Daji Ramji Patil vs Laxman Raoji Tage

Marten, C.J.—We hold that the lower appellate Court has here erred in law in throwing the burden of proof upon the plaintiffs. The learned Assistant Judge quotes from Mulla''s Hindu Law:

Every Hindu family is presumed to be joint in food, worship and estate unless the contrary is proved. The burden of proof therefore lies-upon him who alleges separation.

Accepting that proposition, the Judge, in para. 7 of his judgment, has held that

the plaintiffs have not succeeded in showing that in 1894 Vaman was separate from hizs brothers Had and Anant, and that consequently the land, Survey No. 17, belonged execlusively to him and after his death to his son, viz. their vendor Chintaman.

We think that the above proposition of law is stated far too widely or at any rate cannot be accepted without qualifications. In Ram Kishan Das v. Tunda Mal [1911] 33 All. 677 it was held that there is no presumption that Hindu family has any joint property, and 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.

Then, in Mayne''s Hindu Law, 9th Edn., at pp. 375, 377, 378 and 380, the law is discussed and clearly enunciated. At p. 377 it is stated:

It may now be considered as settled law that it is necessary to establish the existence of a nucleus of a 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.

Then, in the next paragraph, he explains that to say generally of any particular property in the possession of any member of the family, that it is presumably joint estate, is to assert one or other of a great many different propositions:

Either 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. Now, these propositions are different in their probability, and different in the facts which would establish them.

Then, at p. 380, it is said:

If a member of the family admitted a partition among some of the members, but asserted that the others had remained undivided, the onus would lie upon him to make out such a case.

In the present case Shridhar, the father of Varnan, Hari and Anant, died before 1888, and consequently prior to the purchase of the suit property by Vaman in 1894. It does not appear that Shridhar left any property. On the facts as found, Anant, one of the brothers, had already separated.

In our opinion, the learned Assistant Judge wrongly applied the presumption that Vaman and Hari must have been joint in 1894. Then, after holding that the plaintiff had failed to rebut that presumption, he next finds that by 1918 Chintaman (the adopted son of Vaman) and Keshav (the son of Hari and the natural brother of Chintaman) had become separate. How and when they so became separate the learned Judge does not state. Prima facie the fact of their separation would be quite inconsistent with the fact which the Court had relied on as establishing a course of conduct over a series of years as between Vaman and Hari and Chintaman and Keshav, which would make the property joint property.

Consequently we think the proper course to adopt is that taken in Bhagubai v. Tukaram [1905] 7 Bom. L.R. 169, where very much as here, the proper issues had not been framed in the Courts below. In the present case, there was no appropriate issue at all in the trial Court, and in the lower appellate Court the learned Judge framed no issues whatever. The case of Bhagubai v. Tukaram [1905] 7 Bom. L.R. 169 resembles the present. There Sir Lawrence Jenkins stated the law in very much the same terms as those I have just stated from Ram Kishan Das v. Tundu Mal [1911] 33 All. 677 and from Mayne, and then sent down the issues for determination by the lower Court. Those issues are appropriate in the present case, as we do not see our way to decide the case on the present materials on our finding that the presumption of law was wrongly raised and. applied by the lower appellate Court. Accordingly, we will send down the following issues for determination by the lower appellate Court. (His Lordship then framed issues and sent them down for determination.)