Somnath Iyer, J.
1. This is a plaintiffs appeal from a decree of the District Judge, Bangalore, in a suit brought by him for a decree for proprietary possession of two shops, two houses and a garden in the town of Tumkur. In that suit, he also claimed a sum of Rs. 9,920/-as damages for use and occupation from defendants 1 to 6.
2. Defendant 4 was the elder brother of defendant-1. He died during the pendency of this appeal and his sons defendants 5 and 6 were brought on record as his legal representatives. Defendants 2 and 3 are the sons of defendant 1. All these are Hindus governed by the Mitakshara school of Hindu Law.
3. The suit properties are admittedly part of what was purchased under two sale deeds Exhibits P and TT on 12-5-1913, and March 18, 1915, respectively. Those sale deeds were executed in favour of the defendant 4. Exhibit P was executed in favour of defendant 4 by one Abdul Azeez Saheb, who was a retired Assistant Commissioner; the consideration paid under that sale-deed was a sum of Rs. 1,400/- out of which a sum of Rs. 300/- had been paid as earnest money before the document was registered. Exhibit TT was executed in favour of defendant 4 by one Keshavachar on March 18, 1915; the consideration paid under that document was a sum of Rs. 825/-, out of which a sum ofRs. 200/- had been paid as earnest money before the date of execution of that document.
4. Defendant 4 executed a sale-deed in favourof defendant 7 on May 1, 1948. That sale-deed ismarked Exhibit J. Under that document, he sold theproperty he purchased under Exhibits P and TT fora sum of Rs. 50,000/-. Defendant 7, in turn, soldthose properties to the plaintiff under two sale-deedsExhibits G and H. Exhibit G is dated August 14,1948, and Exhibit H bears the date February 1,1949. The consideration for each of these sale-deeds was Rs. 25,000/-.
5. Although there was some controversy in the Court below, that the property sold under Exhibit J by defendant 4 to defendant 7 did not include the property purchased by defendant 4 under the sale deed Exhibit TT, it is now no longer disputed that the property sold under Exhibit J by defendant 4 to defendant 7 included also the property purchased under Exhibit TT.
6. The suit, out of which this appeal arises, was filed on 7-8-1951. The institution of this suit was preceded by the institution of another suit in the Court of the Subordinate Judge of Tumkur in which the plaintiff prayed for a declaration that he was entitled to item 1 in the schedule annexed to the plaint in the suit out of which this appeal arises. He also asked for a decree for possession and also for certain other incidental reliefs. The plaint in that suit was returned for presentation to the proper Court on the ground that the Subordinate Judge had no pecuniary jurisdiction to try that suit.
7. The case for the plaintiff in the present suit was that the suit property was the self-acquisition of defendant 4 and that defendant 1 who was a tenant of item 1, had repudiated the title of the plaintiff to the suit properties and had also taken wrongful possession of the other four items.
8. Defendants 1 and 2 resisted the suit principally on the ground that the property purchased by defendant 4 under Exhibits P and TT were joint family properties belonging to a joint family consisting of the two brothers and their sons. It was, therefore, contended that defendant 4 was entitled only to a half-share in the suit properties, and that the plaintiff was not entitled to a decree even in regard to that half-share since he had not brought a suit for a partition of the family properties as he should have done.
9. The learned District Judge, upheld that contention and dismissed the plaintiff's suit for possession of the suit properties, although he made a declaration that the plaintiff was entitled to a half-share therein.
10. The plaintiff appeals.
11. Before adverting to the contentions raised on behalf of the parties, in this appeal, it would be necessary to refer briefly to the history of the family to which defendants 1 and 4 belonged.
12. There is undisputed evidence that the father of defendants 1 and 4 was one SanRappa, who was a cloth merchant in a place called Chickballapur. Defendant 4, who was the elder son was born in the year 1885 and defendant 1 was born in the year 1890. The father died about the year 1892but the mother of defendants 1 and 4 lived until the year 1945.
13. After the death of the father in the year 1892, defendants 1 and 4 stayed on with their mother in Chickballapur for sometime and thereafter they went to a place called Thyamagondlu where they were staying with one of their uncles, According to the evidence, defendant 1 thereafter came to Tumkur, whereas defendant 4 went to Bauglorc, to prosecute his studies. Defendant 1, after having prosecuted his studies quite unsuccessfully for sometime, in the course of which ho was not able even to reach the High School, commenced a business which he has described in the course of his evidence as his private business, in the year 1906, and this, according to him, he did with the aid of a sum of Rs. 500/- which he received from his mother for that purpose.
