1. This is an appeal from a decision of the learned Subordinate Judge of Sylhet, dated the 30th June 1924, reversing a decision of the Munsif, Habigunj, dated the 29th May 1923. The plaintiffs, who are now the respondents, commenced the present suit to set aside a deed of gift executed by a lady of the name of Baisakha in respect of property which the plaintiffs alleges, was acquired by her with the surplus-income of her deceased son's estate. The plaintiffs claim as the reversionary heirs of Krishna Chandra Das Choudhuri, son of Baisakha, who inherited her son's estate after his death. The present suit was commenced about five years after Baisakha's death. The defence of the defendant to the suit is that she obtained this property by a deed of gift which was executed by Bisakha a short time before her death which took place in the year 1917. The property in question was purchased in the Dame of one Krishna Gobinda by Baisakha. The date of acquisition of this property does not appear from the record of the suit, but the fact that Baisakha purchased it in the name of Krishna Gobinda is relied on behalf of the defendant, who is the appellant before us, as showing the intention of Baisakha to keep it separate from the estate of her son,
2. The Court of first instance gave effect to the defence that the gift had been made by Baisakha and that although the property was purchased out of the surplus income of Baisakha's son's estate she treated it as her separate property and consequently she was in a position to make a gift of it. The Court of first instance accordingly dismissed the plaintiffs' suit.
3. An appeal was carried to the Subordinate Judge of Slyest by the plaintiffs and the learned Subordinate Judge has thrown the burden on the defendant of showing that the property in dispute was property which Baisakha was entitled under the Hindu law to make a gift of. The learned Subordinate Judge states, and the passage is to be found at page 7 of the paper-book,
that the defendant was doubly bound to prove the due execution of a document by a pardana-shin lady and also as a donee from a Hindu widow who had only life interest in the properties left by her husband and son, though the learned pleader for the respondent says that the burdent of proof is on the plaintiff.
4. After having thrown the burden of proof wrongly as I shall show presently, the learned Subordinate Judge enters into an enquiry as to the validity or otherwise of the deed of gift and comes to the conclusion that it has not been established that the lady who was about 100 years old knowingly executed the deed of gift. The learned Subordinate Judge, on these findings, allowed the appeal before him and decreed the plaintiffs' suit declaring the plaintiffs' matiki right by succession and granted a decree also for recovery of khas possession.
5. Against this decree the defendant has preferred a second appeal and several grounds have been taken before us by the learned vakil for the appellant. In the first place, it is contended that the lower appellate Court has erred in law in throwing the onus on the defendant and that it ought to have held that the onus was on the plaintiffs to show that these lands were accretions to Baisakha's son's estate; and if after throwing the onus upon the plaintiffs it found that the plaintiffs had failed to make out that the disputed property was an accretion to Bisakha's son's estate, it should have dismissed the plaintiffs suit. It is contended in the second place that there are certain facts which the lower appellate Court has not taken into account in coming to the conclusion that the gift was not validly executed or was not knowingly executed by the lady. It has been contended in the third place that the gift was justified as it made provision of a small portion of the property in favour of a dependent member of the family.
6. With regard to the first ground taken, we think that the contention of the learned vakil for the appellant must prevail, for it appears to us that the plaintiffs' own case is that the property in dispute was purchased with the surplus income of Baisakha's son's estate, The plaintiffs in order to succeed have to make out that although this property was purchased with the income of the son's estate this was not treated by Bisakha as her own separate property. It appears to be a fact which is borne out by the record that the purchase was made in the benami of another person and that it was not made in Baisakha's own name. It seems to us that it is an element to be taken into consideration as to whether this fact is not an indication that she wanted to treat this property as her own separate property and not to form an accretion to her son's property. It is said that as against such an intention to keep it as a separate property there is the fact that realizations from the property in dispute and the properties which admittedly belonged to the son were entered in the same collection papers. That, in our view, is not a circumstance which, standing by itself, can justify the conclusion that Baisakha wanted to treat this property on the same footing as the property which devolved on her from her son. In dealing with the appeal the lower appellate Court has not dealt with these considerations which are essential for the purpose of determining as to whether the plaintiffs are entitled to any relief in the present suit.
