1. This appeal is by the defendants in a suit for partition brought by one Sitabai alias Chanchalbai widow of one Magan-chand Jain who died in the year 1941. Along with the appeal there is also a cross-objection filed by the respondent.
2. The genealogy of the family is as follows:
3. Admittedly, Maganchand belonged to a joint family consisting of himself and his three nephews, who are the appellants. Maganchand died on the 7th October 1941 and this suit was brought by his widow Sitabai on the 29th April 1942 for a partition of the joint family property, claiming as a widow entitled to a half share in the property under the Hindu Women's Rights to Property Act, 1937. Along with the plaint, Sitabai filed schedules of the property belonging to the family. These schedules were partly admitted by the defendants in the suit, but their main contention was that Sitabai was not entitled to avail herself of the Hindu Women's Rights to Property Act, inasmuch as the parties to the suit are Jains and the Act does not apply to them. They also contended that the family migrated from Gujerat and is subject to the laws existing at the time of their migration, in Gujerat and is thus not subject to the laws passed in British India. On the question of the schedules, the defendants joined issue with the plaintiff wherever there was a difference between them. The learned Judge of the Court below decreed the plaintiff's suit, holding that the Act in question was applicable to Jains and also passed a preliminary decree for partition in respect of the items of property which he held had been proved as existing on the date of the disruption of the family.
4. The appeal has been filed by the defendants, who urge again that the Act is not applicable to the parties on the general ground that the Jains are not Hindus and also on the special ground that as the family had migrated from Patan in Baroda State, they must be presumed to have brought their own law from that place and were immune from the amendments of the general Hindu law made in British India. The appeal is thus restricted to these two points. It may be pointed out that the plaintiff had urged that there was a partition during the life-time of Maganchand and that she was entitled to certain properties as the absolute owner of these properties representing her deceased husband. This plea was abandoned in this Court after it was negatived by the Court below, and we need say no more about it. It may also be pointed out that the cross-objection concerns only a few of the items which the lower Court has found against the plaintiff. Many grounds were urged in the memorandum of cross-objection, but they were abandoned before us. All grounds from 1 to 3 inclusive were expressly abandoned. The cross-objection of the plaintiff was confined to the items in the plaint Schedule-C, marked f(i) and (ii) and (g) and item No. B(4) of Schedule-D. We shall deal with the cross-objection after the appeal.
5. In this appeal the first contention of the appellants is that the Hindu Women's Rights to Property Act does not apply to them as the family is a ‘Jain family’ and not a ‘Hindu family’. It is contended that Jains are not Hindus and the Act makes special reference to Hindus.
6. It is too late in the day to contend that ‘Jains’ are not included in the term “Hindus” for purposes of law. A reference to any standard text-book on Hindu law will give a list of the leading cases on the subject. We need not refer to all the authorities here because the essence of those authorities is to be found stated in the commentaries on Hindu law by eminent writers. In Mayne's Hindu Law (11th Edition) at page 82, the distinguishing features of the Jain sect as contradistinguished from those of Hindus proper are given as follows:
“The Jains, though generally adhering to the ordinary Hindu Law, recognise no divine authority in the Vedas, and do not practise the ‘sraddas’ or ceremonies for the dead. Nor do they recognise the spiritual superiority of the Brahmins.”
7. It may be added that according to the Jains the birth of a son has no special significance spiritually and among them adoption is merely for temporal purposes.
8. Even with this difference, which might seem to cut at the very root of the accepted theory that the Jains are Hindu dissenters, their Lordships of the Privy Council have consistently stated that they are so. Indeed, it has been held on more than one occasion that a Jain stands half-way between the Brahmanical conception of Hinduism and Buddhism. An illuminating account is to be found in Elphinstone's History of India which was quoted ‘in extenso’ by Westropp, C.J and Nanabhai Haridas J. in — ‘Bhagvandas Tejmal v. Rajmal’, 10 Bom HCR 241, about the origin of Jains. Elphinstone's History of India was also quoted with approval by their Lordships of the Privy Council in a subsequent case.
