1. This is an appeal from the decree passed by the learned Subordinate Judge, Allahabad, in a suit brought by the plaintiff-respondent, Mt. Krishna Bibi, against the appellant, Magan Lal, the adopted son of her husband Mathura Prasad and herself, for recovery of Rs. 5,000 in terms of her husband's will, dated 2nd July 1915, for determination of her maintenance which is claimed by her at the rate of Rs. 20 per mensem, and for recovery of arrears thereof for two months before the suit. She also claimed a declaration of her right to reside in the house described in Schedule B annexed to the plaint. Her claim to recover certain moveables, mentioned in Schedule C, was dismissed by the lower Court. She has not challenged that part of the decree either by a separate appeal or cross -objection. The other reliefs, referred to above, were granted by the lower Court, whose decree in respect of them is impugned in appeal.
2. The following pedigree will explain the facts of the case and the position of the parties:
NAND LAL|------------------------------| |Bisheshwar Mathura Prasad DaughterDayal (died on |(died about 1908) 2lst October Magan Lal.alias= 1915)Lallan| Krishna Bibi| (plaintifi)| || ----------------| | || Magan Lal Bittan Bibi=| (adopted)| Idefendant. Snmat Chand.|-----------|---------------------| | |Anantu Kantu Babu Lal.Lal. Lal. (deceased).
3. It will be seen that Magan Lal is the sister's son of Mathura Prasad and was adopted by the latter, his material uncle. The factum and validity of adoption have not been questioned before us. The parties belong to a Jain family, and the adoption of a sister's son must have been in pursuance of Jaw or custom applicable to that community. It is common ground that Mathura Prasad's father Nand Lal lived at Shahzapur, a village in the Allahabad District, in which he had, besides a residential house, one-fifth share in certain lands assessed to Government revenue of Rs. 13 and a grove. It is not disputed that its income was negligible Nand Lal died sometime in seventies. The exact year of his death cannot be stated with certainty. The appellant stated in his evidence that Nand Lal died 50-55 years before the present litigation, i.e., sometime between 1870 and 1875. The family migrated to Allahabad long before the defendant was adopted. According to the plaintiff it was after the death of Nand Lal that Mathura Prasad and Bisheshwar Dayal left Shahzadpur for Allahabad, where they started a 'sarrafi' shop with funds raised by sale of ornaments of their womenfolk. It is also alleged by her that Mathura Prasad and Bisheshwar Dayal, who carried on a joint 'sarrafi' shop after their migration to Allahabad, made a partition of their joint effects in about 1898. According to the evidence of the defendant's witnesses it was Nand Lal who migrated to Allahabad with his sons and started a 'isarrafi' shop with funds brought by him from Shahzadpur and the same business was continued after his death by his sons who made a partition in about 1896-97, after which Mathura Prasad carried on his own business and prospered. The defendant was adopted in 1898 by Mathura Prasad who brought him up. Mathura Prasad died on 21st October 1915, leaving him surviving his widow, the plaintiff, his adopted son, the defendant, and a daughter, Bittan Bibi, who is married to Sumat Chand, a witness' for the plaintiff. He left, besides a residential house, property valued by the defendant at Rs. 43,800. The parties lived amicably till a time two years before the suit, when the plaintiff began to reside with her daughter in the same neighbourhood.
4. The plaintiff's case is that Mathura Prasad, who was the sole owner of the property existing at the time of his death, left a registered will, dated 2nd July 1915, by which he devised a sum of Rs. 5,000 to her with the direction that the same be deposited in his shop and interest at the rate of 6 per cent paid to her regularly. The will also gave her a right of residence in the house occupied by Mathura Prasad. Three other legacies provided for by the will need special mention, as they have some bearing on an important question to be hereafter discussed. A sum of Rs. 1,000 was left to Bit tan Bibi with a direction similar to that in case of the plaintiff as regards deposit and payment of interest. A sum of Rs. 1,000 was left for charity. R. 500 was left to a niece of Mathura Prasad. According to the plaintiff's evidence interest at the rale of 6 per cent on Rs. 5,000 was paid to her before the relations between the parties became strained and she was turned out, a she alleges, or left the house, as the defendant alleges. If the will is genuine and valid, she is undoubtedly entitled to recover the sum of Rs, 5,000 in absolute right. Her right of residence in the house, clearly given by the will, cannot, likewise, be questioned in that case. Pier claim to maintenance is based on general Hindu law. The will, which leaves the rest of the property to the defendant, makes no express mention of her maintenance. At the same time it does not negative it. The defence, so far as it has been urged in appeal, is that Mathura Prasad and the defendant formed a joint Hindu family and the entire property existing at the time of Mathura Prasad's death belong to such family, Mathura Prasad having no disposing power over any part thereof. Accordingly it is pleaded that the will relied on by the plaintiff is not valid. The genuineness of the will was also denied.
