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G. Narayana Raju vs G. Chamaraju & Others on 19 March, 1968
The Indian Penal Code
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Nanni Bai And Others vs Gita Bai on 14 April, 1958
Ram Sharan vs The Deputy Inspector General Of ... on 16 March, 1964
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S.Ramasamy vs S.Subramanian on 14 June, 2013

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Madras High Court
Pandithurai And Anr. vs Sivalingam And Ors. on 4 September, 1986
Equivalent citations: (1987) 2 MLJ 80
Author: Swamikkannu

JUDGMENT

Swamikkannu, J.

1. This is an appeal by defendants 2 and 3 against the judgment and decree in O.S. No. 17 of 1977 on the file of the Subordinate Judge, Tiruchirappalli granting a preliminary decree for partition of the suit properties into three equal shares with reference to good and bad, soil and alloting one such share to the plaintiff and one such share to defendants 4 to 9. Defendants 1 to 3 were directed by the court below to render a true and proper account in respect of the income derived by them from the suit properties to the plaintiff and defendants 4 to 9 from the date of suit till the date of delivery of possession of their respective shares to them. The Court below has relegated the quantum of mesne profits to be decided in separate proceedings under Order 20. Rule 16 of the Code of Civil Procedure and directed that the costs of the suit will come out of the estate.

2. The suit was laid by Sivalingam, the plaintiff (first respondent in this appeal) for partition of the suit properties into three equal shares and for allotment and separate possession of one such, share to him, to direct the defendants to account for the income from the suit properties from the date of suit till date of delivery of possession of one-third share to the plaintiff and for costs of suit. Defendants 1 and 4 to 9 are respondents 2 to 8 in this appeal. Minor respondents 6 to 8 are represented by guardian mother Pachaiammal the 3rd respondent.

3. The case of the plaintiff, in brief, is as follows: The plaintiff, Sivalingam, Marimuthu and Marudai are the sons of one Sangili Moopan. They constituted members of a joint. Hindu family to which item 1, (ancestral dwelling house) of the suit properties belonged. Sangali had taken 4 acres of land in Kondiampettai on lease from Venugopala Reddiar's estate and the same was cultivated by the father and sons and the family was deriving income and out of their joint exertions, the suit second item (a house at Kondiyampettai) and the third item [a those of 29 cents) were purchased by Sangili for the benefit of the family. Even after the demise of the father, the sons continued to enjoy the leasehold by putting forth their joint efforts, Marimuthu was a person of unsteady and undesirable habits. Hence, Marudai, who commanded the influence of the family members, was in management of the family and its affairs. Marimuthu was in Military Service for a few years and then he was a bus driver in the T.S.T. Bus Company at Tiruchirapalli. He was giving his earnings to Marudai. The plaintiff entered the railway service as a fireman apprentice in 1954, then he was promoted as an A Grade Fireman in 1957, then as a Shunter in 1958 and from 1960 onwards, he has been working as an Engine Driver. His savings from his substantial salaries and allowances were placed with Marudai to make acquisitions of properties for the benefit of the joint family. On some occasions, the plaintiff sent his savings by bank drafts to Marudai. Marudai also used to go over to Hubli and receive the savings, in person, from the plaintiff. When visiting the village, the plaintiff also used to bring money with him and placed them in the hands of Marudai. From out of the contributions made by the plaintiff and Marimuthu, the suit items 4 to 11 were purchased in the name of Marudai for the benefit of the family under sale deeds dated 10.2.1960, 21.2.1963, 22.3.1969, 18.5.1963, 29.3.1964, 12.6.1965, 19.11.1967 and 16.6.1966. Besides from out of the contributions made, a terraced house had been constructed at a considerable cost in portion of item No. 9. The aforesaid acquisitions were made for the benefit of the family with the large contributions made by the plaintiff from time to time for that purpose and also from out of the substantial income from the leasehold properties. All the properties were treated and enjoyed as joint family properties and blended as a unified whole. Rice from the paddy grown in the family lands also was used to be sent to the plaintiff on permits. Both the families of Marimuthu and Marudai were living jointly in item No. 1 Marimuthu died on 9.12.1972 leaving behind him his widow the 4th defendant and his children, defendants 5 to 9. Marudai also died on 26.11.1975. Afterwards, there were attempts to divide the suit properties but they did not fructify. The plaintiff is entitled to one 4hird share in the suit properties while defendants 1 to 3 are entitled to another one-third share and defendants 4 to 9 are entitled to the other one-third share. Hence the suit.

4. The 2nd defendant, Pandithurai, filed a written statement which was adopted by the 1st defendant, Sellammal. Their contentions are: The allegation that the father and sons were enjoying the leasehold lands taken on lease from Venugopala Reddiar's estate and were deriving the income therefrom is denied. The income got from the leasehold lands was not sufficient for maintaining and feeding the family. So also the allegation in the plaint that Marimuthu was a person of unsteady and undesirable habits and so Marudai was in management of the family and its affairs, are all false. Again it is false to state that Marimuthu was giving his earnings to Marudai and that properties were purchased in the name of Marudai from, out of the joint contributions. Except the ancestral house and a tope, there was no other ancestral property and so the father and the sons were eking out their livelihood separately having separate mess and savings. It is false to state that the plaintiff was earning substantial income and he was sending his savings to Marudai for the purpose of acquiring properties for the benefit of the family. No contributions were made by the plaintiff either person or through bank drafts to Marudai for the acquisition of properties set out in the plaint. All the said items are the separate and self-acquired properties of Marudai. The plaintiff occasionally sent his savings to Marudai with a direction to hand over the same to his (Pontiff's) father-in-law and they were accordingly handed over to his father-in-law. The plaintiff also used to send occasionally his savings to his father-in-law. Properties were also purchased by the plaintiff's father-in-law for the benefit of the plaintiff. Taking advantage of the death of Marudai, the plaintiff has filed this suit raising false and frivolous contentions. Marudai was having brick-kilns and manufacturing bricks and he was also cultivating lands on lease. From out of the substantial profits he made from all these sources, he purchased the properties mentioned in the plaint and so they are his self-acquired properties in which the plaintiff has no right. The sending of rice by Marudai to the plaintiff was due to the brotherly obligation and nothing else. This defendant has no objection to the partition of the ancestral properties. The suit properties have not been properly valued and correct court-fee has not been paid. Hence, the suit may be dismissed with costs.

5. Defendants 4 to 9 filed a joint written statement and their contentions therein are as follows:

Lands belonging to one Balasubramanian were also taken on lease and enjoyed by all the family members and the said leasehold right continues in the family even after the death of Marudai and Marimuthu. The defendants 4 to 9 are entitled to one-third share in the suit properties and also in the leasehold rights. So a partition of the suit properties, as prayed for by the plaintiff, may be ordered and the share of these defendants may also be allotted to them, for which they have paid necessary court-fee.

6. On the above pleadings, following issues were set down for trial:

1. Whether the suit properties are not the joint family properties of the plaintiff and his brothers?

2. Whether the plaint items 3 to 12 are the self-acquisitions of Marudai?

3. Whether the plaintiff is not entitled to one-third share in the suit properties?

4. Whether the defendants 4 to 9 are not entitled to one-third share in the suit properties?

5. To what relief, if any, is the plaintiff entitled?

7. Subsequently, as per order dated 21.6. 1979 in A. No. 450 of 1979, the above issues framed originally were recast as follows:

1. Whether the contributions by the plaintiff set out in the plaint are true?

2. Whether the admitted joint family properties were adequate nucleus as contemplated by law?

3. If issue Nos. 1 and 2 are found in favour of the plaintiff, whether items 4 to 11 are the self-acquired properties of Marudai as claimed?

4. What are the properties available for partition?

5. What is the share in which the plaintiff is entitled and if so, to what properties?

6. Whether defendants 4 to 9 are entitled to one-third share?

7. To what relief, if any, are the parties entitled?

8. The plaintiff Sivalingam examined himself as P.W. 1 and Marudai Moopan was examined as P.W.2. The plaintiff has produced and marked Exs. A1 to A28. Pandithurai, the 2nd defendant, was examined as D.W. 1 besides D.Ws. 2 to 4, Gopalakrishnan, Chinnswami Pillai and Alagan. Exs. B1 to B52 were marked on behalf of the defendants. Ex. Al is equivalent to Ex. B52. Ex. A2 is equivalent to Ex. B10. Ex. A3 is equivalent to Ex. B11. Ex. A4 is equivalent to Ex. A12 Ex. A5 is equivalent to Ex. B13. Ex. A6 is equivalent to Ex. B14. Ex. A7 is equivalent to Ex. B15. Ex. A16 is equivalent to Ex. B15. Ex. A8 is equivalent to Ex. B16.

9. On a consideration of the above evidence, both oral and documentary, the lower Court held under issue No. 1 that the plaintiff could not prove the fact that he sent moneys to his brother Maruthai prior to 1967 since the documents were destroyed by the State Bank of India as per rules. Under issue No. 2, the Court below held that the income from the ancestral joint family properties is not adequate to purchase properties and hence answered the issue in the negative. Under issue No. 3, the Court below held that items 4 to 11 must have been purchased from the joint contributions of all the three brothers and also from the income derived from the leasehold lands taken from the estate of Venugopal Reddiar and, therefore, items 4 to 11 must be considered as joint family properties of the plaintiff and his brothers and hence answered the issue as above. Under issue Nos. 4 to 6, the Court below held that the entire suit properties are available for partition and the plaintiff is entitled to one-third share in the suit properties and defendants 4 to 9 are entitled to get one-third share in the suit properties. Under issue No. 7, as mentioned above, a preliminary decree for partition of the suit properties into three equal shares with reference to good and bad nature of the soil and for allotment and separate possession of one such share to the plaintiff and one such share to the defendants 4 to 9, was passed. Defendants 1 to 3 were directed to render a true and proper account in respect of the income derived by them from the suit properties to the plaintiff and defendants 4 to 9 from the date of suit till date of delivery of possession of their respective shares to them and the quantum was relegated to be determined in separate proceedings under Order 20, Rule 16, C.P.C. The Court below ordered that the costs of the suit will come out of the estate.

