C. Sankaranarayana Mudaliar vs Tangaratna Mudaliar and Others

Anantakrishna Ayyar, J.—Plaintiff''s claim for partition of some items of property which he alleged to be joint family property, though

allowed by the first Court was disallowed by the lower Appellate Court. He has accordingly preferred this second appeal claiming a share in those

properties.

The plaintiff and defendant No. 3 are the sons of defendant No. 1 by his wife, who died in 1834. Defendant. No. 2 is the son of defendant No.

1 by his second wife, who has been made defendant No. 6 in the case after the death of defendant No. 1 during the pendency of the suit.

The plaintiff claims a share in the properties on the ground that (a) the presumption of Hindu Law is that all properties standing in the name of

any member of the joint family joint family property, and the onus of proving the same to be the self acquired and separate property of any member

is upon him, (6) the properties in dispute were acquired by defendant No. 1 with the aid of the sale-proceeds of the ornaments of the plaintiff''s

mother (worth about Rs. 600) and also out of the moneys which belonged to one Thangathanni it being alleged that Thangathanni was the

deceased paternal aunt of defendant No. 1, and that she orally bequeathed Rs. 6,000 to defendant No. 1 and his sons.

The first Court upheld the contentions of the plaintiff with reference to ground No. 2 (b) put forward by him as it was satisfied from the evidence

that defendant No. 1 could not have made these acquisitions from his earnings as a clerk or manager of an estate under the Court of Warde; and

on the evidence it found that the acquisitions were made out of the moneys mentioned by the plaintiff. As regards ground No. 1 (a) put forward by

the plaintiff the trial Court observed as follows:

The case in Muthan v. Puniakoti Mudaliar 31 Ind. Cas. 18 is authority for the proposition that, where one member of a joint Hindu family acquires

property without the aid of ancestral or joint family funds, the property acquired will, in the absence of any indication of intention to the contrary,

be owned by him as joint family property. It has been held in Krishnaji v. Paramanand 49 Ind. Cas. 240, that the presumption of jointness in

respect of property subsequently acquired by each member of a joint Hindu family is not rebutted by the fact that the ancestral assets were small in

proportion to the value of the subsequent acquisitions.

The trial Court accordingly held that the plaintiff was entitled to a share in the disputed items of properties also. On appeal by defendant No. 1''s

legal representatives (defendants Nos. 2 and 6), the lower Appellate Court held that the plaintiff was not entitled to a share in the items in dispute;

and hence the second appeal by the plaintiff.

The learned Advocate for the appellant contended that both the grounds on which the District Munsif decreed the claim of the plaintiff with

reference to these items were tenable, that the presumption of Hindu Law was as held by the District Munsif, and that the onus was on defendant

No. 1 to prove his plea of self-acquisition. He also argued that there was no legal evidence to support the finding of the lower Appellate Court that

the properties were the self-acquisitions of defendant No. 1. He further urged that the lower Appellate Court was wrong in holding that the

plaintiff''s case about Thangathanni having gifted Es, 6,000 to defendant No. 1 and his sons was not proved.

I think that the findings of the lower Appellate Court that Thangathanni was not shown to have possessed Rs. 6,000 and that it was also not

proved that she gifted the same to defendant No. 1 and his sons as alleged by the plaintiff, are findings of fact binding on me in second appeal. No

doubt there is the evidence of P.W. No. 1; among others, to support the plaintiffs allegation, as also some other oral and documentary evidence.

But the question turned on appreciation of evidence, and I am not in a position to say that the findings of fact arrived at by the lower Appellate

Court are not binding on me in second appeal. The lower Appellate Court has considered this question elaborately in several paragraphs of its

judgment (paras. 18 to 28), The lower Appellate Court also held against the plaintiff''s plea that defendant No. J. utilized the sale-proceeds of his

first wife''s jewels worth about Rs. 500 for purchasing the items in dispute. I have to accept the said findings of the lower Appellate Court. [His

Lordship discussed the evidence and proceeded.]