5. The original will, which is presumably in possession of the defendant, has not been produced. Secondary evidence in the shape of a certified copy thereof, taken from the Rigistration Office, has been produced by the plaintiff. The lower Court held that the will was duly executed by Mathura Prasad and is a perfectly genuine document. This finding has not been challenged in appeal. The sole question argued before us is whether Mathura Prasad had power to make the various dispositions in favour of the plaintiff. The decision of this question will turn on the answer to the further question whether the property disposed of by the will and the whole property existing at the time of Mathura Prasad's death is dealt with by the will - belonged exclusively to Mathura Prasad or was joint family property belonging to himself and the defendant. The latter repudiates the will, even though he is the residuary legatee under it. The reason is ob vious. He stands to gain if the will is not upheld, and remains a residuary legatee if it is upheld.
6. The case presented before us on behalf of the appellant is three-fold. It is argued : (1) That Nand Lal, who started the 'sarrafi' shop at Allahabad, left assets with which Mathura Prasad and his brother Bisheshwar Dayal continued the 'sarrafi' business till they effected a partition in 1897 or thereabout, after which Mathura Prasad continued the 'sarrafi' business with the assets allotted to him, and that such assets were mere augmentations of the ancestral business originally started by Nand Lal in which the defendant acquired an interest on his adoption by Mathura Prasad; (2) That assuming the evidence does not establish that the business carried on by Mathura Prasad and Bisheshwar Dayal was a mere continuation of that stated by their father, but: was started by the two brothers for the first time with funds which were not ancestral, the evidence on both sides establishes the fact that they jointly carried on the 'sarrafi' shop; and being members of a joint Hindu family the shop and its assets should be considered to be the joint family property of the two, and that even in such a case the adopted son, the defendant, acquired an interest on his adoption, although a partition had taken place previously between Mathura Prasad and Bisheshwar Dayal, there being no difference between 'joint ancestral property' and 'joint property' acquired by the joint efforts of members of a joint Hindu family; and (3) That at all events, it is established that Mathura Prasad associated Ms adopted son, the defendant, who was a member of a joint Hindu family with him in his business treating the assets which he had received on partition (assuming the same were self-acquired) and subsequent accretions as joint Hindu family belonging to himself and the defendant.
7. It is noteworthy that the only case pleaded by the defendant in his written statement is the last. The first two are not pleaded directly or indirectly in any part of the written statement. It is alleged in para. 9 of the written statement that the defendant became a member of joint Hindu family with Mathura Prasad on the adoption of the farmer by the latter. This is right and cannot, be disputed. A Hindu father becomes a member of joint Hindu family with his son as soon as one is born or is adopted. There is a presumption that father and son are members of a joint Hindu family. There is however no presumption that the two own any joint family property. I think that para. 9 of the written statement should not be construed as implying that the defendant became a member of a joint Hindu family with. Mathura Prasad at the time of adoption qua all the property he was then possessed of. The plea is no more than an allegation as regards the status of the defendant in Mathura Prasad's family having no reference to any property. The plea as regards his interest in Mathura Prasad's property is contained in the next paragraph (p. 10), in which it is alleged that:
while living jointly the entire property and assets were purchased and acquired by their joint efforts, and the contesting defendant, as a surviving member of the family, has exclusively become the owner and in possession thereof.
8. It is clear that the defendant's case rested solely on the allegation that the properties existing at the time of Mathura Prasad's death were joint family properties, because the same had been acquired by the joint efforts of the father and son. It was not the case of the defendant that apart from 'joint efforts' such properties were the joint family properties because they had accumulated around the nucleus of ancestral property left by Nand Lal or the nucleus of joint family property received by Mathura Prasad on partition with his brother Bisheshwar Dayal.