10. It is inter alia, contended by the learned Counsel for the appellants Mr. V. Krishnan that the lower Court had not properly appreciated the evidence on record, both oral and documentary. As such, the judgment and decree of the Court below are liable to be set aside and the suit should be dismissed. According to him, Ex. A9 has not been properly appreciated by the lower Court and it would establish that the plaintiff had made contribution for the purchase of items 4 to 11, entirely overlooking the fact that the plaintiff had failed to establish that the amount as evidenced by Ex. A9 was utilised for purchase pf any of the suit items. The learned Subordinate Judge should have held that a sum of Rs. 2000/- is alleged to have been sent by draft on 24.6.1967. On the other hand Ex. A 13, would establish that money was not utilised for purchase of any property. It is also contended that the learned Subordinate Judge erred in entirely overlooking that no property was purchased in 1970 or 1971 and the draft for Rs. 3000/- sent on 18.12.1970 could not have been used for the purchase of any item of suit property. He also contended that the learned Subordinate Judge erred in holding that with the moneys sent by the plaintiff, items10 and 11 were purchased by the father of the appellants. The learned Subordinate Judge erred in holding that Exs. A10 to A15 and A22 would establish that the brothers were living jointly till 1968.

11. The point for consideration is, whether the plaintiff has proved his case for partition beyond reasonable doubt and whether the trial Court is correct in granting a preliminary decree for partition and separate possession of three equal shares with reference to good and bad nature of the soil and allotment of one such share to the plaintiff and one such share to defendants 4 to 9.

12. The first point which occurs to this Court on seeing the judgment of the Court below is regarding non-production of the original of the sale deeds, Exs. A1 to A8. Even if these documents were filed along with the plaint, it is but necessary, for the plaintiff to inform the Court as to why the originals have not been filed along with the plaint at the time of the institution of the suit. The plaintiff could as well have obtained the permission of the Court in substituting the certified copy of the original documents if he required the original documents to be kept with him after allowing them to accompany the plaint to the Court as and when the suit was filed.

13. Before dealing with the point in question, it is but necessary that we should know the distinction between ancestral property and joint family property. It is well established that ancestral property may be defined thus: property acquired by a lineal male ancestor in the male line, devolving by inheritance on a son or oher male descendant in the male line, becomes ancestral on the death of the ancestor in the hands of the descendant Vide Rajah Ram v. Pertum 20 W.R. 189 : 11 B.L.R. 307. See also Baijinath v. Maharaj I.L.R. (1933) 8 Lucknow 28 and 31.

14. Property inherited from the meternal grandfather has been held by the Privy Council to become ancestral in the hands of the two sons, of his only daughter and they took as joint tenants with the benefit of survivorship Chelikani v. Chelikani 12 M.L.J. 299 : L.R. (1902) 29 I.A. 156 : I.L.R. 25 Mad. 678 : 4 Bom. L.R. 657 : 7 C.W.N. 1. See also Ahobilachariar v. Thulasi A.I.R. 1927 Mad. 830. It is most unfortunate that the trust meaning of the term ancestral property or rather of the original Sanskrit term which means property inherited from the paternal grand ancestors in the male line cannot include what is inherited from a maternal ancestor was not brought to the notice of the Court. Had that been done, then it seems this anomaly would not have arisen. But the Judicial Committee has in another case Atar v. Thakar 18 M.L.J. 379 : L.R. (1908) 35 I.A. 206 : I.L.R. 35 Cal. 1039 : 10 Bom. L.R 790, said that "unless the lands came by descent from a lineal male ancestor in the male line they are not deemed ancestral in Hindu Law" It was held that although the maternal grandfather's estate in the hands of the daughter's sons is called ancestral, yet their sons do not acquire a right by birth to such property Vide Jamna v. Ram I.L.R. (1907) 29 All. 667 : 1907 All. W.R. 211 : 4 All. L.J. 582, Privy Council has now approved this view and has explained its earlier decision in Chelikani's case 12 M.L.J. 299 : (1902) 29 I.A. 156, to confine to cases covered by that decision (perhaps the sons of an only daughter) and has practically disagreed with it. Vide Husain khan v. Kishva I.L.R. (1937) All. 655. So, the property obtained by the undivided sons of a daughter by the testamentary gift of the maternal grand-father passes to them as tenants-in-common. The Bombay High Court has held that under the Mitak-shara and Vyavara Mayukha, the SOM inherit from their mother as tenants-in- common and not as joint tenants. Vide Bai Parson v. Bai Somll (1912) 14 Bom.L.R. 400.

15. So, the property inherited collaterally from a brother vide Sita v. Balak, A.I.R. 1935 Orissa 13 is not ancestral but self-acquired property Radha Kant v. Nazma I.L.R. (1918) 45 Cal. 733. The self-acquired property of the father deolving on his sons and grandsons, acquires the nature of ancestral property in the hands of the heirs with right of survivorship among them vide Sheodin Lal v. Narayanadas 1934) 30 N.L.R. 88.

16. A share of ancestral property obtained by partition continues to be ancestral in the hands of the coparcener getting the same vide Adurmoni v. Chowdhury I.L.R. (1877-78) 3 Cal. 1. So also when such share is obtained according to a distribution made by a deed of gift vide Muddun v. Ram 6 W.R. 71 or by a will executed by the ancestor Vide Tara v. Reeb (1866-68) 3 M.H.C.R. 50, it retains its character of ancestral property, except when the gift is made in terms clearly showing an intention that the donee should take an absolute estate for his own benefit only vide Jugmohandas v. Mangaldas I.L.R. (1886) 10 BOM. 528 and 576, otherwise, the ancestral nature of the estate is to be presumed vide Nagalingam v. Rama 11 M.L.J. 210 : I.L.R. (1901) 24 Mad. 429. So, the interest increased by one coparcener by excluding another does not lose its ancestral character (vide Sureshchandra v. Bai A.I.R. 1938 Bom. 206.

17. The property obtained by an illegitimate son of an undivided deceased coparcener for maintenance is not ancestral property of the illegitimate son in which the son of the latter gets a right by birth Vide Krishnaswami v. Seethalakshmi I.L.R. (1916)39 Mad. 1029 : 3 L.W. 317. There is a great diversity of opinion in the Courts in India as to the effect in a Mitakshara family of a bequest made by the father to his son of property which in the father's hands was self-acquired. The Privy Council has clearly noted it but has reserved its opinion for a future occasion to be based on a consideration of the original texts of the Mitakshara vide Lal Ram v. Deputy 47 M.L.J. 260 : L.R. (1923) 50 I.A. 265 : A.I.R 1923 P.C 160. In Sindh, the Court refrained from entering into this debatable question vide Hassanand v. Denmal A.I.R. 1930 Sindh 174.

18. Golap Chandra Sarkar Sastri, the learned author, in his Hindu Law (8th Edition, 1940) at page 256, has made the following observations:

In Chapter I, Section I, paragraph 27 of the Mitakshara on Inheritance, Vyasa is cited thus:

Though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They, who are born, and they who are yet unbegotten, and they who are still in the womb, require the means of support; no gift or sale should, therefore, be made.

But, the Mitakshara in Chapter I, Section 4, paragraph 1 in the subject of Inheritance, says:

Whatever else is acquired by the coparcener himself, without detriment to the father's estate, as a present from a friend, or a gift at the nuptials does not appertain to the co-heirs.

The author of the Mitakshara in Chapter I, Section 6, paragraph 13, on the subject of Inheritance, relies on the following passage of Yajnavalkya which runs as follows:

But effects, which have been given by the father, or by the mother, belong to him on whom they were bestowed'-(vide Yajnavalkya, 2, 123).

The author of Viramitrodaya in Chapter VI, Section 5, states as follows:

Likewise, what has been given by the parents is not divisible by reason of the text of law - whatever has been given by the parents to anyone, becomes exclusively his property vide: Author's translation, page 251.

19. Applying the ordinary rule of interpretation of Hindu Law to the passage of the Mitakshara (Chapter I,

Section 1, paragraph 27), it seems that it lays down a rule of law which is not mandatory, but merely recommendatory, inasmuch as the law-giver states his reason in support of his rule. Therefore, on a consideration of the above passages, it seems that the gift of the self-acquired property of the father becomes the self-acquired property of the son, unless the donor limits the rights of the son in express terms.

20. The Sanskrit word for ancestral is...meaning, "belonging to"...This word father, means in the plural number, all the paternal male ancestors of the father in the male line, how high soever; accordingly...God the Creator, is called...meaning grand-father or grand ancestor of all persons; and the names of the great-grand-father and other ancestors are formed from that term by affixing some particle and words as...and son.

21. Accretions to ancestral property by purchase with the income thereof or otherwise, are deemed ancestral vide Umrit v. Gouree (1869-70) 13 M.I.A. 542. But property acquired by a member without detriment to the joint property out of the money given to the member by the managing member for his personal use, is his self-acquired property Vide Bengal v. Velayammal I.L.R. 1937 Mad. 990 : 45 L.W. 616 : A.I.R. 1937 Mad. 571. Mere purchase of a property out of the earnings of two brothers cannot be presumed to have been acquired by joint family funds in the absence of any evidence to the effect that the money earned by them was thrown into the common stock and treated as such Moti v. Bhagwan (1916) 35 I.C. 655.

22. Acquired property may be thus subdivided:

(1) What has been acquired with ancestral funds, i.e., accession to the family estates.

(2) What has been acquired not with the aid of joint ancestral funds but by the special personal exertion of any member (vide Share on partition, see post Section 11, Sub-section (iv), Double share).

(3) What has been acquired by the joint exertion of all the members; the exertion need not be of the same kind, for instance, if of two brothers one goes out to a. distant place and earns money there, and the other remains at home in charge of the family and the property of both, to take care of them, then any property acquired with the money earned by the first brother must be regarded as joint acquisition by both vide Haridos v. Narotam (1912) 14 Bom.L.R. 237.

(4) What has been acquired entirely by the personal exertion or influence of a member without any aid from, or detriment to, joint funds, or what is called self-acquired property.

