SWARATH DHOBI Vs. MTGHURKI

JUDGEMENT

(1.) This, second appeal has been referred to a Bench of two Judges because the learned Judge before whom it came thought that there was some conflict between two cases decided by this Court, namely Ram Kishan Das V/s. Tunda Mal [1911] 38 All. 677 and Kundan Lal V/s. Shankar Lal [1913] 35 All. 564.

(2.) The facts of the case as found by the Court below are those: One Ghurao was a tenant holding the fixed rate tenancy, one-half of which is in dispute in this suit. On 26 July 1913 he made a gift of one-half of it to the plaintiff-appellant Swarath, who was a son of his wife's brother. The other half he gave to his daughter Mt. Lotania. The daughter's half-share went by inheritance to her son and on the death of the son the property was inherited by the father the husband of Mt. Lotania, Jhinguri. On 13 June 1919, Jhinguri sold this half-share in the tenancy to plaintiff's brother Gobardhan, the late husband of respondent 1 Mt. Ghurki. The other defendants in the suit are transferees from Mt. Ghurki. The plaintiff-appellant claimed the half-share in dispute on the ground that his brother Gobardhan died joint with him and by right of survivorship he is entitled to the property in question. The defence was that Gobardhan died separate and the property in suit was his self-acquisition.

(3.) The Court of first instance decreed the suit. On appeal the learned Subordinate Judge dismissed it. The learned Subordinate Judge found that although the two brothers Swarath and Gobardhan lived together there was no nucleus either of ancestral property or of joint family property and that therefore there was no presumption that the property acquired by Gobardhan was joint family property in his hand. The learned Judge also found that Gobardhan used to go out to Calcutta to earn a living and it was possible that with the savings he was able to purchase the property in question.