Sitakanta Padhi vs Krishna Padhi and Another

Agarwala, J.—This appeal is by the plaintiff and arises out of a suit on a mortgage j executed by Chintamoni Padhi in 1923 to secure a loan of Rs. 700. This money was borrowed to satisfy the dues of a previous mortgage of 1914 which had been necessitated by a decree against Chintamoni in a suit brought against him for accounts. The mortgagor having died his nephews, defendants 1 and 2 were sued on the mortgage.

The two questions which substantially arose for decision in the case were whether the mortgaged property was joint family property and whether there, was a legal necessity for the loan. The Court of appeal below has held that the property was joint family property and there was no legal necessity for the loan. With regard to the first question, however, the Court has, in our view, misdirected itself. It was proved that at the time of the acquisition of the mortgaged property the family was possessed of 9 acres of land and this fact was relied upon as shewing that there was not in the possession of the family, the means by which the mortgaged property could have been acquired. Prom this it was sought to be established that the mortgaged property was the self-acquired property of Keshab, the father of Chintamoni, by whom it was actually purchased.

On the other hand, the appellate Court was invited to hold that even the small amount of property possessed by the family at the time of the acquisition of the mortgaged property by Keshab was sufficient to enable them to acquire the mortgaged property. The learned Subordinate Judge has held that it was quite sufficient to shew that there was some nucleus of joint family property to raise the presumption that any property standing in the name of a member of the joint family was joint family property. This, in our view, is not the law. When it is sought to shew that property purchased by a member of the joint Hindu family is joint family property it must not only be shewn that there was a nucleus of. joint family property but that the nucleus was such as did or might have contributed to the property which, it is sought to prove, belongs to the joint family. As the Court of appeal below took the contrary view and based its decision only on the fact that the family owned 9 acres of land at the time of the acquisition of the mortgaged property by Keshab, its decision must be set aside and the case re. manded for fresh consideration. In particular it should be noticed that Chintamoni appears to have been dealing with this mortgaged property since 1914.

The decision of the Court below is, therefore, set aside and the case remanded for fresh hearing in the light of the observations made above. The costs of this appeal will abide the result.

Chatterji J.

I agree.