(5) Self-acquired property allowed by the acquirer to be enjoyed by all the members in the same manner as if it were joint property, and so thrown into the common stock, otherwise it remains as the self-acquired property of the acquirer vide Mampershed v. Sheochurn (1863-66) 10 M.I.A. 505. "A member of a joint undivided family can make separate acquisition of property for his own benefit, and unless it can be shown that the business grew from joint family property, or mat the earnings were blended with joint family estate, they remain free and separate" vide Annamalal v. Subramanian (1929) 56 M.L.J. 435 : 29 L.W. 91 : A.I.R. 1929 P.C. 1. Sending monies regularly from the place of business for meeting the requirements of the family does not mean that the earnings were blended into common stock vide Ashutosh v. Tarapada A.I.R. 1934 Cal. 308 : 58 C.L.J. 372 and 388. A clear intention to waive separate rights must be established; vide Rajkishore v. Madan I.L.R. (1932) 13 Lah. 491, or it must be proved that it has been so dealt with as to lose its separate character vide Narayanaswami v. Ratnasabapathi (1937) 2 M.L.J. 906 : 46 L.W. 576 : A.I.R. 1938 Mad. 136. So, acquisition of property in the names of two brothers who live jointly will not clothe the acquisition with the law of joint family property unless it is thrown into common stock vide Couri v. Gopal A.I.R. 1934 All. 701.

23. But rebuilding a house on land belonging to joint family by a member is to be deemed as money thrown into joint stock if there was no intention of the person who spent the money to keep the superstructure separate from the site vide Chuni v. Radha A.I.R. 1924 Peshawar, 134.

24. Mixing up of funds accrued from both joint and self-acquired properties makes them both joint family property vide Krishnamachariao v. Challammal A.I.R. 1928 Mad. 561, but no such presumption arises when the person was separate and had no son vide Alavandar v. Danakoti A.I.R. 1927 Mad. 383. But common till or common bank account is itself not binding so long as accounts are kept vide Nutbehari v. Nanilal (1937) 2 M.L.J. 114 : A.I.R. 1937 P.C. 61 : (1937) 41 C.W.N. 613 and 620 (P.C). Self-acquired property treated as such does not lose its character as separate property vide Naina v. Daivani A.I.R. 1936 Mad. 177 : 43 L.W. 302.

25. Money acquired by a member at his marriage is his self-acquired property vide Adhar v. Nabin (1908) 12 C.W.N. 103; so also the wedding presents made to a woman are her separate property vide Thyalalambal v. Krishnan (1916)32 I.C. 955. So also property obtained by all the members of a joint family from stranger and managing the same by one is not tantamount to throwing into the common stock vide Venkayamma v. Cangayya (1933) 65 M.L.J. 703 : A.I.R. 1934 Mad. 16. Savings of an impartial estate by a holder of such estate during his incumbency, and property acquired with the same are considered as his separate or self-acquired property vide Maharajulungau v. Rajah (1869-70) 5 M.H.C.R. 31.

26. Property acquired by a member by inheritance from a collateral relation after litigation carried on with money taken from the large floating balance of the family business, is held to be self-acquired the money being taken as borrowed and subsequently replaced vide Bachcho v. Dharam I.L.R. (1906) 28 All. 347. Property received by the son by Will from his mother who again obtained the same by will from her husband who himself acquired the property, is personal property of the son vide Gohati v. Debendra (1908) 32 C.W.N. 272 : A.I.R. 1928 Cal. 285. In Bombay a son inheriting his mother's property who in turn inherited it from her father, is the absolute property of the son, so as to enable him to bequeath it by Will and not an ancestral property vide Manibhai v. Sankarlal A.I.R. 1930 Bom. 296. There can be no presumption that a joint family had any joint property or a nucleus.

27. The texts on ancestral property cited in the second Chapter of the Dayabhaga on ancestral property and the author's comments on them show that the father takes a qualified and not an absolute estate in it. They are as follows:(Sanskrit omitted).

Whatever land is acquired by the father's father, or a corrody or a chattel, therein the ownership of father and son is same - Yajnavalkya.

28. The Dayabhaga interprets this text to intend that the father cannot make an unequal distribution of ancestral property, as he can of his self-acquired property as appears from the following text Vishnu (Sanskrit omitted-Ed.)

29. If a father separates his sons from himself, his own will regulates the distribution in respect of his self-acquired property; but in the property inherited from the father's father, the ownership of father and son is equal.

30. The Dayabhaga admits that a father has no right to make an unequal distribution among his sons, because the ownership of father and son is equal, and maintains that these texts cannot mean that the father is entitled to the same share as a son or that a son can enforce partition: (Sanskrit omitted-Ed.) Of the gems, pearls and corals the father is master of even all; but of the entire immovable property neither the father nor the father's father is so - Yajnavalkys.

31. The author of Dayabhaga says that this text refers to ancestral property as the father's father is mentioned. According to this text, a father is incompetent to alienate immovable property, excepting a small portion not incompatible with the maintenance of the family; but he can alienate the whole property, if the family cannot be supported without so doing. Then he maintains that when a person is otherwise competent to alienate for legal necessity when the property is ancestral, and according to his pleasure when it is his self-acquired, the texts requiring consent of the co-parceners in the former case, and of the sons in the latter, should be held to impose a moral obligation, but not to invalidate an alienation made without such consent; because the nature of a thing cannot be altered by a hundred such texts as those requiring consent of other persons; by 'thing' is meant capacity to alienate. (Sanskrit omitted-Ed.)

32. But at a partition made in his lifetime, the father may take couple of shares" - Vrihaspati. "The father making a partition may set apart two shares for himself" - Narada).

33. These texts support that the father is entitled to a double share out of the ancestral property, if he separates himself from his sons. The author then adduces arguments supporting that the father is entitled to a double share not only out of the ancestral property, but also out a son's property acquired with the aid of family funds, and even to a moiety of a son's self-acquired property without such aid.

34. In the course of the argument, the following text of Brihaspati is cited (Sanskrit omitted-Ed.)

In property acquired by the paternal grand-father, immovable likewise movable, the parcenership of father and son is declared same-Vrihaspati.

35. The author says the meaning of this text is not that the shares (of father and son) must be equal, but that the partnership is same i.e., equal, so the father cannot make an unequal distribution at his pleasure as in his self-acquired property. Then he again cites the above text of Vishnu and explains it thus : The meaning of this text is "In the case of his self-acquired property whatever the father desires to reserve whether a moiety or two shares or three, all that is permitted to him by the law, but not so also, in the ancestral property."

36. After referring to other arguments the author sets forth his conclusion thus - "Therefore the meaning of the texts is, that a father himself may take a double share of the property descended to him in the regular course of inheritance from the paternal ancestors, as well as of the property acquired by a son; he is not entitled to more than two shares even if desirous. But of his self- acquired property he may take as much as he pleases."

37. It is difficult to understand how after a perusal of the above passages of the Dayabhaga, specially the last, it can reasonably be said that there is no distinction between the ancestral and self-acquired properties in Bengal as regards the father's power of disposal over the same.

38. The author of the Dayabhaga, notwithstanding his endeavour to explain away the texts which declare equal ownership of father and son in ancestral property and to indicate at one place that the ownership thereof is exclusively vested in the father, has, however, been constrained, by reason of the above texts, to admit some right of sons therein, by virtue of which the father's right is qualified to such an extent that he can neither alienate nor make unequal distribution according to his pleasure, nor appropriate absolutely more than two shares.

39. It is inexplicable how in 1831 long after the publication of Colebrooke's translation of the Dayabhaga the Judges of the Sudder Dewany could return to the Supreme Court the following certificate.

40. Case law - "On mature consideration of the points referred to us, we are-unanimously of opinion that the only doctrine that can be held by the Sudder Dewany Adwlut, consistently with the decisions of the Court and the customs and usages of the people, is, that a Hindu who has sons, can sell, give, or pledge without their consent, immovable ancestral property, situated in the province of Bengal; and that without the consent of the sons, he can, by will, prevent, alter or affect their succession to such property".

41. We are not aware what evidence there was of the customs and usages of the people, referred to by the Judges.

42. But it must be borne in mind that the above view propounded by the Judges of the Sudder Dewany has since been accepted and followed, and is now the law on the subject in the Courts of Justice.

43. Hardship when old father married to young wife-practically there is no distinction between a Mitakshara and a Dayabhaga joint family as regards the actual enjoyment of the family property by sons. As a man cannot have a better friend than his own father, above change of law does not prejudicially affect sons in Bengal in the majority of cases. But there are a few instances in which a great wrong is done, to sons by fathers under the undue influence of their young wives, to prevent which the restriction on the father's power over ancestral property is imposed by Hindu Law.

44. It is a notorious fact that the Hindus are still married by their fathers, at a time when they cannot, and do not, earn their own maintenance, and that the family property is looked upon as the hereditary source of the maintenance of the sons and their wives and children. It sometimes happens that the first wife of a man dies after presenting him several sons, the man then marries a girl of tender age. The children by the deceased wife look upon their step-mother with jealousy, and presuming upon the unusual affection naturally felt and shown by the father for his deceased wife's Children, as he is to them both father and mother, they do sometimes ill-treat and even insult her, when she is young. This ill-treatment and Insult make deep impression on her young mind, and she takes her revenge when she has by her charms of youth gained complete influence over her husband who must be considerably older than herself-by alienating the heart of her husband from them, more especially if she has herself become mother of children. And all this ultimately results in a deed or a Will whereby the sons by the deceased wife are either disinherited or cut off with a trifle. As this iniquity is the consequence of the erroneous view of the Dayabhaga law, the Courts of justice are called upon to remove the mischief introduced by them, A typical instance is according to popular notion, depicted by the great Hindu bard Valmiki in the Well-known Ramayana. The exile of Prince Rama, the eldest and beloved son by the senior wife, to live in forests like an ascetic for a period of fourteen years, was ordered by his father, the King Dasaratha, at the instance of a junior wife, although his love for Prince Rama was so great that he died of the grief of the separation from that prince who in obedience to his father's desire piously and cheerfully left the palace. And the reason assigned for this extraordinary conduct of the king is imagined to be, that is love for the prince was equal to that of life, but he loved the prince's stepmother, the younger queen, more than his own life. This is embodied in the following popular maxim. (Sanskrit omitted-Ed.) An old man's young wife is dearer to him then even his own life.

