1. This is an appeal directed against the judgment and decree of the Subordinate Judge's Court, Ongole decreeing the plaintiff's suit for partition. The plaintiff is the son of Venkataswamy, the 1st defendant, Defendants 2 to 5 are his brothers; 6th defendant is the wife of the 2nd defendant; 7th defendant is the wife of the plaintiff; defendants 8 to 10 are the wives of defendants 3 to 5; defendants 11 to 27 and 29 and 30 are the tenants, and the 28th defendant is the wife of the 1st defendant's nephew. Defendants 31 and 32 were brought on record as the legal representatives of the 21st defendant and 33rd defendant was impleaded as the legal representative of the 30th defendant. The case of the plaintiff was that all the properties mentioned in plaint A to D schedules were joint family properties and that he was entitled to a one-sixth share. The lands are described in A schedule. The houses are mentioned in Schedule B. The moveable are shown in schedule C. The outstandings due to the family are mentioned in Schedule D. According to the plaintiff, his father's brother Pedakoti Reddi executed a will dated 26-6-1908 marked as Exhibit B-1 in favour of his father and his 'Santati' and that all those properties constituted joint family properties.
2. The father and his two sons, defendants 4 and 5, and his daughter-in-law, 8th defendant, contended that except item 16 of A schedule and item 2 of B schedule, the other properties were all the separate properties of the 1st defendant. The father executed a settlement deed Exhibit B-9 dated 22-12-1954 under which he conveyed one-sixth share in all the properties mentioned in schedules A and B to each of the daughters-in-law to be enjoyed by them for their life and to devolve upon their children after their death. The properties mentioned in schedule C viz., the moveables were divided between the sons and the father at the time of the settlement deed. So far as the items in D schedule were concerned, the existence of some of the outstandings was denied. The other sons and the other daughters-in-law were ex parte.
3. The learned Subordinate Judge negatived the contention of the plaintiff that the will executed by Kotireddi was invalid. He found that on a true construction of the will the properties were bequeathed in favour of the 1st defendant and his 'Santati' and that the properties consequently partook the character of joint family properties. He also held that by reason of the written statement filed by the 1st defendant in O. S. No. 28 of 1943 on the file of the District Munsif's Court, Ongole, the properties bequeathed under the will (even assuming that they were the separate properties) were impressed with the character of joint family properties. So far as the plea that the decision of the District Munsif, Ongole in O.S. No. 28 of 1943 operated as res judicata is concerned, the learned Subordinate Judge held against the defendants. As far as the acquisitions were concerned, the learned Subordinate Judge found that they were all joint family properties. He held that the C schedule properties were divided between the parties at the time of the settlement deed. As regards A, B and D schedule properties, the learned Subordinate Judge decreed partition and gave one-sixth share to the plaintiff. The 1st defendant, and defendants 5, 6 and 10 have consequently preferred the appeal to this Court.
4. The questions that arise for decision in the appeal are: (1) Whether, on a true construction of the will Ex. B-1, the properties were bequeathed by Kotireddy only in favour of the 1st defendant or in favour of the 1st defendant and his issues? (2) Whether the properties bequeathed under the will were impressed with joint family character by reason of the statements made in Exhibit B-1? and (3) Whether the properties purchased under Exhibits B-5 to B-8 are joint family properties or the separate properties of the 1st defendant
5. We have carefully perused the terms of the will and we do not agree with the construction placed by the Subordinate Judge on the will. The will states that as Kotireddi had no issue and as Venkataswamy was his nephew, the properties were bequeathed in his favour. The person in whose favour the bequest is made is clearly mentioned. The will proceeds to state that Venkataswamy should enjoy the properties and that he should maintain the testator and his wife. If the document is regarded as a will and not as a settlement deed, there is no question of Venkataswamy supporting the testator. The portion relied on by the learned Advocate for the respondent is '
ukSoq uh larfr ok# iks'khuph ykxquuq
The mere fact that reference is made to the 'Santati' for supporting his wife does not in any way lead to the construction that the bequest is also made in favour of the 'Santati'. Reading all the clauses in the will, we are inclined to hold that the bequest was made absolutely in favour of Venkataswamy by using the expression 'Santati'. Though the terms of Section 97 of the Succession Act are not applicable to Hindu wills, the principles laid dawn therein are equally applicable to the construction of Hindu wills.
