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Petitioner: MD. ABDUR RAHMAN BHUIYAN VS Respondent: PRAFULLA CHANDRA MAJUMDAR AND OTHERS
P L D 1963 Dacca 57
P L D 1963 Dacca 57
Before Sattar, J
MD. ABDUR RAHMAN BHUIYAN‑---Appellant
versus
PRAFULLA CHANDRA MAJUMDAR AND OTHERS ---Respondents
Appeal from Appellate Decree No. 1018 of 1958, decided on 2nd May 1961.
(a) Hindu Law‑Dayabhaga School‑Member of joint Hindu family purchasing property in his son's name (who has no fund of his own)‑Property held that of the joint family.
(b) Co‑sharer‑Exclusive possession of joint property‑Suing to recover possession from trespasser without joining other co‑sharers Suit maintainable.
Currimbboy & Co. Ltd. v. L. A. Creet and others 50 C L J 208 rel.
Nurul Amin with A. R. Khan for Appellant.
D. C. Bhattacharjee for Respondents.
JUDGMENT
This appeal by the defendant arises out of a suit brought by the plaintiff respondent for recovery of possession upon declara tion of title. The case of the plaintiffs, shortly stated, is that the disputed land was owned and possessed by one Judhisthir Mala. Judhisthir executed a deed of sale on 17‑6‑43 in favour of Birendra Chandra Majumdar who was the son of Prabhat Majumdar. Prabhat lived in joint mess and property with his brothers Prafulla Majumdar and Sarendra Majumdar. The purchase was really made out of the joint fund of the three brothers viz., Prabhat, Prafulla and Surendra. Prabhat died leaving behind 3 sons. Birendra, Janan and Satyendra and Surendra died leaving behind his widow Nirada Sundari. After the death of Birendra his properties were inherited by his widow Ashalata and his two sons Bimal and Parimal. It is said that Prafulla, Nirada, Janan Chandra, Satyendra and Ashalata executed an Ammukhtear nama in favour of Ali Akbar Bhuiya who was in possession of the disputed property and continued in possession by giving settle ment in favour of different persons. Further case of the plaintiffs is that the defendant in Poush 1360 B. S. dispossessed Ali Akbar and hence the present suit.
The suit was contested by the defendant. His defence, inter alia, was that the disputed property belonged to Serajuddin on whose death the defendant purchased the disputed land from his sister Sachuni Bewa and daughter, Asbabanoo, The other heirs of Serajuddin, it was claimed, relinquished their interests in the beel and the appellant was in exclusive possession of the beel in his own right. The allegation that the purchase in the name of Birendra was made with the fund of the joint family consisting of his father and uncles, was denied in the written statement.
Both the Courts below, on a consideration of the evidence on record, have held that the defendant had no title to the disputed property and this finding has not been challenged before me by the learned Advocate appearing on behalf of the appellant.
2. The Courts below have also concurrently held that the purchase in the name of Birendra was really with the fund of the joint family consisting of Prabhat, Prafulla and Surendra and in that view of the matter they have held that the plaintiffs are entitled to recover possession of the disputed land which was in the possession of Ali Akbar on behalf of the present plaintiffs. It is this finding that has been challenged before me by the learned Advocate for the appellant. It has been contended that the finding that Prabhat, Prafulla and Surendra were joint in mess and property has been arrived at without any evidence. The contention, I am afraid, cannot be upheld. There is evidence of P. Ws. 1 and 2 to the effect that the three brothers were joint in food and they had joint properties also. The presumption will be that the brothers continued to form a joint family unless the contrary is proved. No evidence about their separation has been given in this case. In that, view of the matter, the finding of the Court of appeal below which is based on some evidence and receives support from the presumption of law cannot be disturbed.
3. The next point that has been urged is that the Court of appeal below has wrongly held that the purchase in the name of Birendra was with the joint fund of the joint family of Prabhat, Prafulla and Surendra. It has been argued that this finding has been arrived at on the basis of a presumption which does not apply in the facts and circumstances of the case.
4. The lower appellate Court after discussing the evidence on the question of joint ness of the Majumdar family came to a finding that they lived in joint family and thereafter observed that there was no evidence that Birendra had separate fund. It therefore concluded that Birendra was a mere name lender for the joint family of Majumdars which consisted of Prabhat, Prafulla and Surendra. In that view of the matter the title of the present plaintiffs in the suit property was upheld by the lower appellate Court.