45. If the Courts of justice do, having regard to the character of the people, take this undoubted undue influence as undue influence in the legal sense, they would certainly do justice in many hard cases owing their origin to a misapprehension of the law, which appears to have been caused by Colebrooke's mistranslation of some passages of the Dayabhaga, bearing on the subject.

46. It is surprising as to how the Sudder Dewany Judges could, after perusal of the second chapter of the Dayabhaga, give the certificate cited supra. Probably it owed its origin to Colebrooke's mistranslation of some passages such as the following : (Sanskrit omitted-Ed.)

Dayabhaga, ii, 46-of which the following is literal translation-"Hence when thus by the aforesaid reasoning even the eldest brother is entitled to two shares of the father's estate (at a partition between brothers) why should not then the father who is the progenitor (of his sons), who is competent to give, sell or abandon (his sons), who is the root of the (son's) connexion with the father's father's property, and who is (as such) highly venerable, be entitled to two shares of his own father's wealth (at a partition between himself and his sons"). The words within the parentheses are not in the original.

47.The following is Colebrooke's translation of the above passage-"By the reasoning thus set forth, if the elder brother can have two shares of the father's estate, how should the highly venerable father being the natural parent of the brothers and competent to sell, give or abandon the property and being the root of all connection with the grandfather's estate, be not entitled, In like circumstancesm to a double portion of his own father's estate?"

48. The italicised (underlined) words are not in the original. The interpretation of the words "the property" is erroneous and renders the passage contradictory to what has been laid down by the author in the preceding paragraphs 20-26. In fact, the argument itself, put forward in the passage, would be ricidulous and a contradiction in terms according to Colebrooke's translation; to say that the father can alienate the property according to his pleasure, and to argue that he is entitled to a double share, would be simply absurd. The author really means what is declared by Vasishtha in the text cited at page 144 ante, namely, that the father is competent to give, sell or disown his sons, and not the ancestral property. By this erroneous translation, the Judges were misled into thinking that the father is competent to alienate ancestral property according to his pleasure, as is stated by them in the Certificate, a proposition hot dreamt of by the author of the Dayabhaga.

49. Joint family in Bengal - Although the joint family system which is the normal condition of Hindu Society, prevails in Bengal in the same manner as in other provinces, and although the real difference between the two schools with respect to ancestral property, is, that the author of the Dayabhaga, with a view to prevent the growth of disobedience in sons, deprived the sons of the right of enforcing partition against the father's will, and further provided two shares for the father in case he made a partition during his lifetime, while at the same time the author deprived the father of the power of capriciously and whimsically doing any injustice to the sons by declaring him incompetent to alienate or to make unequal distribution of, the ancestral property, or to take more than a double share on partition; yet, according to the view taken by the Courts of justice will respect to ancestral property, there cannot be a real joint family consisting of father and sons during the father's lifetime, inasmuch as joint property Which is the essence of the conception of joint family, would be wanting to make them joint vide Gouranga v. Mohdenra (1927) 46 C.L.J. 175 : A.I.R. 1927 Cal. 776. Nor can there be, according to the modern view, a real partition during the father's lifetime; for it must now mean neither more nor less than a gift of the property by the father to his sons vide Sarada v. Mahendran I.L.R. (1904) 31 Cal. 448.

50. So the position of affairs has become anomalous, owing to the divergence between actual practice and legal theory. But the evil consequences that might otherwise arise, are in the majority of instances prevented by the natural love and affection of father for his sons, the regard to which appears to have induced the Courts to confer on fathers rights not accorded to them by the commentaries on Hindu Law.

51. But when a son acquires property with or without the aid of the family property, then a father and his sons may be joint as regards such property. For, the father is, according to the Dayabhaga, entitled to a moiety of his sons's acquisitions even when made without any aid of the family property, and to two shares of such property when acquired with the aid of his estate, the acquirer being entitled to two shares, and each of the other sons to one share vide Lal v. Swarna (1909) 13 C.W.N. 1133. The right of the other sons in the latter case is the same, whether partition is made during the lifeime of the father or after his death. The latter rule can be accounted for only on the assumption of son's interest in ancestral property of the family. But the Calcutta High Court, without referring to any authority, has made a sweeping remark, namely, "under the Dayabhaga there cannot be a joint family consisting of the father and sons, because so long as the father is alive he is the master." vide Gouranga v. Mohendra (1927) 46 C.L.J. 175 : A.I.R. 1927 Cal. 776. And it is further held : "The sons may acquire separate properties of their own; but they have no concern whatsoever with the joint family property if any property can be so called during the life-time of the father.

52. The father, however, must, if he wishes to take a share of his sons's acquisitions, be willing to divide his property, if any, whether ancestral or self-acquired, according to the rules laid down in the Dayabhaga, which are now to be regarded as directory in other respects. It should be borne in mind that the question of shares arises only when there is disagreement, and in consequence disruption of the family by partition follows.

53. It is after the death of the father, that the sons may, agreeably to the modern view of ancestral property, really become members of a joint family. According to the theory of the Bengal School they become tenants-in-common, and not joint-tenants, in respect of the estate inherited by them from their father; but still their interests remain common as long as the family continues joint, community of interest being the criterion of jointness in both the schools. The agreement forming the foundation of Re-union, proves the true nature and character of joint family property under the Bengal school notwithstanding the title of the co-heirs being in severally, namely - "What is thine is mine, and what is mine is thine."

54. As regards what constitutes joint property, the enjoyment of the same by the members, the management of the same, the manager's powers and the presumptions, the law appears generally to be the same in the Bengal School as under the Mitakshara Vide Sarda v. Mahananda I.L.R. (1904) 31 Cal. 448 and Nagendra v. Amar (1903) 7 C.W.N. 725.

55. Joint acquisition and throwing into common stock : There cannot be any doubt that joint families do exist in Bengal consisting of father and sons, though it is held otherwise by the Court vide Gouranga v. Mohendra (1927) 46 C.L.J. 175. The view taken by the Courts, of ancestral property, which is contrary to the true intent of the Dayabhaga, has made it almost impossible that there should be a joint family of father and sons, unless they have joint property acquired otherwise than by inheritance; although this view is contrary to the actual usages prevailing among the Hindus of Bengal. But the view taken in some cases by the Judges, of what is really either joint acquisition, or thrown into the common stock, under all the schools of Hindu Law, is most anomalous and is likely to put an end to the joint family system in Bengal. A father purchases a piece of bare land by paying two hundred rupees as its price, one of the sons builds a house thereon apparently with the father's acquiescence, if not consent, at the expense of two thousand rupees out of his self-acquired money, and the house is treated arid used as the joint family dwelling house of the father and all the sons; in these circumstances there cannot be any doubt that under the principles of Hindu Law of joint families, the father as well as the sons would be entitled to the property, on the ground of its being joint acquisition of the father and the son, and of its being thrown into the common stock by reason of the enjoyment by all the members of the joint family as their family dwelling house and joint property the real test being the hopes and expectations raised by the conduct and treatment of the members by whom the property was acquired. But the learned Judges decided the case as it was one between strangers, without at all taking into consideration the law and usages of Hindus constituting a joint family vide Bejay v. Ashu (1909) 13 C.W.N. 306.

56. In the case Dharmadas v. Amulya I.L.R. (1906) 33 Cal. 1119 : 10 C.W.N. 765, what was held is, that a son building some rooms in the ancestral dwelling house with the father's consent, is not on that account entitled to reside in the house against the father's wishes when the peace of the family was disturbed by continuous family feuds, which could be restored only by his leaving the house.

57. In the case of brothers, the Privy Council has held that if a member of a joint family blends his self-acquired property with that of the joint family either by bringing his self-acquired property into a joint family account vide Suraj Narain v. Ratan Lal 33 M.L.J. 180 : L.R. (1917) 44 I.A. 201 : 26 C.L.J. 267 : 6 L.W. 509 : A.I.R. 1917 P.C. 12, or by bringing joint family property into his separate account the effect is that all the property so blended becomes joint family property vide Rajani v. Jagamohan 44 M.L.J. 561 : L.R. (1923) 50 I.A. 173 : I.L.R. 50 Cal. 439: 18 L.W. 389: A.I.R. 1923 P.C. 57. But clear intention to waive his separate rights must be established and will not be inferred from acts done from kindness and affection vide Rajani v. Bashiram A.I.R. 1929 Cal. 36).

58. The Allahabad High Court; In a case of the Dayabhaga school, has held that the presumption of the Mitakshara that acquisitions made in the names of individual members during their jointness are joint, is not applicable. It is incumbent on the persons to prove the existence of an original nucleus with the aid of which the property claimed as joint has been acquired vide: Govinda Chandra v. Radha I.L.R. (1909) 31 All. 477.

59. It is well-settled that any member of a Joint Hindu family could throw his self-acquired properties into the. common hotchpot. He must necessarily be a coparcener in order that he should throw his properties into the common stock so as to impress upon those properties the character of joint family properties. No formalities are necessary to show that there has been such renunciation by the acquirer in favour of the family. This act of the member is really not a transfer of any interest that the member has over the properties in favour of the joint family. The relevant question is only one of intention as to whether the coparcener intended to relinquish his individual rights in the properties in favour of the joint family. Such intention is to be gathered from the facts and circumstances of the case, vide: P.V. Rama Iyer v. Indira 1971 K.L.R. 578. It was also held in the above case-that normally a coparcener who has properties of his own may treat such properties as that of the joint family. In such cases there will be blending of his assets with the assets of the joint family. The property possessed by the joint family denoted by the term 'common stock' or the 'common hotchpot properties will be augmented by the conduct of the coparcener in throwing his own assets into the family. Therefore, though the term 'blending' may normally be suggested of an existing nucleus this does not necessarily mean that it is impossible to conceive of a coparcener treating his property as of the joint family unless it is shown that the family is already possessed of necleus. That is because the Hindu Law conceives of joint families without any property and what is required in order to convert separate property of a member into joint family property is only an unequivocal declaration by the member concerned which would indicate his intention to treat his property as that of the joint family. There is no reason why, when there is a coparcenary already in existence, though not possessed of properties, any member should not be able to < throw the acquisitions of his into the joint family. So long as there is the coparcenary there is a common hotchpot. May be there is nothing in the common hotchpot, but it can receive properties which may be thrown into it.

