R. Garth, C.J.
1. I am unable to agree in the view which the learned Judge has taken of this case.
2. There is no doubt, of course, that as a general principle, when a Hindu family is proved to have been joint, that state of things is presumed to continue, until the contrary is shown. The question is, how far that principle can properly be applied in this case.
3. The plaintiff sues to recover an undivided share in certain land, which is now, and has been for many years past, in the defendants' exclusive possession, and his case is this.
4. He says that his maternal grandfather Krishto Mohun, and the maternal grandfather of the defendant No. 1, were uterine brothers; and that whilst they were living in commensality they purchased the property in question with their joint funds in the name of Radha Mohun; that subsequently Krishto Mohun left his home, and then his daughter (the plaintiff's mother) enjoyed the property jointly with Radha Mohun, till her death, when plaintiff succeeded to his right, and applied to the revenue authorities to have his name registered, but that having failed in this application, he sues to establish his right and to recover possession.
5. The defendants' case is that Radha Mohun bought the property himself with his own money, after he and his brother had separated; that Radha Mohun, and afterwards the defendant No. 1, under Radha Mohan's will, have been in exclusive possession; and that the plaintiff and those under whom he claims never had anything to do with it.
6. Both Courts have found in favour of the defendants. They say that the plaintiff has entirely failed to show that at the time when the property was purchased the two brothers, Radha Mohun and Krishto Mohun, were living in commensality, or that the property was purchased with their joint funds, or that Krishto Mohun had anything to do with it. It was purchased in Radha, Mohun's name; it was left by his will to the defendant No. 1, and the defendants have been in exclusive possession of it for upwards of twelve years, so that the plaintiff is barred by limitation.
7. But the learned Judge of this Court, has held that, as this is a suit brought by a Hindu to recover possession of joint family property, and as it is admitted that Radha Mohun and Krishto Mohun were at one time, joint, the presumption is, till the contrary is shown, that the property in suit was purchased during the time that the brothers were living joint, and that it was incumbent on the defendants to prove that the property was purchased after the separation.
8. He considers, moreover, that the ordinary rule of twelve years' limitation does not apply; and that the case comes under Section 127 of the Limitation Act; so he has remanded the case for the further enquiry, at what time his exclusion from this property became known to the plaintiff.
9. Now it seems to me that before a Hindu plaintiff can bring his case within Article 127, he must prove that the property in which he seeks to recover a share is 'joint family property; and that it is not enough for him merely to call it joint family property, and to show that 30, 50 or 100 years ago his ancestors, and the defendant's ancestors, were joint; leaving the Court to presume from this, that any property of which the defendant may be possessed at the time of suit brought is joint family property.
10. In this casts, the property in suit is found to have been in the exclusive possession of the defendants for upwards of twelve years; and I consider that under Section 144 they have a prima facie right to that property by force of the twelve years' limitation rule against all the world. If the plaintiff wants to bring himself within Article 127, which places him in a more advantageous position than other claimants, he is bound to show that the property which he seeks to recover was at some time joint family property. In this he has entirely failed.
11. The doctrine, which the respondent's pleader has advanced, and which has apparently been acted upon by the learned Judge in this Court, appears to me a very dangerous one. If that doctrine were well founded, it would seem to follow that however long a Hindu may have been in the exclusive possession of property, moveable or immoveable, he would always he subject to have his title to it questioned by any distant member of his family, who could prove that at some prior period, even 100 years before, their common ancestors were members of a joint family; and not only so, but that in all such cases the onus of proving that the property was not joint would lie upon the defendant.
12. I should be sorry to think that this was the law. I consider that in this case these defendants having a twelve years' statutory title to the property claimed, have a prima facie case of separate ownership, and that as the plaintiff has given no evidence that the property was ever joint, his suit was properly dismissed. As my brother Mitter is also of this opinion, the judgment of the District Judge will, therefore, be restored, with the costs of both hearings in this Court.
13. I am also of the same opinion.
14. The plaintiff seeks to recover possession of a share in a property which the defendants claim as the exclusive property of their predecessor in title, Radha Mohun. The plaintiff is the daughter's son of Krishto Mohun, Radha Mohun's brother.
15. The plaintiff alleged that this property was a joint family property of Radha Mohun and Krishto Mohun. The lower Courts found that the plaintiff had utterly failed to establish that it was at one time their joint family property. They also found that the defendants and their predecessor in title have been in possession of this property for more than twelve years. Upon these findings the lower Courts dismissed the plaintiff's suit on the ground of limitation, as well as on the ground that the plaintiff's title was not made out.
16. On the second appeal the learned Judge in this Court held that the decisions of the lower Courts were erroneous in law. He is of opinion that the plaintiff's suit ought not to be dismissed as barred by limitation upon the finding that the defendants were in exclusive possession of the property in dispute for more than twelve years. He thinks that Article 127 of the second schedule of the Limitation Act is applicable to the facts of this case. As to the title of the plaintiff, the learned Judge is of opinion that it must be presumed in his favour, because the defendants failed to prove that the property in dispute belonged exclusively to Radha Mohun. He thinks that if two brothers are admitted or proved to have lived as members of a joint Hindu family at one time, it must be presumed that their joint status continued until the contrary was proved.
17. Acting upon this presumption he has come to the conclusion that at the time of the acquisition of the property in dispute Radha Mohun and Krishto Mohun were members of a joint Hindu family, because the defendants have given no evidence to show that they had separated before that time.
18. Having thus arrived at the conclusion, that at the time of the acquisition of the property in dispute the brothers were joint, the learned Judge has thrown the onus of proving that it was the exclusive property of Radha Mohun upon the defendants; because, according to another presumption of Hindu law, a property, purchased in the name of one member of a joint family, must be presumed to be the common property of the family until the contrary is shown. As the contrary has not been shown in this case, the learned Judge has come to the conclusion that the property in dispute belonged to the two brothers Radha Mohun and Krishto Mohun.
19. Now it seems to me that in this case there was no room for either of these presumptions. It was an admitted fact that at the time when the suit was brought the plaintiff and defendants were not members of a joint family; that being so, the case is brought within the ordinary rule, viz., that the plaintiff must succeed on the proof of his title. He must prove that the property in dispute is his, by reason of its being a joint family property belonging to his ancestor, and the ancestor of the defendants. This view of the law is supported by the decision of the Judicial Committee in Bannoo v. Kashee Ram I.L.R. 3 CaL. 315. There also it was admitted, as in this case, that when the dispute arose, the family was separate. The Judicial Committee held that in this state of things no presumption arises in favour of the plaintiff. Their Lordships say: 'In the case of an ordinary Hindu family who are living together, or who have their entire property in common, the presumption is that all that any one member of the family is found in possession of belongs to the common stock. That is the ordinary presumption, and the onus of establishing the contrary is thrown on the member of the family who disputes it. Having regard, however, to the state of this family when the present dispute arose, their Lordships think that the presumption cannot be relied upon as the foundation of the plaintiff's case, and therefore, as he seeks to recover property which was in the possession of Ramdyal, and was ostensibly his own at the time of his death, it lies upon him to establish by evidence the foundation of his case, viz., that the property was joint property, to which he and his brother Kashee Ram, as surviving members, were entitled.'
20. As regards the application of Article 127 of the Limitation Act, I fully agree with my Lord the Chief Justice, that it cannot be applied until the plaintiff proves that the subject-matter in dispute is joint family property.
21. In the opinion of the lower Courts the plaintiff has failed to prove that the property in dispute was at any time the joint family property of Radha Mohun and Krishto Mohun. This finding of fact must be accepted as correct in second appeal.