KUNDAN LAL Vs. SHANKAR LAL

JUDGEMENT

(1.) This appeal arises out of a suit in which the plaintiff sought a declaration that certain house property which had been attached in execution of a decree against his son, Makhan Lal, was the sole property of the plaintiff and therefore not liable to attachment and sale.

(2.) The facts as found by the court below are as follows. Jawahir Lal had three sons, Mangal Sen, Mohan Lal and Bhupat Lal. Mangal Sen died first, leaving a son, Kundan Lal, the plaintiff in the present suit. Mohan Lal died next and then Bhupat. Neither Mohan Lal nor Bhupat left issue. Two of the houses were acquired in the name of Mohan Lal. The third house was acquired in the name of Kundan Lal, the plaintiff, in the year 1890. The court below has found, and in second appeal we are bound by its finding, that Mangal Sen, Mohan Lal, Bhupat and the plaintiff, Kundan Lal, constituted a joint undivided Hindu family. The next finding is not very clear, but we take it to be this, that there was no evidence given that the ancestor Jawahir Lal had any ancestral property, or that Mangal Sen, Mohan Lal and Bhupat took any property by survivorship upon the death of Jawahir Lal. Under these circumstances the lower appellate court affirmed the decree of the court of first instance and dismissed the plaintiff s suit, holding that the property attached was joint family property.

(3.) The appellant contends that from the mere fact that Mangal Sen, Mohan Lal, Bhupat and Kundan Lal constituted a joint Hindu family, it must not be presumed that the property which was acquired in the name of Mohan Lal was joint property; and that therefore it must be taken that Kundan Lal inherited the houses which wore acquired in the name of Mohan Lal and did not take them by survivorship, and that therefore the property was in his hands not as ancestral or joint family property in which his son took any interest. In support of this contention the case of Gurumurthi Reddi v. Gurammal (1908) I.L.R., 32 Mad., 88 is cited, also the cases of Ram Kiskan Das v. Tunda. Mal (1911) I.L.R., 33 All., 677 and Shiu Golam Sing v. Baran Sing (1868) 1 B.L.R., A.C. 164 and several other cases. In the case of Ram Kishan Das v. Tunda Mal the facts were not unlike the facts of the present case, except that in that case it was the decree-holder who brought the suit for a declaration that the property which he had attached was liable to attachment and sale.