60. In K.V. Narayanan V. K.V. Ranganathan , the appellant and V, father of the respondents, were brothers. They, together with their cousin, formed a joint Hindu family. In a partition in 1929 between the two branches, certain properties were given to V for discharging some family debts. V took over the management of his branch of the family and after discharging the debts, filed in 1956 a suit for partition against the appellant claiming, inter alia, that one of the items earmarked for the discharge of the debts which remained undisposed of, was his exclusive property as it was given to him absolutely; and also for accounts on the ground that the appellant took over the management from 1938. The trial Court negatived the claim in respect of the property, but directed the appellant to give accounts from 1947 when admittedly he took over management. On appeal, the High Court upheld V's claim with respect to the property and gave modified directions for accounts by the parties. Dismissing the appeal preferred against the said Judgment of the High Court, the Supreme Court held that the properties given to V became his separate properties from the date of the partition deed of 1929 and were not liable to partition. The Supreme Court further held that there was no blending of the properties by V with other joint family properties and there was no evidence of any intention on V's part to abandon his separate rights over the properties. The mere fact that they were not separately entered by him in the account books or that no separate account of the earnings from them was maintained by him cannot, in the opinion of the Supreme Court, rob them of their separate character.

61. It has been laid down in Bipra Charan v. Mohan Sundar , that where; in a suit for partition, a party claims that any particular item of property is joint family property, the burden of proving that it is so rests on the party asserting it though circumstances may readily cause the onus to be discharged; to render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property be that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour; none of these alternatives is a matter of legal presumption; it can only be brought to the cognisance of a court in the same way as any other fact namely by evidence. It was further held in that case that it is no doubt well-settled law that property which was originally the separate or self-acquired property of a member of the joint family may become joint family property, if it has been voluntarily thrown by him into the common, stock with the intention of abandoning all separate claims upon it; a clear intention to waive his separate, rights must be established and it will not be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income from the separate property was used to support a son nor from the mere failure of a member to keep separate accounts of his earnings; so also, acts of generosity or kind less should not be construed as admission of legal obligations; separate property thrown into the common stock is subject to all the incidents of the joint family property. Thus, there must be something to show blending of such income with the joint family funds. The Court further held that the circumstance that an outsider was taken in as a partner in the business for a short period until he relinquished his interest in the business cannot, in any event, destroy the joint family character of the business and there is no bar to a particular joint family taking in an outsider as a partner of the joint family business.

62. In Pushpa Devi v. C.I.T. (1977) 109 I.T.R. 730 : (1977) 4 S.C.C 784 : 1977 Tax L.R. 1396 : A.I.R. 1977 S.C. 2280, the appellant before the Supreme Court, a female member of a Hindu undivided family, made a sworn declaration declaring unequivocally her intention to treat both her capital and her share hi a firm, which was Her absolute property, as joint family property of the Hindu undivided family and stating that she had abandoned for ever her separate interest and ownership over the capital and her share in the profits of the firm in favour of the family to be wholly and exclusively enjoyed and possessed by it. The question was whether the profits of the share in the firm was her individual income or the income of the Hindu undivided family. On a reference, the High Court held that the income was the income of the appellant on the ground that the right of blending could be exercised only by a coparcener and since the appellant, though a member of the joint family, was not a coparcener, she could not throw her separate property into the joint family stock. On appeal to the Supreme Court, the court called for a supplementary statement on the question whether there was a gift of the appellant's capital and share in the business of the firm in favour of the Hindu undivided family and the Tribunal submitted a supplementary statement finding that there was a gift by the appellant in favour of the family and that the latter had accepted the gift. The Supreme Court, affirming the decision of the High court, held that the right to blend was limited to coparceners and a female member of the joint family could not blend her separate property, even if she were an absolute owner thereof, with the joint family property and that, therefore, the income from the share in the firm was not assessable in the hands of the Hindu undivided family on the basis that the appellant had blended the property with the joint family property; however, by the declaration the appellant must be deemed to have made a gift of the properties mentioned therein to the Hindu undivided family and the income of the property gifted to the family had to be brought to tax accordingly. The Court has laid down the position thus: To blend, is to share along with others and not to surrender one's interest in favour of others to the exclusion of oneself. If a Hindu female, who is a member of an undivided family, impresses her absolute, exclusive property with the character of joint family property, she creates new claimants to her property to the exclusion' of herself because, not being coparcener, she has no right to demand a share in the joint family property by asking for a partition. The expression 'blending' is inapposite in the case of a Hindu female who puts her separate property, be it her absolute property or limited estate, in the joint family stock. It is well-settled that a Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in the joint or coparcenary property. There are the three generations next to the holder in unbroken male descendent.

63. In Anga Naicker v. Ponnuswamy (1981) 2 M.L.J. 51, it has been held that it is for the plaintiff to discharge the heavy onus that lies on him to prove that any property which he claims to be divisible belongs to the joint family. The existence of any property in the hands of any member of the family cannot be taken to be derived from the joint family assets. It has also been held there that there is no presumption that a business carried on by a member of the joint family is joint family business. In the absence of evidence to show that the business was built out of joint family funds, it has to be taken as the business of the member.

64. In Binod Bihari Lal v. Rameshwar Prasad , it has been observed as follows:

Having appreciated the entire facts and circumstances of the case, we think that the pleading that the properties were the joint family properties was sufficient to enable the Court to look into the evidence of blending, which was merely a historical aspect of the question as to how the properties had become joint family properties. The High Court has rightly held that the house at Sadisopore had become a joint family property because of blending, in support of which there was ample evidence. We need not repeat what has been stated in the judgment of the High Court in this regard.

The judgment of the High Court was also attacked in regarad to the orchard in village Semsara. But, we find no substance in the argument and no justification for bur interference with the finding of the High Court.

The basis of the doctrine of blending of self-acquired property with joint family property is the existence of coparcenary and coparcenary property as well as the existence of a separate property of a coparcener. The essential characteristic of blending is the existence of a clear intention of abandonment of all separate claims upon the separate or self-acquired property. It is not inferred from the mere fact of the owner allowing the other members of the family to use it jointly with himself. Acts of generosity should not be confused with admissions of legal obligation. In Jagat Krishna v. Ajit Kumar , it was held on facts, by following the above principle, that the property in question had blended with the ancestral property. The party who claims any particular item of property, to be joint family property, must establish it. The onus is on him not only to establish the existence of nucleus but to prove that the family had sufficient surplus income from the nucleus from which the acquisition could be made. The nature and value of the nucleus are of importance.

65. In Ranganayaki Ammal v. Srinivasan , it was held that in a Hindu Joint family, if one; member sues for partition on the footing that the properties claimed by him are joint family properties, then three circumstances ordinarily arise. The first is an admitted case when there is no dispute about the existence of the joint family properties at all. The second is a case where certain properties are admitted to be joint family properties and the other properties in which a share is claimed are alleged to be the accretions or acquisitions from the income available from joint family properties or, in the alternative, have been acquired by a sale or conversion of such available properties. The third head is that the properties standing in the names of female members of the family are benami and that such a state of affairs has been deliberately created by the manager or the head of the family and that really the properties or the amounts standing in the names of female members are properties of the joint family. It is by now well-settled that properties standing in the names of female members are their own unless there is definite clinching proof to the contrary adduced by the challenging member. It is not for the female member to prove bow she acquired the same. In ordinary cases also, where a plea of benami is set up, it is for the person who comes to Court to establish that the properties standing in the names of the other coparceners or members are joint family properties which stemmed from the joint family nucleus. While considering the term 'nucleus' it should always be borne in mind that such nucleus has to be established as a matter of fact and the existence 6f such nucleus cannot normally be presumed or assumed on probabilities. The extent of the property, the income from the property, the normal liability with which such income would be charged and the net available surplus of such joint family property do all enter into computation for the purpose of assessing the content of the reservoir of such a nucleus from which alone it could, with reasonable certainty, be said that the other joint family properties have been purchased unless a strong link or nexus is established between the available surplus income and the alleged joint family properties. The person who comes to Court with such bare allegations without any substantial proof to back it up should fail.

66. It was also held in the above case by the Division Bench that the burden is very heavy on the plaintiff to establish the existence of joint family nucleus. The mere lapse of time will not relieve him from discharging this obligation. The march and passage of time cannot be taken advantage of by the challenging coparcener and this by itself would not enable him to relieve himself of his legal duty to prove the obvious, namely, that the family was possessed of funds and there was sufficient joint family nucleus from which the further accretions were made by the member managing the same. In coming to the above conclusion, the Division Bench referred to the decisions in Mallosappa v. Mallappa , Basang v. Janaki Singh, , Naina Pillai v. Daivanai Ammal (1936) 43 L.W. 302 : A.I.R. 1936 Mad. 177, Narayana Raju v. Chamaraju , and mst. Rukmabai v. Lala Laxminarayan .

