Asutosh Mookerjee, Acting C.J.
1. This is an appeal by the first, second and sixth defendants in a suit instituted under Order XXI, Rule 68 of the Code of Civil Procedure, The suit was dismissed by the Trial Court, but, on appeal, has been decreed by the Subordinate Judge. The facts material for the decision of the questions of law raised before us may be briefly outlined.
2. The subject matter of the litigation is an one-fourth share of Taluk Krishnananda Rudra, which admittedly belonged at one time to Madhab Chandra Das and Mahim Chandra Das; on the 13th March 1910 they conveyed it to Fulmala Dasi, the fifth defendant in this suit. On the 7th January 1914, the first two defendants, Pratap Chandra Gope and Kalimohun Gope, took a conveyance from Fulmala Dasi. On the 8th January 1914, the plaintiff, who held a decree for money against the third and fourth defendants, Rup Chandra Dutt and Sanatan Dutt, effected an attachment on this property on the allegation that though it stood in the name of Fulmala Dasi, the beneficial owners thereof were her father-in law Rup Chandra Datt and his brother Sanatan Datt. A claim was thereupon preferred under Order XXI, Rule 58, on the 27th January 1914 by the first two defendants, the Gopes, who had taken the conveyance from the fifth defendant Fulmala. The claim was investigated in due course and was allowed under Order XXI, Rule 60. The effect of this order was that the property was released from attachment. On the 8th June 1915 the plaintiff decree-holder instituted the present suit under Order XXI, Rule 63, with a view to set aside the order in the claim case and to obtain a declaration that the property was liable to be sold in execution of his decree against the Dutts, who were alleged to be its beneficial owners. The Gopes, the Dutts and Fulmala Dasi were all joined as defendants. On the 29th February 1916, the sixth defendant wan added as a party, as she had taken a lease from the Gopes on the 17th January 1915. The Court of first instance held on the evidence that, net the Dutts, but their daughter-in-law was the true owner of the property, which was consequently not liable to be seized in execution of a decree obtained by the plaintiff against the Dutts. The Trial Court further found that even if the Dutts were held to be the true owners, the plaintiff could not proceed against the property in the hands of the Gopes who were bona fide purchasers, for value without notice, from the ostensible owner. In this view, the suit was dismissed without investigation of the validity of the lease hold interest set up by the sixth defendant. On appeal, the Subordinate Judge has reversed this decision. He has held that as the Dutts and their daughter in-law were joint in mess, the presumption was that the property, which stood in the name of a female member in a Hindu joint family, belonged to the joint family and that she was merely the ostensible owner. The Subordinate Judge has farther held that the defendants had totally failed to prove that the purchase was made with the money of the daughter-in law. On these grounds, he has concluded that the Dutts were the real owners of the property. He has finally held that the Gopes were not bona fide purchasers for value without notice. In this view, the suit has been decreed, but, it will be observed, without examination of the position of the sixth defendant. The Gopes (the first two defendants) and the sixth defendant (the lessee from them) have now appealed to this Court, and have assailed the decision of the Subordinate Judge substantially on three grounds, namely, first, that the sixth defendant is not bound by the attachment, which the plaintiff seeks to enforce and which had no existence when the lease in her favour was granted; secondly, that the claim as against the sixth defendant is barred by limitation; and, thirdly, that the Subordinate Judge has incorrectly determined the question of title by the application of erroneous tests of presumption and burden of proof.
