The following judgments were delivered by the High Court (1): WHITE, J. :— The Magistrate has passed an order in this case under section 531 of the Criminal Procedure Code, deciding that none of the parties before him were in possession of a certain mehal; and accordingly directing it to be attached. The parties before him were the manager on behalf of Mothooranath Roy, (who is a lunatic, and the management of whose property is vested in the Court of Wards,) and Juggodeshary Chowdhrain, the wife of the lunatic. It appears from the judgment of the Magistrate that, when this application was made to him in March last, Juggodeshary Chowdhrain was in possession of the mehal. What was doubtful was, whether that possession was on her own behalf or for her lunatic husband. It also appears from the judgment that the mehal had been purchased in her name, but managed by the husband up to the time of his coming under the Court of Wards, and that Joggodeshary was certainly, for a month or two previous to the application, collecting the rents and doing so under a claim of right on her behalf. With these facts before him, we think that the Magistrate ought not to have decided that none of the parties was in possession; and that he has committed a material error in doing so. Whether Juggodeshary's claim to hold the mehal for herself is a good one or not, must be determined by a suit in a Civil Court. The question is really one of title, with which the Magistrate had nothing to do. It is clear upon his own finding of the facts that Juggodeshary is the party who is actually in possession. We accordingly set aside the order of the Magistrate. PRINSEP, J. The only question involved in this case is the question of actual possession of the subject-matter of dispute. The parties to the case were the wife of the lunatic and the estate of the lunatic (1) WHITE and PRINSEP, J.J. 1878 In re JUGGODESHARY CHOWDHRAIN. Judgment. WHITE, J. PRINSEP, J. 1878 In re JUGGODESH. ARY CHOW. DHRAIN. as represented by the Court of Wards. The estate was placed under the Court of Wards in September, and the Magistrate has found that from that time up to January the manager of the Court of Wards had great difficulty in collecting rents; that he Judgment. collected only a small sum, about one hundred rupees; and that, PRINSEP, J. finally, in the course of January, he ceased to make any attempt to collect the rents. On the 23rd of March, the present case was instituted by the Magistrate under section 530. As I have already said, the sole point was to determine the fact of actual possession; and, as section 530 also states, without reference to the merits of the claims of any party to a right of possession. The finding of the Magistrate clearly indicates that the wife was in possession and remained in possession, and that whatever possession the manager may with difficulty have obtained by collection of rents from some stray ryots, it ceased in January. Therefore, it is difficult to understand how the Magistrate, having found these facts, has come to the conclusion that he was unable to find who was in possession on the 23rd of March. As the Magistrate in his official capacity as collector was in the management of this very estate, and as the general manager under the Court of Wards was his subordinate, I agree with the remark of the Judge that the Magistrate would have shown a better discretion, if he had left the decision of this case to the Joint Magistrate. Presumptions-Joint Family-Coparcenary-Hindoo Joint Family-Joint Ownership. Per MITTER, J. :-When parties, who are not Hindus, reside in Abraham vs. Abraham, 9 Moore's Ind. Ap., 195; and Vellai Mira Achima Bebee vs. Azeezoonissa Bebee, 11 W. R., 45; and Moonshee SPECIAL APPEAL from a decree passed by the Subordinate Judge of Chittagong, reversing that of the Moonsiff of Howrah. Baboo Aukhil Chunder Sen, for Appellant. Moonshee Serajul Islam, for Respondent. The facts of the case are sufficiently set forth in the following judgments, which were delivered by the High Court (1) : MITTER, J. : The plaintiff and defendant are two uterine brothers. The plaintiff alleges that they lived together as members of a joint family,-owning moveable and immoveable properties, ancestral and acquired,—after the death of their father, and that they separated on the 13th Assin 1236 M.E., but the properties have not been divided. The present suit has been brought for the division of these properties, and for the recovery of the plaintiff's share. VOL. III. (1) MITTER and MACLEAN, J.J. 133 1878 June 14th. No. 104 of 1877. MITTEE, J. 1878 บ. The defendant denied the plaintiff's allegation that the brothers RUP CHAND separated in 1236 M.E. He states that they have been