7. On behalf of the respondent it has been argued that the moment it is shown that the property in question was purchased out of the income of Baisakha's son's estate the plaintiffs are entitled to succeed unless the defendant establishes that Baisakha disposed of the property during her lifetime. It has been contended on the authority of the case of Isri Dutt Koer v. Hansbutti  10 Cal. 324, that the plaintiffs ought to succeed as soon as they establish this proposition. We are unable to agree with this contention of the learned advocate for the respondents. The cases show that the true test in suits of this kind is to ascertain what is the intention of a limited owner under Hindu law. It is conceded that the income from the son's estate was absolutely at the disposal of Baisakha and jt is also conceded that if she had made any disposition of the property by gift inter vivos, that disposition would be good. But it is said that if she made no disposition of her property and although she wanted to treat this property as her own, still the devolution of such property would follow the same course as the property which devolved on her from her son. I have been unable to find any authority for such a proposition in the case in Isri Dutt Koer v. Hansbutti  10 Cal. 324. In that case, as the facts show, there was no endeavour or attempt made for the purpose of distinguishing the properties acquired from the income of the original estate and the original estate itself, and it was held that in the absence of anything which would show a contrary intention, the after-acquired properties which would be derived from the income of the original estate would fellow the same line of devolution as the original estate. In the case of Saodamini Dasi v. Administrator-General of Bengal  20 Cal. 433, their Lordships of the Judicial Committee at page 22 point out:
The claim of Badam Coomaree to the part of the income of her husband's estate was made by her as heiress of her husband entitled to income not disposed of. She claimed this income as her absolute property, and their Lordships can see nothing in the language of the deed of agreement, or in the transaction with Shama Churn Mullick, which can support the appellant's contention that she agreed to receive this income as capital in which she should acquire only the estate of a Hindu widow, or that the nature of the fund should differ in any way after she received it from what it had been before;
and at page 24 [of 20 I.A.] their Lordships point out:
She did nothing to indicate an intention to make the fund received, or the interest on it, part of her husband's estate which was in other hands or to justify the inference that she wished it to revert to her husband's heirs. It was said she had placed it in investments of a permanent nature. Had she done so, it does not appear to their Lordships that this circumstance alone would have added the fund to the estate devolving on her husband's heirs. But the fact is, that having received the money in currency notes which yielded no return and the keeping of which was attended with much risk, she at once placed it, as any prudent person would do, in securities, investing it in Government promissory notes yielding regular interest, but which were negotiable instruments transmissible fey mere indorsation;
and at page 24 bottom their Lordships, further point out:
Their Lordships, being thus of opinion that the fund in question was not in any sense received by Badam Coomaree as capital or capitalized income of her husband's estate, but was received as income which, under the arrangement with Sham Churn Mullick, was her own absolute property, and further that she never indicated any intention to make the same part of her husband's estate for the benefit of his heirs, will humbly advise Her Majesty to dismiss the appeal.
8. In this case the fund devolved on the stridhan heirs of Badam Coomaree.
9. We think, therefore, that the contention of the respondents in this behalf must fail.
10. It is necessary, therefore, to remand this case to the lower appellate Court for determination of two important questions on the evidence on the record : first, as to what was the source of the purchase-money by which this 8 annas-share of the property now in dispute was acquired; and, secondly, if it is-found that this was acquired out of the income of Baisakha's son's estate whether the facts show an intention on her part to treat it as her own separate estate as distinct from the estate of her son. If the lower appellate Court come to an affirmative finding on the second question, namely, that the property was purchased out of the income of her son's estate, but that she wanted to treat it as separate, then the plaintiffs' case will fail. If the lower appellate Court comes to the conclusion on the first point that the plaintiffs have failed to make out that the property was purchased out of the income of Baisakha's son's estate, then also the plaintiff's suit will fail. The lower appellate Court will also retry the question of gift.
11. The decree of the lower appellate Court is set aside and he is directed to re hear the appeal in the light of the observations made above.
12. The appellant is entitled to costs of this appeal. As to the costs in the Courts below they will abide the final result.
13. I agree.