9. From this extract from Elphinstone's History as well as the other authorities reviewed by the learned Chief Justice in the above case and text-books, it appears that Jains had their origin somewhere about the sixth century Before Christ. It is true that modern research has shown (see Bhattacharya on Hindu Castes and Sects) that the origin of Jains was even prior to the advent of Buddhism, but in our opinion, it is net open to us, sitting as we are, to depart from the accepted view taken of this sect by the Judicial Committee of the Privy Council. Eminent writers have accepted these pronouncements as being final on the subject and a reference may be made ‘inter alia’ to the following:
In West and Buhler's Hindu Law (4th Edition) at page 152 the following observation is to be found:
“The ordinary rules of Hindu law are applicable to Jains, no special custom being proved. Hence, in the absence of custom or usage to the contrary, an alienation by gift by a widow of her husband's property is invalid according to the Mitakshara which governs the Bindala Jains, and on the same ground the right of a Jain widow of the Oswal caste to adopt without the consent of her husband remains unaffected by the conversion of the family to Vaishnavism.”
10. In Golapchandra Sarkar's Hindu Law (seventh edition) it is observed as follows:
“Jains appear to be a sect of the Buddhists and may not unfairly be described as a compromise between Hinduism and Buddhism. They as well as the Agar walla Jains are governed by Hindu law and it is for him to prove that any custom other than the Hindu law of the country where the property is situate and the parties reside, exists.”
11. This appears to be the only dissenting note on the subject.
12. Reference may also be made to Mayne's Hindu Law (11th edition) at page 186 where it is observed as follows:
“The Jains have so generally adopted the Hindu law that the Hindu rules of adoption are applied to them in the absence of a contrary usage and adoptions are quite common among them.”
13. in the matter of succession the learned author observed at page 5 as follows:
“The assumption that Hindu law was applicable only to those who believed in the Hindu religion in the strictest sense has no basis in fact. Apart from the fact that Hindu religion has, in practice, shown much more accommodation and elasticity than it does in theory, communities so widely separated in religion as Hindus, Jains and Buddhists have followed substantially the broad features of Hindu law as laid down in the Smritis.”
14. A clearer exposition on the subject is to be found in the Hindu Code by Hari Singh Gour (4th edition) at page 59:
“The Jains are another sect of Hindu dissenters who still remain Hindus and to whom the Hindu law applies. The sect is now recognised as a well known sub-division of the Vaishya caste, which is divided into Agarwalas, Mahesris and Jains, the two former being orthodox Hindus, while the last are classed by the latter as heretics. They are again subdivided into Digambaris and Sitambaris, the former worshipping their God stripped of all attire, while the latter worship him clothed in costly raiments. The founder of this sect was a Kshatriya by name Mahabir, a contemporary of Buddha from whom he differed in his extreme asceticism. As such the Jains differ from the Hindus not only in their tenets but also in their practices. They perform no obsequies after the corpse is cremated. They regard the birth of a son as having no effect on the future state of his progenitor, and consequently, adoption to them is a merely temporal arrangement and has no spiritual meaning. The Jain widow has consequently an absolute right of adoption and requires no express or implied authority of her husband or his kinsmen. Her adoption is not controlled by the orthodox texts. She may adopt her daughter's son, and in fact any one and of any age, in accordance with the usage of the sect. The Jains are allotted a place amongst the twice-born in the Hindu hierarchy.”
15. The learned author in an earlier paragraph described the Jains as Hindu non-conformists.
16. Mulla in his Principles of Hindu Law (tenth edition) at page 657 has observed as follows:
“Until a special custom to the contrary is established, the ordinary Hindu law governs succession amongst the Jains. The ordinary Hindu law is that of the three superior castes.”
17. It is not a mere question of the applicability of Hindu law to Jains. The authorities show that the Jains are to be regarded as Hindus for purposes of law, though they seem to dissent from some of the principles of orthodox Hinduism. See for example, the Indian Limitation Act. In — ‘Sheokuarbai v. Jeoraj’, 16 Nag. L.R 170 at p. 171 (PC) their Lordships of the Privy Council observed as follows:
“The Jains are of Hindu origin; they are Hindu dissenters.”
18. Other cases in point are — ‘Sheo Singh Rai v. Mst. Dakho’, 5 Ind. App. 87 (PC); — ‘Chotay Lall v. Chunno Lall’, 6 Ind App 15 (PC); — ‘Dhanraj v. Soni Bai’, AIR 1925 PC 118; — ‘Premraj v. Mst. Chand Kanwar’, AIR 1948 PC 60 and — ‘Mangni Bai Gulabchand v. Suganchand’, AIR 1948 PC 177.
