants' case with reference to the alleged gifts by the father, and with regard to the defendants' case that he got money from his wife, all that the learned Subordinate Judge can find is that 'the 1st defendant Devapparai's wife belongs to the very rich Bellipadi family and it is probable that he received a dowry.'
6. It is to be noted that not a single question was put to the plaintiffs' witnesses in cross-examination with reference to the defendants' case that Devapparai had got money from his wife or with reference to their case that he got money from his father. Can it be said that this is sufficient to discharge the onus which rests on the defendants? The defendants have not printed the evidence adduced by them in the Court below. But Mr. Lobo has called our attention to the evidence of one of the witnesses, the 6th defendant, who stated in the box that the income of these properties was never used for family purposes and that no other member of the family interfered with the management of the properties. As regards the management, Devapparai being the manager, it is not to be expected that the other members of the family would interfere. And as regards her statement that the income of the properties was never used for family purposes, the learned Subordinate Judge who heard the whole of the oral evidence thinks very little weight could be attached to it, and I myself do not think much weight can be attached to the statement of this witness, who is confessedly on the side of the defence and who supports the case of the defendants. That is the only affirmative evidence adduced by the defendants for the purpose of discharging the onus. It comes to this really, that because the plaintiffs set up a case which they failed in the opinion of the Judge to prove, therefore, the presumption in their favour is rebutted. It seems to me that the findings of the learned Subordinate Judge with regard to the plaintiffs' evidence that the family income was not sufficient are to a great extent speculative and based upon his view as to the a priori probabilities of the case. His finding is that the income would not be sufficient to provide funds for the purchase of the properties. It might be that the income of the family properties was not sufficient. But it might well be that there were other sources of income of which the plaintiffs had the benefit. The 1st plaintiff herself had private properties from her father to the extent of some Rs. 6,000-0-0 and if we are to speculate, one may legitimately speculate as to whether that fund may not have formed part of the source from which the properties were bought.
7. I do not propose to discuss the authorities which were cited at the bar. The law seems to be reasonably clear. I may refer to one case which is perhaps the strongest case which Mr. Lobo was able to find in his favour, i.e., the case of Dhunookdharee Lall v. Gunput Lall 10 W.R. 122 : 11 B.L.R. 201 (Note) a case decided m 1868. There, according to the head-note, 'one member of a Hindu family claimed to participate in the property possessed by certain other members, alleging that it had been acquired from the proceeds of their joint estate. It was found that the family property was not sufficiently large after supporting the members to leave surplus funds for the acquisition, and that the defendants were at the time pursuing lucrative employments, the plaintiff being a minor. It was held that there was no ground for the usual presumption as to joint family estate, and the onus lay on the plaintiff to prove his allegation.' But in that case it was found that the defendants themselves were 'pursuing lucrative employments', from which I presume they derived considerable income. There is nothing of that sort here. And when I turn to the judgment of Mr. Justice Miller I find 'the defendant having shown that in acquiring the property in suit, he did not use any property which belonged to the joint family, the presumption of joint ownership is at once rebutted'. In the case before us it cannot be said that the defendants have established affirmatively that in acquiring the property Devapparai did not use any family property. One word with regard to the point Mr. Lobo made at the end of his argument and that is with regard to the advance of Rs. 800 made in 1882 by Devapparai for Chennamma. I think it is pretty clear that at that time there was no joint family and that Devapparai was then acting as Chennamma's agent., Mr. Lobo's point was that although he was an agent presumably the money was his own and that' when he afterwards bought the whole of the properties after Chennamma's death he himself took the benefit of it, and that it must be taken that he was acting on his own behalf and with funds of his own when he entered into the later transactions. There is some force, no doubt, in this. But in the first place there is no evidence that Rs. 800 was Devapparai's own money when he advanced it. And it might be that although he did act on his own behalf with regard to the advancing of the Rs. 800, after his mother's death he considered it an advantageous transaction on behalf of the family. But here again we are in the region of speculation. There is no evidence as to what happened.
8. I differ from the learned Subordinate Judge with some reluctance and considerable hesitation because he has had the advantage of hearing this case first hand, and, no doubt, he is more familiar with the sentiments and habits of the people governed by this branch of the law than I am. But I have to apply the law, as I understand it, to the facts established, and if I do that, I am bound to hold that the evidence does not discharge the onus which rested on the defendants, and that the decree to which the plaintiffs are entitled is the decree for which they ask. I think the plaintiffs are entitled to their costs here and in the Court below.
9. The memorandum of objections will be dismissed with costs.
Abdur Rahim, J.
10. I entirely agree.