[1955] EACA 162

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR HERBERT COX, Chief Justice (Tanganyika) and BRIGGS, Justice of Appeal.

## MAWJI DAMJI, Appellant (Original Plaintiff) $\overline{1}$

## (1) AVALBHAI DAMJI DEVRAJ. (2) DHANJI DAMJI. Respondents (Original $Defendants)$ Civil Appeal No. 72 of 1954

(Appeal from the decision of H. M. High Court of Tanganyika, Mahon, J.)

Hindus-Hindu law-Joint Hindu property-Joint Hindu families in Tanganyika -Recognition of personal religious law-Standard of proof required in respect of issues as to joint Hindu families—Tanganyika Order-in-Council, section 17 (2)—Trusteeship Agreement, 1946—Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance, Chapter 112, section 6.

By section 6 (1) of Chapter 112 aforesaid: "(1) Subject to the provisions of this or any other Ordinance or applied Act for the time being in force in the Territory, the succession to the movable property in the Territory of a deceased non-Christian Asiatic who at his death is domiciled in the Territory and to the immovable property in the Territory of such an Asiatic, whether domiciled in the Territory at his death or not, shall be regulated by the law of the religion professed by him at his death: Provided that..."

On an application for an order for the partition of certain property, the High Court found that the husband of the first named respondent (the father of the appellant) and the parties had lived, and on the deceased's death had continued to live as members of a joint Hindu family of which the deceased had been the *karta* or manager.

The appellant claimed against his mother and brother an order for partition of certain property on the ground that they and he were jointly entitled thereto as joint family property of an individual Hindu joint family of which they and he were the only members.

The respondent contended that there was no such thing as a Hindu joint family in Tanganyika.

If the property concerned vested in the before-mentioned deceased immediately prior to his death as his separate estate he could dispose of it by will, but if it was coparcenary or joint family property he could not do so in such a manner as to prejudice any surviving coparcener. The respondents, indeed, relied upon a will made by the deceased.

The respondents contended that section 6 of Chapter 112 aforesaid is not apt to introduce the rules of Hindu law or religion in this case because the section deals only with "succession" and that on the death of a coparcener in a Hindu joint family there is no question of succession to the joint family property, since on his death his interest in the property is merely extinguished and passes by survivorship to the remaining coparceners, which process is distinct from "succession".

The appellants contended that "succession" in section 6 of Chapter 112 should not have a restricted or technical meaning and is wide enough to cover devolution by survivorship or devolution under a will and that the policy of the section is to cover all cases where a non-Christian Asiatic's property is affected. by his death and not merely to cover certain cases and leaving others not provided for.

Held (24-1-55).—(1) There are Hindu joint families in Tanganyika, and, indeed, persons of the Hindu community habitually live as such families in the said territory.

(2) Section 6 of Chapter 112 aforesaid is wide enough to cover devolution on death. particularly by survivorship or under a will.

(3) Semble—The law governing joint families and their joint family property is part<br>of the religious law of Hindus and should be recognized under the Trusteeship Agreement. 1946

(4) Per Cox C. J.—The High Court, in matters relating to issues as to Hindu joint. families, will require positive proof of what the law is, and proof of a very high standard<br>that the law is applicable to the parties before it, proof which may be of almost as-<br>high a standard as that required in a crimin overcome then a lesser degree of proof will suffice in respect of the various issues of fact to be determined, proof of no higher a class than that required in a normal civil. suit.

Appeal allowed, Judgment and decree of High Court set aside. It to be declared. that appellant and respondents are members of an undivided Hindu joint family of which the deceased was karta. Inquiry ordered as to the members of the family at the date of filing of the plaint. Appellant's share, in any event to be limited to one-third. of the whole.

Cases referred to: Maleksultan v. Sherali Jerai, ante page 142; Sanwal Das v. Kure Mal and others 9 I. L. R. Lahore 470.

Morgan (Kesaria with him) for appeallant.

Murray for respondents.

