1. This an appeal by defendants 1 and 5 against the judgment and decree of the Subordinate Judge of Dinajpur. The plaintiff sued as a pauper for declaration of title to and recovery of joint possession of one-fourth share of the properties in the hands oil defendants 1 and 5. The story of the plaintiff's right to the property may be very shortly stated thus : There was one Kali Prosad Mitra, the ancestor of the parties, who died in 1882. He had five sons. The eldest was Kunja Behary who died only recently after the decision of the case in the Court below. Rash Behary, the second son, was the father of the plaintiff, who died in 1893. Jadav was the father of defendant 1 who died in the year 1913. Trailokhya is defendant 4 in this suit and Brojo, defendant 2, in the suit. The plaintiff's case was that Kali Prosad had a homestead and some land. The income of the property which belonged to Kali Prosad was insufficient to maintain the family. Kunja Behary, the eldest son of Kali Prosad, lived with him, but Rash Behary came to live in Dinajpur with the object of getting into some sort of service. He managed to get employment under the district magistrate and began to earn considerable sums of money. Rash Behary brought Jadav to Dinajpur. Jadav, after having served in some capacity studied law and became a pleader by passing the pleadership examination. Jadav continued to practice in Dinajpur. The two brothers Rash Behary and Jadav lived together and they kept their earnings joint. These two brothers acquired the properties in question with their joint funds and certain other properties had been acquired by the profits of those properties, some of which are in the hands of defendant 5. The plaintiff had an elder brother Rajendra who died about 1919. The plaintiff says that Rash Behary, his father, was entitled to one-half of all the properties in suit and he being, one of the sons of Rash Behary is entitled to one-fourth share of all the properties. Bajendra's widow has been made defendant 3 in the suit. The defence of defendant 1 was that Rash Behary and Jadav were never joint, that all the properties in suit were acquired by Jadav with the income which he derived in the practice of his profession as pleader and the plaintiff cannot therefore claim any interest to any share of the property. The subordinate judge has passed a decree in favour of the plaintiff to the extent of one-sixth share of the properties claimed and has decreed joint possession of the undivided share of all the properties along with defendant 1.
2. The subordinate judge has come to his decision upon findings which are quite different from the allegations in the plaint. He apparently comes to the finding that all the five brothers were joint in food, worship and estate forming a normal Hindu joint family; but as Kunja has been satisfied with some of the properties of the joint family and does not claim any share of the disputed properties and as Trailokhya also does not claim anything having his own property, the properties in suit must he considered to have belonged to the three brothers Rash Behary, Jadav and Brojo. Upon that finding he lies come to the conclusion that the plaintiff is entitled to half of the one third share which belonged to Rash Behari.
3. It is regrettable that there was no appearance on behalf of the respondent in this case. The learned vakil who originally appeared in the case has no instruction to appear at the hearing. We had therefore to hear the entire case argued by the learned Government pleader who appeared for the appellant and we ourselves looked into the evidence in order to ascertain whether the decision of the subordinate judge was right or not.
4. The first thing that would strike one on reading the judgment of the subordinate judge is that he makes quite a different case for the plaintiff from what he made himself. The plaintiff nowhere stated, nor did he suggest, that all the five brothers formed a joint Hindu family. His case really amounted to this : that the two brothers Rash Behary and Jadav combined their earnings in order to acquire properties and the whole of the property in suit belonged to the two brothers equally. The subordinate judge seems to have started with an erroneous notion of what is a true joint Hindu family in Bengal. Under the Dayabhaga there cannot be a joint family consisting of the father and the sons, because so long as the father is alive he is the master. The sons may acquire separate properties of their own but they have no concern whatsoever with the joint family property, if any property can be so called during, the lifetime of the father. The subordinate judge starts with the observation that, during the life-time of Kali Prosad, the father and the sons formed a joint Hindu family. The next thing is whether it can be said that the five brothers after the death of the father formed a normal Hindu joint family. The test of course must be whether they were joint in food, worship and estate. The subordinate judge has found that the brothers were not living in the same mess, Kunja was living at a different place. It has also been found that each of the other brother Trailokhya and Brojo have their own separate properties and neither Kunja nor Trailokhya claims any interest in the disputed property. Rash Behary had also some separate property of his own, as was found in the previous suit of the plaintiff. Brojo also claims to have his own separate property. Brojo, however, made a claim to a share of the property in suit which the subordinate judge has sustained in spite of the evidence on behalf of the plaintiff that Brojo had separated long ago. The subordinate judge's judgment is long and deals with a good deal of things irrelevant to the enquiry in question and it has afforded us very little assistance in the decision of the case. Some of the reasons which he has given for accepting the evidence of some witnesses cannot be accepted. He says that the evidence of the mother of the plaintiff must be accepted as true, because she was known as the uttambau, the good daughter-in-law, as if the name which was given to the lady when she came as a new bride when she was only about 11 years old, would be any ground for deciding as to her truthfulness or otherwise when she was 74. The learned subordinate judge has not, however, accepted her story as a whole, because he does not accept her evidence that Brojo had been separated from the other two brothers. The subordinate judge apparently relies for his findings upon the evidence of this lady and that of Brojo, as he says
the real state of things appears from the evidence on both sides, the testimony of the plaintiff's mother and defendant 2 Brojo on the side of the plaintiff and that of Kunja Behary and Gour Chandra Roy and, Panchanan Mitra and others on the other.