While this business was commenced by defendant 1, in Tumkur, defendant 4 was prosecuting his studies in Banglore. The evidence is that after he failed in the S.S.L.C. Examination, in Bangalore, he left that place and went to Tumkur. There is no clear evidence in the case as to where defendant 4 was living in Tumkur after he left Bangalore in that way, although the effect of the evidence given by defendant 1 is that defendant 4 was staying with him at Tumkur.
14. On August 10, 1909, defendant 4 entered into two transactions. The first of them was an assignment of a mortgage with possession, in his favour, for a sum of Rs. 162-8-0 of a half portion in a jodi village called Harohalli. On the same date, he purchased the remaining half of that village for a sum of Rs. 600/- from the owner of that half. Thereafter, on August 7, 1912, under a sale deed Exhibit DDD, he purchased a house which is described in the course of evidence as the Sira Toll Gate House, for a sum of Rs. 600/-.
In that document, defendant 4 was described as a jodidar and a money-lender. It was nine months thereafter wards that the purchase under Exhibit P was made. That sale deed which is a sale deed of an old house together with some sheds, stables and a garden, was executed in his favour on May 12, 1913, by one Abdul Azeez Saheb, a retired Assistant Commissioner. Nearly two years later, on March 18, 1915, Exhibit TT was executed in favour of defendant 4, by Keshavachar. This property sold under Exhibit TT was bounded on two sides by the property sold under Exhibit P.
15. As we have mentioned, the properties in dispute in this case formed part of the properties purchased under Exhibits P and TT.
16. The case of defendant 1 was that the acquisitions made under Exhibits P and TT were made out of joint family funds and therefore became joint family property belonging to defendants 1 and 4. In paragraph 1 of his written statement, defendant 1 said this:-
'The suit and other properties were acquired out of the joint funds of the family and its business as the accounts demonstrate.'
In paragraph 2 of his written statement, he stated:
'Defendant 4 and defendant 1 are undividedbrothers. They traded, toiled and did business together and acquired property jointly. They had adequate nucleus. They have treated the properties acquired in their names as joint family properties all through. They live together and have done business together in item No. 1 and elsewhere. It is the family that owns the entire plaint schedule property.'
17. It will, therefore, be seen that the plea of defendant 1 that the property was joint family property rested on at least three grounds. The first was that it was acquired with the assistance of on adequate nucleus of joint family property; the second was that the property was acquired out of the joint family funds belonging to a joint family business; and the third was that in any event, the property was treated as joint family property, both by defendants 1 and 4, and therefore, should be regarded as joint family property.
18. The learned District Judge did not believe the case of defendant 1 that there was any adequate joint family nucleus with the aid of which the suit property could have been purchased. But, he came to the conclusion that at the time of Exhibits P and TT, defendants 1 and 4 were members of a Hindu joint family, carrying on a joint family trade in cloth, His finding was that although there was no definite evidence pointing to the acquisition of the properly purchased under Exhibits P and TT from out of any money paid by defendant 1, belonging to a joint family business it was, in his opinion, very probable, having regard to the circumstances of the case, that it was out of the funds of the joint family business that the acquisitions under Exhibits P and TT were made.
19-25. In support of the conclusion that he reached that defendants 1 and 4 were living together at all material times, the learned District Judge appears to have relied upon, although he does not expressly refer to that evidence in so many words, the testimony given by defendant 1 and D.Ws. 2, 3 and 5. (His Lordship reviewed the evidence on this part of the case and proceeded!:)
26. These pieces of evidence, in our opinion, make it clear that the story of defendant 1 that ever since defendant 4 came to Tumkur, after discontinuance of his studies in Bangalore, he lived with defendant 1 as a member of a Hindu joint family, consisting of himself and defendant I until the year 1946, when misunderstandings commenced between them, is unworthy of belief.
27. The learned District Judge, in recording a finding to the contrary, appears to have been principally influenced by a presumption which he thought was available in favour of the joint residence of defendants I and 4 by reason of the fact that since they were brothers, they must have constituted a joint Hindu family and that they must have continued to remain joint until it was definitely proved that they had become divided from one another.
28. It is clear that his presumption was fully displaced in this case by the evidence to which we have referred.
29. But, the more material question with which we are concerned in this case is whether the properties that were acquired under Exhibits P and TT were the joint family properties of the two brothers or whether they were the separate properties of defendant 4.
30. Although it was pleaded in the written statement produced by defendant 1 that the acquisition was made with die aid of an ancestral nucleus, that case was abandoned in the lower Court. That there was any such nucleus with the aid of which the acquisition could have been made is not what was argued before us by Mr. Venkatesha Iyer, the learned advocate for defendant 1. The evidence in regard to the nucleus is that given by defendant 1 himself which was to the effect that that nucleus consisted of a house and a shop in Chickaballapur town.