9. Evidence was led by the plaintiff in the first instance. Her witnesses, including Kuntu Lal, one of the sons of Bisheshwar Dayal, and the plaintiff herself, gave evidence in support of the will and regarding the state of the family from the earliest time that could be remembered. According to their story Mathura Prasad and Bisheshwar Dayal left Shahzadpur and started 'sarrafi' business at Allahabad after the death of Nand Lai. According to the evidence of Kuntu Lal and Sumat Chand, the two brothers lived separately in two different parts of the same house. Their business was however to all appearances, joint till a partition was effected. The statements of the plaintiff's witnesses so far as they bear on the question whether Mathura Prasad and Bisheshwar Dayal were members of a joint Hindu family owning the 'sarrafi' shop as such, are of a casual nature and were not made with a view to admit or controvert the defendant's case as it developed in course of the evidence subsequently led by him. His witnesses attempted to establish a case of continued joint family from the time of Nand Lal down to the partition of 1897. If the defendant's evidence be accepted in its entirety, it certainly lends countenance to the contention that the defendant acquired an interest in 'the property belonging to Mathura Prasad at the time of his (the defendant's) adoption. As already shown, this is substantially different from the case in the written statement. I am of opinion that, the defendant should not be allowed to base his defence on the case disclosed in the course of the evidence led by him, after the plaintiff had closed her case, if it is such as to take her by surprise. Having carefully considered the evidence and the conclusion of law which are reached if the evidence is accepted, I am clearly of opinion that, unless the defendant's case is limited to the written statement, the plaintiff will be greatly prejudiced, she having had no opportunity of meeting the contentions now urged, namely, that the property existing at the time of his adoption was an augmentation of the ancestral estate left by Nand Lal or of the joint family property acquired as such by Mathura Prasad and Bisheshwar Dayal.
10. The plaintiff has no difficulty in meeting the defendant's case that the 'sarrafi' business had been started by Nand Lal and that the same was continued by his sons. The only evidence which the defendant has produced in support of that, allegation cossists of the testimony of Chandika Prasad and the defendant himself. On his own showings the defendant has no-personal knowledge, because he was not even born when Nand Lal died. All that he can say on the subject is hearsay, which is not admissible in evidence. Chandika Prasad however is an old man of 74 and professes to have-personal knowledge of the circumstances in which Nand Lal left Shahzadpur and carried on his business at Allahabad. According to him Nand Lal left Shahzadpur, 60 years, before the suit, i.e. 1870 or thereabout, and lived, for five or six years thereafter in Allahabad during which time he carried on the 'sarrafi' business. He gives his own age at the time to have been 15 years. The reason why Chandika Prasad though not a relaion or fellow casteman of Nand Lai, knew about the affairs, is that his father also migrated to Allahabad and the witness used to-sit at Nand Lai's shop to learn work. During this time he heard Nand Lal saying to the witness's father that 'he had lost all in weddings and thefts and. had only 12 to 15 hundred rupees left.' He stayed at Allahabad only for about 1| months, during which time he was maintained by Nand Lal. The witness was abroad on service from 1908 to 1915. As against his evidence we have the statement of the plaintiff and one or two of her witnesses that Nand Lal never migrated to Allahabad. In my opinion, Chandika Prasad's evidence is not convincing. The graphic account which he gives of what Nand Lal said or used to do has no ring of truth about it. He is apparently a man of straw and otherwise unreliable.
11. The second part of the defendant's case has more evidence in support of it. His witnesses, who state that Mathura Prasad and Bisheshwar Dayal lived and carried on business as members of a joint Hindu family are corroborated by the evidence of the plaintiff's witnesses who admit that the two carried on business 'jointly.' According to the evidence of Kuntu Lal and Sumat Chand, they lived in two separate parts of the same house which had been purchased by them,. It was 'kacheha' and each re-built his separate portion. It is not clear whether this was after or before the partition. If the defendant's case be accepted and it be held that Mathura Prasad and Bisheshwar Dayal were members of a joint Hindu family and as such acquired joint family property which was divided between them, the question which arises and which is not quite free from difficulty is whether the defendant acquired an interest in such property on adoption, assuming, as we must do on this part of the case, that there was no leaven of the ancestral property left by Nand Lal. The defendant relies on Haridas Narayandas v. Devkuvarbai 1926 Bom. 408, in which it has been held:
Where property, acquired in the course of a business carried on by members of a Hindu joint family, is alleged to be joint family property, it depends in each case on the evidence whether the members of the 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.
12. The learned Judge proceeded to lay down that:
Ordinarily speaking...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.
