Bir Babu vs Raghubar Babu and Others

Reuben, J.—This is a petition in revision filed by defendant 1 in a partition suit against an order of the Additional Subordinate Judge, Ranchi, deciding that the onus of proof in the case lies upon him and directing him to lead evidence.

The first point which arises in whether this is a matter in which this Court has any jurisdiction u/s 115, Civil P.C. So far as we are concerned, this matter must be treated as settled in view of numerous decisions of this Court, in which it has been held that such power can be exercised to revise interlocutory orders of the Courts below in which conditions of Clauses (a), (b) or (c) of Section 115 are satisfied: vide Banke Behari v. Ram Bahadur AIR 1918 Pat. 131, Nauratan Lal v. Wilford Joseph Stephenson AIR 1922 Pat. 359 Kameshwar Narayan Singh v. Rikhnath Koeri AIR 1920 Pat. 131 Mani Lal and Others Vs. Durga Prasad and Others, and Kunja Behari Das and Others Vs. Chintamoni Das and Others, . The principle laid down in Mani Lal and Others Vs. Durga Prasad and Others, after an examination of the previously decided cases, is that ordinarily an interlocutory order is not capable of revision, particularly when there is another remedy available to the injured party, but where the order complained against is such as is calculated to cause irreparable loss to the injured party and there is no right of appeal and no remedy available to the party the order may be revised.

I come now to the merits of the petition. The parties belong to the family of one Haldar Babu, who is said to have acquired the property sought to be partitioned. It is of aboriginal origin, being Mundas of the Chotanagpur Division. The plaintiffs claim that the family is governed by Hindu Law and this is a joint family property, and in this view asked for partition. On the other side, defendant 1, who is the senior member of the senior branch of Haldar Babu''s family, pleads that the parties are not Hindus and have not adopted Hindu customs, and that in the matter of succession they are governed by the rule of lineal primogeniture, and so he is entitled to and is in possession of the entire property, subject to grants made by way of maintenance to junior branches of the family.

In deciding the question of onus, the Subordinate Judge proceeds as follows:

The properties in suit were admittedly acquired by Haldhar Babu who is the common ancestor of the parties in suit. The defence of defendant 1 is that the parties are governed by special customary laws according to which defendant 1 as the eldest member of the family succeeded to the property and the younger members were granted khorposh or maintenance and that the title of the plaintiffs, if any, to the property has been extinguished by adverse possession exercised by the defendants. When it is a suit for partition and the position that the properties were acquired by a common ancestor is admitted the plaintiffs should be entitled to partition the property unless the defendant proves his case of primogeniture and adverse possession.

In this passage the Subordinate Judge notices only what the case of the defendant is. He omits altogether to consider the case of the plaintiffs as set out in paragraph 2 of the plaint:

That the parties were originally Mundas but have subsequently adopted Hindu custom and rites and are members of a joint Hindu family and governed by the Mitakshara School of Hindu law.

In this pleading there is a tacit admission that the customs governing the Mundas are not the same as the provisions of the Hindu Law. This pleading in the plaint is expressly denied in paragraph 11 of the written statement of defendant 1:

The parties are not Hindus, nor have they adopted Hindu customs, far less so in matters of succession, nor are they governed by the Mitakshara school.

In this view of the pleadings, it is not possible to see how the Subordinate Judge could have come to the conclusion that in the absence of evidence on either side, it must be held that the parties are governed by the Hindu law and, that, therefore, the onus lay on the defendant to establish the special custom pleaded by him.

In this connection I would refer to the case of Fanindra Deb Raikat v. Rajeshwar Das (85) 11 Cal. 463. That was a case of a family in Bengal, affecting to be Hindu but not Hindu by descent and origin. It took its origin in an aboriginal tribe, the customs of which differed from Hindu customs. The question arose whether succession in virtue of adoption was consistent with or was contrary to the customs of the family. In these circumstances their Lordships of the Judicial Committee said:

Looking at the origin and history of the family it appears to their Lordships that the question is not whether the general Hindu Law is modified by a family custom forbidding adoption, but whether, with respect to inheritance, the family, is governed by Hindu Law or by customs which do not allow an adopted son to inherit. The onus of proving that the adoption was lawful was upon the defendant, who relied upon it to defeat the plaintiff''s title. If the family was generally governed by Hindu law he might rely upon that, and then the onus of proving a family custom would be on the plaintiff.

Here, as I have already said, it is not admitted that the family has adopted the Hindu law, and until evidence has been led to establish that, the onus cannot be thrown upon the defendant to prove the existence of a custom inconsistent with that law.

In deciding the question of onus, the Subordinate Judge also dealt with a contention of the defendant relying on the record of the revisional survey in the following words:

The question of onus is, however, to be determined on the pleadings lying, as it does on the party who would lose if no evidence at all were adduced by either party. Hence the Record of rights cannot be considered at this stage for the purpose of deciding the onus.

The Subordinate Judge failed to notice that with regard to this "matter it was not necessary to look at the revisional survey record at all. A reference to that record is made in the plaint itself, para. 9 of which says, "that in spite of the wrong entries in the revisional survey record of rights the parties continued to be in joint possession." In other words, the plaintiffs admit that the record of rights is against their claim for joint possession. In view of the statutory presumption of correctness attaching to such a record, this fact would alone appear to be sufficient to cast the onus of proof on the plaintiffs rather than on the defendant.

On the above grounds I have no doubt whatever that the decision of the Subordinate Judge is incorrect. It has, however, been urged for the opposite party that this was merely a wrong decision within his jurisdiction and, therefore, does not attract the revisional jurisdiction of this Court. In support of this contention he refers to the case in Manickavachakam Chettiar v. Official Receiver East Tanjore Nagapattam AIR 1939 Mad. 733, in which Burn J. held that:

The fact that the question which way the burden of proof is to be thrown is wrongly decided is not a ground for interference in revision.

In that case, however, there was "no allegation that the learned Subordinate Judge has acted perversely or has omitted to consider anything which it was his duly to consider." In the present case, as I have shown the Subordinate Judge does not appear to have considered a very important document, namely, the plaint in which the case of the plaintiffs was set out. An application u/s 115 on the ground of the incorrect placing of the onus of proof was allowed by another learned Judge of that Court in S.S.S. Varisai Muhammad Rowther Vs. Marungapuri Estate in charge of the Court of Wards and Another, . He considered that the correct placing of the onus of proof is a vital point of procedure, and that an incorrect placing of the onus may, therefore, amount to a material irregularity. This is a view with which I would respectfully agree. The effect of requiring the defendant in this case to lead evidence seriously prejudices him by assuming without proof that the Hindu law governs the family of the parties. Secondly, it deprives him of the very valuable right of adducing evidence in rebuttal of evidence adduced by the plaintiffs. The prejudicial effect of this procedure is not capable of remedy, and in my opinion this is a proper case in which we ought to interfere in revision.

We do not intend, however, that our order setting aside the decision of the Subordinate Judge should interfere in any way with the right of the plaintiffs under Order 18, Rule 3, Civil P.C., to reserve their evidence on issues regarding which the onus of proof lies upon the defendant.

On the above grounds, I would allow this petition, set aside the order of the Subordinate Judge and direct him to proceed in accordance with law. The petitioner will get his costs in this Court. The hearing fee is assessed at one gold mohur.

Ray, J.

I agree.