It is not the case of the parties that defendant No. 1 threw his acquisitions into common stock or converted the separate property into joint

family property. I proceed to consider the next contention raised by the learned Advocate for the appellant about the correct presumption of Hindu

Law to be made with reference to the ownership of property standing in the names of a co-parcener of a joint Hindu family. He cited the cases

reported as Dhurm Das Panday v Shamsoondari Debiah 3 M.I.A. 229 : 6 W.R.P.C. 43 : 1 Suther. 147 : 1 Sar. 271 : 18 E.R. 484 (P.C.) Page of

3 M.I.A.--[Ed.] Banoo v. Kashee Ram 3 C. 315 : 3 Sar. 781 (P.C.) Page of 3 C.-Ed.], and Kunda Lal v. Shanket Lal 21 Ind. Cas. 13 : 35 A.

564 : 11 A.L.J. 910.

On the side of the respondents my attention was drawn to the cases reported as A. Narayan Rao v. A. Seshamma 20 Ind. Cas. 33 : 27 M.L.J.

677 Ethirajula Naidu v. Govindarajula Naidu 32 Ind. Cas. 12, Periakaruppan Chetty v. Arunachalam Chetty 102 Ind. Cas. 290 : AIR 1927 Mad.

676 : 50 M. 582 : (1927) M.W.N. 287 : 52 M.L.J. 571 : 25 L.W. 688, and Tanjore Kannammal Vs. Tanjore Ramathilakammal and Another, .

The decisions of the Privy Council in the case reported as Rajangam Iyer v. Rajangam Iyer 69 Ind. Cas. 123 : AIR 1922 P.C. 266 : 46 M. 373 :

50 I.A. 134 : 31 M.L.T. 136 : 4 U.P.L.R.P.C. 85 : 16 L.W. 615 : 27 C.W.N 561 : 44 M.L.J. 745 : 37 C.L.J. 435 : 21 A.L.J. 460 (P.C.) and

Annamalai Chetty v. Subramaniam Chetty 113 Ind. Cas. 897 : AIR 1929 P.C. 1 : 6 C.W.N. 104 : (1929) A.L.J. 9 : 56 M.L.J. 435 : 29 L.W. 91

: (1929) M.W.N. 39 : Ind. Rul. (1929) P.C. 22 : 49 C.L.J. 93 : 33 C.W.N. 435 : 31 Bom. L.R. 280 : 10 P.L.T. 283 were also relied upon.

I do not think it is necessary for me to discuss in detail the decisions quoted before me. The matter was considered in a recent case by

Krishnan and Venkatasubba Rao, JJ., in the case reported as Tanjore Kannammal Vs. Tanjore Ramathilakammal and Another, . Venkatasubba

Rao, J., observed as follows at pages, 40 and 41 Pages of AIR 1927 Mad.--[Ed.] of the report:

While there is a presumption that a Hindu family is joint until the contrary is proved, there is no presumption that a Hindu family is possessed of

property. The party alleging that the property held by an individual member of a joint family is family property must show that the family was

possessed of some property with the aid of which the property in question could have been acquired. If this is shown and only then, the onus shifts

to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.

The two propositions laid down by Chamier, J., in Ram Kishan v. Tunda Mal 10 Ind. Cas. 543 : 33 A. 677 : 8 A.L.J. 723 were followed,

with approval, by the learned Judge. At page 41, Pages of AIR 1927 Mad.--[Ed.]the learned Judge made the following further observation:

In A. Narayan Rao v. A Seshamma 20 Ind. Cas. 33 : 27 M.L.J. 677 Sir John Wallis, C.J. and Seshagiri Iyer, J., quoted with approval the

observations of Chamier, J., and accepted that learned Judge''s view. In a recent case of this Court, Vadamallai Pillai v. Subramania Chetttiar 71

Ind. Cas. 130 : AIR 1923 Mad. 262 : 16 L.W. 936 : (1923) M.W.N. 57, the same view was again taken. It is unnecessary to cite further cases.

The law on the point may now be taken as being settled.

