Norman Macleod, Kt., C.J.
1. The facts of this case are as follows. One Narayandas started business in Bombay as a piece-goods merchant; many years ago, He commenced his venture without the aid of any joint ancestral nucleus and amassed considerable wealth, While he was carrying on the business, the present plaintiff Haridas was born to him, and when Haridas reached the age of eighteen or thereabouts, he was associated with his father in the business. The trial Judge remarked :
As the plaintiff grew be manhood and the father advaaoed be old age, more and more burden of the business was shouldered by the plaintiff and less by the father. The father and son lived and messed also jointly. All the property, and it is said by the aon to be worth a lao, was acquired gradually from the profits of the business.
2. Then, shortly before his death, Narayandas gave away a piece of land, the subject-matter of the present suit, to his daughter, the defendant. The plaintiff was aware of the gift, and knew that his father, with whom he lived, had laid the foundation of the building in the land which had been gifted away. The trial Judge held that the property in dispute was his father's self-acquisition, and that the father had a right to gift it away to any extent. He thought that it was not proved that the gift was made with the plaintiff's consent; that the plaintiff was not estopped from disputing the validity of the and that the plaintiff was not entitled to possession. In- 'y, the learned Judge held that, even if the property was (sic)property, the gift of a small portion of the joint (sick)party to the daughter by the head of the family(sic)od, (sic)late Judge held that, although the property was (sic)y in the hands of Narayandas and his son, it was not joint family property as contended for by the plaintiff. He considered himself bound to follow the common law rule adopted by this Court in Chathorbhooj Meghji v. Dharamsi Naranji I. L. R. (1881) 9 Bom. 438 In my opinion, the passage cited by the Judge on pp. 445 and 446 of the report does not lay down the correct principle to be followed where a Hindu father and son living, together acquire property without any family nucleus, Mr. Justice Birdwood said (p. 445) :-
There in no evidence to show that thei perties were members of an ordinary trade partnership resting on contract. If the sons had a joint interest with their father in the piece-goods business, it was apparently because they were members of an undivided family carrying on business jointly in that capacity. If the property of the family firm had been acquired by the equal exertions of the three members, without the aid of any nucleus of property other than acquired by themselves, then, no doubt, the property of the firm with its accumulations would be self-acquired property even though it was owned jointly. And on a partition such property would apparently remain self-acquired property in the hands of the several members, even though one of them was the father of the other two
3. But that was the decision of a single Judge, In Laldas v, Motibai : (1908)10BOMLR175 , it was held that where a father and his eons acquire their property by their joint labours and are besides joint in food and worship, they must be regarded as having constituted a joint Hindu family even though there may have been no nucleus of property which has come down to the father from his father or grandfather or great grand-father. For the formation of a coparcenary in Hindu law, such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son or other relation requisite for a coparcenary system, and those persons by living, messing and worshipping together, and throwing all the property acquired jointly into one common stock, manifest their intention to deal with one another and with outsiders as members of a coparcenary system under the Hindu law.
4. In Karaondas Dharamsey v. Gangabai I. L.R. (1908) 32 Bom. 479 Baaman J, pointed out that there was no distinction between ancestral joint family property and joint family property, and that there was nothing either in practice or theory which excluded the possibility of members of the same family starting a family fortune, holding it as members of a joint family and thereby clothing it with all the legal qualities and inoidents of joint family pro''(sic) amongst which was that every member born (sic) after the property had acquired that characte(sic) had been divested of it by partition, obtained by birth an interest in it.
5. It appears, then, that it depends in each case on the evidence whether the members of a family have lived separately or together, and if the latter, whether they have dealt with the property acquired by their joint exertions as joint family property. Ordinarily speaking, on the facts of this case, there would be a presumption that Narayandas and the plaintiff Haridas constituted a joint Hindu family, and the evidence would be sufficient for the plaintiff to establish that the property acquired by virtue of their exertions in the family business was held as joint family property.
6. This question has been discussed by Mayne, 9tb Edn., para 277, and in the note (o) at the bottom of page 360, he points out : 'In view of these cases32 Bom. 479 the expression of opinion in Ghatturbhooj v. Dharamai, (1884) 9 Bom 438 cited with approval in former editions of this work, can no longer be regarded as correct.' There is no evidence, then in this case, to rebut the presumption which arises on the facts proved that this family business of Narayandas and Haridas was a joint family business, and that all the purchases constituted joint family property.
7. Then a question arises whether, in the circumstances of this case, we should uphold the gift by Narayandas to his daughter. The trial Judge held that there was no independent evidence of the consent given by the plaintiff to the gift. But it is clear from his solicitor's letter of June 24, 1921, written two years after his father's death, that he was prepared to abide by the gift and not object to it The District Judge disagreed with the trial Judge on the question whether, under the Mitakshara 'aw, a manager and father of a joint Hindu family had power to make a gift of a reasonable portion of family immoveable property to a daughter. The trial Judge relied upon the passage in the judgment of the Privy Council in Ramalinga Annavi v. Narayana Annavi I.L.R. (1922) Mad. 489 in which their lordships say (pp. 494, 495):-
The father has undoubtedly the power under the Hindu Law of making, within reasonable limits, gifts of moveable property to a daughter, In one (sic)d upheld the gift of a small share of immoveable property on (sic) was not shown to be unreasonable. is the present) case, the (sic)la of money. The only question is whether they were reasonable.
8. Unfortunately, no reference is given to the case referred to by their lordships. But, in this case, we think, we can uphold the decision of the Court below on this ground that the plaint-iff was aware of the gift to the defendant, He was aware that his father had laid the foundation of a building on. the land, and that would be sufficient to justify us in holding that he consented to the gift, and even if that were not sufficient, we have this fact that for two years after the death of his fither the plaintiff took no steps to upset the gift, and even within a few days of his filing the suit wrote a letter in which he stated that he was perfectly prepared to abide by'the gift. We do not think it is open now, in the circumstances of the case, for the plaintiff to ask the Court to give him a decree restoring the land in his possession, and to allow the defendant to remove materials from the building, which would be of very small value to her.
9. We dismiss the appeal with costs.