1. This is an appeal by defendant 1 and arises out of a suit for partition. The appeal is from the preliminary decree for partition. The relationship between the parties to the suit is shown in the genealogical table which has been handed over to us and is admitted by both parties and which is appended to the end of our judgment. It appears from that tree that one Jainaddi died leaving behind him two sons Tamijaddin and Najamuddin and a daughter Kalar Ma. Tamijaddin died sometime in 1324 B.S. Beaving behind him three sons Aminuddin who is defendant 1 to the suit, Abdul Majid (defendant 2) and Faijuddin (defendant 3) and two daughters Daragar Ma (defendant 4) and Nessa Bibi who is defendant 5 in this litigation. Najamuddin died in 1322 B.S. leaving behind him Tajaddin and Ainuddi two sons who are plaintiffs 1 and 2 and Asmateranessa a daughter who is plaintiff 3 in this litigation. Kalar Ma the daughter of Jainaddi died leaving behind her Kalimuddin who is defendant 6 in the litigation.
2. The case of the plaintiffs as stated in the plaint is that originally Jainaddi was the owner of the disputed lands which are described in schedule Ka to the plaint and that he died 40 years ago leaving him surviving two sons Tamijuddin and Najamuddin. Of the properties left by the said Jainaddi his two sons became owners in two equal shares and were in joint possession thereof by living as members of a joint Hindu family. It is also stated in the plaint that while the said brothers were in joint mess some of the properties which are included in schedule Kha of the plaint were acquired in different names out of the income of the joint properties, that is, out of the profits of the properties described in schedule Ka to the plaint. Then it is recited in the plaint that Najamuddin died about 13 or 14 years ago leaving him surviving plaintiffs 1 and 2 as his sons, plaintiff 3 as his daughter, and Tamijuddin died about 10 or 11 years ago leaving him surviving his three sons defendants 1, 2 and 3 and two daughters defendants 4 and 5. It is also alleged that while the cosharers other than plaintiff 3 and defendants 4 and 5 who had been married elsewhere and who are also heirs lived in joint mess and were in possession of the joint property, some of the remaining properties included in schedule Kha were acquired out of the income of the aforesaid joint properties and by their own efforts, that while in joint possession as owners of the disputed properties described in the schedules the cosharers in joint mess, namely, plaintiffs 1 and 2 and defendants 1, 2 and 3 quarrelled amongst themselves and be-became separate in mess but the properties were being possessed as joint properties and as it has become inconvenient for the cosharers to possess these properties jointly the present suit for partition had to be instituted. It is not necessary to refer to the other defences taken in the suit except the defence which has been taken by defendant 1 by which he claims throe of the dags mentioned in schedules Ka and Kha to the plaint to which particular reference will be made hereafter as properties which were acquired by his mother one Manekanessa and the defence as regards five other Dags which are claimed as properties acquired either by defendant 1 himself or by his father.
3. The Subordinate Judge who tried the suit has negatived the defence of defendant 1 with reference to these eight plots with which the present appeal is concerned. The question raised by defendant 1 in this appeal relates to these eight plots. A general argument has been advanced on behalf of the appellant to the effect that the judgment of the Subordinate Judge is vitiated by his misplacing the burden of proof on defendant 1 for showing that the eight plots were either his self-acquisitions or were acquisitions by his mother and father. It has been strenuously contended that this error with regard to the burden of proof has so far coloured the judgment of the Subordinate Judge that that judgment should not be allowed to stand. Further it is contended that the evidence pat forward on behalf of the plaintiffs is quite insufficient to discharge the burden which lay on them of establishing that the disputed eight plots are properties of the joint family. The true position with regard to the existence of any presumptions or otherwise regarding acquisitions by members of a joint Mahomedan family has been stated in numerous cases as follows: that where members of a Mahomedan family live in commensality they do not form a joint family in the sense that that expression is used with regard to Hindus and under the Mahomedan law there is not as under the Hindu law any presumption that acquisitions of the several members are made for the benefit of the joint family. Reference in this connextion may be made to some of the cases which have been referred to at the Bar and to other cases. The cases of Hakim Khan v. Gool Khan  8 Cal. 826 Suddertonnessa v. Majada Khatun  3 Cal 694 and Abdul Adood v. Mahomed Makmil [l884] 10 Cal. 562 were cases which were referred in the course of the argument before us. The other cases supporting the same view with reference to acquisitions of members of a joint Mahomedan family may also be referred to, as for instance, Abdul Kadar v. Bapubhai  23 Bom. 188 Mahamad Amin v. Hasan  31 Bom. 143 and Mohideen Bee v. Syed Meer Saheb  38 Mad. 1099.