The said observations of the learned Judge are supported by prior decisions. In Annamalai Chetti v. Subramaniam Chetty 113 Ind. Cas. 897 :

AIR 1929 P.C. 1 : 6 C.W.N. 104 : (1929) A.L.J. 9 : 56 M.L.J. 435 : 29 L.W. 91 : (1929) M.W.N. 39 : Ind. Rul. (1929) P.C. 22 : 49 C.L.J. 93

: 33 C.W.N. 435 : 31 Bom. L.R. 280 : 10 P.L.T. 283, the Privy Council observed at p. 440 Page of 56 M.L.J.--[Ed.] that ""the burden of proving

in an action for partition of joint family property that any particular item of property is joint, primarily rests upon the plaintiff. The circumstances

may readily cause the onus to be discharged.

In Ethirajula Naidu v. Govindarajula Naidu 32 Ind. Cas. 12 a Full Bench of this Court consisting of Sir John Wallis, C.J., Seshagiri Iyer and

Phillips, JJ, held that ""property acquired by a member of a Hindu family when there is no nucleus of joint property, is presumed to be his separate

property and the burden of proving that he threw it into the common stock is upon those who assert it.

The same view was held in the case reported as Vadamallai Pillai v. Subramania Chettiar 113 Ind. Cas. 897 : AIR 1929 P.C. 1 : 6 C.W.N.

104 : (1929) A.L.J. 9 : 56 M.L.J. 435 : 29 L.W. 91 : (1929) M.W.N. 39 : Ind. Rul. (1929) P.C. 22 : 49 C.L.J. 93 : 33 C.W.N. 435 : 31 Bom.

L.R. 280 : 10 P.L.T. 283, by Spencer and Devadoss, JJ.: see page 66 Page of (193) M.W.N.--[Ed.], etc., where the question is discussed by

Devadoss, J., at page 67 Page of (193) M.W.N.--[Ed.]. The learned Judge remarked:

Where it is proved that there is no family nucleus which might in the ordinary course of things have helped him substantially in acquiring it, there is

no warrant in any of the cases for the position that where the family nucleus is so small that it could not by any stretch of imagination have been the

means of acquiring any portion of the property standing in the name of a member, such property should be held to be joint family property.

In Atar Singh v. Thakar Singh 6 Ind. Cas. 721 : 35 C. 1039 : 35 I.A. 206 : 42 P.R. 1910 : 12 C.W.N. 1049 : 8 C.L.J. 359 : 18 M.L.J. 379 :

128 P.W.R. 1908 : 4 M.L.T. 207 : 10 Bom. L.R. 790 (P.P.) Page of 35 C.--[Ed.], the Privy Council observed:

It is not disputed that the ""onus on this issue is on the plaintiff"" i.e., the onus is on those who allege any property to be joint family property in which

he is entitled to a share, to prove the same. This is also in accordance with the latest pronouncement of the Privy Council in the case reported as

Annamalai Chetty v. Subramaniam Chetty 113 Ind. Cas. 897 : AIR 1929 P.C. 1 : 6 C.W.N. 104 : (1929) A.L.J. 9 : 56 M.L.J. 435 : 29 L.W. 91

: (1929) M.W.N. 39 : Ind. Rul. (1929) P.C. 22 : 49 C.L.J. 93 : 33 C.W.N. 435 : 31 Bom. L.R. 280 : 10 P.L.T. 283. The learned Advocat of or

the appellant, however contended that the decisions of the Privy Council in Dhurm Das Panday v. Shamsoondari Debiah 3 M.I.A. 229 : 6

W.R.P.C. 43 : 1 Suther. 147 : 1 Sar. 271 : 18 E.R. 484 (P.C.) and Banoo v. Kashee Ram 3 C. 315 : 3 Sar. 781 (P.C.) were not referred to in

the later cases. As a matter of fact, I find that in the case reported as A. Narayana Rao v. A. Seshamma 20 Ind. Cas. 33 : 27 M.L.J. 677, Sir

John Wallis, Offg. C.J. and Seshagiri Ayyar. J., referred to the decision of the Privy Council in Dhurm Das Panday v. Shamsoondari Debiah 3

M.I.A. 229 : 6 W.R.P.C. 43 : 1 Suther. 147 : 1 Sar. 271 : 18 E.R. 484 (P.C.) Page of 27 M.L.J.--[Ed.], the Court observed:

Under Hindu Law, mere living together of the members of a family will not make them joint owners of properties acquired by each individual

member. There must have been a nucleus of ancestral property, which was utilised for the purpose of making the subsequent acquisition, or the

members must have thrown their joint earnings into the hotchpot with the intention of giving, up all their individual rights in them.