3. As regards the first point, the appellants have argued that the lease granted to the sixth defendant on the 17th January 1915 could not be affected by the attachment made at the instance of the plaintiff on the 8th January 1914, as the property was released from that attachment on the 13th June 1914. The respondents have not disputed that, if the matter were ret integra, the contention of the appellants might carry considerable weight, but they have argued that the point is really settled by a long line of cases decided during well nigh half a century. No doubt, the effect of an order under Order XXI, Rule 60, allowing a claim, is to make it obligatory on the Court to release the property from attachment; but the order of release is only provisional and is liable to be set aside by a regular suit, as expressly stated in Rule 63; in the words of Lord Hobhouse in Sardhari Lal v. Ambika Pershad 15 I.A. 123 : 15 C. 621 : 5 Sar. P.C.J. 172 : 12 Ind. Jur. 210 : 7 Ind. Dec. (N.S.) 931, the order is not conclusive; a suit may be brought to claim the property, notwithstanding the order. The same idea was expressed by Lord Robertson in different terms when he stated in Phul Kumari v. Ghanshyam Misra 35 C. 202 : 7 C.L.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 6 A.L.J. 10 : 17 M.L.J. 618 : 2 M.L.T. 506 : 14 Bur. L.R. 41 : 35 I.A. 22. (P.C.) that the regular suit is 'simply a form of appeal' and that the plaint therein is for 'review of a summary decision.' From this stand-point, it has been held that the order for release from attachment does not put an end to the attachment so as to leave the claimant free to deal with the property as he likes; if a suit is brought by the decree-holder to establish his right to attach the property and a decree is passed in his favour, the effect of the decree is to set aside the order of release and to maintain uninterrupted the attachment originally made. The result is that any private transfer of the property by the claimant, though made after an order under Rule 60 releasing the property from attachment, will be void under Section 64, if the right to attach is subsequently established by a suit under Order XXI, Rule 63, This is clear from the judgment of Sir Richard Couch, C.J., in Mahomed Warris v. Pitambar Sen 21 W.R. 435, where he observed as follows : a suit was brought and the plaintiff obtained a decree establishing his right, namely, a right to attach the property, showing that the order for the release of the property from attachment was improper. The effect of that decree must be to revive the attachment, or rather not to revive the attachment, but to set aside the order of release which had been made, and, therefore, to make the property still subject to the attachment, to restore the state of things that had been disturbed by the order of release,' The same view was adopted by Macpherson and Hill, JJ., in Bonomali Rai v. Prosunno Narain Chowdhry 23 C. 829 : 12 Ind. Dec. (N.S.) 551, who relied in addition to the judgment of Couch, C.J., on the decision in Lalu Mulgi Thakur v. Bashi Bai 10 B. 400 : 5 Ind. Dec. (N.S.) 655, The Rule thus enunciated was applied in Ram Chandra Marwari v. Mudeshwar Singh 33 C. 1158 : 10 C.W.N. 978. The same view has been uniformly accepted by the Allahabad High Court; Bank of Tipper India v. Sheo Prasad A.W.N. (1897) 124 : 19 A. 482 : 9 Ind. Dec. (N.S.) 311; Alt Ahmad Khan v. Bansidhur 1 Ind. Cas. 951 : 31 A. 367 : 6 A.L.J. 484; Aziz Bux v. Kaniz Fatima 15 Ind. Cas. 49 : 84 A. 490 : 10 A.L.J. 48; Gopal Prasad v. Kashinith 52 Ind. Cas. 343 : 42 A. 39 : 17 A.L.J. 901. A similar view has been recently adopted by the Madras High Court in Krishnappa Cheity v. Abdul Khader Saheb 25 Ind. Cas. 11 : 38 M. 535 : 26 M.L.J. 449, although some of the reasons assigned there, specially as to the applicability of the doctrine of lis pendens, may be open to comment. See Pethu Aiyar v. Sankaranarayana Pillai 88 Ind. Cas. 778 : 40 M. 955 : 32 M.L.J. 374 : (1917) M.W.N. 284 : 5 L.W. 519 : 21 M.L.T. 377. We are not prepared to dissent from the interpretation which has thus been put by all the High Courts on the relevant provisions of the Civil Procedure Code, 1908, and the corresponding provisions of the earlier Codes. It is significant that notwithstanding the construction placed upon the provisions of the Code of 1859, they have been reproduced by the Legislature in the successive Codes without material alteration. The inference may thus be legitimately drawn that this constitutes a legislative affirmance of the construction adopted by the Courts. Jogendra Chandra Roy v. Shyam Das 1 Ind. Cas. 168 : 36 C. 543 : 9 C.L.J. 271.
4. We are not unmindful that a different Rule has been adopted with regard to attachments before judgment. There the view has prevailed that it is obligatory upon the Court to withdraw an attachment before judgment upon the dismissal of the suit, and the reversal of the judgment of dismissal on appeal does not operate to revive an attachment which has been cancelled, As explained in the case of Sanrama Kumari v. Meherban Khan 9 Ind. Cas. 918 : 13 C.L.J. 243 this result follows from the provisions of Order XXXVIll, Rule 9, which directs the withdrawal of attachment on dismissal of the suit and contains no provision which makes such withdrawal temporary and liable to be vacated on reversal of the decree of dismissal, in other words, Order XXXVIII, Rule 9, contains no provision corresponding to Order XXI, Rule 63, which makes the order in the claim case and the release from attachment thereupon subject to the result of a regular suit. Consequently, in a case of attachment before judgment, the general Rule applies that a revival of execution proceedings does not operate as a revival of the attachment so as to prejudice the rights of strangers who have in the interval acquired a title to the property: Patringa Koer v. Madhabanand Ram 12 Ind. Cas. 65 : 14 C.L.J. 476 : 16 C.W.N. 382; Mahabarat Dutta v. Surja Kanta 45 Ind. Cas. 589 : 3 P.L.J. 810 : (1918) Pat. 343. We hold accordingly that the first contention of the appellants cannot be upheld.
