JUDGMENT Mitter, J. - The subject-matter of the suit are lands included in a kayemi karsha jote which originally belonged to Messrs. Howladar and nine others who were the co-sharers of Messrs. Howladar. Of these nine other co-sharers four were minors, namely, Jabbar Ali Howladar, Abdul Gani Howladar, Hachenaddi Howladar, and Baru Bibi. On October 28th, 1921, Messrs. Howladar and his nine co-sharers transferred the said kayemi karsha jote by a kobala. The kobala was executed in favour of the Plaintiff--on behalf of Jabbar Ali Howladar and Abdul Gani Howladar it was executed by their mother, Baru Bibi; and on behalf of the minors Hachenuddi and Baru Bibi, it was executed by their mother and grandmother, Alekanessa Bibi. The Plaintiff's husband, Harihar and the principal Defendant, namely, Defendant No. 1, are brothers. They had three other brothers named, Harendra, Satindra and Upendra. The five brothers formed the members of a joint Hindu family governed by the Dayabhaga school of Hindu law. Harihar was a police constable in the beginning, but subsequently was promoted to be a Sub-Inspector of Police. For the performance of his duties he had to live for the most part out of his village. 2. This suit was instituted by the Plaintiff for a declaration that she was the sixteen annas owner of the property in suit and for confirmation of possession, in the alternative, for recovery of possession. 3. The case of Defendant No. 1 who had made a gift of his alleged share in the property to his wife, Defendant No. 2, is that the kobala executed in the name of the Plaintiff by Messrs. Howladar and others passed title to the members of the joint family, namely, the husband of the Plaintiff and his other brothers, the Plaintiff being merely a benamdar for the five brothers. The original title being in the five brothers that title continued in spite of the sale by the zemindar in a rent execution proceeding. That sale was intentionally brought about for the purpose of curing some alleged defect in the title. The case of the Defendant, therefore, was that the Plaintiff was really a benamdar of the co-parceners of the joint family. 4. The case of the Plaintiff, however, is that she was herself the beneficial owner. That sale was intentionally brought about for the purpose of curing some alleged defect in the title. The case of the Defendant, therefore, was that the Plaintiff was really a benamdar of the co-parceners of the joint family. 4. The case of the Plaintiff, however, is that she was herself the beneficial owner. Even if it be that she was not the beneficial owner, but was only a benamdar of her husband, she would be entitled to succeed in this suit. 5. The case of the parties accordingly proceeded on the admission that Messrs. Howladar and his nine co-sharers had no longer any interest in the kayemi karsha jama after the sale on October 28th, 1921, and the issue on the plaint and the written statement was whether the Plaintiff was the beneficial owner of the property or the benamdar of her husband and his brothers. On this issue the parties went to trial and the Plaintiff was examined on commission. Long after the examination of the Plaintiff had concluded, the Defendants made an application on July 12th, 1937, for leave to file an additional written statement. By the additional written statement they wanted to make the case that the interest of the minors--Jabbar Ali, Abdul Gani, Hachenuddi and Baru Bibi--had not passed by the kobala executed in favour of the Plaintiff on October 28th, 1921, inasmuch as the kobala on behalf of these minors had not been executed by their respective guardians of property. This additional written statement, however, was rejected by the learned Munsif by his order dated July 13th, 1937. The hearing actually commenced on September 7th, 1937, and the judgment was delivered by the learned Munsif on September 16th, 1937. 6. In one part of his judgment the learned Munsif gives effect to the contention of the Defendant that the title of the aforesaid four minors had not passed by the kobala executed on October 28th, 1921. In my judgment the learned Munsif with whom the learned Subordinate Judge has agreed was not right in going into that question at all and giving effect to the said contention of the Defendant, seeing that the additional written statement which raised that defence was not accepted by the Court. 7. In my judgment the learned Munsif with whom the learned Subordinate Judge has agreed was not right in going into that question at all and giving effect to the said contention of the Defendant, seeing that the additional written statement which raised that defence was not accepted by the Court. 7. As I am of the opinion that this case must be remanded to the lower Appellate Court for a re-hearing of the appeal, I have gone into this matter in some detail with the specific object of drawing the attention of the lower Court that the case attempted to be made by the Defendants by their additional written statement cannot be allowed to be raised and that the re-hearing of the appeal must proceed upon the pleadings, namely, the plaint and first written statement, leaving entirely out of consideration the pleas sought to be raised in the additional written statement which was not accepted by the Court. 