GH AHMAD ALIAS GUL MOHD Vs. HABIB

JUDGEMENT

(1.) THIS is a defendants second appeal in a suit brought by the plaintiff to the effect that he had 1/2 share in the land purchased by Lassa from 1996 to 2000 (Bikrami). The suit for declaration was initially instituted on 28 -8 -1955, but was compromised on 19 -9 -1957 when a compromise decree giving l/4th share of the land to the plaintiff was passed. Subsequently the defendant brought a suit for cancellation of the compromise decree on the ground of fraud and non -compliance of the provisions of 0.32 of the Civil P. C. This suit was dismissed by the trial Court on 13 -6 -1960, but on appeal by the defendant it was decreed by the D. J. on 28 -6 -1960. There was a further appeal to this Court some time in the year 1968 which upheld the decree passed by the D. J. Following the decree of the D. J. as upheld by this Court the result was that the compromise decree stood vacated and the parties were relegated to the position that they occupied at the time the compromise decree was passed that is to say on 19 -9 -1957. In other words the previous suit brought by the present plaintiffs for declaration stood revived and was to proceed on merits after the decree of the D. J. was affirmed by the High Court. In this suit the main case of the plaintiff was that Habib and Lassa were real brothers and had been living together, owning property jointly, and as Habib was a Forest Guard. The property was being managed by his brother Lassa and the acquisition by Lassa from 1996 to 2000 (Bikrami) was made from the joint family funds and for the benefit of the joint family, and the plaintiffs were entitled to 1/2 share in the lands purchased by Lassa.

(2.) THE suit was contested by the present defendants on the ground that Lassa had purchased property in his name with his own funds. It was a personal acquisition in which the plaintiffs could not claim any share. Both the Courts below have after a careful consideration of the evidence and circumstances before them come to the following findings: - (1) That Habib was a forest guard and he had left the management of the entire property to his brother Lassa who was looking after the property on behalf of the family. (2) That the properties were purchased from the joint family funds supplied by not only Lassa but also by Habib. (3) That Lassa was not in service and had no exclusive income from which he could have acquired the property. (4) That Habib and Lassa were residing jointly and possessed the properties jointly up to the death of Lassa. On these findings the Courts below held that even though the presumption of jointness was foreign to the concept of Mohammadan Law, yet in view of the circumstances proved in the case Lassas position was that of a trustee and any purchases made by him from the joint family funds would ensure for the benefit, of the joint family. The Courts below relied on a decision of the Patna High Court in Mst. B. Fatma V. A. Ahmad, AIR 1963 Patna 128 which while relying on an earlier decision of the Calcutta High Court in Aminaddin Munshi v. Tajaddin, AIR 1932 Cal. 538 observed as follows: - "The legal position has been explained by the Calcutta High Court in AIR 1932 Cal. 538. It was held in that case that if members of a Mohammedan family live in commensality possess the family property in common and in jointness the acquisition by one of the members occupying the position of a managing member, during the jointness of the family will be presumed to be for the benefit of the members of the family not because of any presumption regarding acquisition akin to the joint Hindu family, but because such person is in fiduciary relationship with other members and has an obligation to discharge towards other members, and if any property as acquired stands in the name of such person, the burden of proving that it was his self -acquired and not the property of the joint family will be on him. In our opinion, this is the correct principle to be applied to this case."

(3.) MR . S. Prakash challenged the correctness of the decision of the Patna High Court (Supra) but it seems to me that having regard to the proved circumstances in the present case the decision of the Patna High Court is on all fours with the facts of the present case. The decision of the Patna High Court does not proceed on the footing that there is any presumption of jointness in a Mohammedan family but is based on the principle that since one of the members of the family was managing the property on behalf of the entire family, he became a trustee for the entire family, and any property that he acquired for the benefit of the family must be deemed to be the property of family unless it was proved that it was his personal acquisition. In other words what the plaintiffs in the present case suggested was that as Habib was forest guard, a Government servant, and he could not have purchased the property without obtaining permission from the Government, so the property was purchased in the Benami name of Lassa meant for the entire family. Lassa was, therefore, a Benamidar to the extent of 1/2 share which was acquired by Habib. The Courts below have also found as a fact from the evidence led by the vendors of Lassa and other respectable witnesses, that the purchase money was provided not by Lassa but by Habib which also shows the Benami nature of the transaction. In view of these findings I do not find any error of law in the judgments of the Courts below.