KUMUDINI DASSYA Vs. MUKTA SUNDARI DASSYA

JUDGEMENT

(1.) The pleadings of the parties are set out in sufficient detail in the judgment of the Trial Court and it is unnecessary to repeat them here. A reference to the geneological tree in that judgment will show how the parties to this suit are related to each other. The substantial points in controversy in this litigation were whether the lands in suit were the joint property of a family, which traces its origin to one Bali Charan De, and whether the plaintiffs as widows of two of the male members of the family were entitled to certain shares therein. The subject- matter of the suit were plots bearing Khatian Nos. 182, 91, 108, 138 and 208.

(2.) The Subordinate Judge dismissed the suit so far as it related to lands of khatian No. 182 and made a decree in favour of the plaintiff No. 1 declaring her title to l/6 share and in favour of the plaintiff No. 2 declaring her title to 2-9ths share in the lands of khatian Nos. 91, 108,138 and 208, and for joint possession in favour of both the plaintiffs with the defendants to the extent of their respective shares. On appeal by the defendants Nos. 1 and 4 against the said decree the suit was dismissed by the first Additional District Judge of Mymensingh. Against this decision the plaintiffs have preferred this appeal. The two Courts below have recorded in their respective judgments findings on some of the questions which arise in the case, which may be said to be diametrically opposite in nature and this has necessitated our going into the matter very carefully in order to see whether the findings arrived at by the Court of appeal below do really cover the whole ground, whether they adequately dispose of the various issues which arise in the case and whether they are sufficient for dismissing the plaintiffs suit.

(3.) Now the first question that arose in the case was whether the family was a joint Hindu family and if so, who were the members thereof and whether the properties were acquired by Sambbu Nath as a member of the same. On this question the learned Subordinate Judge recorded a clear finding in his judgment which was in these words. "My conclusion, there-fore, is that Sambhu Nath acquired the chak and the jote as a member of a joint Hindu family consisting of himself, his brothers and nephews." The learned Additional District Judge observed in his judgment: " The lower Court proceeded on the assumption that Sambhu acquired the lands for the family. He was not at all justified there. That was not the case for the plaintiffs. The evidence is too weak to lead to the conclusion that Sambhu and his two brothers were joint when the lands were acquired. There is no evidence worth the name that the brothers had any joint property from the income of which the lands could be acquired. There is no evidence that the lands were acquired with the joint exertion of all the brothers." Now what is referred to as being a variation in the plaintiff's case is not really a matter of much moment. The plaintiffs no doubt alleged in their plaint that the lands were acquired by Bali Charan, but that was a matter in respect of which the plaintiffs could not possibly have any definite information and if subsequently in the course of the proceedings it transpired that it was not Bali Charan but Sambhu Nath who had acquired the lands but that he acquired it for the joint family and as a member thereof, it cannot be said that there was such a variation in the plaintiffs case as would either disentitle them to a decree or discredit their case altogether [Rama Nath Chatterjee V/s. Kusam Kumari Debt (1906) 4 C.L.J. 56]. The treatment of this part of the case by the learned Additional District Judge seems to me to be open to serious objection. He has not found that Bali Charan was alive at the date of acquisition of the properties. He seems to have held that there was at that date a family consisting of the three brothers but was unable to hold that they were joint at that time. The acquisition took place not later than 1256 B.S. Now if the family was a Hindu family, there is the presumption that it was a joint Hindu family. The normal state of every Hindu family is joint. Presumably every such family is joint in food, worship and estate. In the absence of proof of division such is Aha legal presumption. His own finding as to separation, the character of that separation, is again a different matter and will be referred to hereafter as recorded in his judgment in the following words:-"It is clear on the evidence on the plaintiffs side that the separation was more than some 30 years back.