13. It seems to be conceded that the rule of Hindu law, under which a son acquires an interest by birth in joint family property, is limited to cases in which the joint, family property consists of ancestral property or its augmentation; but the same incidents would attach to the property which is not ancestral property, but as acquired by the joint efforts of members of a joint Hindu family, if they dealt with it as 'joint family property' and not merely as 'joint property', between which a distinction is drawn, the latter being such as is known to English law under which though the rule of survivorship is applicable, but the sons cannot take an interest by birth. The distinction between 'joint family property' and 'joint property' has been lucidly explained by Beaman, J., in Karsondas Dharamsey v. Gangabai (1908) 32 Bom. 479, in which that learned, Judge observed that:
there is nothing either in practice or theory which excludes the possibility of members of the same family starting a family fortune holding if as members of a joint family, and thereby clothing it with all the legal qualities and incidents of joint family property, chief among which is that every member born into the family after the property has acquired that character and before it has been divested by partition obtains by birth an interest in it.
14. In the view taken by the Bombay High Court the decisive point is whether the acquirers so treated the property as to make it 'joint family property' as distinguished from mere 'joint property.' According to Haridas narayandas v. Devkuvarbhai 1926 Bom. 408, such intention is to be presumed from the fact that they lived in commensality as members of joint Hindu family and carried on business as such, but the presumption is rebuttable. In Sudarasnam Maistri v. Narasimhulu Maistri (1902) 25 Mad. 149, the same view is expressed in an obiter dictum. Mayre in his work on Hindu law has adopted the statement of law contained in Haridas narayandas v. Devkuvarbhai 1926 Bom. 408. As against this, it has to be admitted that the Mitakshara, Chap. 1, Section 1(27), in which alone the rule on the subject is to be found, this principle is not made expressly applicable to property acquired with joint efforts of members of the joint Hindu family. Ghosh in his work on Hindu law, Vol. 1, Edn. 3, p. 400, says:
The Allahabad High Court have held that property may be joint with rights of survivorship without being ancestral, and that is also the view of the Bombay High Court. It is, however difficult to see how there can be any right of survivorship when there is no ancestral property The reason given for the existence of such right would be wholly wanting in such a case. But when there was some ancestral property subsequent acquisitions should be considered as accretions to it and the rule of survivorship would be applicable.
15. As a matter of fact, the Allahabad High Court has not, subscribed to that view. The learned author refers to Jamna v. Ram Protap (1907) 29 All. 667, in which the question was whether sons acquired an interest by birth in the property inherited by their father. Referring to the Bombay view, the learned Judges observed:
It is a well-known rule of the Mitakshara law that property may be joint property without having been ancestral. In the case of such joint property it has never been held that a son would by birth alone acquire an interest in the property. This appears to have been the view adopted by the Bombay High Court in Chatturbhooj v. Dharamsi (1885) 9 Bom. 438 and that seems to be the opinion of Mr. Mayne also. Having regard to the whole context of the rule laid down by the Mitakshara, it is clear that it is only in the case of property which was derived from a paternal ancestor that such property becomes the joint property of the father and his son, and we should have considerable hesitation in agreeing with the opinion expressed by Bhashyam Ayyangar, J., in Sudarasnam Maistri v. Narasimhulu Maistri (1902) 25 Mad. 149 if he thereby intended to hold the contrary.
16. This is in accord with the opinion expressed by Ghosh in his book on Hindu law and is opposed to the view taken by the Bombay High Court and Bhashyam Ayyangar, J. It is however an, obiter dictum, and the point did not arise before the learned Judges of this Court who had to decide a different question namely, whether the sons of a certain person acquired an interest by birth in the property which he had inherited from his maternal grandfather. It was not alleged in that case that, though the father originally acquired the property by inheritance from his maternal grandfather, he subsequently made it, part of joint family property or treated it as such,. If this had been the case and if there had been a finding of fact to that effect, the dictum quoted above could not be considered obiter. I think that the question is res integra. I would have proceeded to express an opinion on this important question if the circumstances of this case had made it necessary. In view however of the pleadings I do feel called upon to express an opinion on the divergent views set forth above. I have indicated them at length to show what questions of fact are involved in accepting the defendant's contention. If we adopt the view taken by the Bombay High Court in Haridas narayandas v. Devkuvarbhai 1926 Bom. 408, and the obiter dictum of Bhashyam Ayyangar, J., in Sudarasnam Maistri v. Narasimhulu Maistri (1902) 25 Mad. 149, which is pressed upon us by the defendant's learned advocate, it will be necessary to find not only that Mathura Prasad and Bisheshwar Dayal were members of a joint Hindu family but also that the properties, acquired by them became joint family properties, in which their offspring would take an interest by birth. This result will be arrived at by means of a presumption, which is rebuttable according to the two cases last referred to. The plaintiff has had no opportunity of rebutting such presumption and, indeed, of showing that the two brothers, who lived separately, were only tenants-in-common. For these reasons, I hold that the defendant should be limited to the only case which is pleaded in his written, statement, namely, that the properties, existing at the time of Mathura Prasad's death had all been acquired by them with their joint efforts.
