1. The plaintiff's case is that his father purchased the property in suit out of his own funds and was in possession thereof since the date of purchase in Sraban 1297 and re-purchase in Falgoon 1309. The suit is for recovery of possession of the lands in suit on the strength of plaintiff's title as purchaser and also on his title by adverse possession for more than 12 years. The principal defendant (defendant No. 1) contended in his defence that the properties were the joint properties of the plaintiff's father Uday Char and his brother Dina Bandhu Char, that the two brothers were joint in mess and property and that the disputed properties were acquired with their joint fund in the plaintiff's father's name. The contesting defendant has now purchased the property under a mortgage decree against Dina Bandhu Char and he contends that the plaintiff is not entitled to the entire 16 annas of the property of the suit. There is no dispute with' regards to the 8 annas share of the plaintiff in the property.
2. The learned Subordinate Judge in the Trial Court found for the plaintiff and decreed the suit. On appeal the learned Additional District Judge of Midnapore by his judgment dated the 16th May 1923, reversed the decree of the first Court and dismissed the plaintiff's suit.
3. The plaintiff has appealed and on his behalf various objections have been taken to the decision of the lower Appellate Court which will be noticed in the course of the judgment. The plaintiff's case was that his father Uday Char and his brother Dina Bandhu Char had separated sometime in 1290 before the acquisition of the present property. The Subordinate Judge accepted this version; but the learned Additional District Judge has not been able to believe it and has found, as stated by the defendant, that the separation took place sometime in 1310. The first point which the learned Judge placed before himself for decision is whether the plaintiff has got his exclusive right to the 16 annas Of the plaint lands? In considering this point he observed thus: 'As regards the first point the question of separation of the brothers Dina Bandhu and Uday Char is the most important point'. And on his finding that the plaintiff failed to prove that the separation took place in 1290 as alleged by him he dismissed the suit. In my opinion the determination of the question when the separation took place is not decisive of the point in issue. It has to be found that at the time of the acquisition the brothers were not only joint in mess but joint in estate and also that there were some joint funds out of which the acquisition might have been made. It is admitted that the property was purchased in the name of the plaintiff's lather Uday Char. It has been proved .by means of documentary evidence; that Uday Char sold a portion of this property subsequent to his purchase, that thereafter he took mortgage of it from the person to whom he had sold it and subsequently re-purchased this property in execution of his. Mortgage decree. He took settlement from the Burdwan Raj of two Dags of plot No. 2 of schedule ka in respect of which' he in his own name had to fight a suit with some persons. These dealings of the property raise a presumption that it was, Uday'a self-acquired property unless it is displaced by proof that it was acquired under such, circumstances as to raise the counter presumption that it was joint family property. Now it has not been found that it was purchased with joint funds or that there was any joint fund.
4. There are numerous cases bearing on this question to which it is not necessary to refer as the result of the case-law on the subject has been stated in the standard work on Hindu Law by Mayne in these words: 'It may now be considered as settled law that it is necessary to establish the-existence of a nucleus of joint family property before the property in the possession of any one member can be presumed to be joint family property. This is really a logical corollary to the rule that there is no presumption that a family, because it is joint, possesses joint property or any property'. Mayne's Hindu Law, Section 290. It has, therefore, to be found that there was a nucleus out of which the properties in suit could have been acquired. The Trial Court made the following observation on this point: 'It is not shown that the two brothers had any nucleus of joint property to admit of further acquisition. The share of each brother in the paternal land was 3 or 4 bighas, surely the income from 6 or 8 bighas of land could not be sufficient to enable them to acquire landed property after meeting the expenses of food and clothes of their family members. Besides, it appears from documentary evidence that Dina Bandhu Char had a separate money-lending transaction and that he made separate purchases of some land. The evidence on the record further discloses that Uday Char had a business in betel leaves and Dina Bandhu Char had a business in iron works. The defendant No. 1 failed to prove that the purchase-money for the jotes of Nidhiram Jana and Nobin Mannah came from the joint fund of both the brothers.
5. The learned Judge in appeal has not considered this question at all. He has not found that there was any nucleus or joint fund or any such estate out of the income of which it might be said that the property, was acquired. In Hindu Law there is, no doubt, a presumption in favour of jointness of subsequently acquired properties where the family is a joint one. But according to the circumstances of each particular case the strength, of the presumption varies a great deal. In Bodh Singh Doodhooria v. Gunesh-chunder Sen, 12 B. L. R. 317 : 13 W. R. 356 : 3 Sar. P. C. J. 253 (P. C.), their Lordships of the Judicial Committee have expressed their view on this point that even where it appears that the family have some ancestral property in joint possession bat that some of the members of the family acquired separate property from their own funds and dealt with it as their own without reference to other members of the family, such a state of things may be fairly held to weaken, if not altogether rebut, the ordinary presumption of Hindu Law as to property in the name of one member of a joint family; and to throw upon those who claim as joint property that of which they have allowed their coparcener, trading and incurring liabilities on his separate account and to appear to be sole owner, the obligation of establishing their title by clear and cogent evidence. The jointness of property may arise either from the fact that in its present condition it was ancestral property or that it was acquired by means or with, the assistance of ancestral property or by means of joint labour or joint funds or both or that it was acquired by a single member without aid from other funds or from other members and then thrown into the common stock (Mayne's Hindu Law Section 291.) The defendants' case is that at the time when the property was purchased the brothers were joint and that it was purchased out of the joint funds. The learned Judge has not found that there was any joint fund at the time of the purchase of the property. His decision k chased only on the finding that the brothers were living together at the time of the purchase. It is not enough to find that the brothers were living together at the time of the purchase; but it has to be found that they were joint in mess and estate and that there was sufficient estate out of which it may be presumed that the property was acquired.
