Judgement

Appeal (No. 87 of 1926) from a decree of the High Court (February 29, 1924) reversing a decree of the Subordinate Judge of Belgaum.

The suit was brought by the respondent to recover a half share in the joint property of the appellants, who were his distant kinsmen, and for mesne profits.

The facts appear from the judgment of the Judicial Committee.

The trial judge held that the plaintiff was not a member of the joint family and dismissed the suit.

Upon appeal to the High Court a decree was made in the plaintiffs favour. The learned judges held that as the two branches of the family had once owned the property jointly, the burden was on the defendants to prove that the family had been divided, or to prove an exclusion of the plaintiff and his father to their knowledge, so as to bar the suit under the Indian Limitation Act, 1908, Sch. I., art. 127. In their view the evidence failed to establish either a partition or such an exclusion.

1928. Oct. 16, 18. Sir George Lowndes K.C., E. B. Raikes and McNair for the appellants. The burden of proving that the plaintiff was a member of the joint family was upon him, and he did not discharge it. Having regard to the circumstances of