BRIGGS, J. A.-This is an appeal and cross-appeal from a judgment of the High Court of Tanganyika. The appellant as plaintiff claimed against his mother and younger brother an order for partition of certain specified property on the ground that he and they were jointly entitled thereto as joint family property of an undivided Hindu joint family of which they were the only members. The court allowed the claim in respect of two of the items of property, but dismissed it as regards the remaining seven items. The appellant contends that his claim should be allowed in respect of those other items also. The respondents contend that the action should have been dismissed on two grounds, first, that there is no such thing as a Hindu joint family in Tanganyika, and secondly, that in any event no property was proved to be joint family property. As the former of these contentions would, if accepted, have disposed of the whole matter, we heard argument on the cross-appeal first. We are indebted to counsel on bothsides for careful and well-considered arguments.

One Damji Devraj, now deceased, was a native of Jamnagar State in India. and was a Hindu of Lohana caste governed by the Mitakshara school of law. He married the first respondent in India and they had four children, a son,. Devji, a daughter Rambai, and the appellant, who were all born in India, and another son, the second respondent, who was born later in Tanganyika. The father came from India to Tanganyika in 1914 and it is conceded that at that: date neither he nor the family had any substantial property. He succeeded in opening a small shop in Bagamoyo Street and when the business was sufficiently established in 1920 he sent for his wife and three children. Two or three years: later the youngest son was born and the family has lived ever since in Tanganyika. There is no finding as to domicil, but it seems probable that they have acquired a domicil of choice in Tanganyika. From the time of their arrival Devji and the appellant, who was then about ten years old, helped their father with the work.

of the shop. In India and later in Tanganyika the family lived together in the manner appropriate to a Hindu joint family, using a single kitchen and eating and worshipping together. In Tanganyika they had a single joint ration card. It is not disputed that in India they were in fact a Hindu joint family, and I understood Mr. Murray to concede that if they had then had joint family property the appellant would have retained a beneficial interest on coming to Tanganyika in his share of that property. Some time before 1930 another shop was opened in New Street and was run by Devji. Whether or not it was originally his separate property, it became so in 1930 or 1931 when he received a "portion" in the form of goods and separated from the family. In 1928 the daughter went to India and in 1931 married. She was thus also separated from the family. The appellant is married, but there is no evidence to show whether he has any issue. The second respondent is also married and prior to 1951 had two sons, but it does not appear whether they are still alive. On 10th November, 1951, the father died. It was not expressly pleaded that the parties to this appeal were at that time the *only* surviving members of the joint Hindu family and it seems doubtful, in view of the nature of the defence, whether the High Court should have assumed that to be the case.

The High Court decided as a preliminary issue that Hindu law applies to the estates of deceased persons in the Colony. No grounds for this were given, but counsel for the appellant had based himself solely on section 6 of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance (Cap. 112). He conceded in argument that "live Hindus cannot... invoke the present law of their religion" on the ground that Hindu law could only apply if applied by statute. He did not contend that it might apply by virtue of section 17 (2) of the Order in Council of 1920. These were admissions of law, and did not bind counsel on the appeal.

The evidence showed, in my view conclusively, that this family lived in Tanganyika as a Hindu joint family, and that persons of their community in Tanganyika habitually do so. The High Court found that the deceased and the parties continued to be and were on the death of the deceased members of a Hindu joint family, of which the deceased was the *karta* or manager, and with this finding I respectfully agree. The legal consequences of the finding will require further examination.

If the property vested in the deceased immediately prior to his death is properly to be regarded as his separate property, he was entitled to dispose of it by will, and the will on which the respondents rely is effective; but if it was coparcenary or joint family property he could not dispose of it by will in such a manner as to prejudice any surviving coparcener. Trevelyan on Hindu Wills, 2nd Ed. $16-17$ , 42.

Mr. Murray argues that section 6 of Cap. 112 is not apt to introduce the rules of Hindu law or religion in this case because it deals only with "succession". On the death of a coparcener in a Hindu joint family there is no question of succession to the joint family property, since his interest in it is merely extinguished and passes by survivorship to the remaining coparceners. This process is, he submits, distinct from what is properly to be described as succession, which involves a transfer of interest by operation of law from A deceased to B. Mr. Morgan contends that the word "succession" in section 6 should be given a normal rather than a restricted or technical meaning and cites Byrne's Law Dictionary to show that the normal meaning is "becoming beneficially entitled to property on the death of another". This, he says, is wide enough to cover devolution on death by any means, and in particular devolution by survivorship or devolution under a will. He contends that the policy of the section is to

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cover all cases where a non-Christian Asiatic's property is affected by his death. not merely to cover certain cases and have others unprovided for. I think this contention is correct. I see no reason to read "succession" in a restricted sense, and good reason to read it in the wider sense. I think section 6 applies, subject to the rather wider question how far the law of Tanganyika recognizes at all the existence of a joint Hindu family and what are the rights of a *karta* over property which would in India be coparcenary property.

