Somnath Iyer, J.
(1) In the village of Bukkambhudhi in the district of Chickmagalur, there was a Hindu joint family composed of four brothers who belonged to a family of goldsmiths. Defendant 1 Deveerachar is one of the four brothers, and between those four brothers, there was a partition on April 22, 1927 recorded in Exhibit P-1. There was again another partition between Deveerachar and his brother Paniachar on September 24, 1938, which is recorded in Exhibit P-3 presumably for the reason that notwithstanding the earlier partition, a further partition between them became necessary. But, with that we are not concerned very much in this appeal.
(2) Deveerachar is defendant 1 in the suit out of which this appeal arises, and he has four sons. Defendant 2 is his first son; the plaintiff is his second son and defendants 3 and 4 are his third and fourth sons. The plaintiff is an advocate of this court. Defendant 3 is an engineer is Government service and defendant 4 who acquired an engineering qualification has been doing nothing particular.
(3) On April 3, 1959, Deveerachar the father, made a partition between his four sons. Each one of these four sons was allotted an area of garden land, some wet lands, some dry lands, and, to two of them he gave one site each and to each of the others two sites.
(4) The plaintiff who was dissatisfied with the partition made by the father instituted a partition suit on July 20, 1959, and, when the partition made by the father which is recorded in Exhibit D-22 was pleaded in defence, he impeached that partition as unfair and unequal. He claimed a partition of as many as thirty nine items of immoveable property and, twelve items of moveables including cash the aggregate of which was valued at Rs. 50,540/-.
(5) Defendants 2 and 2 contested the suit, and both of them depended upon the partition made by the father, while defendant 2 contended that items 23, 29, 30, 38 and 39 of schedule A to the plaint, constituted his self-acquisitions. Item 38 which is one of them is a rice mill.
(6) The Civil Judge who was of the opinion that the partition made by the father did not bind the plaintiff and defendants 3 and 4, gave the plaintiff the decree which he wanted, declaring the plaintiff and the four defendants to be each entitled to a fifth share in items 5 to 13 in schedule A and in all the items set out in schedule B.
(7) Defendants 1 and 2 appeal.
(8) Mr. Krishnamurthy appearing for the appellants placed before us more than one submission in support of his contention that the Civil Judge has made an unsustainable decree. His first submission was that the partition made by the father was binding on his sons; the second was that the Civil Judge was in error in pronouncing that items 23, 29, 30, 38 and 39 of schedule A were not the separate properties of defendant 2 and the third was that the Civil Judge made an unsupportable decree for partition of the properties enumerated in schedule B without there being any proof that they were available for partition. Lastly, he contended that the direction for the ascertainment of mesne profits was improper.
(9) It would be convenient to first address ourselves to the plea of defendant 2 that items 23, 29, 30, 38 and 39 of schedule A are his separate properties. It will be seen from the partition deed Exhibit D-22 which records the partition made by the father on April 3, 1959, that even according to defendant 1, the family owned 14 acres and 27 guntas of garden land, 18 acres and 17 guntas of dry land and six sites, the aggregate value of all of them being Rs. 24,000/-. The complaint made by the plaintiff, was, that not all the properties belonging to the family were included in the partition, and, that the properties allotted to the plaintiff were inferior in quality while those allotted to defendant-2 were far more valuable. But the more important and serious contention raised by the plaintiff was that item 38 in Schedule A, which, is a rice mill, was family property but excluded from the partition made by the father.
(10) We are of the opinion that the acquisition of items 23, 29, 30, 38 and 39 were made with the assistance of family funds, as rightly found by the Civil Judge. The purchase money paid for the acquisition of these items of property was not very considerable, and, it is in evidence that defendant 2 was assisting defendant 1 in the management of the family estate. That being so, the mere fact that those four properties were purchased in the name of defendant 2 will not by itself be a sufficient ground for thinking that they were his separate properties unless there was proof that the money paid for the purchase of these items did not come from the family, but, were paid by defendant 2 from his own funds. That would be the position since the family was in a state of sufficient affluence and was deriving, as the evidence discloses, a good income.
