1. This is an appeal from the decision of the learned Subordinate Judge of Hooghly, dated the 5th December 1914, reversing the decision of the Munsif of Howrab, dated the 30tb August 1913. The plaintiff was the elder brother of the deceased husband of the defendant No. 1, who is the appellant before us. Apparently, the plaintiff and his brother came to Calcutta from the North-Western Pi evinces. They came here to work as coolies. There is nothing to suggest that, in that condition, they had any nucleus of the joint family estate. They did work and did save money. There is no evidence to show that that money was ever put into a common till or treated as money belonging to the two brothers representing a joint Hindu family. All the evidence that the learned Judge had before him was that they worked as coolies and, out of the money they so earned, they purchased a house. The learned Judge, on that evidence, has found that these two brothers bought the house out of a joint fund. There was no evidence before him on which he could make such a finding. The fact seems to be that the house is really a hut and was bought by these two coolies but of the money that they both earned. I see no reason to suggest that there is evidence to support the finding of the learned Judge that they bought the hut out of a joint fund. The husband of the defendant No. 1 died leaving a son, who apparently lived 18 1/2 years after the death of his father. That son has been altogether omitted from the plaintiff's claim, although it is obvious that, if the plaintiff took by-survivorship, the person on whose death he took was not his brother but his nephew, the only son of the defendant No. 1. The case that has been suggested before us, that the plaintiff took to the exclusion of his nephew and that the father of the boy, that is, the plaintiff's younger brother did intend when he purchased this house that his only son should be turned out of his house into the street, would not commend itself to any person who is accustomed to the way of the Hindus. It is quite clear that these two brothers when they purchased this hut never contemplated that the children and the widow of the one who should die first should be liable to be turned out into the street. I think that is an impossible case on the facts transpiring on the record.' Whether or not such a case can take place under the rules of the Hindu Law, it is not necessary for us to say. All the facts in this case are inconsistent with there having been a joint fund. The evidence before the learned Judge seems to me to be altogether insufficient, in fact, there was no evidence, on which he could find that the hut was bought out of the joint fund, and there is nothing to show that the brothers meant that whatever they should acquire should form part of the joint family estate. That being so, I think we ought to set aside the decree of the learned Subordinate Judge, allow this appeal and restore the decree of the Munsif. The plaintiff must pay to the appellant her costs in this Court as well as in the lower Appellate Court.
2. I agree.