5. As regards the second point, it is plain that the question of limitation must be determined with reference to the provisions of Article 11 of the First Schedule to the Indian Limitation Act. That Article provides that a suit by a person, against whom an order has been made on a claim preferred to the property attached in execution of a decree, to establish the right which he claims to the property comprised in the order, must be instituted within one year from the date of the order. This article does not specify the persons who must be made parties to the suit. But it is obvious that the claimant who has obtained the order and is interested to maintain it, must be made a party. It is equally plain that a person who has derived title to the disputed property from the claimant, subsequent to the order of release, must also be made a party, if it is intended to bind him by the result of the suit. In the case before us, the suit was instituted against the claimants within the prescribed period of limitation; but the sixth defendant was added as a party long after the expiry of such period. It follows that, as under Section 22(1) of the Indian Limitation Act, the suit must be deemed to have been instituted against the sixth defendant when she was made a party, it is prima facie barred by limitation as against her. But, reliance has been placed on behalf of the respondent on the decision in Krishnappa Chetty v. Abdul Khader Saheb 25 Ind. Cas. 11 : 38 M. 535 : 26 M.L.J. 449, in support of the contention that Section 22(2) should be held applicable in such circumstances. That sub-section excludes from the operation of Sub-section (1) all cases where a party is added or substituted owing to an assignment or devolution of any interest 'during the pendency of a suit.' We are not prepared to accept the contention as well founded on principle. When, as in the case before us, the assignment by the successful claimant takes place after the order for release, it cannot be maintained that the assignment is 'during the pendency of a suit.' Even if the term 'suit' is interpreted in a very comprehensive sense so as to include a claim ease, it is difficult to see how the claim case which ended in the order of release can still be deemed to be pending. On the other hand, it cannot be seriously argued that the suit to set aside the order in the claim case should be deemed to have been instituted with retrospective effect from a date earlier than the date when the plaint was actually lodged. It is manifest that we cannot have recourse to a fiction to avoid the effect of the Rule of limitation enunciated in Section 22(1) by an imaginary prolongation of the proceedings in the claim case or a hypothetical advancement of the date of institution of the regular suit to set aside the order made therein. No doubt according to the accepted interpretation the result of the decision in the regular suit in favour of the decree holder is to cancel the order in the claim case and to place the parties in the position they would have occupied if that order had never been passed. This handicaps the successful claimant to this extent, that if be assigns the property after the order of release and before the institution of the regular suit, the assignee--must take the risk of the decision possibly an adverse decision--in the regular suit, should such, a suit be ever instituted by the decree-holder. But it is clear on first principles that in order that the assignee may be bound by the result of the suit, he must be made a party thereto and thus afforded an opportunity to repel the attack of the decree-holder. We cannot ignore the elementary maxim audi alteram partem, for as has been well said, it is a Rule of universal application and founded upon the plainest principles of justice that no one be condemned, punished or deprived of his property by any judicial proceeding unless he has had an opportunity of being heard. This dearly cannot embarrass the decree-holder, for he can invoke the aid of Section 18 of the Limitation Act in cases of assignments designedly kept concealed. No suggestion, however, was made in the present case that the plaintiff was kept out from the knowledge of his right to sue the sixth defendant by reason of fraud on her, p Article We hold accordingly that the suit is barred by limitation as against the sixth defendant.
6. As regards the third point, we are of opinion that the view taken by the Subordinate Judge is manifestly erroneous both as regards presumption and burden of proof. No doubt, as the normal state of a Hindu family is one of jointness in mess, worship and estate, the presumption is that all property acquired by, or in the possession of, a joint member is joint property Anandrao v. Vasantrao 5 C.L.J. 338 : 9 Bom. L.R. 595 : 11 C.W.N. 478 : 2 M.L.T. 151 : 17 M.L.J. 184 : 34 M. 262 note (P.C); Lal Bahadur v. Kanhaia Lal 29 A. 244 : 9 Bom. L.R. 597 : 11 C.W.N. 417 : 5 C.L.J. 340 : 4 A.L.J. 227 : 2 M.L.T. 147 : 17 M.L.J. 228 : 34 I.A. 65 (P.C.), But it is well settled that as such presumption is founded on the fact of union, there can be no presumption where the disputed property stands in the name of a non-co-parcener, such as a son-in-law Dossee Monee Dossee v. Ram Chand Mohur 7 W.R. 249 or a female member of the family Narayana v. Krishna 8 M. 214 : 3 Ind. Dec. (N.S.) 148 . In the case last mentioned, which was decided by Sir Charles Turner, C.J., and Mr. Justice Muthusami Ayyar, we find the following observations:--'Where a family lives in co-parcenary, the presumption which exists in the case of male members arises from the circumstance that they are co-parceners. On the other hand, the ladies are not in an undivided family co-parceners; whatever property they acquire by inheritance or gift is their separata estate, and, although it is not unusual for property to be transferred to the name of a female member to protest it from the creditors of the male members or to plana it beyond the risk of extra vaginae on the part of the male members, such dealings are exceptional and can afford no ground for a general presumption.'
