1. This appeal arises out of a claim put forward in insolvency proceedings. The insolvent is Madan Lal. The claimants are his sons, Bhagwant Kishore and Chandar Kishore. The claim relates to the offerings made at a shrine called Kuawala. A sum of Rs. 1300 was in the hands of a receiver in respect of the offerings for a particular period. It should be noted that the receiver was not the receiver in insolvency but was a receiver appointed in a proceeding under Section 145, Criminal P. C. The official receiver desired this amount to be paid to him claiming it to belong to the estate of the insolvent Madan Lal. Bhagwant Kishore and Chandar Kishore objected claiming that the offerings belonged to them. Both the Courts below have held that the offerings formed part of the estate of the insolvent and have, therefore, rejected the claim of Bhagwant Kishore and Chandar Kishore, who have come up in appeal to this Court.
2. The brief history of the right to receive the offerings at the shrine of Kuawala is that the members of the insolvent's family, for some time past, had a right to receive the offerings made at the shrine. Har Narain the father of the insolvent, had a moiety share in them, the other moiety share vesting in another member of the family, Munna Lal, Har Narain purchased Munna Lal's share, in the year 1915. Har Narain subsequently made a will in respect of this right to receive offerings. Bhagwant Kishore claimed as a legatee under the will and Chandar Kishore claimed under a gift from his father, the other legatee under the will. All these transfers have been held by the Courts below to be in operative and it has been found that the right to receive offerings is the joint family property in the hands of the insolvent, having been inherited from his father, Har Narain.
3. It is not necessary to enter into the details of the transfers made by Har Narain and the insolvent because it is conceded that the decision of the case depends upon the question whether Har Narain was competent to make a will and whether the right purchased from Munna Lal was the self-acquired property of Har Narain or was joint family property. There is no positive evidence in the case to prove either that Har Narain invested ancestral fund in making the purchase nor is there any positive evidence to prove that Har Narain had any private source of income from which he could make a self-acquisition. The decision of the case must, therefore, depend upon the presumptions of Hindu law.
4. As already observed Har Narain was possessed of some ancestral property, which was the right to receive a moiety share of the offerings. Har Narain was the karta or the manager of the joint Hindu family consisting of himself and his sons. I have not the least doubt that when a purchase is made by the karta or manager of a joint Hindu family and it is proved that he was in receipt of an income on behalf of the joint Hindu family, and it is not proved that he had any separate source of income, the presumption to be made is that the purchase was made by the karta on behalf of the family from family funds, unless the contrary is proved.
5. Learned counsel contends that it is not enough to prove that the family had some income but before the presumption san be made it should be proved that the income was such as to leave a surplus available for the purchase. I am aware of the rulings in which it has been held that the mere existence of ancestral nucleus is not enough but that it must be proved that the nucleus was a fruitful nucleus, namely that the nucleus was such as to give rise to a presumtion that the purchase might have been made out of it. But if I am not mistaken it was definitely proved in all these cases that the nucleus was so meagre that the purchase could not have been made out of that. The further question upon which the decision of this case depends is that if it is not known either way, whether the nucleus was so meagre that the purchase could not be made out of it or whether the nucleus was sufficient to enable the purchase to be made, what is the presumption to be made about it. In my opinion when no other scarce of income is disclosed from which the property could be purchased and all that is known is that the family possessed some ancestral nucleus the presumption to be made is that the nucleus was sufficient to enable the purchase of the property to be made. I have, therefore, come to the conclusion that the finding of the lower appellate Court with regard to the nature of the property, namely that it is joint family property is not vitiated by any error of law.
6. The learned counsel next contended, as a matter of law, that a partition suit having been instituted and a partition decree having been passed, the Court below could not hold that the family was joint at the time when Madan Lal became insolvent. The Court below has found, on a review of evidence, that the partition suit was a sham transaction which was resorted to for the purpose of creating evidence of separation, and that the parties never, in fact, intended to separate. In order to effect separation in a joint Hindu family, unequivocal expression of an intention to separate is necessary. This presupposes that there should be an intention to separate in order to bring about a disruption of the family. I have been shown no authority in support of the proposition that it is not permissible to prove that such an intention was never entertained although it was pretended that such an intention was entertained. The Court below was perfectly competent to find on evidence that, in fact, there was no severance of the jointness and that the parties have continued to be joint.
7. No other point was argued before me. This appeal is dismissed, but without any order as to costs, as nobody appers for the respondent.