67. In Anga Naicker v. Ponnusami (1981) 2 M.L.J. 51, a Division Bench of this Court had held that it is for the plaintiff to discharge the heavy onus that lies on him to prove that any property which he claims to be divisible belongs to the joint family. The existence of any property in the hands of any member of the family cannot be taken to be derived from the joint family assets. There is no presumption that a business carried on by a member of the joint family is joint family business, in the absence of evidence to show that the business was built out by the member. Though the Court may raise an adverse inference against a party withholding evidence available with him by reason of excessive reliance on a technical plea regarding the onus of proof, still it is necessary to prove that the relevant account books were in existence and could be produced. In order that a property should lose its character as separate property and should assume the character of joint family property, there must be evidence to show that the owner voluntarily threw the property into joint stock with the intention of abandoning all separate claim on it, if all concerned documents embodied a conscious statement abandoning the individual right and conferring rights on the joint family. If there is no conscious abandonment of the individual rights, or the circumstances do not show that there could have been any conscious abandonment, then, it was held in that case, it would be futile to rely on" a vague statement made in such a document. While coming to the above conclusion, the Division Bench referred to Annamalal Chetty v. Subramaniam Chetty (1929) 56 M.L.J. 435 : A.I.R. 1929 P.C. 1, Randhi Appalaswami v. Randhi Suryanarayanamurthi (1947) 2 M.L.J. 138 : 60 L.W. 412 : A.I.R. 1947 P.C. 189, Srinivas Krishna Rao Kango v. Narayan Devji Kango, , Mudigowda Gowdappa Sankh v. Ramchandra Rovgowda Sankh , Ranganayaki Ammal v. S.R. Srinivasan , G. Narayana Raju v. G.-Chamaraju . Smt. Pushpa Devi v. The Commissioner of Income-Tax, , Murugesan Pillai v. Manickavasaka Desika Qnana Sambandha Sannadhi 32 M.L.J. 369 : (1917) L.R. 44 I.A. 98: I.L.R. 40 Mad. 402 : A.I.R. 1917 P.C. 6, Gopal Krishnaji Ketkar v. Mohamed Hajilatif , Bilas Kunwar v. Desraj Ranjit Singh 29 M.L.J. 335 : (1915) L.R. 42 I.A. 202 : A.I.R. 1915 P.C. 96, Mahabir Singh v. Rohini Ramanadwaj Prasad Singh (1933) 64 M.L.J. 413 : 37 L.W. 527 : A.I.R. 1933 P.C. 37, Subramania Iyer v. Commissioner of Income-Tax, , Duggirala Sadasiva Vtttal v. BollA Rattalu (1936) 43 L.W. 302 : A.I.R. 1936 Mad. 177, Periakaruppan Chetty v. Arunachalam Chetty (1927) 52 M.L.J. 571 : 25 L.W. 688 : A.I.R. 1927 Mad. 676, Mst. Ramrati Kuer v. Dwaraka Prasad Singh , Balakrishna v. Muthuswami 19 M.L.J. 70 : (1930) I.L.R. 32 Mad. 271 and Jonagadla Seethamma v. J. Veeranna .

The right of the father as head of the family is thus stated by Manu: (Sanskrit omitted.-Ed.)

A wife, a son and a servant-these three are declared to have no property; the wealth which any of them earns belongs to that person only.

Vide: Manu, VIII-416). Rama Jois, in his Legal and Constitutional History of India. Volume I, at page 225, has stated on this aspect thus:

The above rule of Manu is indicative of the authority of the father, But it may be seen that it is only limited to property. The rule only meant that wife, son, as also a slave, are dependents of the head of the family and they could not create a valid contract which was binding on the property of the father or personally. This rule, read with the rule which creatad right to property by birth, in favour of sons, unmarried daughters, Sridhana rights of wife, and the right of sons to demand partition of joint family property, shows that the right of father over ancestral property was limited though like every individual he had absolute right over his self-acquired property. In this respect, P.V. Kane states:

It has been stated by such an ancient writer as Sabarasvamin that this passage does not deny the ownership of the wife or son in what she or he earns, but is only intended to lay down that the wife or son cannot independently (without the consent of the husband or the father)' dispose of what she or he earns. This view of the text of Manu is accepted by the Dayabhaga as well as by the Mitakshara school. The latter holds on the analogy of the interpretation of Manu VIII, that the texts of Devala, Narada and Manu IX-104 which apparently deny ownership (Svamya) to the son during the father's life-time over property in the hands of the father are to be interpreted only as denying the son's power of independent dealing with such property during the father's lifetime or as referring to the self-acquisitions of the father.

The joint family under Roman law was very similar. But the head of the family called Pater Familias exercised unlimited authority over his descendants the filius families and such authority was described as Patria Potestas. The family system under Roman law was as under:

...The unit of society in Rome, at the beginning of its legal history, was not the individual but the family. The individual had no legal rights at all; all the rights which the law recognized concerned only the family and could be exercised only by the head of the family. The Roman family was very different from the modern European family; it was more like a joint Hindu family. It may be described as an agnatic patriarchal family. It consisted of all the descendants in the direct male line, of a living common ancestor who was {he head of the family and was known as the Pater Familias. The Unlimited Authority which he exercised over his descendants, the Filii Familiae, was called Patria Potestas. A Filius Familias Had no rights of any description; any property acquired by him passed to his Pater Familias; his liberty and life were at the disposal of the latter. The family, of which Pater Familias was a despotic ruler, was limited only to his agnatic descendants. A daughter was a member of her father's family only so long as she was unmarried. On marriage she passed into the POTESTAS of her husband's Pater Familias, grid her children belonged to her husband's family.'

On this aspect, Leage's Roman Private Law say-

Everywhere law gives the father certain rights and powers with respect to his children, but nowhere are they comparable in developed systems with the Roman institution of Patria Potestas, whether in extent or in duration, which continued through out life. It had two main aspects: (1) as regards the child's person and (2) as regards its property.

There was a similarity in the membership of joint family under the Roman law and the Hindu law. But the difference was, unlike the unlimited authority given to the Pater Familias over the life and liberty of the Filius Familias, a Hindu father was not given the power to deal with the life and liberty of the members of his family as he pleased. As regards Joint family property he enjoyed some better powers, but not absolute and that too, only till partition. Comparing the power of Patria Potestas under Roman law with that of a Hindu father under ancient Indian law, there can be no doubt that the authority of the Hindu father was very much limited. As head of the family, he used to have his final voice in family matters including the affairs of family property. He had neither authority nor had he any legal authority to inflict bodily injury. Such an act would have attracted the provisions of the penal law of the land. Inflicting bodily injury, as a measure of penalty only when a person was found guilty of a punishable offence, was the prerogative of the king (State).

Shatapatha Brahmana. XII 2-4: (Sanskrit omitted J1 Ed.)

In their childhood sons subsist on their father, while in old age, father subsists on the sons. (Gopatha Brahmana, IV-17 is also similar.)

In Kausitaki Br. Upanishad II. 15, it is stated : (Sanskrit omitted - Ed.)

Where the father expecting death hands over possession of his wealth to his son, but recovers from illness, he has to remain under the son's dominion.

The above provisions also indicate that a son could be named as the manager even where father was alive and that the father had certain special powers relating to the management of family property only as long as he remained as manager, but after he ceased to be the manager, he enjoyed no such powers.

On the rights of the members of a joint family, the learned author has stated thus:

Among the members of a joint family, only male lineal descendants up to three generations were given the right to the property and not the females. Some limited rights were given to unmarried daughters and widows, joint family consisted of all male members of the family, their wives and sons, and unmarried daughters. Both the recognition of the right of the sons by birth as also the exclusion of females from membership of joint family after marriage, were based on the right to perform ancestral worship as also the family system adopted by the ancient society.

Unmarried daughters were recognised as members of the joint family till their marriage. According to the jaw of marriage, the marriage ceremony consisted of gifting the maiden (Kanyadana) to the male member of another family, with whom the marriage was fixed. From the moment a daughter was given by way of gift to another family; after following the solemn marriage ceremony, she ceased to be a member of the family in which she was born and simultaneously became the member of the family to which she was given in marriage. Accordingly, she would leave the residence of her parent's house,, to reside with her husband in his family. Therefore, the position was, while a male member continued to be the member of the family of his birth for the whole life, a female retained her membership in the family of her birth' only upto the time of her marriage and thereafter, for the rest of her life, she became the member of the family of her husband. This system prevails even to this day.

68. The point that confronts us now is whether the contributions by the plaintiff, set out in the plaint, are true and whether the admitted joint family properties were adequate nucleus as contemplated by law. The plaintiff has filed the present suit for partition and separate possession of his one-third share in the suit properties and for directing the defendants to render accounts of the income derived from the suit properties and pay such share as may be found due to the plaintiff. The suit properties consist of twelve items and they are situated in the village of Kondiampettai and Thiruvalar in Tiruchirapalli taluk and district. Items 1 to 11 are immovable properties and item 12 is the Samudayam right in the suit village. Items 1 to 3 are admittedly joint family properties, while items 4 to 11 were purchased in the name of Maruthai. The plaintiff, Marimuthu arid Maruthai are brothers. Marimuthu died in 1972 leaving defendants 4 to 9 as his heirs, while Maruthai died in 1975 leaving, defendants 1 to 3 as his heirs. The plaintiff's case is that since Marimuthu was of unsteady mind and undesirable habits, Maruthai was constituted as the manager of the joint family consisting of the plaintiff and his two brothers. Marimuthu was employed as a conductor and later as a driver in Vinayaka and T.S.T Bus Services at Tiruchi and he also contributed his savings to Maruthai. The plaintiff was employed in the Railways in 1952 and he made substantial contributions from his salary and allowances to Maruthai for the purpose of acquiring properties for the benefit of the family.

69. It is also relevant to note that it is the case of the plaintiff that an extent of 4 acres was taken on lease by the father of the plaintiff and his brothers from one Venugopala Reddiar's estate and the plaintiff's father Sangili was cultivating it as lessee and the said leasehold right continued to be in the family even after the death of the plaintiff's father and the income from this source also was utilised for making further acquisitions of properties for the benefit of the family. Thus, items 4 to 11 of the suit properties, according to the plaintiff, were purchased in the name of Maruthai only from out of the contributions made by the plaintiff and Marimuthu and out of the income drived from the leasehold hands and also from the income from items 1 to 3 and the properties purchased then and there. Defendants 4 to 9 supported the plaintiff's case and they also paid the necessary court-fee for partition and allotment of their 1/3rd share to them. Items 4 to 11 of the suit properties, may be briefly indicated. Items 4 to 16 are a house property valued Rs.500/- and two extents of land measuring 1.27 acre and 88 cents in Kondiampettai village in Tiruchy taluk. Item 7 comprises three items of nanja land measuring in all 1.41 acres. Items 8 and 9 are nanja lands measuring in all 1.54 acres situate in the very same Kondiampettai village and item 10 is a land of 95 cents in Thiruvalarsolai village, while Item 11 is a piece of vacant plot in Srirangam municipal limits.

70. Defendants 1 to 3 alone contested the suit and their case is that items 4 to 11 were purchased by Maruthai only from out of his earning and hence they are his self-acquired properties. They admitted the fact that the plaintiff sent his earnings occasionally-to Marimuthu with a direction to hand them over to his father-in-law who purchased properties for the benefit of the plaintiff. The main controversy in this matter, therefore, resolves round the question whether items 4 to 11 are properties purchased from out of the contributions made by the plaintiff and Marimuthu as alleged by the plaintiff, and the burden is, naturally, on the plaintiff, to prove that, he had substantially contributed with his brother Marimuthu for purchasing properties and that the said items 4 to 11 were purchased in the name of Maruthai for the benefit of the joint family.