Section 97 of the Succession Act is in the following terms:
'Where property is bequeathed to a person, and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator therein, unless a contrary intention appears by the will.'
Illustration (i) is as follows:
'A bequest is made to A and his children, to A andhis children by his present wife, to A and his heirs, toA and the heirs of his body, to A and the heirs male ofhis body, to A and the heirs female of his body, to A andhis issue, to A and his family, to A and his descendants,to A and his representatives......in each of these cases, Atakes the whole interest which the testator had in theproperty.'
We are inclined to think that this case falls within the principle laid down in Illustration (i).
6. In Pullayya v. Veeraghavamma, AIR 1954 Andh 2 it was laid down by one of us (Umamaheswaram, J.) that
'Section 97 of the Succession Act does not apply directly to wills by Hindus, but it lays down a general principle of interpretation of wills, which could equally be applied to a will by a Hindu, though if the clear intentions of the, testator appeared otherwise, the Section could not be applied.' We held that under the will the properties of Kotireddi were bequeathed to Venkataswamy alone.
7. The next question is whether the 1st defendant had impressed those properties with joint family character Dy reason of his statements made in Exhibit A-2. In order to appreciate this contention, it is necessary to state a few relevant facts. The 1st defendant executed a gilt deed in favour of his sister's son in respect of some of the properties which he got under the will from Kotireddi. Disputes arose between the nephew and the members of the 1st defendant's family. So the nephew Subba Roddi filed O.S. No. 28 of 1943 on the file of the District Munsif's Court, Ongole for permanent injunction restraining the 1st defendant and his sons from interfering with his possession. In order lo non-suit him and invalidate the gift, the 1st defendant put forward the plea that all the properties bequeathed under the will were joint family properties. His sons also supported him in that contention. A suit was also instituted by one of his sons for partition of the joint family properties including the properties bequeathed under the will, that suit was dismissed for default. The nephew succeeded in his suit and it was held that under the will the properties were bequeathed to the 1st defendant only. The learned Subordinate Judge took the view that as the 1st defendant had contended that the properties bequeathed under the will were joint family properties, it must be held that they are not his separate properties.
In support of this contention, he relied upon the decision of this Court in Sadasiva Vittal v. Rattalu, 1957-2 Andh WR 16: (AIR 1958 Andh Pra 145). The proposition laid down is perfectly sound and we agree with those observations which are as follows:
'It is clear law that a person might impress his self-acquired or separate property in whole or in part with joint family character. He might throw it into the hotchpot or blend it with joint family property or by a declaration of clear intention convert the self-acquired properly into joint family property. It is not necessary that he should convert the entire self-acquired property into joint family property or that he should own joint family property in order to do so. By a clear expression of intention, such as by a statement in a deposition or by an affidavit or by executing a document or by course of conduct he may alter the character of the self-acquired or separate property into joint family property. No formalities whatsoever are required for impressing the self-acquired property with the character of joint family property.'
The decision of the Madras High Court in Subramania lyer v. Commr. of Income-tax, Madras, : 28ITR352(Mad) was followed By his Court.
8. The question that arises for consideration is whether the father had made a declaration of intention to convert his separate property into joint family property. We are inclined to hold on the facts of this particular case that in order to defeat the rights of nephew such a contention was put forward. The object of his father, the is defendant was not to clothe any rights on his sons. As pointed out by the Judicial Committee in Venkatapathi Raju 'Venkatanarasimha Raju, AIR 1936 PC 264 at pp. 268 and 269,
'it sometimes happens that persons make statements which serve their purpose or proceed upon ignorance of the true position; and it is not their statement, but their relationship with the estate, which should be taken into consideration in determining the issue.'
Vide also Rukhmabai v. Lashminarayan, : 2SCR253 . The statement in Ext. A-2 appears to have been made only to serve his purpose viz., to defeat the fights of the nephew Subba Reddi. The statement might have been made even on ignorance of the rights which were conferred on him under the will, We do not agree with the learned Subordinate Judge that by reason of the statement in Exhibit A-2, the properties bequeathed in favour of the 1st defendant are impressed with joint family character.
