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Chintamani Naik and anr. Vs. Bata Krishna Naik and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal262
AppellantChintamani Naik and anr.
RespondentBata Krishna Naik and ors.
Cases ReferredUpendra Narain Myti v. Gopee Nath Bern I.L.R.
Excerpt:
hindu law - joint family--onus of proof--presumption as to branch of family remaining joint when separation has taken place between it and other branches of joint family. - tottenham and agnew, jj.1. this suit for the recovery of the plaintiffs' share in a joint family property was on one occasion dismissed by the court below on the ground of limitation, the district judge being of opinion that a separation had taken place so long before the institution of the suit that the plaintiffs could not succeed without proving his [their?] possession within twelve years. on second appeal to this court, the case was remanded for a fresh decision, as we thought that the district judge bad wrongly dealt with the question of limitation. the lower appellate court has now found for the plaintiffs, and has affirmed the decree made in their favour by the first court. the defendants are the appellants in the present appeal.2. the principal ground upon which the vakil for the.....
Judgment:

Tottenham and Agnew, JJ.

1. This suit for the recovery of the plaintiffs' share in a joint family property was on one occasion dismissed by the Court below on the ground of limitation, the District Judge being of opinion that a separation had taken place so long before the institution of the suit that the plaintiffs could not succeed without proving his [their?] possession within twelve years. On second appeal to this Court, the case was remanded for a fresh decision, as we thought that the District Judge bad wrongly dealt with the question of limitation. The lower Appellate Court has now found for the plaintiffs, and has affirmed the decree made in their favour by the first Court. The defendants are the appellants in the present appeal.

2. The principal ground upon which the vakil for the appellants has addressed us is that the original stock of the family having been subjected to a separation many years ago, the presumption as to the joint family can no longer be maintained in regard to the various branches into which the family has been divided. With reference to this we think it sufficient to refer again to the case cited in our remand order, namely, Upendra Narain Myti v. Gopee Nath Bern I.L.R. 9 Cal. 817 : 12 C.L.R. 356. It appears to us that each branch of a family whose original stock has been divided may continue to be a joint family within the meaning of the Hindu law subject to all the presumptions arising from that state. We think, therefore, that the lower Appellate Court did not err in the manner suggested by the vakil for the appellants. That being so, and the District Judge having tether found that the separation occurred in the year 1285, we think that the present' suit is not barred by limitation; and the separation having taken place at so late a date, we are of opinion that the Judge was right in acting upon the presumption of law that the property in question was joint family property.

3. The appeal is dismissed with costs.


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