71. The plaintiff examined himself as P.W. 1. P.W. 2 is his father-in-law. Exs. A1 to A28 were marked in proof of the plaintiff's case. The defendants examined four witnesses including the second defendant (D.W.I) and marked Exs. B1 to B52 on ' their side. The evidence of P.W.I discloses that he was employed in the Railways since 1954 and he sent moneys to his brother Maruthai from Hubli where he was employed by bank drafts on some occasions and also by cash on other occasions in person when he came to Hubli or when the plaintiff went to the village. Ex. A9 is a letter dated 2.6.1976 written by the State Bank of India, Hubli to the plaintiff. It appears from that letter that the registers relating to the period 1963-64 were destroyed. The further particulars given in Ex. A9 would reveal that the plaintiff had sent Rs. 2,000/- on 24.6.1967, Rs. 500/- on 19.6.1968 and Rs. 3,000/- on 18.12.1970. This shows that a sum of Rs. 5,500/- in all had been sent by the plaintiff to his brother Maruthai in 1967, 1968 and 1970.

72. The case of the contesting defendants is that the moneys sent by the plaintiff to Maruthai were handed over then and there to P.W.2 who had purchased properties for the benefit of the plaintiff. Ex. B9 is a registration copy of the sale deed 6.9.1967 and the same shows that P.W.2 had purchased an exten.t of 48 cents of nanja land and other properties for Rs. 5000/-.

73. Incidentally, it has to be observed that no reason has been offered as to why the original of Ex. B9 has not been filed in the trial Court, either at the time of the institution of the suit, or at the time when the relevant witness was examined. No notice seems to have been given for the production of the original document from the person who is in lawful custody of the document. Since no serious objection has been taken by the other side even here, this Court does not want to reject the same as not having been proved in accordance with the strict principles of the law of evidence. Anyhow, the contents of Ex. B9 cannot be rejected merely on the ground that it is a registration copy.

74. P.W. 2 has completely denied the fact that Maruthai had handed over any money to him to purchase lands for the benefit of the plaintiff. It is not the case of the contesting defendants that P.W.2 is a man of no means. If P.W.I had really intended to purchase lands for his own benefit with the help of P.W.2, he would have sent the drafts directly to P.W.2. There is absolutely no reason for P.W.I to have sent drafts to his brother Maruthai with a direction to pay the same to P.W.2 for purchasing lands for the benefit of the plaintiff. Therefore, it is clear that P.W.2 would have purchased lands under the original of Ex. B9 only out of his own money and not out of the moneys sent by P.W.I to Maruthai. In this regard, it should be remembered that the contention of the contesting defendants is that the jewels of the plaintiff's wife were pledged in a Bank and the same were redeemed by Maruthai put of the moneys sent by the plaintiff. But, there is, however, no document to prove this aspect. Ex. A13 is a letter dated 13.7.1967 written by Maruthai to the plaintiff and the same shows that' Maruthai has acknowledged receipt of the draft sent by the plaintiff and encased the same. Thus, Exs. A9 and A13 as well as Exs. A25 to A28 go to show that P.W.I had sent moneys by bank drafts to Maruthai during the time mentioned therein and that items 10 and 11 of the suit properties were purchased in the name of Maruthai after receipt of the draft by Maruthai from P.W.I. What is more, the cogent, convincing and trustworthy evidence of P.W.I clearly proves that he sent moneys to Maruthai every year either by bank drafts or in person, both at Hubli, his place of employment and at the suit village. The payments made by P.W.I to Maruthai in person cannot be proved. He was in the Railway service since 1954. He entered service as Fireman and was later promoted to the rank of Grade I Engine Driver, and so, it is not improbable that he was able to save substantial amounts from his salary income and send the same to his brother as and when occasion arose. Since no document is available at the office of the State Bank of India as they were destroyed as per rules, the plaintiff could not prove the fact that he sent moneys to his brother Maruthai by bank drafts prior to 1967. Therefore, the conclusion arrived at by the lower court in this regard is correct and in accordance with law.

75. So far as the question whether the admitted joint family properties were adequate nucleus as contemplated by law, is concerned, it is seen that the specific case of the plaintiff is that the income from the ancestral joint family properties was also utilisesd for purchase of lands. Items 1 to 3 of the plaint schedule are admittedly joint family properties. Item 1 is a house, while item 2 is a house-site and item 3 is a land measuring 29 cents with trees thereon, and therefore, the family could not have derived substantial income from these properties. It is clear, therefore, that the income from the ancestral joint family properties cannot be said to be adequate to purchase other properties. Therefore, the conclusion of the lower Count on this aspect is also correct and in accordance with law.

76. As regards the question whether items 4 to 11 are the self-acquired properties of Maruthai, the specific case of the contesting defendants is that these items were purchased by Maruthai only from out of his own earnings and so, they must be considered to be the self-acquired properties of Maruthai, and therefore, the plaintiff and defendants 4 to 9 cannot lay claim to any share in those items. It is for the contesting defendants to prove that they were purchased by the. personal earnings of Maruthai. According to defendants 1 to 3, Maruthai was cultivating the lands if Vehugopal Reddiar and he was deriving enormous income from the leasehold lands. Their further case is that Maruthai was also running a brick-kiln and from the business of manufacture' of brick he was earning huge profits. Thus these defendants would contend that Maruthai had purchased items 4 to 11 from his earnings from the leasehold lands as well as the brick-kiln business. The question to be determined is first whether Maruthai was cultivating any land at all on lease. The defendents have marked Exs. B17 to B21 on their side to prove that Maruthai had been cultivating lands on lease from various persons. Exs. B17, dated 26.4.1965 is a lease from one Nagarathinam Pillai, which shows that Maruthai had cultivated his lands on an annual rental of 54 kalams of paddy a year. But, there is no record to show that either before or after 1965 he was cultivating the said lands.

77. The next document which requires consideration is exhibit B.12 which is a notice issued by one Yeshodhai Animal, wife of N. Ramadurai Reddiar, to the second defendant on 12.10.1978. It is seen from this document that an extent of 3,77 acres was originally under the lease of Maruthai Mooppan and then in the possession of D.W.1 as lessee. Ex. B18 further shows that out of the said 3.77 acres, 2 acres was sold to one P. Rajendran and therefore, D.W. 1 was. directed in the notice to attorn the tenancy to Rajendran with respect of the 2 acres conveyed to him and pay the rental to him. The contents of Ex. B.18 notice given by Yeshodhai Ammal to the second defendant are that an extent of 3.77 acres belonging to Yashodhai Ammal was originally under the enjoyment of Maruthai as lessee and then under the enjoyment of D.W.I, the second defendant.

78. D.W. 1 has stated in his evidence that Yasodhai Ammal mentioned in Ex. B18 is the daughter of Venugopala Reddiar. Admittedly, Maruthai was cultivating an extent of 4 acres of Nanja land as lessee of Venugopal Reddiar. The plaintiff's case is that the said extent of land was originally in the possession and enjoyment of his father Sangili as a lessee and then the leasehold right continued to be in his family. The contesting defendants have not produced any lease deed executed by Maruthai in favour of Venugopal Reddiar or any member of his family. The plaintiff's father died in 1950. Ex. B51 is a registration copy of the sale deed dated 5.7.1937 executed by Maruthai in favour of the plaintiff's father, Sangili, for Rs. 100/- under which Sangili had purchased items 2 and 3 of the suit properties. Relying on the fact that Sangili had been described as a cooly in that document, it was contended by the contesting defendants that Sangili was never a lessee under Venugopal Reddiar. But it would appear from the recitals of Ex. B51 that Sangili had advanced money under promissory note to the vendor under Ex. B51 long prior to the document and in discharge of that debt, items 2 and 3 of the suit properties were sold to Sangili by the vendor. The fact that Sangili was in a position to advance a sum of Rs. 100/- in those days, which amount is several times more valuable then a hundred rupees of the present day, would clearly show that Sangili was not eking out his livelihood by his sole profession as a cooly, but must have also been cultivating some land on lease, and earning profits. It is clear from the evidence of P.W.I that Sangili was cultivating on lease an extent of 4 acres belonging to Venugopala Reddiar. The plaintiff's case is that the said extent of land was originally in the possession and enjoyment of his father Sangili as a lessee and then the leasehold right continued to be in his family. The contesting defendants have not produced any lease deed executed by Maruthai in favour of Venugopal Reddiar or any member of his family. The plaintiff's father died in 1950. Ex. B51 is a registration copy of the sale deed dated 5.7.1937 executed by Maruthai in favour of the plaintiff's father, Sangili, for Rs. 100/- under which Sangili had purchased items 2 and 3 of the suit properties. Relying on the fact that Sangili had been described as a cooly in that document, it was contended by the contesting defendants that Sangili was never a lessee under Venugopal Reddiar. But it would appear from the recitals of Ex. B51 that Sangili had advanced money under promissory note to the vendor under Ex. B51 long prior to the document and in discharge of that debt, items 2 and 3 of the suit properties were sold to Sangili by the vendor. The fact that Sangili was in a position to advance a sum of Rs. 100/- in those days, which amount is several' times more valuable then a hundred rupees of the present day, would clearly show that Sangili was not eking out his livelihood by his sole profession as a cooly, but must have also been cultivating some land on lease, and earning profits. It is clear from the evidence of P.W. 1 that Sangili was cultivating on lease an extent of 4 acres belonging to Venugopal Reddiar. The Cultivating Tenants' Protection Act had not come into force at the time and hence it is probable that Sangili would not have executed any lease deed in favour of Venugopal Reddiar. The plaintiff's brother Marimuthu was admittedly employed as driver in various bus transport companies and similarly, the plaintiff was employed in the Railways since 1954. It is probable, therefore, that Maruthai alone remained in the suit village as he had no employment, and hence he must have been in enjoyment of the leasehold lands after the life-time of Sangili. The same lands are still in the cultivation of the family. Under these circumstances, Maruthai or his heirs cannot lay any claim exclusive of the other members of the family in the leasehold rights in the lands taken on lease from Venugopal Reddiar.

