GADADHAR BHATAK Vs. SATISH CHANDRA GHOSE

JUDGEMENT

(1.) The appeal arises out of a suit brought by the plaintiff to recover possession of a certain plot of land on declaration of title.

(2.) It appears that in the town of Howrah there were two brothers, named Haranath and Satcouri. In the year 1877 a parcel of homestead land was bought in the name of Satcouri and in the year 1879 a confirmatory pattah was granted by the landlord also in his name. On this parcel of homestead land stood a building to which at some later period certain additions were made. The elder brother Haranath died about the year 1887. His son Jogendra died in 1892. Satcouri lived to the year 1905. Thereafter in the year 1911 the widow of Satcouri sold this parcel of land with the building standing thereon to the plaintiff, and in the same year the widow of Jogendra sold the same property to the defendants. The contest in this suit and in this appeal is between these two rival purchasers.

(3.) The contention of the plaintiff is that the premises were the sole self-acquired property of Satcouri, while the case of the defendants, the respondents before us, is that it was joint family property. Now the facts as found are these: The premises, as we have already said, were bought in the name of Satcouri, in whose name also was issued the confirmatory pattah in the year 1879. It has then been found by the Judge that in this house Haranath and after him Jogendra lived with the younger brother Satcouri as members of a joint Hindu family. It has been found that there was in fact no nucleus of ancestral joint family property. It has further been found that at the time when the premises were purchased and again at the time when the additions were made, Haranath and after him Jogendra, and Satcouri alike were earning substantial incomes. In this state of facts the learned Judge has thrown upon the plaintiff-appellant the onus of proving that this property was purchased by Satcouri on his own account and was his separate property. The only question in the appeal is whether in doing so he has misplaced the onus. The contention of the appellant is that the presumption that all property in the possession of any member or members of a joint Hindu family is joint property arises only when it has been shown that there is a nucleus of joint family property. Now, on that point there is in the decision of this Court some conflict. But we think that we ought to follow in this case the decision of Chief Justice Couch and Mr. Justice Glover: Taruck Chunder Totadar v. Joodheshteer Chunder Koondoo 19 W.R. 178 ; 11 B.L.R. 193. In that case after an analysis of the decisions of their Lordships of the Judicial Committee, Couch, C.J., clearly laid down that though it might be useful for the plaintiff in such a case as this to show that there was a nucleus of property, he could not agree in such a case that plaintiff-appellant was bound to prove the existence of such nucleus. Much to the same effect is the decision of Jackson and Dwarka Nath Mitter, JJ., in Bhunookdharee Loll v. Gunput Lall 10 W.R. 122 ; 11 B.L.R. 201 note. No doubt in that case there was a nucleus, but it was found, as a fact, that this nucleus was insufficient. On the authority of these two cases which have not been overruled by a decision of the Pull Bench of this Court or by any decision of the Judicial Committee, we must hold that the learned District Judge was right in placing the onus on the plaintiff-appellant who asserted that the premises were the separate property of his vendor.