Let it be assumed for the moment in this case that the deceased and the parties at all times desired, so far as the law of Tanganyika permitted, to treat the items of property in the schedule as joint family property, and intended that as between themselves it should be subject to the provisions of Mitakshara law. I think the local law would find no difficulty in holding that such an arrangement was binding on the parties on the basis of a series of interlocking trusts, and the question in whose name the several items of property were held would be immaterial. This is not to apply Hindu law as part of the law of Tanganyika. but merely to give proper effect to the acts and intentions of the parties as regards their own property. If the trusts under which each claimed an interest provided for cesser of that interest on death and survivorship to the others, I can see no objection to such an arrangement. There would be, on this view, a revision of respective rights and interests on changes in the body of coparceners by reason of separation, deaths or births. The law governing joint families and their joint family property is part of the religious law of the Hindus and it may well be that it should be recognized under the Trusteeship Agreement on the principles set out in the judgments of this Court recently given in Maleksultan v. Sherali Jeraj, ante page 142. It may not, however, be necessary to go so far, as the facts in this case might indicate that the scheduled property was joint property of the deceased and the parties, though not joint family property.

It is now necessary to consider some of the facts in greater detail. About the time when Devji separated from the family, certain premises at Tandamuti Street comprising three shops were bought and conveyed to the deceased. The family went to live there and a business was opened in one of the shops in the name of the appellant. The premises are items 1 and 2 in the schedule and the business the one referred to in item 9. Some years previously the appellant had gone to Uganda for training in business. He claims to have given his father Sh. 1,450 from savings from his earnings there. Later he went to Morogoro and did the same. For a time he worked in the New Street shop. Then he opened a shop in Tabora. His father furnished the capital for this and it appears to have been something of a failure. It was closed and he brought Sh. 4,000 back and returned it to his father. He claims that this sum went to make up the purchase price of Sh. 12,000 paid for the Tandamuti Street property. He did not pay rent for the shop in Tandamuti Street, and always conducted the business in his own name. The Bagamoyo Street shop had been closed some years previously and, when the New Street shop was handed over finally to Devji, the deceased did little or nothing in the way of work. His only income was about Sh. 70 per month from the rent of the other two Tandamuti Street shops. The appellant's shop was doing good business and making substantial profits. The second respondent did not take any part in running the shop, but was employed elsewhere at a salary from about 1941 onwards, at which date he would be about 18 years old. In 1946 he joined the Post Office, where his salary was Sh. 300 per month. In June of that year he opened a Post Office savings account, and by the end of the year had deposited 16 sums aggregating Sh. 5,334. Against this he had drawn Sh. 2 only. By the end of September, 1947, his deposits and interest were over Sh. 10,500 and his drawings only Sh. 229. In November he drew a single sum of Sh. 800. It was in 1947 that he went to India to get married. According to the appellant, some

Sh. 19,700 was spent on this marriage and the money came from his shop. No further sums were deposited in the Post Office account until April, 1950, but several hundred shillings had been added as interest and a sum of Sh. 220 was withdrawn in June, 1949. In April, 1950, a sum of Sh. 4,000 was deposited. It is admitted that the bulk of this money, if not all of it, was not produced by the second respondent's own earnings, but from another source. The second respondent admits receiving money from his father, but denies receiving any money<br>from the shop. Yet the receipts for most of these deposits were held by the appellant among the shop's records. In October, 1950, a sum of Sh. 13,335 was withdrawn, and in November a further Sh. 699, leaving a balance of only Sh. 50; but further substantial deposits were made later in 1950 and in 1951 and at the date of the father's death the credit balance was just on Sh. 10,000. This sum is item 7 in the schedule. The appellant asks us to infer from these facts that the funds which went to make up item 7 were furnished mainly, if not exclusively, from profits of the shop, and I confess I find this inference irresistible. The record does not show clearly who held the passbook, but it was put in during. cross-examination and may well have been held with the receipts.