This he said in the course of his cross-examination, although in his examination-in-chief he stated there were two houses and a shop in Chickballapur town. Now, it is by no means clear whether this house and shop in Chickballapur town were really the ancestral property of defendants 1 and 4. Defendant 1 admitted in his cross-examination that the properties stood in the name of his mother and although it is Mr. Venkatesha Iyer's contention before us that the properties began to stand in the name of the mother after the demise of her husband, that was not what defendant 1 stated in his evidence.
But, assuming that the shop and the house in Chickaballapur town were the ancestral property of the two brothers, it is clear from the evidence of D.W. 5 Kidiyappa that those two properties were such as could have fetched only a meagre rent of Rs. 5/- to Rs. 6/- a month each. It is also in evidence that the mother of defendants 1 and 4 was living in Chickballapur, and presumably, in the house in that place. She died only in the year 1945.
31. Now, it is settled law that the proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But, where it b established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. This view expressed by their Lordships of the Privy Council in Appalaswami v. Suryanarayanamurti, ILR (1948) Mad 440: (AIR 1947 PC 189), was referred to with approval by their Lordships of the Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango, : 1SCR1 .
32. It is therefore obvious that even if when the purchases were made under Exhibits P and TT, the brothers were members of a joint Hindu family, the existence of possession of joint family property or possession by them of joint family funds, of such nature and value as could have formed the nucleus enabling the acquisition of the properties under Exhibits P and TT, so as to shift the burden of proving that the properties were the self-acquired properties of defendant 4, has not been established in this case.
33. Nor did Mr. Venkatesha Iyer contend, as we have already mentioned, that any such nucleus of ancestral property existed at that time.
34. It is, however, urged that although there was no ancestral nucleus enabling the acquisition in question, the purchases made under Exhibits P and TT must nevertheless be regarded as purchases made for the family since they were made with the funds of the joint family business.
35. The finding of the learned District Judge was that there was a joint family business in existence on the dates of Exhibits P and TT and that that business was a business in cloth carried on by defendants 1 and 4. (His Lordship considered the evidence of defendant 1).
36. It is manifest from the evidence given by defendant 1 that the business which he started in the year 1908 was his own private business.
37-41. But, the argument addressed before us was that, when Exhibits P and TT were executed, that business had become a joint family business. (His Lordship continued after some observations, on the evidence produced) :
42. But, what has to be considered, in order to decide whether the business that was in existence at the time of the acquisition of the properties in question, was a family business or continued to be a separate business of defendant 1, is whether there is any evidence in this case to show that the business which had been commenced by defendant 1 was subsequently carried on as a joint family business, by proof that the profits of that business were treated as earnings of the joint family business either by being brought into one account or by being divided among the members of the family. It is not the case of defendant 1 that the business grew from joint family property, and that being so, the question to be considered is whether, in the manner in which, we have mentioned, the earnings from that business were treated as joint family property.
43. It is a sound proposition of law which has been considered to be well established that there is no presumption that a business commenced or carried on by a member of a Hindu joint family is a joint family business and that such a presumption would be unavailable even if that member was the manager of that joint family. This was what their Lordships of the Supreme Court pointed out in Chattanatha Karayalar v. Ramachandra Iyer, (S) : 2SCR477 . As pointed out by their Lordships of the Privy Council in Bhuru Mal v. Jagannath, AIR 1942 PC 13, 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 that the earnings were blended with joint family estate, they remain free and separate. On page 16 of the report, Sir George Rankin said this:--
'Whether or not it can be said that if a joint family is possessed of some joint property, there is a presumption that any property in the lands of an individual member is not his separate individual property hut joint property, no such presumption can he applied to a business. Lord Buckmaster delivering the judgment of the Board in Annamalai Chetty v. Subramanian Chetty, AIR 1929 PC 1, at p. 2 put the law thus: 'A member of a joint undivided family ran make separate acquisition of property for his ownbenefit and, unless it can be shown that the business grew from joint family property, or that the earnings were blended with joint family estate, they remain free and separate.'
Now, in this case, it was incumbent upon defendant I, especially in view of the fact that the business at the inception was a separate business, to establish that the profits of the business were treated as joint family property either by being brought into one account or by being divided between himself and defendant 4.
