(1.) THIS Defendants' second appeal from the judgment and decree of the Assistant District Judge, Goalpara reversing those of the Munsiff has been admitted on the questions of law as to whether the finding of the lower appellate Court that the suit land is a joint Hindu family property, is erroneous being arrived at by placing the burden of proof wrongly on the Defendants, by relying on Ext. 3 which is not admissible, and by misconstruing paragraphs 8 and 10 of the written statement into an admission by the Defendants.
(2.) THE Plaintiffs' suit for declaration of their right and title over the suit land, confirmation of possession thereof, and for correction of khatian No. 266 by adding their names therein along with the heirs of Brajanath Paul and Horibala Paul, by right of inheritance has been resisted by the Defendants stating that the suit land was never acquired by Brajanath as karta of the Joint Hindu Family but as personal property and as such it was not a joint family property and was not inherited by the Plaintiffs.
(3.) THE first point to be examined in this second appeal is whether the finding that the suit land is a joint family property is one of factor of law or mixed question of law and fact. It is settled law, as ruled in Smt. Krishnawati v. Shri Hans Raj, AIR 1914 S.C. 280 that in the determination of a question of fact no application of any principle of law is required In finding either the basic facts or arriving at the ultimate conclusion, while in a mixed question of law and fact the ultimate conclusion has to be drawn by applying the principles of law to the basic findings. The fact that the suit land was purchased by Brajanath Paul is a fact. However, whether he purchased it as the karta of the of joint Hindu family with others or as a separate property of himself has to be decided by applying certain accepted principles of law like, ancestral nucleus, separate income, subsequent user etc. which may make the finding one of mixed law and fact. I accordingly hold that under the facts and circumstances of the case this finding is one of mixed law and fact, particularly because of the nature of the purchase, mutation in the Touzi, execution of the deed in joint names and partition.