9. There is also no force in the contention of sri Narayana, the learned Advocate for the respondent, that inasmuch as the sons were permitted to enjoy the income from these properties the properties should be regarded as joint family properties. The father out of bounty arm affection, might support his children out of the income from his separate or self-acquired properties.
10. The last question which falls to be decided is as to what properties are joint family properties and what properties are the separate properties of the 1st defendant. It is, submitted on both sides that item 16 of A schedule and item 2 of B schedule arc joint family properties which survived on the death of Adireddi, the father of Venkstaswamy. The evidence of the 1st defendant is that from the dale of the execution of the will (Exhibit B-1) Kotireddi permitted him to enjoy all the properties. He also stated that a cash of Rs. 2000/- was given to him. We are inclined to accept his evidence that even during the life-time of Kotireddi, he was in possession and enjoyment of Kotireddi's properties. It is in evidence that item 4 of A schedule was purchased in the name of Adireddi. According to the 1st defendant, it was purchased in his father's name with his own monies. So far as the purchases under Exhibits B-5 to B-8 are concerned, the evidence of the 1st defendant is that he made those purchases with the aid of properties which he got under the will of his uncle.
11. The law as to the initial burden of proof in cases like this is well summed up by the Privy Council, in Appalaswami v. Suryanarayanamurthi, AIR 1947 PC 189 at P. 192 in the following words:
'The Hindu Law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by a member of the family is Joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is 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 decision of the Privy Council was followed by the Supreme Court in Srinivas v. Narayan, : 1SCR1 . this view was reiterated by the Supreme Court in M. Girimallappa v. R. Yellappa Gouda, AIR 1959 SC 906 and : 2SCR253 .
12. Sri Narayara, the learned Advocate for the respondent, invited our attention to the decision of the Supreme Court in Mallesappa v. Mallappa, : 3SCR779 as laying down a different rule. The observations of Gajendragadkar, J. relied on are as follows:
'In our opinion, there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence, his plea that the purchase money proceeded from his separate funds. The onus of proof must in such a case be placed on the manager and not on his coparcener.'
This decision has to be read along with the other decisions of the Supreme Court referred to supra. We are not inclined to agree with the contention that the recent decision, of the Supreme Court intended to depart or lay down a rule different from what was laid down in earlier case. Unless it is 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 does not shift to the party alleging that it is his self-acquired property.
On the facts of the particular case, Gajendragadkar, J. held that there was no evidence to show that the manager had any means of his own it was found that the joint family had sufficient ancestral nucleus out of which the properties could have been purchased. Applying the principles laid down in the cases referred to supra, we find on the evidence on record that the joint family owned only item 16 which is of an extent of 5 acres and 20 cents in A schedule and item 2 of B schedule which is unproductive. The evidence of the 1st defendant is that the ancestral lands were being cultivated by the family. He stated that one Putti of land produced one putti. It is admitted that one putti of land is equivalent to 3 acres and odd. Calculating the income on that basis, the family was getting only two putties. The number of members to be supported were the 1st defendant, his wife and his five sons. We are inclined to think that the income realised from the ancestral lands was not sufficient to support the members of the family. We are inclined to accept the defendants' case that all the purchases under Exhibits B-5 to B-8 must have been made with the income realised from Kotireddi's property bequeathed to the 1st defendant. We also accept the defendants' evidence-that the 1st defendant paid the consideration for obtaining the sale deed in the name of his father Adireddi in regard to item 4. In the result we hold that item 16 of plaint A schedule and item 2 of B schedule are proved to be joint family properties and that all the other properties are the separate properties of the 1st defendant, me plaintiff is consequently entitled only to a one-sixth share in item 16 of A schedule and item 2 of B schedule.
13. Following the reasoning aforesaid, we are inclined to think that the outstanding admitted by the father to exist are his own and that the sons have no right to claim a share therein.
14. In the result, we modify the decree of the Subordinate Judge as stated supra. There will be a preliminary decree for partition and the plaintiff will be entitled only to a one-sixth share in item 16 of A schedule and item 2 of B schedule. As the plaintiff has substantially failed in the suit as also in the appeal, He will pay the costs of defendants 1, 5, 6 and 10 in both the Courts.