5. Now this lady proved that each of the other brothers Kunja, Trailokhya and Brojo had their separate earnings, lived at different places and had their separate funds. From the evidence which the subordinate judge has stated in great detail it appears that Rash Behary, when he obtained service in the office of the Magistrate of Dinajpur was better off than any of his other brothers, that he helped the younger brothers in their education and very likely helped Jadav during the period of struggle in his profession as pleader Probably being connected with the Magistrate's office, he was of great help in getting business for Jadav in the criminal Courts. It is command knowledge that if any brother of the family amongst the Hindus in Bengal is in a more affluent circumstance on account of his earnings than others the indigent members of the family flock to him for the purpose of assistance and support. Does that make a joint Hindu family of the member who earns money and the poorer members who live as his dependants? If that were the law then it would prevent a prosperous member of the family from being generous to the poorer members at the risk of being subjected to a claim to all the properties that he acquires by his own endeavour by those dependants. Therefore the fact of Rash Behary earning a considerable sum of money and maintaining his brother or nephews when he was in affluent circumstance is absolutely f irrelevant in determining the question whether the brothers formed a joint Hindu family as it is generally understood and which determines the rights of the members of it. But it is unnecessary to state in detail all the circumstances which show that there could not have been and there was not a joint Hindu family consisting of the brothers. Plaintiff's case is that there was no nucleus of ancestral property for the acquisition of the property in dispute. Three of the brothers never supplied any funds nor did they help with their labour for its acquisition. It was not thrown into the common stock. How then could this be joint family property? The plaintiff's case was that the two brothers Rash Behary and Jadav jointly acquired the properties in question and that was the matter which was really before the subordinate judge for decision. The subordinate judge seems to have made a wrong assumption at the very outset. In the year 1915 the plaintiff brought a suit for partition of the joint family properties against these very persons. That suit was dismissed by the subordinate judge and it was finally dismissed on appeal by the High Court in the year 1917. The present suit has been brought in the year 1921. The story which the plaintiff's mother gives in her evidence is quite at variance with the statement made in the plaint in this case or in the previous case. The subordinate judge thinks that the plaintiff never asked his mother what the true facts as regards the condition of the family were, either now or previously when he brought his suit in 1915. It does not require much consideration to dismiss this suggestion on behalf of the plaintiff as absurd. The plaintiff brings two successive suits with regard to a share of the property which is valued at over Rs. 60,000 and it can hardly be believed that he never asked his mother about the facts, when she was the only person who could possibly know the facts as to what his position was. Add to this the fact that his elder brother was alive when the previous suit was brought, and that elder brother certainly would know more about the condition of the family having been born, in the year 1869, long before Rash Behary died. That gentleman Rajendra never made any claim to the property in the hands of defendant 1. That itself is a circumstance which might have the subordinate judge reason to pause before coming to his conclusion that the plaintiff had any interest in the property as a member of a joint family.
6. The next question that arises is, has the subordinate judge given sufficient reasons for disbelieving Kunja? The statements in his evidence which the subordinate judge quotes at considerable length in his judgment for disbelieving this man really are of no consequence. He was an old man of 85 when he gave his evidence, and it he made some wrong statements which did not concern the principal question in the case but as regards what money was paid to what person for the purpose of performing sradh of some members of the family and such other unimportant matters, that is no reason why he should be disbelieved with regard to the principal question, as to the ownership of the properties in suit. His evidence, as was rightly contended before the subordinate judge, was against his own interest. It is not stated what the value of his separate property is. But from the general trend of the evidence it is quite clear that even if he had to bring it into the hotchpot and got only one-fifth of that property and in addition one-fifth of the property in suit he would be a gainer. The subordinate judge, however, says that the SODS of Kunja are being educated by defendant 1 and that is probably the reason why Kunja does not claim any interest in the property. But receiving charity from a person from whom he can as of right demand one-fifth of the property of which he is in possession cannot be such an inducement for giving false evidence in order to maintain defendant 1, in his unlawful possession of the whole of the property. Then what is the explanation that Trailakhya does not claim anything? The subordinate judge says because these two persons Kunja and Trailakhya did not contribute a cowrie for the acquisition of the property they cannot claim anything. If the sub-ordinate judge was right in holding that it was a joint family of five brothers it was not necessary to prove that any of the brothers, contributed towards the purchase of joint family property. It is only when self-acquisition is claimed that it is necessary for the other members of the joint family to prove that they had also contributed to the acquisition of the property. It seems that the subordinate judge has mixed up the position as alleged in the plaint and the position of members of a joint Hindu family.
7. The subordinate judge has discussed in his judgment the evidence of a large number of witnesses which in his own opinion did not prove anything about the real state of things. Much of it is merely hearsay and matter of opinion not based on facts. It would have been better if all such evidence were altogether left out of consideration, e.g. the enormous income which Rash Behary is alleged to have made when he was a clerk on Rs. 40 a month.
8. The case must then be considered as to whether the properties were the joint acquisition of Rash Behary and Jadav. With regard to this matter there is no question of any presumption. The evidence shows that Rash Behary lived in a separate house from Jadav, although the houses were side by side. There being no joint Hindu family in this case, assuming that there was reliable evidence that Rash Behary and Jadav combined their earnings for the purpose of the acquisition of the disputed properties, the plaintiff must show how much Rash Behary contributed for such acquisition and his share would be in accordance with the amount of purchase money that was found to be Rash Behary's. There is no such evidence on the record. It is in evidence that only a few properties in suit were acquired in the lifetime of Rash Behary. Under these circumstances the plaintiff's evidence does not help us in finding what share his father could have claimed in the properties which are said to have been acquired by the two brothers jointly. The evidence does not establish joint acquisition. If there is any presumption, the presumption is in favour of the defendant on the evidence that all the brothers were living separately, had their separate income and separate funds.
9. The plaintiff having failed to prove by any satisfactory evidence the case that he made in his plaint this appeal must be decreed and the plaintiff's suit dismissed with costs in this Court and in the lower Court.