19. We do not make mention here of the decisions of the High Courts in India which have consistently taken the view that Jains are included among Hindus, but dissenters from that faith. The only contrary note was struck by a learned Judge of the Madras High Court in — ‘Gettappa v. Eramma’, 50 Mad 228. This case was specifically dissented from by the Bombay High Court in — ‘Ambabai v. Keshav Bandochand’, ILR (1941) Bom 250 where Broom field and Divatia JJ. have stated the entire law on the subject.
20. Raghavachariar in his commentaries on Hindu Law (3rd edition) at page 771 has commented upon this case and though the learned author has pointed out that modern research tends to show that Jainism was probably an older religion than has been accepted in the Courts of India, the matter is no longer ‘res integra’, and Jains must be regarded as Hindu dissenters. The learned author observes in his treatise as follows:
“The consequence is that today one finds a long catena of judicial pronouncements rendered by the various Courts in our country and by the Judicial Committee of the Privy Council laying down almost uniformly and in unambiguous terms that the Jains are but dissenters from Hinduism and that in the absence of proof of custom to the contrary, the general incidents of Hindu law are as much applicable to them as to those who are indisputably governed by those incidents.”
21. It was argued in spite of these authorities that the Jains have not properly been regarded as Hindus and that under the present Constitution there is a separate mention of Jains under Article 25 which guarantees freedom of conscience and free profession, practice and propagation of religion. Reference was also made to various provisions of the Indian Succession Act where the Jains are mentioned side by side with the Hindus and Sikhs and it was argued that this denoted that they were not Hindus but something different.
22. With regard to the Indian Succession Act, the matter was examined on more than one occasion. In — ‘Balkisan Hukumichand Firm v. Mt. Jatnabai’, AIR 1938 Nag. 298 at p. 299 a similar argument was advanced, but was repelled by Pollock J. who explained why in the Indian Succession Act the word ‘Jain’ was used along with the term ‘Hindu’. Reference there is made to the leading authorities on the subject, particularly to — ‘Bhagwan Koer v. J.C Bose’, 31 Cal 11 (P C), where their Lordships of the Privy Council considered a similar argument with regard to the meaning of the word ‘Hindu’ in relation to Sikhs as regards the inclusion of the term ‘Jain’ in the Constitution, it may be that in spite of the accepted law on the subject, the framers of the Constitution felt, having regard to the differences in the two faiths, that an express mention might be made of all the faiths ‘ex abundanti cautela’. The reason which impelled the legislature to include the term ‘Jain’ in addition to the term ‘Hindu’ in the Indian Succession Act, viz., to put the matter beyond all controversy, might well have been present to the Constituent Assembly. Again faith is one thing and law is another. In any event, the specific mention in Article 25 of the present Constitution cannot be taken to have undone the long series of decisions which have uniformly been rendered by the various High Courts in India and the Privy Council on the subject of Jains and their governance by Hindu law particularly in the matter of inheritance.
23. It was conceded before us that the Jains are governed by the Mitakshara and that to that extent Ss. 2 and 3 of the Act would apply to them in the absence of any other consideration.. The argument of the learned counsel for the appellants is that in the Hindu Women's Rights to Property Act, there is a specific mention only of Hindus and there are no words analogous to those used in Hindu Law of Inheritance (Amendment) Act, 2 of 1929. The learned counsel's argument is that a certain amount of difference must be made between the words used in Act II of 1929 (“persons……would have been subject to the law of Mitakshara”) and the words used in the Hindu Women's Rights to Property Act—(“when a Hindu governed by any other school of Hindu Law”). It is contended that in the previous enactment of 1929 the applicability of the law is determined by the generality of the word ‘person’, whereas the applicability of the Act now in controversy is governed by the particularity of the word ‘Hindu’. It was on this ground that the learned counsel attempted to distinguish — ‘Balkisan Hukumichand v. Mt. Jatnabai’, (AIR 1938 Nag 298) (cit. sup.) which was concerned with the application of Act 2 of 1929 to Jains. It was strenuously argued that the legislature had specified that the Act is applicable to Hindus and that it is to give better rights to ‘Hindu Women’ and also to amend ‘Hindu Law’. It is therefore limited in its application to Hindus properly so called.
24. There has been no decision on this point in any High Court in India and, so far as we are aware, the matter is entirely ‘res integra’. It is obvious that if this argument were accepted, all the beneficial legislation in respect of the Hindus which have taken place in recent years would not apply to Jains and Sikhs and other communities who are dissenters from orthodox Hinduism. It could never have been intended that such legislation should not reach those communities, regard being had to the history of the laws made. But this argument is not really decisive of the matter and we must examine the question apart from such consideration.
