BANAMALI PATRA Vs. ARJUN SEN

JUDGEMENT

(1.) This is an appeal from an order dismissing an application of the appellants to be appointed guardians of the person and property of two minor girls, Karunamani and Radhika. There were two brothers Ram Son and Sham Sen. The objectors, Arjun and Bhim, are the two sons of Earn who is alive. The girls are the daughters of one Narsingha, son of Sham. According to the appelllant's case Sham before his death had separated from Ram in mess and property in Falgun 1325 and Narsingh while possessing his properties separately died in Aghrayan 1333 and thereafter died his widow Surjamani. Appellant 1 Bana-mali Patra is brother of Surjamani, and appellant 2 Hagur Dutta is the husband of Karunamoyi to whom she was married after her father's death. Karunamani was born in 1328 and Radhika in 1332. The appellants applied to be jointly appointed guardians of the person and the properties of the minors. In the application it was stated that the distant agnates of the minors wore appropriating the minors properties by an unjust quarrel over the same.

(2.) Appended to the petition was a schedule of properties alleged to have been the separate properties of Narsingh and so of the minors, which were described by their plot numbers and areas as in the settlement records and it being stated that a half thereof was such property. The objectors contended that the family was governed by the Mitakshara law and that the minors had no separate properties, the allegations of the appellants as to separation in mess and property in 1325 being a myth. The family now resides in the District of Midnapur. The appellants case was that it has migrated from Burdwan and settled there while the objectors case was that it had come from Orissa. This last mentioned fact has been amply] proved. Being settled in Midnapore the family must be presumed to be governed by the Dayabhaga. The question is, has this presumption been rebutted. It has been proved that the family is Barui by caste and migrated from the District of Balasore and there are members of it still there and in Cuttack, their family priest is an Utkal Sreni Brahmin the impurity of mourning lasts for ten days and Sradh is performed on the 11 day after death, widow marriage is recognized as amongst the Baruis of Orissa. and it speaks and writes Uriya. We think these facts somewhat moagrethough, they are sufficient in a summary inquiry such as a proceeding for guardianship contemplates, for the purpose of holding that the presumption has been rebutted. On the principles so well rented in the case of Pitambar Chandra V/s. Nisikanta A.I.R. 1920 Cal. 835 this conclusion, in our opinion, follows. There is nothing to indicate that the family has, on migration adopted the law and usage of the place to which it had come.

(3.) As Regards separation in mess and property in 1825 which was the appellant's case it is impossible to say that it has been established. The direct evidence bearing on it is not convincing at all and as the District Judge has pointed out is hopelessly conflicting. It has been contended that he is wrong in saying that there is not a scrap of paper to support it (i. e. the story as to partition)" because partition by metes and bounds is not necessary and an intention to own and possess separately is all that is required. But when a partition by metes and bounds after actual measurement was the appellants case the learned Judge was quite right in saying as he did what has just been quoted. A few rent receipts showing separate payment of rent as against many dated posterior to 1325 showing joint payment are of little avail. The account books of the Pan business, mostly written by Narasingha, and bearing his name, are easily explained on the footing of the business, though joint, having stood in his name only as he was more literate. The account books of this business have been produced by appellant 1, but the explanation given is that they were at the joint family residence and removed therefrom by the said appellant through the help of Naiasingha's widow. The kobalas in Narasingha's name point to no certain conclusion, as it is not unusual for joint property to be acquired in the name of one of its members. The police report and solenama of 1926, which constitute the preliminary skirmish between the parties look like an attempt to lay the foundation for subsequent proceedings of the present character. The police officer's finding in his report, even if correct, is not evidence. The solenama has been denied on behalf of the objectors and in any event has not been reliably proved.