Asutosh Mookerjee, J.
1. This is an appeal by two of the defendants in a suit instituted by the reversionary heirs to the estate of one Brojo Mohan Pan who died in the year 1900. Brojo Mohan left a widow Jadumani (the first defendant) and five daughters, three of whom Mrinalini, Urmila and Rukhyabala were the plaintiffs in the Court below. The other two daughters Gharushila and Nirmola were the second and the fourth defendants respectively; the third defendant Radha-shyam is the husband of Gharushila. The second plaintiff Urmila died during the pendency of the suit in the lower Court; the third plaintiff Bakhyabala has died during the pendency of the appeal in this Court. Consequently, the only respondent in the appeal is the first plaintiff Mrinalini.
2. The plaintiffs asked for a declaration that the disputed properties, which were arranged in five schedules, formed part of the estate of their father. The lands included in the first three schedules stand in the name of Gharushila and are covered by conveyances dated 24th June 1907, 24th April 1909 and 11th July 1911. The properties in the fourth schedule were transferred by Jadumani to her son-in-law Badhashyam and are claimed by him as purchaser. There was originally no farther schedule to the plaint. But on the 28th March 1919, during the progress of the trial, the plaintiffs, with the sanction of the Court, amended the plaint by the inclusion of properties now comprised in the fifth schedule. These also stand in the name of the second defendant Charushila and are covered by a conveyance dated 24th April 1909. The plaintiffs assert that all the disputed properties were acquired by their mother with money taken out of the income of the estate of their father, and must consequently be treated as accretions to the estate. The second defendant Gharushila contended that the properties which stood in her name had been acquired by her with her own money and thus constituted her private property. The third defendant Badhashyam contended that the properties which had been transferred to him had been alienated by his mother-in-law for legal necessity, and had accordingly vested in him absolutely. The Subordinate Judge has overruled these contentions and has given the plaintiffs the declaration sought by them.
3. On the present appeal. Dr. Kanjilal has not contested the propriety of the finding of the Subordinate Judge that the second defendant Gharushila had no funds at her disposal which could enable her to acquire the disputed properties. We must then take it that these properties were purchased out of the income which was in the bands of Jadumani as the holder of the estate left by her husband. It has also not been disputed that Charushila and her husband Radhashyam lived with Jadumani, while the other daughters lived in the houses of their respective husbands. On these facts, it has been contended that the plaintiffs cannot possibly succeed unless it is established that the properties, though acquired with money from the estate of Brojo Mohan Pan, had been treated by his widow as accretions thereto. In support of this position, reliance has been planed upon the decisions in Sreemutty Soorjeemoney Dossee v. Denobundoo Mullich 9 M.I.A. 123, 4 W.R. (P.C.) 114 : 1 Sar. P.C.J. 837 : 19 E.R. 688, Wahid Ali Khan v. Tori Ram 21 Ind Cas 91 : 35 A. 551 : 11 A.L.J. 856, Bhagabati Koer v. Sohodra Koer 13 Ind. Cas. 691 : 16 C.W.N. 834 and Saodamini Dasi v. The Administrator- General of Bengal 20 C. 433 : 20 I.A. 12 : 6 Sar. P.C.J. 272 : 17 Ind. Jur. 223 : 10 Ind. Dec. (N.S.) 293. In our opinion, the view pat forward on behalf of the appellants cannot be sustained.