44-75. Defendant 1 produced no such evidence. (After discussing the evidence His Lordship proceeded):
76-77. While there is no evidence in the case that the profits of the business were brought into one account and distributed between defendants 1 and 4 as joint family profits, there is evidence in this case that defendants 1 and 4 were having at least from the year 1918 separate accounts in the various hanks in which they were having transactions. It is again surprising that there is no evidence on the question as to whether there was a bank account in connection with, the business and iF so where. (His Lordship referred to various accounts of defendants 1 and 4 and proceeded):
78. The fact that the brothers were having separate accounts in that way, over a long tract of nearly eighteen years before disputes commenced between them, appears to our mind to be entirely inconsistent with the hypothesis that they were having a joint family business.
79-80. Mr. Venkatesha Iyer has suggested to us that although these accounts purport to be separate accounts, we should hold that, in reality, they were merely separate accounts maintained for a common purpose. (His Lordship negatived this contention and proceeded):
81. We have perused Exhibits A, B and C, and from the entries contained in those extracts of accounts, we have no hesitation in coming to the conclusion that those accounts were really separate accounts and were not accounts maintained on behalf of the family for a common purpose.
82-85. Mr. Venkatesha Iyer lastly relied on an entry in a note book marked as Exhibit XXIV in support of his contention that there was a joint family business in existence. (His Lordship examined this contention and continued).
86. It is clear that the learned District Judge himself attached no importance or value to the entry Exhibit XXIV (c). He never even referred to that entry in the course of his judgment.
87. In our opinion, the connection between the sum of Rs. 1,000/- referred to in Exhibit XXIV (c) and the acquisition under Exhibit P has not been established in this case and that being so, that entry Exhibit XXIV (c) does not to any extent establish the case set up by defendant 1 that there was a joint family business belonging to defendants 1 and 4 or that any part of the funds belonging to that business had been utilised or applied for the acquisition of the property under Exhibits P and TT.
88. The conclusion to the contrary reached by the learned District Judge, it has to be pointedout, rests merely on surmises and conjectures. In paragraph 21 of his Judgment, while referring to the source of the fund') from which the purchases under Exhibits P and TT were made, the learned District Judge observed thus:--
'It has to he conceded that except the oral evidence of the 1st defendant, there is neither any other disinterested oral or documentary evidence in this behalf, but the circumstances and the probabilities in the case are, in my opinion, in favour of the contention urged on the side of the 1st defendant that the money for the purchase of this property came from the 'javali' shop. Plaintiff has admitted that the 1st defendant was a good trader dealing in stock and shares and woollen goods. The 4th defendant has stated that the 1st defendant was dealing in woollen goods, that lie developed the trade, and that he was importing goods from England also. From this, it is clear that the 1st defendant was carrying on the family trade on a very large scale: Whether they were making any profit or not is immaterial for the purpose of this case. The 1st defendant must have been handling too much of money whether it belonged to him or to others during the course of the trade.'
What the learned District Judge proceeded to state in the course of his Judgment was that those monies which defendant 1 used to have with him while conducting the business were the monies which must have been utilised for purchasing the properties under Exhibits P and TT.
89. The learned District Judge, in our opinion, entirely overlooked the well-known rule of Hindu law that, in the absence of sufficient ancestral nucleus or of joint family property, with the aid of which the acquisitions under Exhibits P and TT could or might have been made, it was for defendant 1 to affirmatively establish that the properties so purchased were not the self-acquisitions of defendant 4 hut were the joint family properties.
90-98. The conclusion reached by the learned District Judge partly rests also on what he regarded as the unsatisfactory way in which defendant 4 gave evidence as to the source from which he got the money for the purchases he made under Exhibits P and TT. (His Lordship further considered the evidence and proceeded).
It has to be remembered that Exhibit P and Exhibit TT purport to be purchases made by defendant 4. They are executed in his name and the consideration for those purchases, as the documents recite, was paid by defendant 4. That being the position, and especially in view of the fact that it is not shown that on the dates of those purchases, defendants 1 and 4 owned any joint family property, and in the salience of evidence affirmatively establishing that the purchases were made with the aid of joint family funds, the mere fact that defendant 4 was unable to explain satisfactorily and in detail how he came to be in possession of the funds with which he made those purchases cannot be a ground or reason for our coming to the conclusion that the purchases were not his self-acquisitions. In our opinion, there is no evidence justifying the view that defendant 4 made the purchases under Exhibits P and TT with any joint family funds.
99. It is in evidence that the building purchased under Exhibit P was an old structure, over the improvement of which some money was spent after the purchase. As to when exactly it was done, is not clear from the evidence. Defendant 4, in his evidence, stated that those improvements were made one or two years after the purchase but modified that statement in cross-examination when he stated that he improved the structure after his retirement which must have happened about the year 1921 and that he did so with the moneys with which he had been provided by the Government of Mysore during his visit to Japan.
