1. The pleadings of the parties are set out in sufficient detail in the judgment of the Trial Court and it is unnecessary to repeat them here. A reference to the geneological tree in that judgment will show how the parties to this suit are related to each other. The substantial points in controversy in this litigation were whether the lands in suit were the joint property of a family, which traces its origin to one Bali Charan De, and whether the plaintiffs as widows of two of the male members of the family were entitled to certain shares therein. The subject-matter of the suit were plots bearing Khatian Nos. 182, 91, 108, 138 and 208.
2. The Subordinate Judge dismissed the suit so far as it related to lands of khatian No. 182 and made a decree in favour of the plaintiff No. 1 declaring her title to l/6th share and in favour of the plaintiff No. 2 declaring her title to 2-9ths share in the lands of khatian Nos. 91, 108,138 and 208, and for joint possession in favour of both the plaintiffs with the defendants to the extent of their respective shares. On appeal by the defendants Nos. 1 and 4 against the said decree the suit was dismissed by the first Additional District Judge of Mymensingh. Against this decision the plaintiffs have preferred this appeal. The two Courts below have recorded in their respective judgments findings on some of the questions which arise in the case, which may be said to be diametrically opposite in nature and this has necessitated our going into the matter very carefully in order to see whether the findings arrived at by the Court of appeal below do really cover the whole ground, whether they adequately dispose of the various issues which arise in the case and whether they are sufficient for dismissing the plaintiffs' suit.
3. Now the first question that arose in the case was whether the family was a joint Hindu family and if so, who were the members thereof and whether the properties were acquired by Sambbu Nath as a member of the same. On this question the learned Subordinate Judge recorded a clear finding in his judgment which was in these words. 'My conclusion, there-fore, is that Sambhu Nath acquired the chak and the jote as a member of a joint Hindu family consisting of himself, his brothers and nephews.' The learned Additional District Judge observed in his judgment: ' The lower Court proceeded on the assumption that Sambhu acquired the lands for the family. He was not at all justified there. That was not the case for the plaintiffs. The evidence is too weak to lead to the conclusion that Sambhu and his two brothers were joint when the lands were acquired. There is no evidence worth the name that the brothers had any joint property from the income of which the lands could be acquired. There is no evidence that the lands were acquired with the joint exertion of all the brothers.' Now what is referred to as being a variation in the plaintiff's case is not really a matter of much moment. The plaintiffs no doubt alleged in their plaint that the lands were acquired by Bali Charan, but that was a matter in respect of which the plaintiffs could not possibly have any definite information and if subsequently in the course of the proceedings it transpired that it was not Bali Charan but Sambhu Nath who had acquired the lands but that he acquired it for the joint family and as a member thereof, it cannot be said that there was such a variation in the plaintiffs' case as would either disentitle them to a decree or discredit their case altogether [Rama Nath Chatterjee v. Kusam Kumari Debt (1906) 4 C.L.J. 56]. The treatment of this part of the case by the learned Additional District Judge seems to me to be open to serious objection. He has not found that Bali Charan was alive at the date of acquisition of the properties. He seems to have held that there was at that date a family consisting of the three brothers but was unable to hold that they were joint at that time. The acquisition took place not later than 1256 B.S. Now if the family was a Hindu family, there is the presumption that it was a joint Hindu family. The normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division such is Aha legal presumption. His own finding as to separation, the character of that separation, is again a different matter and will be referred to hereafter as recorded in his judgment in the following words:-'It is clear on the evidence on the plaintiffs' side that the separation was more than some 30 years back.
4. We cannot say on the evidence exactly when the separation took place. We cannot say that Sambhu and his brothers did not separate from each other.' In the present case, no separation in the sense of a disruption such as would put an end to a joint family was ever admitted, and it was not a case in which the plaintiffs were seeking to recover property from the hands of a member after such disruption as might negative the application of that presumption: such as was the case in Banoo v. Kashee Ram (1878) 3 Cal. 315 upon which was based the decision in Obhoy Churn Ghose v. Gobind Chunder Dey (1885) 9 Cal. 237 to which reference was made on behalf of the respondents during the hearing of this appeal. (His Lordship then on the weak evidence that the learned Additional Judge spoke of, coupled with the presumption referred to above and which the learned Additional Judge had altogether ignored come to the conclusion that it was a joint Hindu family and after discussing facts proceeded as follows:) On the question of exclusion so far as Hindu ladies are concerned it is well known that the Court has got to be exceedingly careful to come to a con-elusion one way or the other, so long as it does nod appear that they ceased to obtain their maintenance from the family.
5. Lastly, a question of supreme importance in the case, having regard to the pleadings, was as to how the names of the ladies came to be excluded from the finally published Record-of-Rights. There is no finding or discussion at all in the judgment of the learned Additional District Judge upon this question.
6. On the whole, therefore, I am not satisfied that the matters in controversy have been properly disposed of by the Court of Appeal below, and I am clearly of opinion that his treatment of the case is defective in essential particulars.
7. I would, therefore, set aside the decree of the lower Appellate Court and send back the case, to that Court to be dealt with afresh in the light of the observations made above. For the guidance of the lower Court I would call attention to the presumption of the jointness and that although there is no evidence worth the name, as the lower Court puts it, as to nucleus, from the subsequent conduct of the parties it may be very readily presumed that the property was joint. The question is whether the property was treated unambiguously as joint or separate property. If it does not appear on a careful review of the facts as a whole that it can be said to have been treated unambiguously either way, regard being had to the presumption of jointness with which we start, then I think there is no doubt that the plaintiffs will fail; but only in that event.
8. I would only observe further that nothing that had been said in this judgment should be taken as an expression of my opinion on any question of fact. The costs will abide the result.
9. I entirely agree.