Mitter, J.:— This is an appeal from a decision of the learned Subordinate Judge of Sylhet, dated the 30th June, 1924, reversing a decision of the Munsif of Habiganj, dated the 29th of May, 1923. The plaintiffs, who are now the respondents, commenced the present suit to set aside a deed of gift executed by a lady of the name of Bisakha in respect of a property, which, the plaintiffs allege, was acquired by her with the surplus income of her deceased son's estate. The plaintiffs claim as the reversionary heirs of Krishna Chandra Das Choudhnri, son of Bisakha, who inherited her son's estate after his death. The present suit was commenced about 5 years after Bisakha's death. The defence of the defendant to the suit is that she obtained this property by a deed of gift, which was executed by Bisakha a short time before her death, which took place in the year 1917. The property in question was purchased in the name of one Krishna Gobinda by Bisakha. The date of acquisition of this property does not appear from the record of the suit, but the fact that Bisakha purchased it in the name of Krishna Gobinda is relied on behalf of the defendant, who is the appellant before us, as showing the intention of Bisaklia to keep it separate from the estate of her son.

The Court of first instance gave effect to the defence that the gift had been made by Bisakha and that although the property was purchased out of the surplus income of Bisakha's son's estate she treated it as her separate property aid consequently she was in a position to make a gift of it. The Court of first instance, accordingly, dismissed the plaintiffs' suit.

An appeal was carried to the Subordinate Judge of Sylhet by the plaintiffs and the learned Subordinate Judge has thrown the burden on the defendant of showing that the property in dispute was a property which Bisakha was entitled under the Hindu law to make a gift of. The learned Subordinate Judge states, and the passage is to be found at page 7 of the paper-book, that “the defendant was doubly bound to prove the due execution of a document by pardanashin lady and also as a donee from a Hindu widow who had only life interest in the properties left by her husband and son, though the learned pleader of the respondent says that the burden of proof is on the plaintiffs”. After having thrown the burden of proof wrongly, as I shall show presently, the learned Subordinate Judge enters into an enquiry as to the validity or otherwise of the deed of gift and comes to the conclusion that it has not been established that the lady, who was about 100 years old, knowingly executed the deed of gift. The learned Subordinate Judge on these findings, allowed the appeal before him and decreed the plaintiffs' suit, declaring the plaintiffs' maliki right by succession and granted a decree, also for recovery of khas possession.

Against this decree the defendant has preferred a Second Appeal and several grounds have been taken before us by the learned vakil for the appellant. In the first place, is contended that the lower Appellate Court has erred in law in throwing the onus on the defendant and that it ought to have held that the onus was on the plaintiffs to show that these lands were accretions to Bisakha's son's estate; and if, after throwing the onus upon the plaintiffs, it found that the plaintiffs had failed to make out that the disputed property was an accretion to Bisakha's son's estate it should have dismissed the plaintiffs' suit. It is contended, in the second place, that there are certain facts which the lower Appellate Court has not taken into account in coming to the conclusion that the gift was not validly executed or was not knowingly executed by the lady. It has been contended in the third place that the gift was justified, as it made provision of a small portion of the property in favour of a dependent member of the family.

With regard to the first ground taken, we think that the contention of the learned vakil for the appellant must prevail, for it appears to us that the plaintiffs' own case is that the property in dispute was purchased with the surplus income of Bisakha's son's estate. The plaintiffs, in order to succeed, have to make out that, although this property was purchased with the income of the son's estate, this was not treated by Bisakha as her own separate property. It appears to be a fact, which is borne out by the record that the purchase was made in the benami of another person and that it was not made in Bisakha's own name. It seems to us that it is an element to be taken into consideration as to whether this fact is not and indication that she wanted to treat this property as her own separate property and not to form an accretion to her son's property. It is said that as against such an intention to keep it as a separate property there is the fact that realizations from the property in dispute and the properties which admittedly belonged to the son were entered in the same collection papers. That in our view is not a circumstance, which standing by itself, can justify the conclusion that Bisakha wanted to treat this property on the same footing as the property which devolved on her from her son his dealing with the appeal, the lower Appellate Court has not dealt with these considerations which are essential for the purpose of determining as to whether the plaintiffs are entitled to any relief in the present suit.