It is seen from Exhibit XLI that while at Japan, he received in March, 1927, a remittance of Rs. 8,000/- in that way for purchasing machinery for the manufacture of pencils and it is in evidence hat he purchased none. He admitted he maintained no accounts in regard to the improvements but it does not appear to us improbable that he improved the house in that way in the absence of evidence that those improvements were made with family funds. Defendant 1, in his evidence, did not say so. He did not even refer to those improvements.
100. That being the position, and since it appears from Exhibit IX, which is a printed sale notice published in the year 1945, on behalf of Defendants 1 and 4, that the Chickballapur house and shop, even if they could be regarded as their ancestral property, was throughout intact, defendant 1 cannot successfully contend that the purchases under Exhibits P and TT were family acquisitions.
101. That that is the view that we should take in this case is also clear from the conduct of defendants 1 and 4. It is seen from the evidence in the case that these two brothers were purchasing properties in their own names and were treating the properties so purchased by them as their own separate properties.
102-105. (His Lordship reviewed the evidence on this point and continued).
106-139. We must now refer to two occasions on which defendant 1 admitted that the suit properties belonged exclusively to defendant 4. (His Lordship referred to these occasions and also considered the oilier evidence and proceeded).
140. Exhibits XIII and XIV do not, in our Opinion, establish any conduct on the part of defendant 4 amounting to an intentional abandonment of his special rights in his separate properties including the suit properties. It is a firmly established principle that the separate property of a Hindu ceases to be his property and acquires the characteristics of his joint family or ancestral property, not by any physical mixing with his joint family or ancestral property but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. The evidence of such intention is not forthcoming in this case.
141-143. On the contrary, the evidence establishes that defendant 4 all along regarded his properties as his own and had no intention of abandoning any of his rights therein. (His Lordship referred to the evidence in this respect).
144. It is therefore perfectly manifest that defendant 4 never did anything from which it could be inferred that at any stage the suit property was regarded either by himself or by any others or by defendant 1 as the joint family properties but not his self-acquisition.
145-150. (His Lordship further considered the evidence and continued).
151. Mr. Rajah Iyer, at one stage, urged that, the plaintiff was entitled to the protection afforded by section 41 of the Transfer of Property Act. But, he did not press that contention seriously and we do not, therefore, deal with that contention.
152. The learned District Judge recorded a finding that the purchases made under exhibit J and exhibits G and H were champertous.
153. But, Mr. Venkatesha Iyer did not, very properly, try to justify that finding.
154. In the result, we must hold that the suit properties were the self-acquisitions of defendant 4 and that the plaintiff, by reason of the purchase made by him under exhibits G and H, became the owner thereof.
155. There is one more matter which remains to be considered. The plaintiff, in his suit, claimed, as we have mentioned, a sum of Rs. 9,920/-by way of damages for use and occupation. Ho claimed a sum of Rs. 9,920/- from defendants 1 to 3 and a sum of Rs. 1,950/- from defendants 4 to 6. He alleged in his plaint that defendant 1 although a tenant of item 1, had refused to pay rent to the plaintiff and that he and the other defendants had taken wrongful possession of the other items of the properties.
156. There is no evidence that defendants 1 to 6 wrongfully trespassed upon the suit properties or that defendant 1 is in wrongful possession of any of the suit properties other than item 1 of which he was a lessee under defendant 4. It is therefore clear that none of the defendants is liable to pay any damages for use and occupation to the plaintiff in respect of items 2 to 5 of the suit schedule properties.
But, defendant 1 was a lessee of item 1, and it is undisputed that he has not paid any rent to the plaintiff after the plaintiff purchased the property under exhibits G and H. In our opinion, defendant 1 is liable to pay damages for use and occupation calculated at the rate of Rs. 150/- per month from August 14, 1948, which is the date of Exhibit G, till the date of the institution of the suit.
157. In regard to the mesne profits payable by defendant 1 for the period subsequent to the date of the institution of the suit, there will be an enquiry, as prayed for by him, under the provisions of Order XX Rule 12 of the Code of Civil Procedure.
158. This appeal is allowed. In modification of the decree made by the Court below, we make a decree declaring the plaintiff to be the owner of the suit properties and direct that they shall be delivered to his possession. There will also be a decree for payment of damages for use and occupation by defendant 1 to the plaintiff, and for theascertainment of mesne profits for the period subsequent to the suit, as directed above.
159. Defendant 1 must pay the proportionate costs of the plaintiff, both in this court as well as in the Court below. The other parties will bear their own costs in both the courts. The directions of the court below in regard to costs are vacated.
160. Appeal allowed.