JUDGMENT
1. This appeal is brought on behalf of the plaintiffs against the order of the 1st Additional Subordinate Judge of Patna, dated the 25th November 1959, refusing to grant a temporary injunction in Title Suit No. 84 of 1959.
The case of the plaintiffs was that they were the daughters of Bibi Nafis Fatma, and the defendant, Aftab Ahrnad, was her only son. It was alleged that Bibi Nafis Fatma owned immovable properties described in Schedule A of the plaint, and jewelleries, ornaments and cash described in Schedule C of the plaint. Bibi Nafis Fatma died on the 9th September, 1959, and thereafter the plaintiffs instituted a suit for partition of the movable and immovable properties belonging to Bibi Nafis Fatma,
It was further alleged on behalf of the plaintiffs that the defendant was managing the movable and immovable properties of their mother and in order to defraud the plaintiffs had deposited the cash in various bank accounts in his own name and had also deposited the jewelleries in a locker also in his own name. The plaintiffs prayed for a temporary injunction restraining the defendant from withdrawing the money in various bank accounts and also dealing with the ornaments kept in the locker. The prayer of the plaintiffs for temporary
injunction has been rejected by the lower court on the ground that the plaintiffs had no prima facie case because the bank accounts stand in the name of the defendant who must, therefore, be presumed to be the full owner of the money deposited in those accounts.
2. On behalf of the appellants it was submitted that the lower court has committed an error of law in refusing the prayer of the plaintiffs for a temporary injunction. It was pointed out by learned Counsel on behalf of the appellants that there was no denial by the defendant that he was managing the properties of Bibi Nafis Fatma. If, therefore, the defendant was managing the movable and immovable properties of Bibi Nafis Fatma and if the defendant had no independent property of his own, as alleged by the plaintiffs, then the presumption. will arise that the money and the jewellery deposited by the defendant in the various banks are held by him in a fiduciary capacity, namely, as an agent on behalf of the plaintiffs also who are entitled to the properties after the death of Bibi Nafis Fatma.
In our opinion the argument on behalf of the appellants is well founded and must be accepted as correct. The legal position has been explained by the Calcutta High Court in Aminaddin Munshi v. Tajaddin, AIR 1932 Cal 538. It was held in that case that if members of a Muhammadan family live in commensality possessing the family property in common and in jointness, the acquisition by one of the members occupying the position of a managing member, during the jointness of the family will be presumed to be for the benefit of the members of the family not because of any presumption regarding acquisition akin to the joint Hindu family, but because such person is in fiduciary relationship with other members and has an obligation to discharge towards other members, and if any property as acquired stands in the name of such person, the burden of proving that it was his self-acquired and not the property of the joint family will be on him.
In our opinion this is the correct principle to be applied to this case. It follows, therefore, that the plaintiffs have made out a prima facie case with regard to the title of the disputed bank accounts and to the disputed locker containing the jewelleries. In our opinion, therefore, the plaintiffs are entitled to a temporary injunction pending the decision of the suit restraining the defendant from operating the bank accounts in the Allahabad Bank Limited, University Branch, Patna, Bank of Bihar, Limited, Patna, State Bank of India, Patna and Savings Bank Accounts in the Post Office at Banki-pore and University Branch, Patna, to the extent of half the amounts of these various accounts.
There will also be a temporary injunction restraining the defendant from removing the articles contained in the locker in the Allahabad Bank Limited, Patna University Branch, pending the disposal of the suit in the lower Court. We should, however, like to make it clear that it would be open to the trial Court to appoint a pleader commissioner to make inventory of the jewelleries and documents contained in the locker in the Allahabad Bank Limited, Patna University Branch, and thereafter permit the defendant to remove or otherwise deal with half of the jewelleries contained in the locker. The temporary injunction will continue to
operate with regard to the remaining half of the jewelleries and documents contained in the locker.
3. We accordingly allow this appeal. There will be no order as to costs,