sepaCHOWDHRY rated for more than twelve years, and their transactions are LATU separate from that time. He claims some of the properties as CHOWDHRY. his own, and others he asserts to be in possession of a third party, Judgment. and do not belong to the brothers. The remainder he admits MITTER, J. to be ancestral properties, but he says that the brothers have been in separate possession of their distinct shares for a long time. The Moonsiff found that the two brothers lived as members of a joint family till 1236, when they separated; that the plaintiff worked for gain in a distant country and remitted his earnings to the defendant, while the plaintiff's wife lived in the joint family, and was maintained in it. Under these circumstances the Moonsiff held that all the acquisitions made during the time the brothers lived as members of a joint family, must be considered joint until the contrary is proved. The Moonsiff was of opinion that the defendant had failed to prove the contrary. Finding also that the objection as to a portion of the properties belonging to a third party had not been made out, he decreed the claim, excluding from the decree the claim for partition of revenue-paying estates. The defendant appealed, and the Subordinate Judge has reversed the Moonsiff's decree in respect of properties claimed by the defendant as belonging to him exclusively. The Subordinate Judge says: "Looking at the judgment of the Moonsiff, it appears to me that he has proceeded on an erroneous view of the law governing the plaintiff's case. The Moonsiff has found that the parties have lived as members of a joint family, and upon that finding he has cast the burden of proof upon the defendant. The parties are admittedly mughs. They are not governed by the Hindu law. The presumption arising from the fact of the members of a family governed by the Hindu law, living joint in estate, that all property acquired during the continuance of that state is joint, does not apply to this case. The plaintiff must establish by direct evidence that the properties in dispute are the ancestral properties of himself and the defendant, or the joint acquisition of both, before he can be entitled to a decree. In this, I am of opinion that he has failed. The oral evidence hardly proves any 1878 CHOWDHRY v. LATU CHOWDHRY. Judgment. thing of the kind. The most that the witnesses for the plaintiff say is, that the plaintiff and the defendant lived joint in food and RUp Chand estate. Some of them say that the plaintiff lived generally at Dacca and Chittagong, where he had employment, and whence he used to send money to the defendant. But what amount of money the plaintiff sent to defendant does not appear from the evidence, nor is there anything to show that the defendant purchased any of MITTER, J. the properties with money sent to him by the plaintiff, or that the bonds sued for were for his money. The evidence also does not prove that the lands in dispute have been held by the plaintiff jointly with the defendant. Of the three kobalas produced by him, one is in favour of the defendant, the remaining two are in plaintiff's favour; but the defendant, it appears from his written statement, has no objection as to the right and title of the plaintiff in regard to the lands covered by them. The defendant admits the right and title of the plaintiff as to the whole of the lands covered by one, and as to a half share of the lands covered by the other. It is clear from his judgment that he does not displace the Moonsiff's finding that the brothers lived as members of a joint family, but he thinks that the presumption of Hindu Law, that in a joint family, acquisitions must be presumed to be joint until the contrary is proved, cannot apply to this case, because the parties are admittedly mughs. He is also of opinion that the plaintiff cannot succeed in this suit unless he proves by direct evidence that all the properties are joint. There is no distinct written admission in the record that the parties to this suit are mughs. Probably this fact was admitted in the course of the argument before the Subordinate Judge. The pleader for the plaintiff says before us, that they were originally Hindus by religion, but have become mughs by loss. of caste. But be that as it may, we do not think that the Subordinate Judge has taken a correct view of the law in this case. Whatever may be the religion of the parties, and supposing they are mughs by descent, they would be governed by the Hindu Law of coparcenary if, residing in a Hindu country, amongst Hindus, and adopting the custom of Hindus, they have lived in a state of joint family just as Hindus do both as regards food and estate. The decision of the Judicial Committee of the |