HEMCHANDRA GANGULI Vs. MATILAL GANGULI

JUDGEMENT

(1.) The facts giving rise to the litigation, in which this appeal has arisen, as accepted by the Court of appeal below, may be briefly enumerated, in view of the matters in controversy between the parties. One Poornachandra Ganguli had three sons: Kunjabihari, Matilal and Biharilal. Poorna, it would appear, was not at all well off, so, far as his pecuniary circumstances were concerned, and had to spend a part of his life in his father-in-law's house. Kunjabihari, the eldest son, served in the police department of the Government, and had a decent income; out of his own money he acquired property, which is the subject-matter of the present litigation, in the name of his father Poorna, the name of the father having been used for the reason that Kunja's superior officers in the department would have raised objection had it been known that he was acquiring property within the district in which he was serving. Kunjabihari predeceased his father: Kunja died in the year 1912 while his father Poorna's death took place in the year 1919. The father was dealing with the property as his own, in the sense that he was living in the same, which is a house, till the time of his death; there is lack of evidence to show that Kunjabihari treated the property as his own self-acquired property, and, in point of fact, after the death of Poorna, there was, in the year 1925, a deed of partition between the sons of Kunjabihari on one side and their uncles Matilal and Biharilal on the other, in which it was stated that the possession of the plaintiff, Hemchandra Ganguli, in the suit out of which this appeal has arisen, and that of his brother, was in respect of one-third share of the property. This suit, as instituted by the plaintiff in 1928 for partition and possession of the property, to which reference has been made above, was on the footing that the partition deed, drawn up in 1925 mentioned above, was not registered, and the agreement between the parties was that it should not come into force before registration; the plaintiff averred that he subsequently came to realise his own legal position in respect of the property, and was suing in assertion of his and his brother's legal rights in respect of two-thirds share of the property, defendants 1 and 2 being entitled to get the remaining one-third share. The learned District Judge in the Court of appeal below has quoted the plaintiff's own words, in which his case was put before the Court: The family was not a joint Hindu family under the Dayabhaga law, but was a family of persons, father and sons, living jointly and governed by Dayabhaga law.

(2.) In other words, the family was not a Hindu family under the Dayabhaga school of Hindu law, but it was a community of persons living jointly and governed by the Dayabhaga. On the pleadings of the parties, defendants 1 and 2 in the suit? the paternal uncles of the family? having pleaded that the family was a Hindu joint family, that the property in suit was acquired from common fund of the joint family contributed by Poorna and his three sons, and that, on their father's death, they had inherited a one-third share each in the property, the plaintiff and his brother?the sons of Kunjabihari ? being entitled to the remaining one-third share, the material issue raised for trial in the suit was issue 4: Is the disputed property ancestral property of the parties? Has it been acquired out of common fund?

(3.) It would appear that the trial Court was of opinion, on the evidence in the case, that the property in dispute was acquired by Poorna, though in all probability the money was got by Poorna from his son Kunja. The evidence on the plaintiff's side shows that Kunja intended to make his property the property of the family and not his separate property.