On behalf of the respondent, it has been argued that the moment it is shown that the property in question was purchased out of the income of Bisakha's son's estate, the plaintiff; are entitled to succeed unless the defendant establishes that Bisakha disposed of the property during her life-time. It has been contended on the authority of the case of Isri Dut Koer v. Hansbutti Koerain that the plaintiffs ought to succeed as soon as they establish this proposition. We are unable to agree with this contention of the learned advocate for the respondents. The cases show that the true test in suits of this kind is to ascertain what is the intention of a limited owner under the Hindu law. It is conceded that the income from the son's estate was absolutely at the disposal of Bisakha, and it is also conceded that if she had made any disposition of the property by gift inter vivos that disposition would be good. But it is said that if she made no disposition of her property and although she wanted to treat this property as her own, still the devolution of such property would follow the same course as the property which devolved on her from her son. I have been unable to find any authority for such a proposition in the case cited above. In that case, as the facts show there was no endeavour or attempt made for the purpose of distinguishing the properties acquired from the income of the original estate and the original estate itself and it was held that, in the absence of anything which would show a contrary intention, the after-acquired properties which would be derived from the income of the original estate would follow the same line of devolution as the original estate. In the case of Saodamini Basi v. The Administrator-General of Bengal, their Lordships of the Judicial Committee at page 22 point out: “The claim of Badam Coomaree to this part of the income of her husband's estate was made by her as heiress of her husband entitled to income not disposed of. She claimed this income as her absolute property, and their Lordships can see nothing in the language of the deed of agreement, or in the transaction with Sham Chum Mullick, which can support the appellant's contention that she agreed to receive this income as capital in which she should acquire only the estate of a Hindu widow, or that the nature of the fund should differ in any way after she received it from what it had been before”; and at page 24 their Lordships point out: “She did nothing to indicate an intention to make the fund received, or the interest on it, part of her husband's estate which was in other hands, or to justify the inference that she wished it to revert to her husband's heirs. It was said she had placed it in investments of a permanent nature. Had she done so, it does not appear to their Lordships that this circumstance alone would have added the fund to the estate devolving on her husband's heirs. But the fact is, that having received the money in currency notes which yielded no return and the keeping of which was attended with much risk, she at once placed it, as any prudent person would do, in securities, investing it in Government promissory notes yielding regular interest, but which were negotiable instruments transmissible by mere indorsation”; and at page 24, bottom, their Lordships further point out: “Their Lordships, being thus of opinion that the fund in question was not in any sense received be Badam Coomaree as capital or capitalized income of her husband's estate, but was received as income which, under the arrangement with Sham Churn Mullick, was her own absolute property, and further, that she never indicated any intention to make the same part of her husband's estate for the been at of his heirs, will humbly advise Her Majesty to dismiss the appeal in this case the fund devolved on the stridhan heirs of Badam Coomaree.

We think, therefore, that the contention of the respondents in this behalf must fail.

It is necessary, therefore, to remand this case to the lower Appellate Court for determination of two important questions on the evidence on the record first, as to what wan the source of the purchase money by which this 8 annas share of the property now in dispute was acquired; and, secondly, if it is found that this was acquired out of the income of Bisakha's son's estate, whether the facts show an intention on her part to treat it as her own separate estate as distinct from the estate of her son. If the lower Appellate Court collies to an affirmative finding on the second question, namely, that the property was purchased out of the income of her son's estate but that she wanted to treat it as separate, then the plaintiff's case will fail. If the lower Appellate Court comes to the conclusion on the arts point that the plaintiffs have failed to make out that the property was purchased out of the income Bisakha's son's estate, then also the plaintiffs suit will fail. The lower Appellate Court will also retry the question of gift.

The decree of the lower Appellate Court is set aside and he is directed to rehear the appeal in the light of the observations made above.

The appellant is entitled to costs of this appeal. As to the costs in the Courts below they will abide the final result.

Rankin, C.J:— I agree.

S.M

Appeal allowed; case remanded.