(11) P. W. 1 Paniachar is one of the four brothers of defendant 1, and, his evidence was that the family of defendant 1 was getting annually 600 maunds of areca and that its value was between Rs. 45/- and Rs. 70/- a maund after the year 1948. His evidence was also to the effect that he was getting paddy, coconuts dry crops and mangoes. The yield from mangoes according to him was between Rs.3,000/- and Rs. 5,000/- and, 50 pallas of paddy was the income from the wet lands in addition to 20 to 25 pallas of other grains. His evidence was that about Rs.25,000/- a year was the net annual income.
(12) That is also the effect of the evidence given by the other witnesses one of whom is Seshachar P. W. 2 another brother of defendant 1.
(13) P. W. 3 Somiah who is a resident of Bukkambhudi gave evidence the effect of which was that the family was getting a large income from the properties. According to him, it was getting areca and coconut and 15,000 to 20,000 coconuts used to be the yield. His evidence was also to the effect that the price of a thousand coconuts was Rs. 200/-
(14) The other evidence produced by the plaintiff is that given by the plaintiff himself who was examined as P. W. 11. According to him, the yield from areca garden was 600 maunds a year and the coconut garden yielded between 15,000 and 20,000 coconuts annually. The income from mangoes according to him was Rs. 300/- a year and the yield from the bananas Rs. 1,000/- a year. 10 to 15 pallas of ragi was the yield from the dry lands and the aggregate income according to him was Rs. 25,000/-.
(15) Although we have no doubt in our mind that the income stated by the witnesses examined by the plaintiff is somewhat exaggerated, their evidence induces the conviction in our mind that the family was in possession of sufficient income to enable the acquisition of items 23, 39, 30 and 39.
(16) Exhibits D-83 to D-90 are the documents under which the acquisitions were made between April 28, 1946 and March 19, 1958, and, the aggregate consideration paid for all these acquisitions is only Rs. 9,384/-. Defendant 2 did not produce any evidence to establish the truth of his case that he was in possession of his own funds with which he made the acquisitions. He produced no accounts and no other evidence, and in the circumstances, it was reasonable for the Civil Judge to take the view that having regard to the more than adequate nucleus of family property available, the acquisitions made under Exhibits D-83 to D-90 were acquisitions made with the assistance of family funds and for the family.
(17) We do not, therefore, see sufficient ground to dissent from the finding recorded by the Civil Judge that items 23, 29, 30 and 39 of schedule A are not the self-acquisitions of defendant 2.
(18) We next proceed to discuss the sustainability of the finding recorded by the Civil Judge that the rice mill which is item 38 in schedule A was acquired for the family and that the business carried on in it was the family business.
(19) It was admitted by defendant 1 who gave evidence as D. W. 1 that the rice mill was purchased for a sum of Rupees 8,000/- and, it is in evidence that it was purchased in the year 1954, Exhibit P-71 (a) which is an account entry in the accounts of a certain Shamegowda of Shimoga shows that on September 7, 1954, a sum of Rs. 3,000/- was advanced by him to defendant 1 and Exhibit P. 71 (c) which is another entry in the account book of Shamegowda shows that a sum of Rupees 5,000/- was similarly advanced on October 8, 1954. Those account entries and the evidence of defendant 1 make it clear that the rice mill was purchased out of these Moines. It is not disputed before us that Shamegowda appropriated the value of the areca which used to be sent to him from the family lands in discharge of the loans so advanced, and that the debts were discharged in that way.
(20) It is also seen from the evidence of defendant that a land bearing survey No. 72/4 in Bukkambhudi measuring 31 guntas was converted to non-agricultural purposes and that a building was erected on that land for housing, the rice mill. Defendant 1 could not say how much of money was expended over the construction of that rice mill. The contention of the plaintiff is that the rice mill which was purchased in the year 1954, and building and the land on which the building for the rice mill is erected, are family properties and were improperly excluded from partition.