79. Ex. B19 is another document relied on by the contesting defendants in support of their claim. In this regard, this Court wishes to repeat what it has observed in relation to the induction of certified copies of documents in place of original documents without any explanation whatever as to who is in custody of the original or whether the original has been got destroyed or lost. However, since no serious objection has been taken by the other side to Ex. B19, which is a certified copy, being marked in evidence, and as to its admissibility, the contents of the same are taken as evidence and discussed. That to a certified copy of a lease chit dlted 13.7.1958 executed by Maruthai in favour of one Lakshmana Raja with respect ff an extent of 5.30 acres of land on an annual rental 6f 107 kalams of paddy, Ip is seen from the evidence that the said Lakshmana Raja had filed a suit against Maruthai for damages on the ground that the said Maruthai had built a brick-kiln in the leasehold land and caused damages. Ex. B20 is the printed copy of the judgment in O. &. NO. 124 of 1960 filed by Lakshmana Raja in the court of the District Munsif of Tiruchirapalli. The above said Lakshmana Raja had filed another suit, O.S. No. -28 of 1964 in the Court of the District Munsif, Tiruchirapalli, for recovery of arrears of rent from Maruthai which were due for the years 1961-62 and 1962-63. Ex. B21 is a true copy of the plaint in the said suit. Thus, these documents, viz., Exs. B19 to B21, would go to show that Maruthai had taken on lease an extent of 5.30 acres from Lakshmana Raja on an annual rental of 107 kalams of paddy and was in enjoyment of the same from 1958 to 1964. Mr. V. Krishnan, learned Counsel for the appellants, has criticised the. contents of paragraph 12 of the judgment of the lower Court and stated that the contentions raised by the appellants have to be upheld and the appeal allowed. This Court does not find any infirmity in the discussion made by the lower Court in paragraph 12 of its judgment with respect to Exs. B22 to B38. The contesting defendants, viz., defendants 1 to 3, relied on those documents to prove their case that Maruthai was manufacturing bricks and earning money by sale of bricks. Ex. B22 is a promissory note dated 15.5.1963 for Rs. 7,500/- executed by Maruthai in favour of one Ananda Pandithar. Exs. B25 to B36 are various promissory notes executed by various brick-makers in favour of Maruthai from, the year 1957 to 1965. Ex. B22 has been filed to prove that Maruthai had borrowed the sum of Rs. 7,500/- for purchasing lands and manufacturing bricks, and that he had discharged the said debt by payments under Exs. B23 and B24. Ex. B37 is a Minutes book maintained by the Brick Manufacturer's Cooperative Society of the suit village and the same has been filed to show that Maruthai has signed therein as one of the brick manufacturers. Ex. B38 is an agreement executed by Maruthai agreeing to purchase a brick-kiln from one Hiranyappan for Rs. 6,000/-. Though these documents have not been criticised on behalf of the plaintiff as being not genuine documents and though they prove to some extent that Maruthai had a business in manufacturing and selling bricks, and. though Exs. B17 and B19 to B21 had been filed to show that he had been cultivating the lands belonging to others on lease, it has not been proved by independent evidence that he had earned huge profits from these business and agricultural activities so as to purchase the suit lands.

80. Now, coming to the various letters that were exchanged between the plaintiff and Maruthai, Exs. A10, All and A14 are letters written by the plaintiff to Maruthai and Exs. A12, A13 and A15 are letters from Maruthai to the plaintiff. The plaintiff reliedr...on these documents to prove that he and his brothers were living jointly. Ex. A10 is a letter dated 25.2.1957 written by the plaintiff to Maruthai from Poona. This is addressed to both the brothers of the plaintiff and their wives, wherein, the plaintiff has stated that he was unable to send money to the family. The further recitals in this letter show that the plaintiff had enquired about the second crop in the lands and about the harvest and the profits derived by the family therefrom. He has also requested his brothers in this letter to pay attention to the studies of the second defendant (Durai) and the seventh defendant (Mani) who were then children. The second defendant is the son of Maruthai while the seventh defendant is the son of Marimuthu.

81. The next letter is Ex. A11 dated 17.1.1960. A perusal of this letter would reveal that it was addressed by the plaintiff to both the brothers. The following passage in that letter is significant in that the plaintiff was interested in seeing to it that no partition took place in the family. This is what is stated therein:

In Ex. A14 dated 25.4.1968, addressed to Maruthai, the plaintiff has stated as follows:

The above recital shows that the family was joint till 1968 and the author of the letter, Ex. A14, was very much interested in advising Maruthai through the letter to look after the family as before. In other words, the contents of Ex. A14 shows that Marimuthu did not pay attention to the interests of the family and the plaintiff had advised him to work in any place or to do the work in which the members of the family were engaged. There is absolutely no ground for not construing the word 'family' mentioned in this letter as pointing to the joint family consisting of the plaintiff and his two brothers. Thus, we find that Exs. A11 and A14 specifically prove that the plaintiff and his brothers were living jointly till 25.4.1968, when items 4 to 10 of the suit properties were purchased in the name of Maruthai. It -should be noted that the only item purchased after the date of this letter, i.e. 25.4.1968 is item 11 and it has been purchased for Rs. 250/-. P.W. 1's evidence would show that when he came to the suit village after Maruthai died, he had got the letters, Exs. A10, A11 and A14. Exs. A12, A13, A15, A21 and A24 are the letters written by Maruthai to the plaintiff. Ex. A12 does not bear the date, but the postal seal thereon. would, reveal that it must have been written on 29.6.1967. This letter shows that Maruthai had acknowledged receipt of the draft sent by the plaintiff. Maruthai had said in that letter that he had thought of writing to the plaintiff after the document with respect to the land of Narayanaswami was registered, but however, that could not fructify. This letter written by Maruthai to the plaintiff would show that the plaintiff was in the habit of sending drafts to Maruthai for purchase of lands.

82. Similarly, Ex. A13 is another letter written by Maruthai to the plaintiff, in which also Maruthai had acknowledged receipt of the draft sent by the plaintiff and had stated that the sale deed for Narayanaswami's lands had not been registered, and that he (Maruthai) would inform him when it got registered. Ex. A15, the letter dated 30.3.1970 is one addressed by Maruthai to the Civil Supplies Commissioner for the issue of a permit for sending rice to the plaintiff. EXS. A16 to A20 are the permits issued by the District Collector, Tiruchirapalll for sending rice from Tiruchy to Hubli where P.W. 1 was employed at that time and they would prove that Maruthai had sent 3 quintals of rice to the plaintiff in 1966, 1967, 1970 and 4 quintals; of rice in 1972. It was contended for the contesting defendants In the trial Court with reference to these exhibits, that Maruthai had sent rice to the plaintiff only out of brotherly affection and that could not be taken advantage of by the plaintiff to contend that the family was joint. But, if really Maruthai had sent the rice only out of brotherly affection, he would have sent only lesser quantities, and not such large quantities as 3 quintals and 4 quintals. In paragraph 13 of his judgment the learned trial Judge has observed that the letter written by Maruthai under Ex. A21 on 7.1.1971 had proved that Maruthai had received the draft sent by the plaintiff and had encased the same on 24.12.1970 and discharged their debt to the tune of Rs,5,000A. The reference to 'their debt' iv Ex. A21 would only mean the debt due by the family consisting of the plaintiff and his brothers Exs. B39 to B41 are the promissory notes executed by Marimuthu for Rs. 500/-, Rs. 500/- and Rs. 300/- respectively and they are respectively dated 28.6.1970, 12.7.1970 and 18.12.1969. Ex. B42 shows that under that endorsement, Maruthai discharged the debt due under the promissory note, Ex. B41, on behalf of Marimuthu. D.W. 1 in his evidence would state that the promissory notes executed by Marimuthu under Exs. D39 to B41 were discharged by his father Maruthai because the creditors were pressing for full payment of the debts from Marimuthu. But, whatever the explanation is that D.W.I had given, the fact remains that Maruthai had discharged the debts incurred by Marimuthu and this, in turn, would suggest that the family was joint till 1972 when Marimuthu died, what is more, it is not in dispute that Maruthai had been sending rice to the plaintiff and discharging the debts incurred by his brother Marimuthu. All this would clearly show that the family was joint. Items 4 to 11 were purchased at a time, when, admittedly, Marimuthu was employed as a driver in various bus transport companies and he and Maruthai were living in the same house. This shows that Marimuthu also should have contributed his income and enabled Maruthai to purchase properties in his name for the benefit of the family, and the learned trial Judge was not wrong when he came to the conclusion that Marimuthu had also contributed for the purchase of property by Maruthai in his name for the benefit of the family. The letter, Ex. A14, written by the plaintiff to Maruthai would show that Marimuthu was not competent to manage the affairs of the family, and the letters exchanged between the plaintiff and Maruthai would prove that Maruthai alone was competent to manage the family. The other documents produced by the contesting defendants also prove that Maruthai had also been earning independently and so, he would also have contributed his income for purchasing properties in his name for the benefit of the family, in addition to utilising his income for purchasing properties in his own name independently. In these circumstances, we find that items 4 to 11 of the suit properties must have been purchased only from out of the joint contributions of all the three brothers and also from the income derived from the land taken on lease from Venugopal Reddiar. Thus, we conclude that items 4 to 11 are joint family properties of the plaintiff and his brothers and the entire suit properties are available for partition and the plaintiff is entitled to 1/3rd share while defendants 4 to 9 are entitled to get another 1/3rd and defendants 1 to 3, to the remaining 1/3rd share. The trial Court was therefore correct in having granted a preliminary decree for partition of the suit properties into three equal parts and for allotment of one such share to the plaintiff-respondent and another one-third to defendants 4 to 9. The direction by the lower court is also proper when it directed defendants 1 to 3 to render to the plaintiff and defendants 4 to 9 a true and proper account of the income derived by them from the suit properties from the date of suit till the date of delivery of possession of their respective shares to them. The decree of the trial Court being thus in accordance with law, this Court finds no merit in the appeal warranting interference with the said decree. In the result, the appeal fails and is dismissed. The costs of the appeal will come out of the estate.