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 the case there was no such onus upon the defendants as justified the High Court in holding that the plaintiff was a member Moro Vishvanath v. Ganesh. (( 1865) 10 Bom. H. C. 444, 453.) Even if the onus was upon the defendants they discharged it. But the question of onus is really academic, as the evidence necessary to determine the question was before the Court Robins v. National Trust Co. ([ 1927] A. C. 515, 520.); Sivaprakasa v. Veerama Reddi. (( 1922) L. R. 49 I. A. 286, 303.) In any case the suit was barred by the Indian Limitation Act, 1908, Sch. I., art. 127. There was an exclusion of the plaintiff to his knowledge in 1895, when the defendants ancestor claimed the exclusive right to the office of patil, even if there was not an exclusion in 1862. The respondent did not appear.

Nov. 16. The judgment of their Lordships was delivered by

LORD SHAW. This is an appeal from a decree of the High Court of Judicature at Bombay. It was dated February 29, 1924, and it reversed a decree of the Court of the First Class Subordinate Judge of Belgaum dated August 28, 1919.

The suit was brought by the respondent for a half share in property possessed by the appellants for

many years as after mentioned.

The appellants were distant kinsmen of the respondent.

The family genealogy is thus set out—

Kenchi Hemi Naik

|

| |

Hamappa Lakshmappa

| |

Lakshmappa Junior Branch of

| whom 10

| descendants

were living in

1862

||

Ramappa Krishmappa

| |

| |

Topanna Hanmappa

(Topi Naik) |

|

| Laxmanna (d. 1880)

Venkappa m. |

Irawa (d.

8-12- 1872)

|

| |

| Tippanna (Plaintiff)

| | |

Ramappa Appu (d. 1878) Bhima (d.

(Defendant | 1878)

No. 1) m. |

Mallava (died |

pending |

hearing in |

High Court. |

Adopted |

Defendant |

No. 2) |

Ellappa (alias

rftsWidthA3 Yellappa)

Defendant No. 2

(adopted by

Defendant No. 1,

27-5- 1897)

|

||| Venkappa Appa (Defendant Balapa (Defendant No. 5) Given in (Defendant No. 3.) adoption to another No. 4) family.

The suit was brought in 1916. The case was most carefully tried by the Subordinate Judge. One cannot peruse his judgment and the relative evidence without being struck by the accuracy and minuteness of his exposition and the apparent correctness of his conclusions.

Had the case been considered by the High Court as one to be determined merely upon the facts proved, their Lordships do not doubt that that Court would have reached the same conclusion as the Subordinate Judge. The High Court, however, in a brief deliverance, reversed the judgment substantially upon the ground of their view as to the onus probandi in allegations as to joint family property.

First as to the facts. Their Lordships agree in substance with the Subordinate Judges narrative and only add this brief summary. The property is naiki watan (police service land) in the village of Manyal