1923 (8) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the properties standing in the name of Bhuban Mohini should be regarded as her self-acquisition or part of the family estate.
2. Whether properties acquired by Bhuban Mohini with her husband's money should be regarded as given to her in absolute right.
3. Whether the Subordinate Judge should have made an order on the defendants for recovery of joint properties not included in the suit.

Issue-wise Detailed Analysis:

1. Self-acquisition vs. Family Estate:
The appellants argued that the properties standing in the name of Bhuban Mohini should be regarded as her self-acquisition and not part of the family estate. The court examined eight conveyances and noted that the properties were claimed by the plaintiff as part of the family estate, while Bhuban Mohini asserted they were her exclusive stridhan. The court reiterated that there is no presumption that property standing in the name of a Hindu female member of a joint family belongs to the joint family and emphasized that the burden of proof lies on the person asserting otherwise. Bhuban Mohini's claim of having private funds from her father and maternal grandmother was unsupported by evidence, and the court found that the funds for the properties likely came from her husband, Nabin. The Subordinate Judge's conclusion that the properties were not Bhuban Mohini's self-acquisitions was upheld, as the evidence indicated the properties were part of the family estate.

2. Absolute Right through Husband's Money:
The appellants' alternative argument was that if the properties were acquired with Nabin's money, they should be regarded as an absolute gift to Bhuban Mohini. The court noted that this theory of advancement was not raised in the trial court and contradicted the appellants' earlier stance. The court emphasized that inconsistent pleadings are permissible, but relying on contradictory oral testimony can undermine credibility. The court also highlighted that the doctrine of advancement does not apply in India, where the relationship is considered in determining whether a transaction is benami. The court concluded that the appellants could not succeed on this point as it was not raised earlier, and the plaintiff had no opportunity to contest it.

3. Order for Recovery of Joint Properties:
The appellants contended that the Subordinate Judge should not have made an order for the recovery of joint properties not included in the suit. The court affirmed that all joint properties must be included in the suit and that the order for discovery was appropriate. It was in the interest of all parties to ascertain and include all joint properties in the litigation. The court noted that the order for discovery should ideally have been made before the preliminary decree but found the objection unsubstantial. The court confirmed the preliminary decree and allowed for a supplemental preliminary decree for additional joint properties discovered.

Conclusion:
The decree made by the Subordinate Judge was affirmed, and the appeal was dismissed with costs. The Receiver in charge of the estate was to continue until the final decree for partition was made, and the Subordinate Judge would address the distribution of money in the hands of the Receiver.