As regards item 3 of the schedule, its history is shown by exhibit 3 and the evidence of Mr. Chhaganlal Lilabhai. A deposit of Sh. 10,000 was made in 1947 with his firm by the plaintiff. Before going to India about the end of 1947 the appellant had the account transferred to the deceased's name and interest was paid to him from April, 1948, until September, 1951, although the appellant returned from India in 1948 and was in Tanganyika from then onward; but before this two sums of Sh. 1,000 had been withdrawn, presumably by, or to the order of, the deceased. Hence item 3 is shown in the schedule as Sh. 8,000. The learned trial Judge allowed this claim in respect of items 3 and 7, and with this conclusion I respectfully agree. But what is the picture which results from this. conclusion? If these substantial sums were profits derived from the shop and were treated by all members of the family as joint family property, is it not clear that the business itself was treated similarly? Nothing could be more natural tothe members of such a family than that all members should contribute such capital as they could to obtain a suitable property, to start a business in it, to live in it, to let the remainder of it, and to arrange that one son should run the business and the other take profitable employment elsewhere. The father as *karta* would dispose of investments and deal with policy. It would worry him not at all that much of the property stood in his sons' names. He still had effective control of it and it was as much theirs as his. I think there is here sufficient. evidence of a joint family business after the time the sons began to help their father in Bagamoyo Street, either on the basis of a presumed intention on his part then to throw his separate property into the common stock or on the basis that, apart from his small nucleus, which could not be identified after the Bagamoyo Street shop was closed, the property now vested in members of the family was jointly acquired by the combined efforts of the male members. I think there is a strong presumption, arising from the facts proved, of an express agreement in the family when the Tandamuti Street property was bought that it and the business and household should all be a family concern, and I think on this basis the plaintiff has discharged the burden of proof as to items 1 and 2 of the schedule.

The learned trial judge decided the issue as to items 1 and 2 against the appellant on the ground that "no evidence whatever has been led". I think this view was too narrowly technical. There was a considerable volume of oral evidence about "the Tandamuti Street property". It is true that the plaintiff never in terms said "That is the property described in items 1 and 2 of the schedule" but he put in the title deeds and I think these effectively fill the gap. The title numbers

are 874 and 876 as alleged in the schedule; the land is shown to have been bought in 1930 from one Nassor and conveyed to the deceased, as alleged orally, and I think the plans must effectively identify the land as being in Tandamuti Street. It is even more important that the defendants' whole case was conducted on the basis of an implied admission of everything alleged concerning items 1 and 2 of the schedule, except the single allegation that they were joint family property. If further proof were necessary, it may be found in the proceedings concerning the arbitration, to which I shall refer again.

Some of the same considerations apply to items 4 and 5 of the schedule. It was never pleaded or denied in evidence by the defendants that these deposits with Messrs. Jivan & Kanji and Messrs. Visanji Shivaj respectively existed, but it was alleged only that they were not joint family property and accordingly the defendants' assumption of possession was not wrongful. As regards the latter item there was direct evidence of the plaintiff as to the deposit being made in 1950. There was no cross-examination on this and in the circumstances, although the learned trial Judge regarded the plaintiff as a most unsatisfactory witness, and had good reason to do so, I think the evidence should have been accepted. It seems highly probable that this Sh. 4,000 may represent part of the Sh. 14,000 withdrawn in 1950 from the Post Office account. There is no evidence to show what happened to that substantial sum.

As regards item 4 the evidence is that the deposit was made with "a firm in Dar es Salaam", that it was made after the Post Office account was opened, i.e. after June, 1946, and that "these sums were all the result of the labour of the male members of the family". Again there was no cross-examination, and I think the evidence should have been accepted, and if accepted, was sufficient to support $item 4.$

It is conceded that there was no evidence to support the claim as regards item 6 and this claim was expressly abandoned before us. Taking items 3, 4, 5 and 7 together I think the plain sense of the matter is this. If the property which stands in the sons' names, and the money which was expended on their marriages, were given to them separately by the father as advancements, where did he get these assets? The only possible answer is—the Tandamuti Street shop. But in that case why should the appellant subsidize so generously his younger brother? On a joint family basis everything is explained and fits into place.

