1. This is an appeal by five defendants---defendants Nos. 1,3, 12, 13 and 18. The suit in respect of whish the appeal arises is a suit by which the plaintiffs claim, as reversionary heirs of one Puma, a 4-annas share in J 3 properties jointly with the defendants Nos. 1 to 11 who are said to be the owners of the other 12-annas share. The First Court decreed the suit with regard to all the 13 properties. The lower Appellate Court upheld the decision as regards properties Nos. 1 to 9 and reversed the decision of the First Court so far as regards properties Nos. 10 to 13. The appeal concerns properties Nos. 1 to 9 : but the plaintiffs have filed a cross-objection with regard to properties Nos. 10 to 13.
2. Now, it will be convenient before dealing with the points raised in the appeal to refer to the genealogical table whish will be found at page 29 of the paper book before us. One Krishna Chandra Surkhel had 4 sons---Bhairab, Rajballabh, Shib Chandra and Banga Chandra. Bhairab had a daughter and son Purna. Purna married Umatara. He died leaving only his widow-Umatara him surviving and no other heirs. On the widow's death the descendants of Bhairab's daughter, who are the plaintiffs, beeama heirs to Bhairab's estate. Rajballabh had a son Kali Mohan; it is not necessary to refer to the other members of Rajballabh's family, nor is it necessary to refer to Shib Chandra's family. On the 16th April 1861 sometime after Bhairab's death a suit was commenced by one Prasanna on a bond said to have been executed by Puma. The parties to the suit ware Puma's widow Umatara, Banga Chandra and Kali Mohan. Now, I think, there can be no doubt that if the debt was a genuine debt and the suit a bona file one, Umatara, for the purposes of the suit, represented Purna's estate and Puma's estate would be bound by the decision thereof. The suit was decreed on the 11th May 1831 and in October 1869 there was a sale in execution of the decree---She properties sold being the shares of the judgment-debtors in properties Nos. 1 to 9 which are claimed in this appeal. Tin properties were bought or purported to be bought by one Chandra. After an interval of many year?, namely, on the 2nd February 1910, Umatara commenced a and for a possession of a 4 annas share in properties No?. 1 to 9. Other properties, I understand, were included in the suit but we are not concerned with these. Her allegation was that she had been dispossessed and she alleged (inter alia) that the execution sale did cot pass any property inasmuch is the bond was forged. Toe suit was brought in the Munsif's Court and was valued at Rs. 1,100. The Munsif dismissed the suit on the 26th April 1911 and the learned Vakil for the respondent has shown us a copy of judgment in the suit. It appears, that so far as the merits were concerned, the findings were in favour of Umatara, but that she failed to obtain a decree because she did not ask to set aside the sals in execution. It seams, therefore, that although she succeeded on the merits she failed for technical reasons. On the 6th October 1915 Umatara died and the suit in respect of which this appeal arises was commenced on the 8th March 1913 in the Subordinate Judge's Court. The suit was valued at Rs 2,100. It was brought, as already attached, by the reversioners who became the owners of Puma's estate after the death of Umatara. The suit relates to the 9 properties said to have been sold in 1801 and to 4 other properties which are the subject-matter of the cross-objection. Now, as I' have already stated, as regards properties Nos. 1 to 9, both the lower Courts held that Umatara did not represent the estate and that accordingly the reversioners were not affected by the previous litigation.
3. In the appeal before us 4 points have been urged. First, it is said that the decree of 1861 bound the estate as represented by Umatara as the decree was not fraudulent; secondly, it is said that the plaint in the present Suit contains no prayer to set aside the execution sale and. that the suit would not lie unless the execution sale is set aside; thirdly, it is said that the suit is barred by limitation; and lastly, it is said that the suit of 1910 operates as res judicata.