25. The essence of the question lies in determining a definition of the term ‘Hindu’. Must the term as used in the various statutes collected in Appendix I of Mulla's Hindu Law be taken to denote only those people who follow the orthodox Hindu cult or must it be taken to include others who though not exactly Hindus have for several decades been recognized for purposes of law as a part and parcel of Hindu polity? In our opinion, the intention of the Legislature was to benefit all such communities irrespective of the fact whether they follow the orthodox Hindu tenets or are dissenters or non-conformists. The Legislature must be taken to be aware of the pronouncements of the Privy Council as well as the leading decisions of the Indian High Courts where a liberal interpretation was given to the term ‘Hindu’. We do not think that the Legislature used the term ‘Hindu’ without advertence to these dicta and, in our judgment, the Legislature must be deemed to have used the term ‘Hindu’ in that larger sense which has been explained by Mayne at page 5 of his treatise in the passage quoted by us elsewhere, and which has been the foundation of decision on the subject in the Courts of India.
26. We do not consider that there is much difference between the phraseology of the various Acts. No special meaning can be attached to the use of a special phrase in any particular enactment if the same intention can be said to permeate different enactments. A slight change in the language does not necessarily mean a deliberate difference. The phrase ‘a person governed by the Mitakshara’ or the phrase ‘a Hindu governed by any school other than Dayabhag’ really denote the same thing. If Jains are regarded as included in the term ‘Hindus’ and are governed by Mitakshara, they can be described by either descriptive phrase. The phrase ‘a person governed by the Mitakshara’ as well as the phrase ‘a Hindu governed by any school other than Dayabhag’ would refer to them equally. The gist of the matter is the meaning of the term Hindu and that, as we have pointed out, has been settled as embracing Jains as ‘well as certain other communities.
27. In our judgment, the Hindu Women's Rights to Property Act was meant to apply to Jains as well as Hindus proper. It is true that, though the preamble says that the Act was designed to give better rights to women, certain provisions might operate to the detriment of Jain widows. This is particularly in the matter of absolute interest taken by the Jain widow by special custom when there is no son. According to the provisions of the Hindu. Women's Rights to Property Act, the Jain widow would not take an absolute, but only a life interest. This is hardly a betterment of the condition of the Jain widow and the Act would, if applicable to Jain widows, take away something of their existing rights. This anomaly was noticed by the present editor of Mayne's Hindu Law (now Chandrasekhara Aiyar J.) at pages 706 and 766. Since the Legislature might in the interest of uniformity make certain laws to the detriment of the Jain widow, we do not see any compelling reason to think that the results which inevitably follow from the provisions of this Act were not intended A widow is entitled only to maintenance when there is also a son. The Act gives her an equal share with the son. In the absence of a son, a Hindu widow takes a limited interest but a Jain widow, according to special custom, takes an absolute interest. It is not unlikely that the Legislature, while giving to the Jain widow better rights when there was also a son, thought it expedient in the interests of uniformity to provide that a Jain widow, in the absence of a son, should take only a life interest. The life interest does not connote any disability beyond a certain restraint upon alienation. For necessity the widow can make as good a transfer as any full owner; and by such transfer, a widow can bind the reversioner. The detriment is not so great that it could not be imposed in the interests of uniformity of law in India. In our judgment, this circumstance should not be considered a decisive matter & we are of opinion that the Hindu Women's Rights to Property Act applies to Jains and the term ‘Hindu’ as used in that Act embraces that community.
28. It was next argued that this family would not in any event be governed by the Hindu Women's Rights to Property Act because it migrated from Baroda and must be deemed to have brought its own laws with it. Some disputes arose over the pleadings of the defendants, who had pleaded in their written statement that the family had migrated from Gujarat. Their plea is to the following effect:
“It is, however, denied that they were governed by the Hindu Law. Being Jains, they were governed by the Mitakshara Law, as modified by their custom as prevailing in Gujrat from which province their ancestors have migrated to Berar.”
29. It was argued that Gujarat being in British India they must be deemed to be subject to all legislation in British India. On the other hand, it was argued by the defendants that the plaintiff herself had admitted in the witness-box that the family had migrated from Patan in Gujarat. The plaintiff had stated:
“We are Jains and we are original residents of Patan in Gujerath.”
