Wakilii

Damji v Devrraj and Another (Civil Appeal No. 72 of 1954)

East African Court of Appeal · [1955] EACA 162 · 1955 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the High Court of Tanganyika concerning partition of property claimed as joint Hindu family property
Decision
Matter remitted to High Court for inquiry as to family members and for accounts and inquiries to ascertain the nature, extent and value of the scheduled properties for partition

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that Hindu joint families are recognized in Tanganyika and that section 6 of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance covers devolution by survivorship. The court found that the appellant and respondents were members of an undivided Hindu joint family and that the disputed property (except item 6) was joint family property subject to partition under Mitakshara law, with the appellant's share limited to one-third.

Outcome

Matter remitted to High Court for inquiry as to family members and for accounts and inquiries to ascertain the nature, extent and value of the scheduled properties for partition

Facts

Damji Devraj, a Hindu of Lohana caste governed by Mitakshara law, came from India to Tanganyika in 1914. His wife and children joined him in 1920. The family lived together as a Hindu joint family, using a single kitchen and eating and worshipping together. The father opened shops in Bagamoyo Street and later Tandamuti Street. The appellant worked in the family business from childhood. In 1930 or 1931, the elder son Devji separated from the family after receiving a portion. The daughter married in 1931 and also separated. The father died in November 1951. The appellant claimed partition of property including the Tandamuti Street premises, shops, deposits, and ornaments, asserting they were joint family property. The respondents (the mother and younger brother) contended there was no such thing as a Hindu joint family in Tanganyika and relied on the deceased's will. The High Court allowed the claim for two items but dismissed it for the remaining seven.

Issues

  1. Whether Hindu joint families are recognized in Tanganyika.
  2. Whether section 6 of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance is wide enough to cover devolution by survivorship in Hindu joint family property.
  3. Whether the property in dispute was joint Hindu family property or the separate property of the deceased.
  4. What standard of proof is required in matters relating to Hindu joint families.

Orders

  • Appeal allowed.
  • Judgment and decree of the High Court set aside.
  • It is declared that the 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.
  • Property set out in the schedule to the plaint, other than item 6, declared to be joint family property to be partitioned in accordance with Mitakshara law.
  • Appellant's share limited to one-third of the whole.
  • All necessary accounts and inquiries to be taken to ascertain the nature, extent and value of the scheduled properties.
  • Liberty to apply generally.
  • Respondents to pay the appellant's costs in the High Court and costs of the appeal.
  • Costs of further proceedings in the High Court left to the discretion of the High Court.

Rules and key headnotes

Hindu Joint Families — Recognition in Tanganyika — Existence and Legal Status
Hindu joint families are recognized in Tanganyika, and persons of the Hindu community habitually live as such families in the territory.
Statutory Interpretation — Meaning of 'Succession' — Devolution by Survivorship
Section 6 of the Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance should be given a normal rather than a restricted or technical meaning and is wide enough to cover devolution on death by any means, including devolution by survivorship in Hindu joint family property and devolution under a will.
Hindu Joint Family Property — Religious Law — Trusteeship Agreement Recognition
The law governing joint families and their joint family property is part of the religious law of Hindus and should be recognized under the Trusteeship Agreement, 1946.
Standard of Proof — Hindu Joint Families — Two-Stage Test
In matters relating to Hindu joint families, the High Court will require positive proof of what the law is, and proof of a very high standard (almost as high as that required in a criminal trial) that the law is applicable to the parties before it; but once that obstacle has been overcome, 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.
Joint Family Property — Coparcenary Property — Testamentary Disposition
If property vested in a deceased immediately prior to death is his separate property, he is entitled to dispose of it by will; but if it is coparcenary or joint family property, he cannot dispose of it by will in such a manner as to prejudice any surviving coparcener.
Hindu Joint Family Property — Presumption — Combined Efforts of Male Members
Where property is jointly acquired by the combined efforts of male members of a Hindu joint family, there is a strong presumption of an express agreement that it should be treated as joint family property, and the question in whose name the property stands is immaterial.

Legislation cited (3)

  • Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance, Chapter 112, s.6
  • Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance, Chapter 112, s.6(1)
  • Tanganyika Order-in-Council, 1920, s.17(2)

Cases cited (2)

  • Maleksultan v. Sherali Jeraj, ante page 142
  • Sanwal Das v. Kure-Mai and others 9 I.L.R. Lahore 470

Full judgment

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Damji v Devrraj and Another (Civil Appeal No. 72 of 1954) [1955] EACA 162 (1 January 1955)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.