4. Now, the findings of the lower Appellate Court with regard to the bond and the suit of 1861 are on their face somewhat conflicting. At page 33 of the paper-book the learned Judge states that there is nothing to show whether the debt, on which the ex parte decree was obtained, was real or unreal and that it cannot be said that the decree was obtained by fraud. But at page 34 he states as follows: All these facts show indication by conduct that the auction-sale was a sham transaction to keep the properly in the family.' And again, 'if the debt were a real one such suspicious conduct in-consistent with bona fides were not probable. Under all these circumstances I believe and find that the debt was not a real debt, that the auction-purchaser was not a bona fide one and that possession continued with the Sarkhel family and not with the auction-purchaser or his heirs. I also find that the sale did not affect the interest of Umatara and much less of the reversioners.' It has been argued on behalf of the appellants that as the bond was not found to be a forgery the estate of Puroa was bound by reason of Umatara's presence as a party. I think, if there was a clear and unambiguous finding to this effect, then this contention must prevail. But I think, that reading the judgment as a whole the two findings amount to this that there Was no debt, that the bond was a fictitious document and the suit accordingly a mere fiction with the resols that the execution sale, founded on a fiction, is really of no value and not binding on any one. This being so, it cannot be said that the decree of 1861 was a decree that would bind Parna's estate or Puma's reversioners.
5. So far as the second ground is concerned, it seems to us to be concluded by the decision to which reference has be an made, namely, the decision in Surendra Nath Ghose v. Kali Gopal Mosoomdar 42 Ind. Cas. 431 : 22 C. W. N. 367 : 126 C. L. J. 333 : 45 C. 920, where it is clearly laid down that a decree which is fictitious does sot require to be set aside; the statement beting a collusive and fraudulent proceeding in a Court is not a judicial proceeding and is to be treated as availing nothing to the party who sets it up.' So much then for the second point urged before up.
6. So far as the 3rd point is concerned, this is based on the suit of 1910 and I think this presents a certain amount of difficulty. The point apparently was abandoned in the First Court, for the learned Munsif states that the Pleader for the defendant did not press the point of ret judicata in the course of his argument, but it was apparently argued in the lower Appellate Court. Now I have already stated the nature of that suit, the findings of the Court and the ground of the decision and, on the whole, I think, that both the Courts were right in holding that, under the circumstances, the suit of 1910 was a personal, suit by Umatara, not on behalf of the estate, and that it does not operate as res judicata. It is felso noticeable that this is not a case in which Umatara is suing, after her husband's death, for possession of an estate of which she had never been in possession. Clearly on the evidence she was in possession from her husband's death from sometime before 1861 until the year 1903. So she is not suing to recover her husband's share bat to recover present possession in her own right which she enjoyed for many years and from which she had been dispossessed. This disposes of all the questions raised in the appeal before us. The result is that, in our opinion, the decision of the lower Court is correct so far as regards the properties Nos. 1 to 9 and we must uphold the claim of the plaintiffs for possession of those properties.
7. We now come to the arose objection of the respondents. This refers to plots Nos. 10 to 13. Now these plots did not form a part of the original estate of Krishna Chandra Sarkhel nor had they been acquired during Puma's lifetime. It appears that sometime between Purna's death and the year 1903 these plots were acquired by the joint family of which Umatara was one. The Munsif who gave these four plots to the plaintiffs states in his judgment which will be found at page paper book: These properties were acquired when the parties lived in commensality. The presumption, therefore, is that they were acquired by the joint fund.' It seems to us that that is a correct statement of the law; where one finds people living as joint and properties are acquired during this time, the presumption is that they were acquired for the benefit of the joint family as a whole. Consequently. Umatara as a member of the join! family was presumably, until the presumption is rebutted, entitled to an interest in these properties The lower Appellate Court baa reversed the decision of the First Court as regards these plots on an error of law in that he has thrown the burden on the plaintiffs of showing the fund from which the acquisition was made and in not throwing on the side who denied the jointness the burden of adducing evidence to rebut the presumption that the properties were acquired for the joint family as a whole. The in our opinion, vitiates the finding of the District Judge as regards Plots Nos. 10 to 13 Bat it as said that he has found that Umatara was never in possession of these properties and that in the suit of 1910 she did not claim any share in them. But, as I have already stated, that suit was brought to enforce a personal claim and that does not debar the, plaintiffs as reversionary heirs of Puma' from now asserting their claim to a share of those properties. The cross objection, therefore, we think, must succeed and we declare that the plaintiffs are entitled to a 4 annas share in the properties Nos 10 to 1.
8. The result, therefore, is that the decree of the Court below in so far as it relates to these 4 properties must be set aside and that of the First Court restored. In other respects the decree of the Court below will stand. The respondents will be entitled to their costs of the appeal and to the Court fees paid on the memo, of cross-objection.
9. I agree.