17. The defendant's allegation that the properties, existing at the time of Mathura Prasad's death had been acquired by him and the defendant as members of a joint Hindu family so as to become joint family properties can succeed only if the evidence goes so far as to establish that Mathura Prasad abandoned all separate claims to the properties which he possessed at the time of the defendant's, adoption and subsequently treated it and the properties acquired with its aid as joint family properties, belonging to himself and his adopted son. As their Lordships of the Privy Council laid down in Mudun Gopal Lal v. Khikhiuda Koer (1891) 18 Cal. 341, a clear intention to waive his separate right must be established and will not be inferred from acts which may have been done merely from kindness or affection. In the present case, when the defendant was adopted, ex hypothesi he had no interest in Mathura Prasad's properties. Any properties subsequently acquired by Mathura, Prasad will be likewise his. The defendant was aged 9 when he was adopted sometime in 1898. He says that he joined his adoptive father in the 'sarrafi' business at the age of 14 or 15. If so, he must have done so with a view to learning the business which it was expected, would devolve on him after Mathura Prasad's death. I cannot accept his statement that even at that age he signed 'hundis' or advanced loans. So far as the documentary evidence shows, it appears that between 1911 and 1915 a number of mortgage-deeds and bonds were exe cuted by third persons in favour of Mathura Prasad and the defendant, suits were brought by them on foot of the mortgages and bonds, and decrees were obtained. Some sale-deeds were also taken in their names during that period. There is no need of a date prior to 28th June 1911. It is not unreasonable to suppose that Mathura Prasad initiated his son into his business, trained him, and as the latter grew up, he actively participated in the business of his father. That 4 or 5 years before Mathura Das's death deeds were taken in their joint names does not indicate an intention on the part of Mathura Prasad to divest himself of all exclusive interest in his properties. The fact that suits were brought by them jointly is accounted for by their being joint obligees under the deeds and bonds sued on Mathura Prasad had become old and infirm, and these facts are consistent with a desire on his part to allow a free hand in his affairs to one who was to succeed to his estate.
18. The whole of Mathura Prasad's conduct negatives the intention to make his property joint family property. On 5th April 1908, he executed a deed of gift in favour of his daughter, Mt. Bittan, in respect of a house belonging to him. In the deed he asserts himself to be the exclusive owner of the house, having 'no co-sharer or co-parcener.' The defendant is one of the attesting witnesses. The defendant says that the gift was made with his 'acquiescence.' This is perhaps correct. The defendant had to acquiesce, as he had no alternative. The important fact is that Mathura Prasad did not at this time regard his son as his co-sharer, and asserted himself to be the sole owner of the property disposed of by him. If he had abandoned all separate interest in all his properties, the recital would have been otherwise and the defendant would have been persuaded to join with Mathura Prasad as an executant. Similarly, the will executed by Mathura. Prasad recites the fact that its executant was 'the absolute owner of the entire property.' He made dispositions of all his properties, leaving the bulk of them to the defendant himself. This conduct is wholly inconsistent with the theory that he had allowed the whole of his property to become joint family property. The defendant has given the following account of the extent to which he participated in the management of the shop:
Mathura Prasad gave me religious education and taught me shop work. Thirteen months before his death Mathura Prasad's health became impaired and only for the last 7-8 months before his death he stopped going to the shop. Before that he would go and sit on the shop 'gaddi' and I would do the actual work of the shop. For 4-5 years before his death Lala Mathura Prasad would, for the most part, do Court work, I for the most part would do shop work. I cannot say; what my personal expenses amounted to over and above feeding and clothing expenses all my personal expenses, would be met out of the shop income. Whatever properties other than the residential house were acquired were so acquired with the joint income of myself and Mathura Prasad. When I started to work in the shop, the firm was a going concern, but its income was less than what it became after. I, too, had begun to work in it and to exert myself to improve its income.