(21) If we can affirm the finding of the Civil Judge that the rice mill was family property as maintained by the plaintiff, then, it should follow that the partition made by the father unilaterally can be effectively called in question by the plaintiff. A partition made by the father who has power under the Hindu law to make a partition even without the consent of his sons can be sustained only if it is fair and equal, and, if a valuable property is excluded from the partition on the unavailable ground that it is the separate property of one of the members of the family, the partition invites the reproach that it is unfair and so can properly be impeached. So, the question becomes important whether the rice mill was family property or whether it was not, as contended by Defendant 2.
(22) Mr. Krishnamurthy asked us to say that the mere fact that the family paid a sum of Rs. 8,000/- having borrowed it from Shamegowda to enable defendant 2 to purchase the rice mill, would not make the rice mill or the business carried on with its assistance a part of the family asset. His submission was that a junior member of the family or, for that matter, every member of the family including the manager has the power to embark upon his own independent business, and that so long as the family makes only a contribution to assist that venture and does not take any further interest in the conduct of the business, the business is the independent asset of that member of the family and does not become family property.
(23) So stated, the proposition is unexceptionable. If we can reach the conclusion that all that happened was that defendant, 1 advanced or made available to defendant 2 a sum of Rs. 8,000/- so that he may embark upon his own independent and separate business and thus carve out a career for himself, and, that defendant 2 did in fact set up such a business which was considered by all the members of the family as his own independent and separate business without there being any association between the family and that business, it would be easy to say that Mr. Krishnamurthy is right in calling in question the finding of the Civil Judge that the business was not defendant 2's separate business.
(24) But there is more than one reason why we should reach the conclusion that the enunciation which Mr. Krishnamurthy placed before us has no application to the facts of the case before us. The first is that the evidence of defendant 1 makes it clear that the rice mill was purchased not for defendant 2 but for the family. Defendant 1 was asked whether on the rice mill premises, a signboard was displayed in which it was made to appear that the proprietors were Deveerachar and sons. Deveerachar is defendant 1, and, the purpose of the question put to defendant 1 was to demonstrate that defendant 1 and his sons were the proprietors of the rice mill since the rice mill belonged to the family. Defendant 1 stated in the first instance that he did not know if there was a board to that effect, but, it is not now disputed that there was that board, and, a commissioner who visited the spot discovered that there was one. Defendant 1 was shown the rubber stamp which was used by the mills which read: 'Proprietors: Deveerachar and Sons'. Defendant 1 explained that his sons must have been responsible for the preparation of the rubber stamp in that way but he was shown Exhibit P-84 (a), a note book in which some entries were made pertaining to the rice mill, and, he admitted that that note book which contained an impression of the rubber stamp, contained his handwriting also. It is obvious that defendant 1 was perfectly aware not only of the signboard in which it was described that the proprietors were Deeveerachar and sons, but, also of the fact that the rubber stamp employed for the mill contained the words 'Proprietors: Deveerachar and sons.'
(25) The fact that the signboard and the rubber stamp stated that 'Deveerachar and sons' were the proprietors, excludes in our opinion the argument that the rice mill belonged exclusively to defendant 2. What is more than adequately reflected by the signboard and the rubber stamp is that all the members of the family and that the entire family owned it. Any other view would make the statement that the proprietors were Deveerachar and sons unintelligible.
(26) Defendant 1 admitted in cross-examination that although he made a partition in April 1959, he incorporated no recital in the partition deed that the land on which the rice mill was erected had been previously gifted to defendant 2 as stated by him in his cross-examination. In Exhibit D-22 which is that partition deed, there is no reference to the rice mill nor to a gift of the land on which it was erected, to defendant 2.
