SADHANCHANDRA DAS Vs. GAURISHANKAR DAS

JUDGEMENT

(1.) [His Lordship after stating the facts of the case and dealing with points not relevant to this report, proceeded.] The question so far as other properties are concerned is, whether they formed the estate of Durgacharandas when he died on November 11, 1956, so as to entitle the parties to succeed as tenants -in -common under Section 19(b) of the Hindu Succession Act. It is not challenged by Mr. Jhaveri that under the Dayabhaga law during the life time of the father the sons did not have any share in the ancestral property or the property of the father. What is contended by Mr. Jhaveri is that there is some difference between Dayabhaga law and Mitakshara law with regard to the burden of proof when the properties stand in the name of a son, as in the present case, as it is common ground that the tenancies in Bombay and! the property at Navin Senapati Lane, Howrah, stood in the name of the defendant No. 1 during the life time of Durgacharandas. Mr. Jhaveri submitted that the onus of proving that the property purchased in the name of one of the sons, even though the father and the sons were living in it, was the property thrown into the common stock, or that they also contributed to the acquisition is on the other sons. He relied on para. 286 of Mulla's Hindu Law, 14th edn., at page 350, and Sarada Prosad Ray v. Mahananda Ray I.L.R (1904) 31 Cal. 448, on which the passage of Mulla is based.

(2.) IN my judgment, these contentions of Mr. Jhaveri are really academic, because in the present case the plaintiff has led evidence and the defendant No. 1 has also led evidence to show that even though the tenancy rights of Bombay premises and the House in Howrah property stood in the name of the defendant No. 1, the properties were enjoyed by all the members of the family, during the life time of their father and they were subject to the control and authority of their father, which was never questioned by the defendant No. 1, during the life time of their father and further all these properties were acquired by the income of all the members of the family, who could earn, including the father and the defendant No. 1. All of them were sometimes running the business at Bombay which was the principal source of income of the family. The question in this appeal cannot be decided merely on the basis of burden of proof because the parties have discharged their burden and it is well settled that in a matter like this, the burden is not throughout on one party but it shifts according to the facts, circumstances and conduct of the parties in each case. In the instant case the plaintiff and! the defendants have led evidence on the point as to whether the acquisition of the tenancies in Bombay and the property in Howrah with the amalgamated and confused funds were made for the benefit of the family the head of which was Durgacharandas, and who controlled all the properties and enjoyed them even though he allowed the tenancies and the property at Howrah to stand in the name of the defendant No. 1. There is evidence also that the incomes arising from the principal source of income, namely, the business at Sheikh Memon Street which was earlier conducted in Hathi Building were spent for the joint family expenses and the balances were again mixed and used for acquiring properties, and this evidence will be discussed hereafter.

(3.) IN other words, whatever has been acquired with the substantial in help or assistance of joint property is to be shared amongst the rest.