1. The facts giving rise to the litigation, in which this appeal has arisen, as accepted by the Court of appeal below, may be briefly enumerated, in view of the matters in controversy between the parties. One Poornachandra Ganguli had three sons: Kunjabihari, Matilal and Biharilal. Poorna, it would appear, was not at all well off, so, far as his pecuniary circumstances were concerned, and had to spend a part of his life in his father-in-law's house. Kunjabihari, the eldest son, served in the police department of the Government, and had a decent income; out of his own money he acquired property, which is the subject-matter of the present litigation, in the name of his father Poorna, the name of the father having been used for the reason that Kunja's superior officers in the department would have raised objection had it been known that he was acquiring property within the district in which he was serving. Kunjabihari predeceased his father: Kunja died in the year 1912 while his father Poorna's death took place in the year 1919. The father was dealing with the property as his own, in the sense that he was living in the same, which is a house, till the time of his death; there is lack of evidence to show that Kunjabihari treated the property as his own self-acquired property, and, in point of fact, after the death of Poorna, there was, in the year 1925, a deed of partition between the sons of Kunjabihari on one side and their uncles Matilal and Biharilal on the other, in which it was stated that the possession of the plaintiff, Hemchandra Ganguli, in the suit out of which this appeal has arisen, and that of his brother, was in respect of one-third share of the property. This suit, as instituted by the plaintiff in 1928 for partition and possession of the property, to which reference has been made above, was on the footing that the partition deed, drawn up in 1925 mentioned above, was not registered, and the agreement between the parties was that it should not come into force before registration; the plaintiff averred that he subsequently came to realise his own legal position in respect of the property, and was suing in assertion of his and his brother's legal rights in respect of two-thirds share of the property, defendants 1 and 2 being entitled to get the remaining one-third share. The learned District Judge in the Court of appeal below has quoted the plaintiff's own words, in which his case was put before the Court:
The family was not a joint Hindu family under the Dayabhaga law, but was a family of persons, father and sons, living jointly and governed by Dayabhaga law.
2. In other words, the family was not a Hindu family under the Dayabhaga school of Hindu law, but it was a community of persons living jointly and governed by the Dayabhaga. On the pleadings of the parties, defendants 1 and 2 in the suit- the paternal uncles of the family-having pleaded that the family was a Hindu joint family, that the property in suit was acquired from common fund of the joint family contributed by Poorna and his three sons, and that, on their father's death, they had inherited a one-third share each in the property, the plaintiff and his brother-the sons of Kunjabihari - being entitled to the remaining one-third share, the material issue raised for trial in the suit was issue 4:
Is the disputed property ancestral property of the parties? Has it been acquired out of common fund
3. It would appear that the trial Court was of opinion, on the evidence in the case, that
the property in dispute was acquired by Poorna, though in all probability the money was got by Poorna from his son Kunja. The evidence on the plaintiff's side shows that Kunja intended to make his property the property of the family and not his separate property.
4. The trial Court, on consideration of the evidence before it held that
the disputed land was ancestral property of the parties, and was acquired out of what is called by the defendants the common fund.
5. The shares of the parties were, accordingly, determined, the plaintiff and defendant 3 having a one-sixth share each in the property in suit. On appeal by the plaintiff, the learned District Judge has held, as has already been mentioned, that the property in suit was purchased by Kunjabihari in the name of Poorna. The learned Judge observed that, with regard to actual treatment of the property after its acquisition, there was a great dearth of evidence. He has stated definitely that evidence on the side of defendants 1 and 2 did not prove that the property was not joint family property. The learned Judge has then proceeded to observe that on the side of the plaintiff however there is lack of evidence to show that Kunja ever treated the property as his own self-acquired property. According to the learned District Judge there was a presumption in favour of defendants 1 and 2 that the property was acquired for the benefit of the family, although the money actually was subscribed by Kunja; the onus lay on the plaintiff's side to show that Kunja treated the property as his self-acquired property and that onus had not been discharged. In the above view of the case the decree passed by the learned Subordinate Judge in the trial Court was upheld by the Court of appeal below, and the plaintiff's appeal was dismissed so far as the question of determination of shares and partition as between the plaintiff and defendant 3 on one side and defendants 1 and 2 on the other was concerned. It requires notice, in the first place, that the learned District Judge's observation, regarding the distinction between a joint family under the Dayabhaga school of Hindu law and a community of persons governed by the Dayabhaga living jointly and his characterisation of the distinction between the two, as drawn before him, as a thing which savoured of 'sophistry' does not commend itself to us.
6. It is now well recognized that, under the Dayabhaga school of Hindu law prevalent in Bengal, there cannot be a joint family consisting of the father and the sons. The sons may acquire separate property having no concern with the joint family property, if any property can be called joint family property during the lifetime of the father. It must also be taken to be well established that brothers living in commen-sality are not members of a joint Hindu family governed by the Dayabhaga, so as to enable the brothers to claim the self-acquisition of a brother in more affluent circumstances as acquisition of a joint family, unless these other brothers proved that they had also contributed to the acquisition of the property claimed by them as acquisition by the joint family: see in this connexion the case of Gouranga Sundar v. Mohendra Narayan : AIR1927Cal776 . It is to be noticed fur ther that there cannot be any doubt that property, which was originally self-acquired, may become a joint property, if it has been voluntarily thrown into the joint stock with the intention of abandoning all separate claims upon it. The question, whether there was abandonment of separate claim or not, is entirely one of fact, to be decided in the light of all the circumstances of the case; a clear intention to waive separate rights must however be established and will not be inferred from acts attributable to various causes: see Mayne on Hindu Law and Usage, 9th Edn., para. 278, pp. 360 to 361; Lal Bahadur v. Kanhaiya Lal (1907) 29 All 244 Suraj Narain v. Ratan Lal AIR1917 PC 12 and Muddun Gopal Lal Khikhinda Koer (1890) 18 Cal 341. It requires notice also that where no nucleus of joint property is admitted or proved, and there is, in the case before us, nothing to indicate that there was any nucleus of the joint family, to which the parties concerned belonged, the onus is upon the party asserting that property was not the self-acquired property of an individual member of the family: see Golapchandra Sarkar's Treatise on Hindu Law, 7th Edn., by Mr. Rishindranath Sarkar, p. 549, and the case referred to there. Reference may also be made to the decision of a Full Bench of the Madras High Court in the case of C. Ethirajulu Naidu v. Govindarajulu Naidu AIR 1917 Mad 307, in which it has been held that property acquired by a member of a joint Hindu family, when there is no nucleus of joint property, is presumed to be his separate property, and the burden of proving that he threw it into the common stock is upon those who assert it.