4. The undisputed fact is that the consideration for the acquisition of the properties which stand in the name of Charushila was supplied by Jadumani out of the income of the estate of her husband. The presumption then is that the properties acquired were impressed with the same character as the funds employed for their acquisition. It has not been disputed that in this country the mere fast that a conveyance has been taken in the name of a child does not raise the presumption that the transaction was by way of advancement. This proposition was enunciated by the Judicial Committee in the case of Gopeekrist Gosain v. Gungapersaud Gosain 6 M.IA. 53 : 4 W.R. 46 (P.C.) : 1 Sar. P.C. J. 493 : 2 Suth. P.C.J. 13 : 19 E.R. 20 and was subsequently affirmed in Maullie Sayyud Uzhur Ali v. Musammat Bebee Uitaf Fatima 13 M.I.A. 232 : 13 W.R.P.C. 1 : 4 B.L.R. P.C. 1 : 2 Sar. P.C.J. 522 : 20 E.R. 538 and Bissessur Lall Sahoo v. Moharajah Luchmessur Singh 6 I.A. 233 : 5 C.L.R. 477 (P.C.) : 4 Sar. P.C. J. 76 : 3 Sutt. P.C.J. 686 : Bald, 331. The same view was emphasised by Mr. Justice Dwarka Nath Mitter in Chunder Nath Moitro v. Kristo Komul Singh 15 W.R. 357 and by Mr. Justice Wilson in Nobin Chander Chowdhury v. Dokhobala Dasi 10 C. 686 : 5 Ind. Dec. (n.S.) 461. Consequently, the true position is that if the properties had been acquired by Brojo Mohan Pan, with his money in the name of his daughter Charushila, there would have been no presumption that they had been acquired for the benefit of the daughter. But it has been argued that the widow, though a qualified owner of the estate left by her husband, was in a better position, and that when she applied a portion of the income of the estate of her husband for the acquisition of properties and took the conveyances in the name of her daughter, there might be a presumption that the acquisition was made for the benefit of the daughter. The question is one of intention, and as was pointed out by the Judicial Committee in Ram Narain v. Muhammad Hadi 26 I.A. 38 : 26 C. 227 : 3 C.W.N. 113 : 7 Sar. P.C.J. 425 : 13 Ind. Dec. (N.S.) 749, one important test would be the character of the possession of the properties acquired. If it could be established that they were in the exclusive occupation of Charushila as her properties, the inference might be drawn that the widow intended to make a gift of them to her daughter. But this test is of no assistance to the appellants, because as already stated, the daughter and her husband lived with Jadnmani and were dependent upon her. We must consequently hold that the fact that the properties stand in the name of Charushila does not show that they were acquired for her benefit. This view is supported by the decision of the Judicial Committee in the case of Bilas Kunwar v. Desraj Ranjit Singh 30 Ind. Cas 299 : 42 I.A. 202 : 19 C.W.N. 1207 : 29 M.L.J. 335 : 2 L.W. 830 : 18 M.L.T. 248 : 18 A.L.J. 991 : 17 Bom. L.R. 1006 : 37 A. 557 : 22 C.L.J. 516 : (1915) M.W.N. 757 (P.C.). It has been strenuously contended, however, that the claim of the plaintiffs may be defeat' ed because they are unable to establish affirmatively that the widow, when she acquired the properties in suit, intended to treat them as accretions to the estate of her husband ; and if there is no proof of such an intention, the view may be maintained that she intended to treat them as her separate properties. The obvious answer to this argument is that this was not the case made by the widow herself. She was the first defendant in the litigation, and repudiated the suggestion that the property belonged to her either as part of the estate of her husband or as separate properties acquired by her with the income thereof. It is consequently impossible for her daughter, who is the appellant before us, to maintain the position that the suit of the plaintiffs should fail because she is the owner of the properties. We are, therefore, of opinion that the plaintiffs have established their case with regard to the properties in the name of Charushila. As regards the properties which stand' in the name of the third defendant, the Subordinate Judge has given satisfactory reasons for his opinion that the transaction was of a collusive character and that there was really no consideration for the transfer. He has pointed out that the third defendant had no funds of his own, and that the allegation of legal necessity in the conveyance is not true. The plaintiffs are thus entitled to a declaration that the properties in the name of Radhashyam form part of the estate of Brojo Mohan Pan in the same way as properties which stood in the name of his wife.
5. Our attention has finally been drawn to the circumstance that the proceedings in the Court below in respect of an application for amendment of the plaint presented on the 28th March 1919 were irregular. The application was not considered when made, but was adjourned, and no order was passed thereon till the trial had concluded. The Subordinate Judge has, however, pointed out that the parties were not prejudiced thereby; both sides had ample opportunity (of which they availed themselves) to adduce relevant evidence as regards the additional properties. But the order for amendment has not been actually carried out, as it should have been ; this may now be effected.
6. The result is that the decree of the Subordinate Judge is affirmed and this appeal is dismissed with costs.
7. I agree.