8. On the merits both the Courts have held that the Plaintiff has failed to prove her beneficial interest in the property and that she was really the benamdar of the members of the joint family consisting of her husband and his brothers. This finding would have been binding on me in second appeal if the onus had not been misplaced by the learned Subordinate Judge. In the first place, the learned Subordinate Judge says that there is a presumption in India that a purchase made in the name of the wife is a purchase for her husband. This proposition has been somewhat widely stated. It ought to have been stated in the form that as benami purchases in the names of wives are very frequent in India, slight evidence would be required to show that the purchase was made really for and on behalf of the husband, the wife being a mere benamdar. However, this slight inaccuracy in the statement of the law by the learned Subordinate Judge is not a very material factor in the case. On that view the Plaintiff would have been the benamdar of her husband and as the benamdar of her husband she would maintain the suit. But the question in the case was not whether the Plaintiff was a benamdar of her husband, Harihar, but whether she was the benamdar of the co-parceners of the joint family, namely, her husband and his brothers also. 9. But the question in the case was not whether the Plaintiff was a benamdar of her husband, Harihar, but whether she was the benamdar of the co-parceners of the joint family, namely, her husband and his brothers also. 9. The law is well-settled that the apparent state of things must be presumed to be the real state of things, that is to say, if a conveyance stands in the name of one, he would be presumed to be the beneficial owner unless the contrary is shown by the other side. This presumption is modified by the further presumption which is peculiar to a Hindu joint family, namely, that if the person in whose name the conveyance stands is a co-parcener of a Hindu joint family, the presumption would ordinarily be that the purchase was made in his name for the benefit of all the co-parceners of the said Hindu joint family. But this further presumption does not apply where the conveyance stands in the name of a non-co-parcener of a Hindu joint family, as for instance, wives, daughters-in-law, or sons in a Bengal family who are not co-parceners in a family governed by the Bengal school. 10. The first case which has laid down this principle is the case of Sarada Prosad Roy v. Mahananda Ray ILR 31 Cal. 448 (1904). This principle has been followed in the case of Protap Chandra Gope v. Sarat Chandra Gangopadhyay 25 C.W.N. 544 at p. 549: s.c. 33 C.L.J. 201 at p. 209 (1920). and in the case of Bhubanmohini Dasi v. Kumudbala Dasi 28 C.W.N. 131 (1923). In accordance with this principle the onus ought to have been placed by the leaded Subordinate Judge on the Defendants to prove affirmatively that the said kayemikarsha jote had been acquired from Messrs. Howladar and his co-sharers by the employment of money drawn from the joint fund of the joint family or by other evidence which would lead to the conclusion that it was joint family property. In his judgment the learned Subordinate Judge has placed the onus upon the Plaintiff and has discussed only the evidence of the Plaintiff and her witnesses. Howladar and his co-sharers by the employment of money drawn from the joint fund of the joint family or by other evidence which would lead to the conclusion that it was joint family property. In his judgment the learned Subordinate Judge has placed the onus upon the Plaintiff and has discussed only the evidence of the Plaintiff and her witnesses. If he had discussed the evidence on both sides and had come to the conclusion that it was joint family property, his findings could have been upheld on the principle that where evidence has been led by both sides and findings have been arrived at on a consideration of the evidence so led, the question of onus in a second appeal would be immaterial. But it is not the way in which he had dealt with the case. 11. I must accordingly set aside the judgment and decree of the lower Appellate Court and remit the case to that Court for re-hearing of the appeal. 12. I have already indicated that it would not be open to the Defendant to urge that the interest of the minors Jubbar Ali, Abdul Gani, Hochenuddi and Baru Bibi had not passed by the kobala dated October 28th, 1921. 13. The learned Advocate for the Respondents urged before me that even if the question of title has been determined by the learned Subordinate Judge on misplacement of the burden of proof, this appeal is concluded by the findings on the question of limitation. I cannot accept that contention, because the question of possession is dependent upon the question of title, for there are on the record kabuliyats representing genuine transactions given by the sub-tenants in favour of the Plaintiff. If the Plaintiff be found to be the real owner or the benamdar of her husband, these kabuliyats would prove her or her husband's possession. The result is that this appeal is allowed and the case is remanded to the lower Appellate Court for re-hearing of the appeal in the light of the observations made in this judgment. Costs will abide the result.