4. The question however is different when it is shown as is disclosed by the evidence in this case (and it is common ground) that all the members now surviving of the family of Tamijaddin, Najamuddin and Kalar Ma were possessing the disputed properties jointly. It is not a question merely of the messing together of certain members of a Mahomedan family. They were possessing these properties in common and in jointness, and the question arises whether the rule can apply to the present case where as has been shown by clear evidence on which the Subordinate Judge relied and which we have no reason for discrediting that defendant 1 was the managing member of such a family Under those circumstances it seems to us that the burden . of proof would lie on defendant 1 for establishing that the properties which were acquired during the jointness of the family and which are shown to stand in the name of defendant 1 do not really belong to the joint family. Defendant 1 on the evidence occupies the position of a managing member, he is in the relationship of a fiduciary character to the other members of his family and has certain obligations to discharge with reference to the other members of the family. Under these circumstances it seems to us that the Subordinate Judge has not gone wrong with reference to some of these plots where the properties are said to stand in the name of defendant 1 in finding that it is likely to presume that it was for the managing member to show that the property was not the property of the joint family. After making these general observations we proceed to deal with the specific objections raised with regard to the eight plots now in controversy. We will first take up the plots which are alleged to belong to the mother. Plot No. 3594 is a part of schedule Ka to the plaint. The case of defendant 1 is that this was property which was purchased by the mother by a document which is exhibited at p. 12, part 2 of the paper book. The specific case made with regard to this is that the purchase money proceeded from the mother who obtained the same by selling a certain cow. (After considering the evidence the judgment proceeded). There is abundant evidence on the record to show that defendant 1 was looking after the proceeding during the survey. The written statement is a clear admission that this plot 3594 comprised in the mukarrari jama belonged to all the members of the joint family and an admission must be presumed to be true until it is explained or until it is shown to be untrue. As has been pointed out by the Judicial Committee of the Privy Council in Chandra Kumar v. Chaudhry Narpat Singh  29 All 184 quoting the observations from the case of Slatterie v. Pooley  6 M.& W. 664 that what a party himself admits to be true must necessarily be presumed to be so, and it is for him to establish by evidence that the admission was made under circumstances which do not make it binding on him. The only explanation which has been given in the evidence as also in the written statement of defendant 1 is that the entry in the Record of Eights was a mistake. Nothing has been said with regard to this clear admission he has made in the written statement. 'We are therefore clearly of opinion that having regard to the entry in the Record of Rights the admission made in the written statement, the unsatisfactory nature of the evidence regarding the purchase money having been found by the mother from the proceeds of the sale of the cow, the Subordinate Judge has arrived at a correct conclusion that plot No. 3594 belongs to the joint family and must be made the subject of the partition. (The judgment after dealing with evidence regarding acquisition of several plots concluded.) The result is that the decree of the Subordinate Judge is varied only with reference to plot No. 927 which would be declared to be the exclusive property of defendant 1 and will be omitted from the partition. The rest of the judgment and decree of the Subordinate Judge will stand. The respondents who have appeared will get two-thirds of their costs of this appeal from the appellant.
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Tamijaddin Najamaddin Kalar Ma
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| | | | | | Kalimaddin
Aminaddin Abdul Majid Faijuddin Daragar Ma Nessa Bibi | D 6
D 1 D 2 Munshi D3 D 4 D5 |
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Tajaddin P 1 Ainuddi P 2 Asmanterannessa P 8