(27) Mr. Krishnamurthy urged that there was no need for defendant 1 to incorporate any such recital n Exhibit D-22 since it was necessary for defendant 1 to enumerate only those properties which were available for partition, and, that neither the rice mill nor the land was so available. But this argument becomes unavailable since defendant 1 admitted that the land on which the rice mill was erected was one of the properties which fell to his share in the earlier partition of 1927, and so, its exclusion should have been explained in Exhibit D-22, but, it was not.
(28) So, it emerges from the discussion so far made, that far from there having been a mere contribution in the form of money by the family to defendant 2 to enable him to acquire a rice mill the acquisition of that mill was made for the family and that the business in that mill was carried on for the family, and, that it became a family asset. So, the principle of Hindu law upon which Mr. Krishnamurthy depended can have no application to the case before us.
(29) We, are therefore, of the opinion that the Civil Judge was right in finding that the rice mill was an asset belonging to the family and was available for partition. So, its exclusion from Exhibit D-22 makes the partition ineffective and open to the criticism that it was not binding on those who were not parties to it.
(30) The plaintiff was, therefore, entitled to impeach the partition and ask for a fresh partition.
(31) There was also sufficient reason for the opinion entertained by the Civil Judge that the partition of the lands did not measure up to the required standard. D. W. 4 examined by defendant 2 gave evidence that the lands allotted to defendant 3 were of an inferior quality. The Civil Judge himself visited the gardens and his note of inspection marked as Exhibit C-1 demonstrates that the areca garden given to the share of defendant 3 was of an inferior quality and not comparable to the areca garden given either to the plaintiff or to defendant 2. He also made the further record that the garden allotted to defendant 2 was superior to that allotted to the plaintiff. The note further states that defendant 3 was asked whether he was willing to take the shares of both the plaintiff and defendant 3 in exchange for what had been allotted to him and that he was unwilling.
(32) That being so, the partition of the wet dry and garden lands and the sites have now to be re-made and the Civil Judge was right in directing their re-partition.
(33) But the Civil Judge made quite an unsustainable decree for the partition of moveables enumerated in schedule B. We find no discussion in his judgment of the question whether those properties were available for partition. The first item in that schedule is a sum of Rs. 40,000/- which according to the plaintiff constituted the surplus net realisation from the realisation from the family properties. The other items are either gold and silver jewels or other moveables including 40 pallas of paddy. No evidence was produced about the availability of any of these items, and, it is surprising that the Civil Judge made a decree for their partition. That part of the decree by which a partition of the items set out in schedule B was directed, must, therefore, be reversed and the suit to that extent should be dismissed.
(34) But, during the argument before us. Mr. Krishnamurthy appearing for defendant 2 and Messrs. Ethirajulu Naidu and Mahendra appearing for the plaintiff and defendant 3 intimated us that they had reached an agreement between themselves that the rice mill which is described as item 38 in the schedule A which consists of the land measuring 31 guntas out of survey No. 72/4 in the village of Bukkambhudi, and the building erected thereon and the rice mill installed therein should be allotted to the share of defendant 2 in its entirety and that defendant 2 should pay the plaintiff and defendants 3 and 4 a sum of Rupees 4,000/- each, towards the value of their share in that property.