After remarking that Chamier, J. had examined all the previous rulings in the case reported in Ram Kishen v. Tunda Mal 10 Ind. Cas. 543 : 33

A. 677 : 8 A.L.J. 723 and that the learned Judges agreed with Chamier, J., in the propositions enunciated by him, they noticed the decision of the

Privy Council in Dhurm Das Panday v. Shamsoondari Debiah 3 M.I.A. 229 : 6 W.R.P.C. 43 : 1 Suther. 147 : 1 Sar. 271 : 18 E.R. 484 (P.C.)

and they added at page 240: Page of 3 M.I.A.--[Ed.]

Lord Campbell states distinctly it is allowed that this was a family, who lived in commensality, eating together and possessing joint property.

The Privy Council accordingly had a case where there was joint family property.

In Banoo v. Kashee Ram 3 C. 315 : 3 Sar. 781 (P.C.) the Privy Council decided that when there has been a division of the family property,

and the separation in the family, and the members were living separately, there was no presumption that the property in the possession of the

defendant was joint family property, and that the onus lay on the plaintiff to prove that the property in respect of which he claimed relief was joint

family property. In fact, the Privy Council dismissed the plaintiff''s suit for partition of the property in the hands of the defendant. The observation of

the Privy Council at page 317. Page of 3 C.--[Ed.]: should be taken along with the facts of the case. This was so understood by the learned

Judges of the Bombay High Court in the case reported as Murari Vithoji v. Mukund Shivaji Naick 15 B. 201. This is also evidently how that case

was understood in para. 291 of Mayne''s Hindu Law. The earlier decision in Dhurm Das Panday v. Shamsoondari Debiah 3 M.I.A. 229 : 6

W.R.P.C. 43 : 1 Suther. 147 : 1 Sar. 271 : 18 E.R. 484 (P.C.) was not referred to in Banoo v. Kashee Ram 3 C. 315 : 3 Sar. 781 (P.C.);

obviously the Privy Council had to consider in Banoo v. Kashee Ram 3 C. 315 : 3 Sar. 781 (P.C.) quite a different principle. In any event, having

regard to the other decisions of the Privy Council, and also to the decision of the Full Bench of this Court, and the other decisions mentioned

above, I do not think that the appellant''s contention is sustainable.

In some cases, it is mentioned that mere possession of joint family property by a joint Hindu family would raise a presumption of law that all the

property in the possession of a co-parcener is joint family property. I should like to observe that the above position would be strictly correct only if

the joint, family property possessed by the joint Hindu family was such as would have enabled and led to the acquisition of the other property. If,

having regard to the nature of the income from the admitted joint family property or otherwise, the same could not have possibly helped in or led to

the acquisition of subsequent property, then there is no presumption that the subsequent property is joint family property. Either the presumption

should be raised only when the property possessed by the joint family was yielding such income as could have enabled the acquisitions of the

subsequently acquired property, or the presumption if raised from the mere position of joint family property should be taken to have been

counterbalanced by proof that such property yielded no income and could not have otherwise helped in or led to the acquisition of other property.

Having regard to the decisions mentioned by me above, I agree with respect, with the remarks of the learned Judge Venkatasubba Rao, J.,

AIR 1927 Mad 41. Tanjore Kannammal Vs. Tanjore Ramathilakammal and Another, that ""the law on the point may now be taken as being clearly

settled.

All the contentions raised by the appellant accordingly fail and the second appeal is dismissed with costs.