30. As against this, defendant no. 2 as D.W 4 stated that the family had migrated from Patan in Baroda State. This is what he stated:
“We are Dasa Srimali Jain. We migrated from Patan (Sidhapur Patan) from Baroda State.”
31. We attempted to find from maps and gazetteers whether Patan was in Gujerat, but we failed. We, however, found that Patan and Sidhapur (which is a taluq) are in Baroda State.
32. We are, therefore, of opinion—not stressing the pleadings unduly—that there is a plea of migration from Baroda State into British India. The law on the subject is that a family which migrates from one part of India to another takes with it its own native law. This, however, is subject to a further corollary that the law which the party brings is the law which was in force at the time of migration. If the family bad continued to be the subjects of Baroda State, much might be said on the side of the defendants. There is nothing to show that these people had ever retained their allegiance to Baroda State. It was admitted that they were domiciled in British India. They were undoubtedly British Indian subjects and were subject to legislative change in British India.
33. It is to be noticed that the Hindu Women's Rights to Property Act makes the laws binding in spite of any law or custom to the contrary. Even if this family brought their own law with them, that would but be regarded as a family law. Being subjects of British India, their personal law would be subject to legislative changes. It is true that the intention always was to preserve to all personal laws, but under stress of public opinion due to advanced notions about the status of women, certain beneficial legislation was enacted in recent years. As British Indian subjects and as ‘Hindus governed by Mitakshara’, the family was subject to legislative changes in the matter of personal law. The defendants cannot shelter themselves behind the plea that their original law was different. They were to all intents and purposes governed by Mitakshara and in common with the other Hindus of whom they must be taken to be a part, they were liable to have their personal law modified by legislative action. That change has taken place and, in our judgment, it applies equally to Hindus proper and to Jains. In spite of the fact that a particular Jain family may have brought its own native law to British India, it cannot claim immunity if allegiance was owed to British India and its laws. Their case is different from the case of people who on migration retained their allegiance to another government and were not subjects of British India or were not subject to laws enacted in British India. The present family did not retain its allegiance to Baroda (even if it ever had) and there is no proof that they were anything else than British Indian subjects. It is admitted that they were domiciled in British India. If Jains are Hindus, as pointed out above, and are governed by the Mitakshara, as is conceded, a family of British Indian nationality would be subject to all laws passed in British India modifying the rules of Mitakshara. The Act of 1937 was applicable to them as much as to Hindus proper who were living for all time in British India. We do not see any difficulty in applying to them the statute in dispute. That statute is a general one which amends all existing law and custom and to that extent must be taken to have affected the rights of these Jains even though they had migrated from another place. As was pointed out in — ‘Rukhmabai v. Ramratan’, ILR (1951) Nag. 367, at pp. 370, 371:
“It is true that the law of succession has to be determined in any given case according to the personal law of the individual whose succession is in question. The Courts in India have always applied to a Hindu his personal law when he has migrated from one part of India to another: — ‘Parbati Kumari Debi v. Jagadis Chunder Dhabal’, 29 Cal 433 (PC); — ‘Mailathi Anni…(Petitioner) v. Subbaraya Mudaliar…(Counter-Petitioner) .*’, 24 Mad 650 and — ‘Balwant Rao v. Baji Rao’, 16 Nag LR 187 at p. 192 (PC). So even if Harikrisan was domiciled in Berar, if in fact his family had migrated from Jodhpur, the Hindu law governing him would be the one prevailing in Jodhpur; — ‘Suganchand Bhikamchand v. Mangibai Gulabchand’, ILR (1942) Bom 467. But the question here is about the applicability of a statute as distinguished from the Hindu law based on ancient texts, commentaries and usage. The statute has brought about changes in the Hindu law in general notwithstanding even any custom to the contrary. The statute would apply to all Hindus domiciled within the area of its operation. There is nothing in the statute which turns on the place of origin of a Hindu. Even if a similar Act had been passed in Jodhpur it would have had no application to persons who had left Jodhpur and taken up domicile in British India before the passing of the Act by that State. It cannot be forgotten that the law applicable to a migrating family is the law prevailing at the place of its origin at the time of its migration. The law applicable to the family is not affected by any subsequent changes which become incorporated in the law of origin after migration. In — ‘Balwant Rao v. Baji Rao’, 16 Nag LR 187 at 192, their Lordships of the Privy Council accepted this rule as laid down in — ‘Vasudevan v. Secretary of State for India’, 11 Mad 157 at p. 162. There is no warrant for holding that a migrating family which is immune from changes introduced in the law of its origin subsequent to its migration carries with it into the new territory where it takes up its domicile a further immunity from any changes effected by statutes governing all the Hindus domiciled in the new territory.”
