CHOONI LALL KHEMANI Vs. NILMADHAB BARIK

JUDGEMENT

(1.) The facts giving rise to this appeal are that Ganganarain (father of the plaintiff) and Sarbeswar (father of Defendants Nos. 2 and 3) lived together as uncle and nephew and that Sarbeswar lived on the property in suit for a long time and that defendants Nos. 2 and 3 mortgaged it with Bama Charan who in execution of the mortgage decree put it up to sale and it was purchased by Defendant No. 1 on the 12 July 1919 and delivery of possession was taken by him on the 11 June 1920. Thereupon the plaintiff brought the present suit for recovery of possession on establishment of title. The defence was that the land belonged to the common ancestor of the parties and that it fell to the share of Sarbeswar who had possessory right to it and that Defendants (Nos. 2 and 3 sons of Sarbeswar, were in possession for more than 12 years and had acquired a right by adverse possession to the land. There were also the other questions raised with regard to the plaintiff's knowledge of the transaction between defendants Nos. 2 and 3 and Bama Charan which it is not necessary to refer now.

(2.) Both the Courts have decreed the plaintiff's suit. The Defendant No. 1 has appealed and several points have been urged on his behalf by the learned vakil for the appellant.

(3.) The first point raised by him is that under the Hindu Law, if a property is bought in the name of a son during the life-time of the father, the presumption is that it is purchased by the father. The facts found in this case are that at the time when this property was purchased the plaintiff's grandfather was alive. It was purchased in the name of and by Ganganarain who was a schoolmaster and Ganganarain acquired this property for himself. The learned Subordinate Judge in the lower appellate Court has not clearly stated his findings; but it is apparent from a reading of the judgment that what he means to say is that though Ganganarain's father was alive at the time when the property was purchased, but as Ganganarain was a schoolmaster and had sufficient means to purchase the property for himself, the property did not belong to the joint family. He also observes that it is the ordinary law that if any property is purchased by a son in his name during the father's life-time, the presumption will be that the son acquired it for himself and that it was not the family property. The learned vakil for the appellant has taken objection to this statement of the law and we are invited to consider the case of Parbati Dasi V/s. Rajah Baikunta Nath Das (1914) 15 M.L.T. 66. There the Judicial Committee had to deal with a very different set of circumstances. Then there was no evidence that the junior member of the joint Hindu family, in whose name the property was purchased, had any source of income or any separate fund with which the property was purchased. Their Lordships laid down the rule that where there is a dispute as to whether the property standing in the name of a junior member of a Hindu family is his self- acquired property the criterion is to consider from what source the money came with which the purchase was made. In that case the finding of fact was that the son in whose name the property stood had no separate fund or that the property in dispute was not purchased with money belonging to him and their Lordships held that in the absence of such evidence the presumption is clear and decisive that it was acquired by the father in the name of the son. This principle does not apply to the facts of the present case. We think that the finding on this point arrived at by both the Courts below, that the property in dispute was the self-acquired property of Ganganarain, concludes this matter.