(35) The direction that a sum of Rupees 4,000/- should be paid to the plaintiff and defendants 3 and 4 each towards their share of the value of the rice mill is one made by consent as between the plaintiff and defendants 2 and 3. But defendant 4 is not before us and no one appears for him, and so we examined the evidence on record to satisfy ourselves that that direction would be a fair direction even in his case. We find from the schedule to the plaint what the rice mill was valued by the plaintiff himself at Rs. 25,000/-, and, no independent evidence was produced by the plaintiff of a satisfactory nature to show that that was the value of the rice mill. But Mr. Krishnamurthy has pointed out to us that when defendant 1 was in the box, it was suggested to him in cross-examination for the plaintiff, that the value of the rice mill was Rs. 20,000/-. We therefore reach the conclusion that the value of the rice mill did not exceed Rs. 20,000/-, and so, we reach the conclusion that defendant 2 who has been conducting the business in the rice mill should be allotted the rice mill to his share and that the plaintiff and defendants 3 and 4 should be paid the value of their share in the rice mill. The amount so payable to them would be Rs.4,000/- each, and, it was on that basis that the learned advocates for the plaintiff and defendants 2 and 3 agreed to the modification of the decree made by the Civil Judge accordingly. That modification is also in the circumstances clearly justified even in the case of defendant 4 on merits, and so, we make it clear that that direction in the case of defendant 4 depends upon our determination of the value of the rice mill on the evidence on record, and, on equitable considerations on the basis of which we should allot the rice mill in its entirety to defendant 2.
(36) We make a decree accordingly in modification of the decree made by the Civil Judge that item 38 to which we have referred just now should be allotted in the partition to be made, to the share of defendant 2 and that defendant 2 shall be entitled to continue to be in possession of that rice mill and the 31 guntas of land on which it is erected on condition that he shall pay to each of the plaintiff and defendants 3 and 4 a sum of Rs. 4,000 (Rupees four thousand only). These sums of money shall be paid to them within six months from this date. In default, defendant 2 shall pay interest to each of these three persons on the sum of Rs. 4,000 to which each of them is entitled, at six percent per annum till date of payment from the date of default. We also make a further direction to which the learned advocates consent that, in the event of defendant 2 committing default in the payment of these sums of money including interest within one year from this date, there shall be a partition of the rice mill in manner provided by the Civil Judge. This will be the modification we make in the decree of the Civil Judge in respect of the rice mill to which we have referred. Wherever we have referred in the course of our judgment to the rice mill, that expression shall include the building in which it is housed and the land measuring 31 guntas in S. No. 72/4 of Bukkambhudi Village.
(37) In regard to items 5 to 37 and 39 in schedule A, the learned advocates agree that there should be a fresh partition, and, that is what we direct in accordance with the finding which we have recorded on that matter. If there is any land in item 38 which is in excess of 31 guntas, that land shall also be partitioned.
(38) There is a direction for the ascertainment of mesne profits under rule 12 of Order XX of the Code of Civil procedure which the Civil Judge made in respect of the period subsequent to the institution of the suit. It is obvious that the direction made by the Civil Judge is not as clear as it should be. The direction is that each of the parties who is in possession of the properties belonging to the family except the rice mill should account in respect of mesne profits during that period to the others. That accounting has to relate to the period during which the concerned party has been in possession of some part of the family property. We substitute a direction to that effect for the direction made by the Civil Judge in regard to that matter.
(39) In regard to the rice mill, there is no clear direction for accounting by the Civil Judge although it is possible to understand the direction for mesne profits as incorporating a direction to that effect. But since that directions likely to be misunderstood in the final decree proceedings, we make it clear that in law, the plaintiff and defendants 3 and 4 are not entitled to call upon defendant 2 or defendant 1 to render an account in respect of the business carried on in the rice mill after severance in status. So, in respect of the period subsequent to the institution of the suit, the only claim which can be sought by the plaintiff and defendants 3 and 4 is for the payment of rent in respect of the occupation of property belonging to the family. We are of the opinion that we should fix having regard to all the circumstances, including the fact that the building is situate in a village, that defendant 2 should pay to the plaintiff and defendants 3 and 4 a sum of Rs. 100 a year each as the rent for such occupation of the premises from the date of the institution of the suit until the payment of the amounts determined to be payable to them towards their share of the value of the rice mill.
(40) In regard to costs, by consent of parties we make a direction that defendants 1 and 2 shall pay to the plaintiff a consolidated sum of Rs. 2,000/- towards his costs in this Court as well as in the Court below. This direction will supersede the direction made by the Court below.
(41) Order accordingly.