7. The same principle has been applied even in a case where, in a Dayabhaga family, the property stands in the name of a son during the lifetime of his father, on the ground that there is really no joint family during the father's lifetime as the son is not by birth a co-parcener with the father; Sarada Prosada Ray v. Mahananda Ray 31 C. 448 the head-note to the report in this case, ho waver, is misleading; Rama Nath Chattarjee v. Kausum Kamini Debi 4 C.L.J. 56 . The judgment of the Subordinate Judge in the one before us is obviously vitiated by the erroneous presumption with which ha starts, namely, that because the property stands in the name of a daughter in law of the family, she is not the beneficial owner. It is equally plain that the Subordinate Judge has erroneously placed the burden of proof upon the defendants. The onus of proof lies upon the plaintiff for a twofold reason. In the first place, he is the plaintiff in the suit and impeaches the validity of the order in the claim case. In the second place, he asserts that the apparent state of things is not the real state of things, in other words, that the parson who appears as the owner on the face of the deed is not the real owner. The Judicial Committee have repeatedly held that the burden of proof lies upon the person who alleges that the apparent is not the real state of things, and that although circumstances of suspicion might exist, the Court should not decide upon mere suspicion but upon legal grounds established by evidence; Sreemanchunder Dey v. Gopaulchunder Chuckerbutty 11 M.I.A. 28 : 7 W.R.P.C. 10 : 1 Suth. P.C.J. 651 : 2 Sar. P.C.J. 215 : 20 E.R. 11; Nawab Azimat Ali Khan v. Hurdwaree Mull 13 M.I.A. 395 : 14 W.R.P.C. 14 : 5 B.L.R.P.C. 578 : 2 Suth P.C.J. 343 : 2 Sar. P.C.J. 571 : 20 E.R. 599; Taez Buksh Chowdry v. Fukeeroodeen Mahomed Ahassun Chowdry 14 M.I.A. 234 : 9 B.L.R. 456 : 2 Sar. P.C.J. 733 : 2 Suth. P.C.J. 490 : 20 E.R. (sic); Uman Parshad v. Gandharp Singh 14 I.A. 127 : 15 C 20 : 11 Ind. Jur. 474 : 5 Sar. P.C.J. 71 : Rafique & Jack son's P.C. No. 98 : 7 Ind. Dec. (N.S.) 599; Sulsiman Kadr Bahadur v. Mehndi Begum 25 I.A. 15 : 25 C 473 : 2 C.W.N. 186 : 7 Sar. P.C.J. 254 : 13 Ind. Dec. (N.S.) 313; Nirmal Chundur Banerjee v. Mahomed Siddik 25 I.A. 225 : 26 C 11 : 7 Sar. P.C.J. 383 : 13 Ind. Dec. (N.S.) 611. But as Sir Arthur Wilson said in Dalip Singh v. Chaudhrain Nawal Kunwar 35 I.A. 104 : 30 A. 258 : 10 Bom. L.R. 600 : 12 C.W.N. 609 : 14 Bur. L.R. 151 : 4 M.L.T. 141 (P.C.) if the evidence on neither side is wholly convining, specially upon what, according to Lord Campbell in Dhurm Das Pandey v. Shama Soondri Dibiah 3 M.I.A. 229 : 6 W.R.P.C. 43 : 1 Sar. P.C.J. 271 : 1 Suth. P.C.J. 147 : 18 E.R. 484, is the fundamental criterion, namely, the source of the purchase-money, when the evidence given and withheld is open to adverse criticism, the Courts must rely on the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions, and their subsequent conduct, There can be no doubt, in this instance, that the Subordinate Judge here has overlooked these elementary rules and has approached and examined the case from an entirely wrong point of view.
8. The result is that this appeal is allowed and the decree of the Subordinate Judge set aside. The suit is dismissed as against the sixth defendant, with costs in all the Courts. In respect of the properties not covered by the lease of the 17th January 1915 the case is remanded to the Subordinate Judge for reconsideration in the light of the observations we have made. The costs as between the plaintiffs and the first two defendants will abide the result.
9. I agree.