19. Stripped of all exaggeration as re-regards the credit due to him for the prosperity of the shop the facts stated by him, are just what, one would find in cases of a businessman who is not a Hindu. As the son grows up, he is trained in the business of his father. His share in the actual management grows with the advancing age of the father till the father is relieved of all care by one who expects to inherit all his property. It is impossible, in my opinion, to infer from facts of such equivocal character that the father and son became joint owners of the entire property originally belonging to the father and that acquired with its aid. The conduct of the defendant in relation to be legacies is extremely significant. On his own showing, he paid Rs. 1,000 to Mt. Bittan in terms of the will of Mathura Prasad. His explanation is that he gave that sum to her in obedience to a verbal direction given by Mathura Prasad. This is palpably untrue, as in the 'khiata' of Bittan Bibi opened by him in his a.ccount book he has mentioned at more than one place the fact, that payment was made to Bittan Bibi in pursuance of the 'wasiyatnama,' which implies a testamentary instrument. Similarly, he paid Rs. 500 to the niece as directed in the will. The thousand rupees left for charity was also paid. These are all admitted facts. His explanation, which cannot be accepted, is that it was not in pursuance of the will in question, but of verbal instructions given to him by Mathura Prasad.
20. In spite of his attempt to tamper with his account there are many entries in the 'khata' opened in the name of the plaintiff which show that interest at the rate of Rs. 25, a month was paid to her. The account books are in 'mahajan' character and extracts from them in those characters with their transliteration had to be filed according to the rules. In the transliteration, which is in Urdu character, the words 'in respect of interest' occurring in the original aree omitted. On examination it has been found that for several months consecutively he paid Rs. 25 as interest to the plaintiff. Now, interest at the rate of 6 per cent on Rs. 5,000, provided for in the will, comes to Rs. 25 a month. The sworn testimony of the plaintiff that she received interest regularly till not long before the institution of the suit, receives material corroboration from the entries in the defendant's account books. But for the rupture, which occurred two years before the suit, the plaintiff would have, in all probability, continued to receive the interest. The defendant's conduct taken as a whole is good evidence of an implied admission by him that the will was a perfectly valid document, Mathura Prasad having disposed of property which belonged to him exclusively. Having carefully considered all the evidence in the, case and the probabilities thereof, I am led to the unhesitating conclusion that Mathura Prasad was the sole owner of the property felt by him at the time of his death and devised by his will, and that the legacies in favour of the plaintiff are valid and enforceable against the defendant. The decree appealed from was not challenged before us except on the general ground discussed above. No arguments were addressed to us as regards the amount of maintenance awarded by the lower Court or the right of the plaintiff to recover arrears, nor was the plaintiff's right to reside in the house described in Schedule B questioned. The result is that I dismiss the appeal with costs.
21. I agree with my learned brother in the conclusions which he has reached. There is no satisfactory evidence that the business which was carried on by Mathura Prasad and his brother was started by their father or by them with a nucleus of joint family capital. There is a presumption that the brothers were members of a joint Hindu family and there is nothing in in the evidence or in the circumstances which would rebut this presumption. Even if the brothers were joint, it would not follow that the business was a joint family business. There may be a presumption in favour of the finding that the business was a joint family business, but this is a question upon which it is not necessary for me to express any definite opinion. Even if there was such a presumption it would be rebuttable and there can be no doubt that the case based on presumption was not set forth in the written statement of the defendant-appellant with the result that the plaintiff-respondent had no opportunity of meeting it. In these circumstances, it would be most unfair to the plaintiff-respondent to allow the defendant-appellant to succeed on the basis of the argument which has been addressed to us.
22. The alternative case that the defendant-appellant and his father Mathura Prasad were owners as members of a joint Hindu family of the property now in suit depends upon the argument that Mathura Prasad in some way withdrew from his position as sole owner and converted his property into joint family property owned by himself arid his adopted son. It is true that Mathura Prasad allowed the defendant-appellant to assist him in conducting the business out of which the property grew, but that was a natural course of conduct on his part and did not in my opinion, lead to the conclusion that Mathura Prasad intended that the property should be joint property. On the other hand, Mathura Prasad's conduct in making a gift of a house to his daughter 10 years after the adoption and in making a will before his death in which he said that he was the sole owner of this property makes it clear that he always regarded himself as the sole owner. The law and the fact on the case are discussed at length by my learned brother and it is unnecessary for me to reproduce his arguments at any length. As I have already said, I agree with his conclusions and I would dismiss the appeal with costs.