34. In our judgment the argument of the defendants (appellants) cannot be accepted. Since no other point was argued for the appellants the appeal fails and is dismissed with costs.
35. This brings us to the cross objection by the plaintiff. The first item which has been disputed refers to a deposit which, the plaintiff alleged, was made by her husband in his own name with the joint family. The origin of that deposit was given by the plaintiff as follows:
“The plaintiff further contends that the amount of Rs. 4000-0-0 mentioned in para 4 of Schedule is was a separate property of the plaintiff's husband, being his receipts from his first wife deposited by him in the family shop. The plaintiff contends that in the partition to be effected the plaintiff is entitled to this entire amount and account in respect of the same from the defendants.”
36. Item B(4) of Schedule-D mentioned Rs. 4000-0-0 as due entirely to the plaintiff being deposited by the plaintiff's husband in the family shop.
37. In reply to this, the defendants contended as follows:
“In reply to para 6(g) these defendants submit that it is difficult to understand what the plaintiff is referring to. There is a Khata of Maganchand in the family account books. There is no such amount as Rs. 4000-0-0 to the credit of Maganchand at any one time. It is submitted that the Khata of Maganchand forms part of the joint family property. The account books do not show any receipts from the first wife of Maganchand.”
38. The trial Court on this held in favour of the defendants, observing that the plaintiff was not entitled to the amount found in the Khata of Maganchand as separate property of Maganchand. It is this finding which is challenged before us.
39. (Their Lordships considered the evidence of account books and other evidence and proceeded:)
40. It would thus appear that the Khata account, though ostensibly in the name of Maganchand, is not shown at any time to have been his separate property. There is no evidence in the case to show that Rs. 4,000-0-0 were ever deposited by Maganchand in a lump sum. There is nothing to show that the family treated this sum as a separate entity, additions and subtractions being made to the Khata account of Maganchand as occasion arose. There is no mention of this item by Maganchand himself in the document which he last wrote and the plaintiff also did not claim it in the notice which she served upon the defendants before instituting the suit.
41. In view of this, it is difficult to say that the finding which has been reached by the Court below on an appraisal of the evidence of the plaintiff recorded by it can be said to be unwarranted. A burden lies upon a plaintiff in an appeal to show the error of the Court of first instance; and here, her evidence is the sole testimony on which this claim is founded and it has been rightly rejected. We do not see any reason to reach a different conclusion from that arrived by the Court below and we accordingly reject this claim for Rs. 4,000-0-0 as the separate property of Maganchand.
42. The next item which has been made the subject-matter of the cross-objection is a sum of Rs. 40,000-0-0 which, according to the plaintiff, is secreted by the defendants and hidden from the Court. The pleading on this point is to be found only in the schedules. In Schedule-C the plaintiff stated as follows:
“(g) Cash about Rs. 40,000-0-0 kept in the safe in the residential house and other places.”
43. The defendants in their written statement stated that the cash amounted to Rs. 2,327/- all told. This they parcelled between the shop of Ratanchand Amarchand (Rs. 1,600-0-0) and the cloth business of Pannalal Chhaganlal (Rs. 727-0-0). It may be pointed out that the defendants as a counter-blast to the claim of the plaintiff stated in their written statement to the following effect:
“These defendants further submit that the deceased Maganchand during his lifetime used to supply whenever necessary various amounts for the purposes of the shop. Whatever amounts he brought to the shop are credited from time to time in the Khata of ‘Ratanchand Amarchand’. It clearly shows that the deceased Maganchand had cash with him unknown to these defendants and not accounted for in the account books of the family. These defendants are not in a position to state the amount of cash with the deceased Maganchand but it is submitted that at the time of Maganchand's death, there was a large cash with him which was wholly taken by the plaintiff, who never disclosed the extent of the cash left by the deceased Maganchand. These defendants submit that the plaintiff be called upon to disclose what cash was left behind by the deceased Maganchand.”
44. The trial Court on these pleadings framed issues and gave findings to the following effect:
“There is no data, however, that the defendants are in possession of Rs. 40,000-0-0 as alleged. My finding is therefore in the negative. (After the examination of the accounts, if it is found that any cash is unaccounted for, or there are entries indicating the removal of the cash, the defendants will be liable for the same to the extent proved)”.
