1. This appeal is concerned with plot No. 1 only. The parties are Mahomedans. The property in dispute was purchased by a conveyance executed in the name of the defendants' father. The plaintiffs, however, claim a share on the ground that, although the conveyance was in the name of the defendants' father, the family was at the time living in commensality, and the funds with which the purchase was made were joint funds.
2. The Munsif dealt with the question on the ground that the purchase was made from joint funds, and that, therefore, the plaintiffs were entitled to a share.
3. The case then came on appeal before the Subordinate Judge. He first held that the suit in respect of this plot was barred by Section 13 of the Code of Civil Procedure.
4. A review was then applied for and granted, and upon the review he changed his mind as to the applicability of Section 13 and then proceeded to deal with the merits. He says in his judgment: 'True that the kobalas of purchase were executed in the name of the defendants' father, but as the two brothers lived together at that time, the defendants should have proved that the purchase in question was made by the defendants' father alone, but this they have not been able to do.'
5. It is now contended before us that in this passage the Subordinate Judge has applied to Mahomedans a presumption peculiar to Hindu law, and that by so doing he has cast the burden of proof upon the wrong side, that is, upon the defendants instead of upon the plaintiffs.
6. We think that this contention is correct. The Munsif, as I have already said, although observing that the Mahomedans by living a long time amongst Hindus, had adopted the manners and customs of Hindus, did nevertheless decide the question, not upon any presumption of Hindu law, but upon evidence that the property was purchased with joint funds. There was no allegation, that by custom the parties to this suit had adopted the Hindu law of property, and this being so, we think that the Subordinate Judge was bound to decide upon the allegations and the evidence whether the property was purchased from joint funds. The burden of proving that it was purchased with joint funds was, of course, upon the plaintiffs; but by applying the presumption of Hindu law in the first instance, the Subordinate Judge has cast the burden of proof upon the defendants, and in this we think he has committed an error. We must, so far as regards plot 1, set aside the decree of the Subordinate Judge, and remand the case for a proper decision. The costs will abide the result.