Item 8 of the schedule stands on a somewhat different footing. The learned trial Judge said: "No evidence has been led to show how the sum of Sh. 3,000... has been arrived at". The appellant said in evidence: "Item 8 of schedule. These ornaments were given to my mother by my father during his life," and again "Ornaments bought by my father as head of the family and given to my mother<br>belong to the family". The widow's only evidence on the point is "My husband gave me ornaments in Tanganyika". It seems to me that the learned trial Judge must have found that there were some ornaments as alleged in item 8 and he does not find that they were purchased from the deceased's separate property. Indeed, on the other facts of the case as they appear to me it is not shown that after the purchase of the Tandamuti Street property the deceased had any separate property. It would be proper and usual to buy out of joint family property valuable ornaments for the wife; but if this were done they would remain joint family property, and the claim in item 8 would be valid. I think on all the evidence that this must be the position. In that case the widow is an accounting party and it is not necessary for the appellant to prove precisely the exact nature and value of the ornaments at this stage.

Item 9 refers to the Tandamuti Street shop. The plaintiff fairly recognizes that, if his claim is to succeed at all, this business must be regarded as joint family property. He therefore rightly throws it into the common stock. The valuation is at this stage quite immaterial. The net surplus of the assets of the

business over its liabilities must be partitioned. I think that if the learned trial Judge had been disposed to allow as much of the claim as I would allow, hisattitude towards item 9 would probably have been different.

I now pass to the cause of this litigation. In 1945 or 1946 the deceased lost his sight and in 1950 his mind became unbalanced. It was natural that the appellant should take charge of affairs to an increasing extent. In 1949 or 1950the appellant became estranged from his father. The cause of this is not clear, but may have been connected with the father's ill health. The father sought to eject the appellant from the Tandamuti Street shop and to resume possession thereof. In arbitration proceedings in August, 1951, both parties put their respective cases. far too high and showed little regard for the truth. The arbitrator made an order for possession and costs and the High Court refused to set the award aside. Whether any attempt to set up res judicata on this basis might have succeeded I do not know, but no such attempt was made. In the event the appellant did. not comply with the order and the parties are still in joint possession. The award was dated 11th September, 1951, and the father died only two months later.

My conclusion in this matter is that this appeal should be allowed and the judgment and decree of the High Court should be set aside. It should be declared that the appellant and respondents are members of an undivided Hindu joint. family of which the deceased was *karta*. I would order an inquiry whether there were at the date of filing the plaint any other and what members of the same joint family. I would declare that the property set out in the schedule to the plaint, other than item 6 thereof, was joint family property of the members of the family at the date of filing of the plaint and ought to be partitioned with effect from that date among the members of the family in accordance with their respective rights thereto under the Mitakshara system of Hindu law. This would probably allow maintenance only to the female members, and equal shares to all male members; but in view of the form of the appellant's claim I would order that his share be limited in any event to one-third of the whole. I would order that all necessary accounts and inquiries be taken and had to ascertain the nature, extent and value of the scheduled properties. I would give liberty to apply generally. As regards costs, I would order that the respondents do pay to the appellant the costs incurred to date in the High Court and the costs of this. appeal. I would leave the costs of the further proceedings in the High Court to the discretion of the High Court.

SIR BARCLAY NIHILL (President).—I agree with the judgment prepared by my brother the learned Justice of Appeal which I have just read and I have nothing. to add. The appeal is allowed and an order will be made in the terms proposed in the concluding paragraph of his judgment.

SIR HERBERT Cox, C. J.—I should like to add one observation only to the judgments of the learned Justice of Appeal and the President of this Court which have just been read. As the law relating to Hindu joint families is not a law of shall I say common application in this Territory in the sense that the High Court is not often called upon to decide matters therewith, the court will require positive proof of what the law is and proof of a very high standard that the law is applicable to the parties before it, proof which, in my opinion, may be of almost as high a standard as that required in a criminal trial, but once that obstacle has been overcome then in my opinion a lesser degree of proof will suffice in respect of the various issues of fact to be determined, proof which I might conveniently class as being no greater than that required in a normal civil suit.

As I am satisfied that these standards of proof have been met in this case in their respective spheres I concur in the judgment of the learned Justice of Appeal, to which I have nothing further to add. I also concur that the appeal. should be allowed and an order made in the terms proposed in that judgment.