6. On the question of onus also I do not think that the learned Judge has taken a correct view in the circumstances of this case. He observes, after referring to the defendants' evidence, 'whatever that may be, the defendant is not required to prove his title. The plaintiff must stand or fail on his own ease.' On the facts as disclosed in the present case, this statement of the law can hardly be supported. The property was purchased so long ago as 1297 in the, name of the plaintiff's father. The subsequent dealings with the property showed that he was the sole owner. It is, therefore, necessary for the defendant to establish that the property which appears to be self-acquired was, as a matter of fact, acquired out of the joint fund of the family. The onus of proof in a case where the property is said to be the joint property of a joint family must depend upon the circumstances of each particular case. Where the family was joint in mess and estate at the time of the acquisition and there was a nucleus of joint fund, however small it may be, the onus is undoubtedly upon a member of the family to prove that the property, though purchased in his name, was not a joint property. But where the only fact found is that the two brothers lived together, this circumstance alone does not throw any burden of proof on the plaintiff more than is to be borne by him as the plaintiff in the case to prove that the property was purchased by his father.
7. The learned Judge in appeal has examined the evidence adduced on behalf of the plaintiff and though it appears that he was not satisfied with the evidence on the side of the defendant he is of opinion that the plaintiff having failed to establish his case, his suit must fail, The evidence to which he directed his attention was mostly documentary evidence; and it has been divided by him into three groups. The first group consists of documents executed in favour of Dina Bandhu in respect of lands, one of the boundaries of which has been stated in all the documents as Uday Char's land. These documents, the learned Judge says, do not help the plaintiff's case of separation. But there is no doubt that they are evidence against the defendant; and, if good evidence, they certainly help the plaintiff's case. There are mortgage bonds executed in favour of the defendant in respect of some lands, one of the boundaries of 'which is said to be Uday Charls land. Exhibit 27 is the plaint of a suit on that bond by Dina Bandhu Char in which the land is described as in the bond bounded on one side by Uday Char's land. Then there are kobalas in which the same statement appears. The learned Judge has attempted to get rid of these documents by observing that they do not contain Dina Bandhu's
8. statements and the plaint must be taken to have followed the mortgage-bond. He is certainly entitled to attach whatever value he thinks proper to these documents. But it cannot be said that they are of no use to the plaintiff. The same remark will apply to some of the documents contained in the second group also, which show some admission by conduct of defendant No. 1 and his father. The appellant's contention is that if the property was joint property Dina Baridhu would not have allowed the name of Uday Char alone to appear as the holder of the property. The third group of documents consists of the various deeds by which the plaintiff's father dealt with this property. He has produced all the' kobalas, chalans showing payment of money by his father, rent-receipts, plaints in respect of the land in suit, mortgages made by the plaintiff's father, khatians, maps, etc., etc. The effect of all these documents has been minimised by the observation that the property was purchased in the name of the plaintiffs father. It appears on a perusal of the learned Judge's judgment that he has been to a very great extent influenced by the fact that the plaintiff's father though the younger brother was literate whereas Dina Banohu was illiterate and, therefore, it maybe presumed that the plaintiff's father was the Imrta of the family. But it appears that Dina Baridhu though illiterate was a man of business as he had a separate business of his own in iron works out of the income of which he purchased separate properties. If all the properties purchased by the brothers were purchased out of the joint family properties it is curious that some of the properties were purchased in the name of one brother and some others in the name of the other. My view of the learned Judge's judgment is that the learned Judge has taken one sided view of the case and has not considered all the material points which should be determined before the property in suit can be declared to be joint.
9. There has been one other omission in the judgment of the learned Judge which must necessitate a remand. His judgment began with the words this appeal arises out of a suit for recovery of possession of the plaint lands upon establishment of plaintiff's auction purchase right and right by adverse possession for more than 12 years.' The learned Judge after disposing of the question of title against the plaintiff dismissed the plaintiff's suit by observing that the properties being joint plaintiff has only 8 annas share in them. He did not refer to the issue with regard to adverse possession on which the finding of the Trial Court is definite. The Subordinate Judge has thus observed in his judgment: 'I can safely hold on the evidence on the record that plaintiff's title by adverse possession was complete before his dispossession in 1916.' As the learned Judge's judgment was one of reversal it was incumbent on him to consider all the grounds on which the judgment of the first Court was based.
10. The result of the view that I have expressed is that this appeal has to be re-heard in the light of the observation I have made above and the points that have been left undetermined must be determined by the lower Appellate Court. I may recapitulate them. If the Court finds that the brothers Uday and Dina Bandhu were joint in mens. and estate at the time of the purchase of the property and that there was a nucleus of fund out of which it may be presumed that the property was purchased, the decision will be against the plaintiff, if the Court finds that the plaintiff has failed to prove that it was purchased by his father from his own fund. As the defendant's case is confined to the one of the various modes by which joint property can be acquired, namely, that the property was purchased with the joint funds of the brothers in the plaintiff's father's name he must prove that it was so or that there was a sufficient nucleus. The lower Court has also, to find whether he plaintiff has succeeded in proving his title by adverse possession.
11. The result is that this appeal is allowed, the decree of the lower Appellate Court set aside and the case remanded to that Court for a re hearing of the appeal. Costs will abide the result.
12. Affidavits have been filed before us by the Vakils who represented the plaintiff in the lower Appellate Court and it is stated therein that they did not get full opportunity of placing all the materials before that Court. A counter-affidavit has been filed on behalf of the defendant. We regret very much that there was an occasion for making such allegation and swearing of affidavits with reference to the conduct of the case in the Court below. But as we are sending; the case back to the lower Appellate Court for a re-hearing of the appeal, we do not think it necessary to make any further. observation in this matter.