45. It was argued that the learned Judge in his judgment did come to the conclusion that the evidence of Motilai that the cash was taken away by Maganchand and after his death by his wife, was false. It was also contended that the lower Court did also come to the conclusion that there was some unaccounted cash but no one knew where it was and its extent. It was contended before us that in view of this finding the Court ought to have accepted the evidence of the plaintiff, particularly as the burden was on the defendants and they had suppressed the account books and had been unable to account for this cash which has disappeared. Much was made of the direction which had been put in by the learned Judge in parenthesis in his judgment and it was contended that showed that the learned Judge did consider that there was some cash with the defendants for which they had not accounted and which ought thus to be brought in the hotchpot. It was, however, urged that the burden had been wrongly placed upon the plaintiff in the case and that the burden ought to have been placed upon the defendants as the accounting party.
46. (Their Lordships considered the evidence and continued:)
47. The learned Judge of the Court below has given adequate reasons for holding that there is no proof in the case that a sum of Rs. 40,000/- was existing in the family coffers at the time of the death of Maganchand and was liable to partition between Maganchand's widow and the present defendants. We have nothing further to add to it. It may, however, be said that the rights of the plaintiff have been adequately safeguarded by the trial Judge by making a direction in the judgment which has been incorporated in the decree that if the account books do disclose that there is some cash existing, which has not been accounted for it should be brought into the hotchpot. Each side has had ample opportunity of leading evidence to establish that any undisclosed cash was with the other party; and we do not see any reason to order a detailed enquiry into this matter during the course of the final decree proceedings. As regards the rider which the learned Judge has added, we want to make it clear that after the death of Maganchand, defendant No. 2, who is the ‘de facto’ manager, would be accountable to the widow for any cash which may be found. But for that purpose the account books are there, and it shall be open to the plaintiff to surcharge and falsify those account books and to lead such ‘prima facie’ evidence which would throw the burden upon the other side of establishing the accuracy thereof. Beyond this, we do not think that the plaintiff is entitled to in this case and we adopt the reasoning of the learned Judge of the Court below as our own. We find, therefore, that there is no proof in the case that Rs. 40,000-0-0 were in the hands of the defendants and they have secreted the money and kept away the information from the Court.
48. The last item, which is really composed of two items, concerns certain gold and silver. According to the plaintiff, there were certain ornaments pledged by debtors with the joint family prior to 1922–1923 which remained unredeemed. This became the property of the joint family and the gold thereof was melted down and converted into blocks and silver ornaments were kept in a bag. The case of the plaintiff is that in the year 1932 Motilal was to be married and the family had to leave the residential house and found it necessary to keep these ornaments and gold in a safe place. It was then thought advisable to bury these ornaments and gold underground and with this purpose the floor was dug up and a safe was buried and underneath the safe were buried these gold blocks and the silver ornaments.
49. The plaintiff during the course of this suit made an application to the Court for the appointment of a receiver to make an inventory of the property and ‘inter alia’ applied to have the house dug up with the intention of disclosing this buried gold and silver ornaments. The trial Court rejected that prayer and it is said that has enabled the defendants to do away with this gold and silver.
50. The contention of the plaintiff is that the defendants as the accounting party have not produced the relevant account books of those years and therefore the plea of the plaintiff, supported as it is by her own evidence, should be accepted. We may say at once that there is next to no proof about the burial of the gold blocks or the silver ornaments or their existence in the years 1922 and 1923 or thereafter in the case. (Considering the evidence their Lordships proceeded:) In all such cases the plaintiff must ‘prima facie’ satisfy the Court that there are reasons to believe that a particular property does exist, before the defendants in a suit for partition can be called to account. We are satisfied that in the present case there is not an iota of evidence to show that these ornaments or the gold had ever been with the family or that they were buried underground in the manner alleged and that they have remained there right from 1932 to 1941. The learned Judge of the Court below has discussed all this matter from every aspect and we see no reason to differ from his conclusion, particularly as he has arrived at them after hearing the deposition of P.W 4 the plaintiff, who is the solitary witness on this point. We see no reason therefore to allow the cross objection. It is dismissed with costs. The result is that both the appeal and the cross-objection are dismissed with costs. Parties shall have right to set off the costs thereto.
A/R.G.D
51. Appeal and cross objection dismissed.