AMINADDIN MUNSHI Vs. TAJADDIN

JUDGEMENT

(1.) This is an appeal by defendant 1 and arises out of a suit for partition. The appeal is from the preliminary decree for partition. The relationship between the parties to the suit is shown in the genealogical table which has been handed over to us and is admitted by both parties and which is appended to the end of our judgment. It appears from that tree that one Jainaddi died leaving behind him two sons Tamijaddin and Najamuddin and a daughter Kalar Ma. Tamijaddin died sometime in 1324 B.S. Beaving behind him three sons Aminuddin who is defendant 1 to the suit, Abdul Majid (defendant 2) and Faijuddin (defendant 3) and two daughters Daragar Ma (defendant 4) and Nessa Bibi who is defendant 5 in this litigation. Najamuddin died in 1322 B.S. leaving behind him Tajaddin and Ainuddi two sons who are plaintiffs 1 and 2 and Asmateranessa a daughter who is plaintiff 3 in this litigation. Kalar Ma the daughter of Jainaddi died leaving behind her Kalimuddin who is defendant 6 in the litigation.

(2.) The case of the plaintiffs as stated in the plaint is that originally Jainaddi was the owner of the disputed lands which are described in schedule Ka to the plaint and that he died 40 years ago leaving him surviving two sons Tamijuddin and Najamuddin. Of the properties left by the said Jainaddi his two sons became owners in two equal shares and were in joint possession thereof by living as members of a joint Hindu family. It is also stated in the plaint that while the said brothers were in joint mess some of the properties which are included in schedule Kha of the plaint were acquired in different names out of the income of the joint properties, that is, out of the profits of the properties described in schedule Ka to the plaint. Then it is recited in the plaint that Najamuddin died about 13 or 14 years ago leaving him surviving plaintiffs 1 and 2 as his sons, plaintiff 3 as his daughter, and Tamijuddin died about 10 or 11 years ago leaving him surviving his three sons defendants 1, 2 and 3 and two daughters defendants 4 and 5. It is also alleged that while the cosharers other than plaintiff 3 and defendants 4 and 5 who had been married elsewhere and who are also heirs lived in joint mess and were in possession of the joint property, some of the remaining properties included in schedule Kha were acquired out of the income of the aforesaid joint properties and by their own efforts, that while in joint possession as owners of the disputed properties described in the schedules the cosharers in joint mess, namely, plaintiffs 1 and 2 and defendants 1, 2 and 3 quarrelled amongst themselves and be-became separate in mess but the properties were being possessed as joint properties and as it has become inconvenient for the cosharers to possess these properties jointly the present suit for partition had to be instituted. It is not necessary to refer to the other defences taken in the suit except the defence which has been taken by defendant 1 by which he claims throe of the dags mentioned in schedules Ka and Kha to the plaint to which particular reference will be made hereafter as properties which were acquired by his mother one Manekanessa and the defence as regards five other Dags which are claimed as properties acquired either by defendant 1 himself or by his father.

(3.) The Subordinate Judge who tried the suit has negatived the defence of defendant 1 with reference to these eight plots with which the present appeal is concerned. The question raised by defendant 1 in this appeal relates to these eight plots. A general argument has been advanced on behalf of the appellant to the effect that the judgment of the Subordinate Judge is vitiated by his misplacing the burden of proof on defendant 1 for showing that the eight plots were either his self-acquisitions or were acquisitions by his mother and father. It has been strenuously contended that this error with regard to the burden of proof has so far coloured the judgment of the Subordinate Judge that that judgment should not be allowed to stand. Further it is contended that the evidence pat forward on behalf of the plaintiffs is quite insufficient to discharge the burden which lay on them of establishing that the disputed eight plots are properties of the joint family. The true position with regard to the existence of any presumptions or otherwise regarding acquisitions by members of a joint Mahomedan family has been stated in numerous cases as follows: that where members of a Mahomedan family live in commensality they do not form a joint family in the sense that that expression is used with regard to Hindus and under the Mahomedan law there is not as under the Hindu law any presumption that acquisitions of the several members are made for the benefit of the joint family. Reference in this connextion may be made to some of the cases which have been referred to at the Bar and to other cases. The cases of Hakim Khan V/s. Gool Khan [1882] 8 Cal. 826 Suddertonnessa V/s. Majada Khatun [1877] 3 Cal 694 and Abdul Adood V/s. Mahomed Makmil [l884] 10 Cal. 562 were cases which were referred in the course of the argument before us. The other cases supporting the same view with reference to acquisitions of members of a joint Mahomedan family may also be referred to, as for instance, Abdul Kadar V/s. Bapubhai [1899] 23 Bom. 188 Mahamad Amin V/s. Hasan [1907] 31 Bom. 143 and Mohideen Bee V/s. Syed Meer Saheb [1915] 38 Mad. 1099.