7. In the light of the above position in law, the decision of the Court of appeal below, which was arrived at after expressing disagreement with the findings arrived at by the trial Court, that the property was acquired by Poorna, that Kunja, by whom the fund was supplied to Poorna, intended to make his property the property of the family and not his separate property, cannot be accepted as one sound in law. There was under the law no presumption in the case before us in favour of defendants 1 and 2 that the property was acquired for the benefit of the joint family, although money was actually subscribed by Kunja, there having been no joint family, in the strict sense of the expression, applicable to persons governed by the Dayabhaga school of Hindu law, owning property. The Court below, in our judgment, is not right in law in laying down the proposition that the onus lay on the plaintiff's side to show that Kunja had not treated the property as his own self-acquired property. In view of the propositions of law, to which reference has been made, with which we are in entire agreement, the plaintiff had no burden on himself to discharge in the matter of proof of the fact that his father had no intention to treat the property acquired by him with his own funds, as his separate property. It was not for the plaintiff to prove a negative regard being had specially to the defence of defendants 1 and 2 in the suit, to which reference has been made already. The general rule of evidence is that if in order to make out a title, it is necessary to prove a negative, the party who avers it must prove the title.
8. In some cases this allegation, negative in form, is made by the plaintiff, in others by way of defence: the rule applicable to all such cases is that, where a claim or defence rests upon a negative allegation, the one assertitg such claim or defence is not relieved of the onus probandi by reason of the form of the allegation or the inconvenience of proving a negative: see Abrath v. N.E. Ry. Co. (1883) 11 QBD 440. The plaintiff's claim before the Court, on the basis that the property in suit was the self-acquired property of his father Kuniabihari was resisted by defendants 1 and 2 on the ground that the property was acquired by Poorna, that it was the property of the joint family, having been acquired from the common funds of the joint family, and that it was ancestral property. The defence so raised was not accepted by the Court of appeal below. It was held that the evidence on the side of defendants 1 and 2 to which reference has been made by the Court below in detail did not prove that the property was joint family property. In the case before us therefore, regard being had to the cases set up by the respective parties, it was not for the plaintiff to prove a negative; but it was for defendants 1 and 2 to prove their defence before the Court, which they had failed to do.
9. The conclusion of the learned Judge in the Court below based upon propositions laid down by him that there was a joint Hindu family comprising the father and the sons, that there was a presumption in favour of defendants 1 and 2 that the property was acquired for the benefit of the joint family, although the fund was actually supplied by Kunjabi-hari, and the onus was on the plaintiff to prove the negative; that the property was not treated as the separate self-acquired property of Kunjabihari, has not been discharged, is not supportable in law; and we are wholly unable to give effect to the conclusion so arrived at by him. We have no hesitation in coming to the decision that, upon the findings of fact arrived at by the learned Judge, the plaintiff was entitled to the share claimed by him so far as the property in suit was concerned, and that defendants 1 and 2 have failed to establish the case, which would have entitled them to the shares claimed by them on the score of the property being ancestral, their defence having failed on the findings arrived at by the final Court of fact. According to our decision, the plaintiff and defendant 3 in the suit, the sons of Kunjabihari, are entitled to get a one-third share each, in the property in suit, and are entitled also to get possession of the same on partition. This disposes of the case decided by the Court of appeal below on appeal by the plaintiff.
10. The question requiring consideration next is this: The learned District Judge in the Court of appeal below allowed the cross objection preferred by defendants 1 and 2 in regard to a chowchala tin-roofed hut in the outer house within the ambit of the property in suit, and in regard to a table mentioned in the plaint, as the plaintiff's self-acquired property. The trial Court, on the evidence in the case held that the two items of property mentioned above were the self-acquired separate properties of the plaintiff and were, therefore, to be kept outside partition. The learned Judge, in the Court of appeal below, has not assigned any reason whatsoever for reversing the decision of the trial Court, and no attempt was made before us to support the learned Judge's decision in this behalf. We accept the decision of the trial Court with reference to the chowchala tin-roofed hut and the table mentioned above, and they are to be kept outside the partition, as the self-acquired properties of the plaintiff in the suit. It may be mentioned that the chowchala tin-roofed hut mentioned in the plaint is to be treated as the plaintiff's separate property, irrespective of the ground on which the hut stands, which is to be partitioned in accordance with the shares of the parties concerned, in view of our decision in supercession of the decision arrived at by the Courts below, on the question of shares.
11. In the result the decisions and decrees passed by the Courts below are set aside and the plaintiff's claim is allowed in full. A self-contained decree is to be drawn up in this Court incorporating our decision in favour of the plaintiff in the suit, entitling him to possession on partition, after a Commissioner for effecting partition has been appointed by the trial Court. On the facts, and in the circumstances of the case, we direct that the parties do bear their own costs in the litigation up to the present stage including the costs of this appeal.