5. Mr. Nurul Amin, learned Advocate for the appellant has argued that as between a father and a son or as in this case as between Prabhat, Prafulla and Surendra on the one hand and Birendra, the son of Prabhat on the other, there could not lie any joint family arid in that view of the matter the finding of the lower appellate Court that this was a purchase by the joint family cannot be upheld. Reliance has been placed in this connection on the case of Hem Chandra Gangopadhya v. Mati Lal Gangopadhya and others (37 C W N 1174). In that case it has been held that under the Dayabhaga School of Hindu law prevalent in Bengal, there cannot be a joint family consisting of the father and the sons. The sons may acquire separate properties, having no concern with the joint family property, during the lifetime of the father. This is a case in which a question arose whether a father together with his three sons formed a joint family. The facts of the present case, however, are clearly distinguishable from it inasmuch as, here on evidence, it has been found that Prabhat, Prafulla and Surendra, the three brothers formed a joint family. The only question that needs consideration is whether the purchase in the name of Birendra, a son of Prabhat will be presumed to be a purchase by the joint family or that of Birendra with his own money. The guide for such cases, in my view, is the decision of the Judicial Committee in the case of Parbati Dasi v. Raja Baikuntha Nath De and others (18 C W N 428). The facts of that case are that one Raghunath De, a Hindu governed by the Dayabhaga law, had three sons, Rup Charan, Sonatan and Shyamanand, who lived jointly. The dispute was whether a property purchased in the name of Rupcharan was his self acquired property or the property of Raghunath. Mr. Ameer Ali in delivering the opinion of the Board observed as follows :‑
"The principle applicable to this class of cases where there is a dispute whether a property standing in the name of a junior member of a Hindu family was his self‑acquisition was enunciated so long ago as 1843 in Dhurm Das Pandey v. Shama Soondri Debiah (8 More's App. 229 (1843)) where Lord Campbell said : The criterion in these cases in India is to consider from what source the money comes with which the purchase money is paid". This principle was reaffirmed in 1854. Gopi Krist Gosain v. Gunga Persaud Gosain (6 More's Ind. App. 53 (1843)).
6. In the present case both the Courts below have found; that there was no evidence that Rupcharan had any separate funds or that the properties in dispute were purchased with money belonging to him. In the absence of such evidence the presumption is clear and decisive that they were acquired by the father in the name of the son, and that they were not the self acquired properties of Rupcharan."
7. In view of the above decision it must be held that the purchase in the name of Birendra was by his father Prabhat. The Courts below however have taken the view that since Prabhat, Prafulla and. Surendra, the three brothers formed a joint family, the purchase in the name of Birendra must be considered to be a purchase by the joint family. This view, to some extent, receives support in the decision of Gopf Krist Gosain v. Gunga Persaud Gosain which is one of the decisions relied upon by the Judicial Committee in the case. In that case the question that arose for consideration was whether the purchase in the name of a son of Rogoram Gosain who along with his brother Ruggu bram Gosain formed a joint Hindu family, would be presumed to be the property of the joint family or that of the son of Rogoram Gosain in whose name the purchase was made. The purchase was in the name of Gunga Persaud Gosain who was at the time of the purchase the only son of Rogoram. Gunga Persaud Gosain claimed that the purchase was by him with the money advanced by the father. This was challenged by his other brother Gopi Krist Gosain who contended that the purchase was by the joint family consisting of Raggubram and Rogoram Gosain. Lord Justice Knight Bruce who delivered the judgment of the Board in this case observed as follows: "Another point arises but the case seems hardly touched by the pleading. It appears that Rogoram and his brother formed a joint family, their property was joint, and there is no proof that Rs. 64,000 were part of the joint property; if they were, and perhaps the true inference may be that it was joint property, both families would have been entrusted in these purchases, but the family of the father's brother are bought off, this would leave the property part of the joint family property of Rogoram Gosain, in which case it would belong to the two sons." It may be mentioned that the disputed property in this case fell to the share of Rogoram by virtue of partition with his brother and it is in these circumstances that the above observation was made and it clearly indicates that the presumption which formed the basis for the decision in the case of Parbati Dasi v. Raja Baikuntha Nath De, will arise not only in a case where the father and his son were the only members of the joint family but also in a case where more than one brother composed a joint family of which the other members were their sons. According to Mulla, a joint Hindu family consists of all persons lineally descended from a common ancestor, and include their wives and unmarried daughters. A joint Hindu family is a different body than a Hindu co‑parce nary. It is not inconceivable in view of what Mulla has said in his Principles of Hindu Law in section 212 (10th Edition) to think that there may be members in a joint Hindu family who may not have interests in a joint property of that family. I am, therefore, of the view that the Courts below have rightly held that the purchase in the name of Birendra was by the joint family consisting of Prabhat, Prafulla and Surendra. The plaintiffs, therefore, inherited some shares in the disputed property and therefore it cannot be said that they had no title to it.
8. Nurul Amin, it may be mentioned, did not raise any other point in support of the appeal. On a reading of the judgment of the Courts below however, I requested Mr. Bhatta charjee, learned Advocate for the respondents, to support the finding of the lower appellate Court that this suit for recovery of possession at the instance of some of the owners without joining the others as parties was maintainable. The. lower appellate Court has held in favour of the plaintiffs relying on the decisions in A I R 1930, All. 420, 51 Bom. 149 and 50 C. L. J. 203. The two decisions reported in A I R 1930 and 51 Bom. support the view taken by the lower appellate Court. There however some conflict of decisions on this point and in view of the findings in this case, I think it is necessary to go into this question. The finding of the lower appellate Court is that Ali Akbar, the attorney for the plaintiffs, was in exclusive possession on behalf of some of the owners of the disputed land and he was dispossessed by the defendant. The suit, therefore, at the instance of such co‑sharers who were in exclusive possession of a joint property for recovery of possession against a trespasser, is maintainable, and the view that I am taking receives support in the case of Currimbboy & Co. Ltd. v. L. A. Creet and others (50 C L J 208). The failure on the part of the plaintiffs to add Bimal and Parimal, the two sons of Birendra, as parties, in this case, does not affect the plaintiff's right to recover possession from the defendant who has been found to be a trespasser having no title to the property. The defendant claimed no interest through Burial and/or Parimal. In that view of the matter, the lower appellate Court rightly held that the plaintiff's suit was maintainable.
In view of my findings above, the appeal fails and is dismissed with costs.
S. B./A. H.
Appeal dismissed.