JUDGMENT Mukerji, J.
1. This appeal raises a question of burden of proof in the following circumstances:
The plaintiff, who is the appellant before us, brought this suit, out of which this appeal has arisen, for a declaration of title, and, in the alternative, for possession over three kinds of land. We are no longer concerned with two kinds, but are concerned only with the third kind. It was an occupancy holding consisting of several plots of land recorded in the revenue papers in the name of defendant 1 Gopal. The plaintiff's case was that when these lands were acquired in the name of Gopal the family was a joint one and each and every member of the family, including the plaintiff, who is Gopal's brother's son, had a share in it. The plaintiff further says that there was a partition among the members of the family and certain plots were given to the plaintiff, but because of his possession he was recorded only as a subtenant. The result was that Gopal was able to eject plaintiff from those plots. We are no longer concerned with those plots, but the plaintiff's case remains that the occupancy holding now in question was a part and parcel of the joint family property.
2. The defence was that the occupancy holding was Gopal's own, and the plaintiff had nothing to do with the property. There was a plea of limitation also. The Court of first instance found in plaintiff's favour holding that the tenancy having been acquired while the family was joint it must be treated as a part of the joint family holding. The learned Judge also found that the plaintiff was participating in the family property, and it was not true, as the defendant alleged, that the suit was barred by limitation owing to the plaintiff having lost possession.
3. The defendant Gopal appealed, and the learned Subordinate Judge, who heard the appeal, thought that the ordinary presumption of Hindu law did not apply where a tenancy was concerned. He put the burden of proof on the plaintiff to show that the tenancy held in the name of Gopal had not been acquired by Gopal for his own purposes, and that Gopal had acquired it not only for his own benefit but for the benefit of the entire family. Starting with this point of view, the learned Judge discussed the evidence and came to the conclusion that the plaintiff had failed to discharge the burden of proof that lay on him.
4. In this Court it has been contended on behalf of the plaintiff, who is the appellant, that the learned Judge of the lower appellate Court was wrong in putting the burden of proof on the plaintiff. We are of opinion that the learned Judge in the Court below was really wrong. He has relied on the case of Kallu v. Sital [1913] 40 All. 314. In that case, on a remand by the High Court, the finding was that the letting of the land was to one Matola, and not Matola as representing the joint family. On that finding the learned Judges of this Court came to the conclusion that Matola was the tenant of the land and not the family, and that the family did not become the tenant simply because Matola let the other members share in the cultivation or to receive the profits thereof. This case is clearly distinguishable from the case before us. We may point out that in Bhup Singh v. Jai Ram [1918] 46 I.C. 387, two learned Judges of this Court clearly recognized the facts that it is possible for a joint family to hold a tenancy although the same may be recorded in the name of a single member. The learned Judges also pointed out that in such a case Section 22, Tenancy Act, would not apply.
5. We cannot see why the ordinary rule of Hindu law, that properties acquired while the family was joint and with the help of the ancestral or joint family property should be regarded as joint family property, and that the burden of proof that it was self-acquired property of a single member should be on that member, should not be applied to a case where the property in question is a tenancy. The tenancy law itself does not make any such exception, as already shown in the two cases quoted above. The new Tenancy Act, we may point out simply as a matter of history, by enacting Section 26, recognized the correctness of the ruling in Kallu v. Sital [1913] 40 All. 314, and enacted that where the contract is in favour of a single person, that contract will not make the property a joint family property where the contracting party is a member of such a family. It also enacted that where persons possessing a tenant's interest are joint in estate they shall be deemed, for purposes of succession, to be tenants in common. Thus the Act of 1926 also recognized the possibility of a joint family holding lands as an occupancy tenant, though it modified the rule of succession for the future.
6. In the result, we think that the case should be retried by the learned appellate Judge. We set aside the decree of the lower appellate Court and remand the appeal for retrial. The appeal will be readmitted on its original number in the register of appeals and will be decided having regard to the remarks contained in our judgment. Costs here and hitherto will abide the result.