1. This was a suit brought by the two plaintiffs for the recovery of Rs. 1,000 admittedly deposited by their deceased brother Badhasham Behara, with a banker. In the Court of first instance it was found that the money was not joint family property; that therefore, Badhasham's widow being alive, the plaintiff had no right to sue; and that the money had, in fact, been re-paid. As a result, the suit was at first dismissed. The learned District Judge has, however, reversed all the above findings and decreed it; and the defendant-banker has now preferred this second appeal.
2. The District Judge's decision is attacked mainly with reference to the law he has enunciated as to the presumption in favour of a Hindu family; being joint and property in the hands of a member of it being family property. He has, it is said, gone too far in throwing the onus entirely on the appellant and holding that it is to be presumed, not only that Badhasham was joint with his brothers, the respondents, when the money was deposited by him, but also that the deposit was derived from joint funds. The contention is that, in circumstances such as those of the present case, the ordinary presumption of Hindu law does not arise; and in support of it I am referred to Ram Pershad Singh v. Lakhpati Koer 30 C. 231 at p. 244 : 7 C.W.N. 162 : 30 I.A. 1 and Gannu Singh v. Bhagwati Koeri 3 Ind. Cas. 234. In these cases this Court, undoubtedly, expressed the opinion that, when there is separate residence, separate messing and separate worship among the members of a Hindu family, the presumption based on the theory of the normal condition of such a family 'can hardly be said to hold good' or, in the words used in the latter case, 'falls to the ground;' the contrary presumption then arises; and it rests on the party who alleges continuance of indivision in spite of severance in these particulars to establish his allegation. Now, in each of these instances this Court was dealing with the facts in a regular appeal, and what was held was simply this, that the facts found as to cesser of commensality and so forth, being themselves inconsistent with the normal state of a Hindu family, were sufficient, prima facie, to show separation and shift the burden of proof on to the side asserting that the family had nevertheless remained joint. Jointness is, I imagine, becoming almost daily less and less the rule, and the presumption and re-consideration is, amid the changing conditions, and in response to the natural demands of a progressive society, steadily losing strength, in the sense that it is more and more easily rebutted as time advances. It may well be that it will disappear altogether some day--perhaps at no distant date; but 1 can find no authority either in the ruling cited or elsewhere, such as to justify me in holding to-day that there are cases in which it does not exist at all and is not, so to speak, the starting point, On behalf of the appellant it has, indeed, been conceded that no fault can be found with the learned District Judge's initial observation that the onus of proving that the three brothers were not joint lay upon him. But it is argued that the Judge misdirected himself when he proceeded to lay it down that it was also to be presumed that the money deposited was derived from joint funds, and that he was wrong in dismissing the suit because the defendant had failed to prove affirmatively that it was self-acquired property. In this connection reference is made to the case of Dwarka Prasad Raghubir v. Jamna Das Gordhan Das 13 Bom. L.R. 133 : 9 Ind. Cas. 948 in which Beaman, J., has held 'that it is not a presumption of the Hindu law that every member of a joint Hindu family, found to be in possession of property at his death, has necessarily acquired that property as a member of the joint family and so imprinted upon it the character of joint Hindu family property.' But the learned Vakil for the appellant has overlooked the fact that Mr. Justice Beaman at once goes on to observe, that 'before that presumption can be made it lies upon the party so alleging to prove that there was at least a nucleus of joint family property out of which the property ultimately acquired by an individual member may be said to have grown.' Here it is obvious, and cannot be denied, that there was such a nucleus; and, therefore, the Bombay case really does not help the appellant. My conclusion, then, is that the learned District Judge made no mistake in this connection and that his findings of fact conclude this part of the appeal.
3. It is next contended, that even if the family were joint and Radhasham acting as manager, his discharge in respect of the sums paid before his death was good and sufficient to bind the family : and the appellant relies for support upon the recent decision of the Judicial Committee in Kishen Parshad v. Har Narain Singh 38 I.A. 45 : 15 C.W.N. 321 : 13 C.L.J. 345 : 9 Ind. Cas. 739 : 8 A.L.J. 256 : 9 M.L.T. 343 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : 33 A. 272 : (1911) 2 M.W.N. 395 by which it has been settled that the manager on behalf of a joint Hindu family of the family banking business can not only enter into contracts and give discharges so as to bind his co-parceners, but also sue and be sued alone without the joinder of the other members of the family. This contention seems to me to be right: otherwise, no bank could with safety honour cheques drawn by its Hindu clients against their deposits, and business on modern lines would be impossible. But, unfortunately for the appellant, the lower Appellate Court has found that his plea of re-payment has not been proved, and he is again concluded by a finding of fact which, so far as I can see, cannot be questioned on second appeal.
4. The last point made is as to the construction placed on a certain ekramama (Exhibit I) upon which the learned District Judge ha3 relied as proving, 'almost, if not quite, conclusively' that the brothers were joint a fortnight before the death of Badhasham. In this document, which was signed by all three brothers, it was agreed that there having been serious disputes about the partition of the whole of their moveable and immoveable joint properties and there having been no settlement about the said partition' a panch was to be appointed to settle the dispute by arbitration. This, it is argued, instead of indicating jointness on the date of the document, points to their having already been some sort of a partition regarding which disputes calling for settlement by arbitration had arisen. It may be that there is something to be said for this construction; but it has long since been established--see the well-known and frequently cited ruling of Couch, C.J., and Glover, J., in Nowbut Singh v. Chutterdharee Singh 19 W.R. 222 that the misconstruction of a piece of documentary evidence such as this is not a mistake of law upon which a second appeal will lie. Moreover, the suggestion that the ekrarnama ought to be construed in this way is made for the first time in the course of the argument before me, the theory of the defence having hitherto been that it was an agreement to separate which at once operated as a separation. For all these reasons, I find myself unable to yield the point.
5. In the result I am of opinion that this second appeal must be dismissed with costs.