C.A. Vaidialingam, J.
1. This is an appeal by defendants 4 to 8 and 30 against the decree and judgment of the learned Subordinate Judge, Tellicherry in O. S. 72/1952 holding that the plaintiffs are entitled to a partition of items 1 to 10 and 12 of the plaint B schedule.
2. One Kelu had 5 sons namely, Chathunni, Unni (1st defendant), Kelukutly, Cherutty and Kunhikrishnan (defendant 2). Unni the 1st defendant has no male issues and defendants 4 and 7 are his wife and daughter. The 8th defendant is a son of the 7th defendant. Kelukutty appears tohave died some time in April-May 1951 just prior to the present suit. The 1st defendant Unni died during the pendency of this suit and his wife and daughter are defendants 6 and 5 respectively.
3. The three plaintiffs and the 3rd defendant are the sens of Chathunni, the eldest son of Kelu. The 9th defendant is an assignee of the rights of the 3rd defendant. The 10th defendant claims as a legatee of the rights of the 1st defendant in item 1 of plaint-B schedule.
4. The suit was for a partition and separate possession of the 12 items in plaint B schedule and also the movables mentioned in the plaint C schedule. The short case of the plaintiffs was that the plaintiffs and defendants shown in the geneology tree to the plaint in Schedule A, form members of an undivided Hindu family governed by the Mitakshara Law. The said joint family owns the immovable and movable properties described in schedules B and C respectively to the plaint.
Those properties were acquired by Kelu thegrandfather of the plaintiffs and the 3rd defendantand the father of defendants 1 and 2, and Kelukutty the deceased husband of the 4th defendantand 2 others. The acquisition by Kelu was eitherin the names of defendants 1 and 2, or the deceased Chathunni and Kelukutty with his own fundsearned by his efforts and also with the income derived from the properties bv the joint exertions ofKelu and his children. But the property so acquired were all for and on behalf of the joint familyand as such giving a right to the plaintiffs inthose properties.
The plaintiffs further alleged that any dealings with those properties by the sons of Kelu to the detriment of the members of the joint family will not be binding on the joint family and as such, the plaintiffs are entitled to ignore those transactions. The plaintiff also alleged that the sons of Kelu could not have had the means to purchase any of the suit properties standing in their names. The plaint contains certain other particulars regarding the details of acquisition or the stand taken by the parties regarding the suit properties, but they will be dealt with at the appropriate places when discussing the individual items.
5. Defendants 1, 5 and 6 filed common written statement. According to them, the plaint item No. 1 was obtained by the 1st defendant in assignment from his father Kelu. Subsequently, the 1st defendant and his brother Chathunni, the father of plaintiff and 3rd defendant obtained a renewal of the properties and were cultivating the same. The said item belongs to the plaintiffs and defendants 1 and 3 exclusively and the other defendants have no rights over the same. Regarding items 2 to C, they stated that they were obtained in assignment jointly by the 1st defendant and his brother Kelukutty, husband of the 4th defendant with their own funds and as such those items belonged exclusively to himself and Kelukutty. Kelu did not acquire those properties for the joint family in the names of 1st defendant and Kelukutty.
6. Defendants 1, 5 and 6 also contended that the 1st defendant and his brothers Chathunni and Kelukutty had the capacity and means to acquire properties and as such, they were acquiring properties for themselves. The. 1st defendant has gifted his rights in items 4 to 6 in favour of his wife and children inclusive of defendants 5 and 6. Subsequently defendants 1, 5, 6 and 7 and others have also, as owners of those properties, partitioned them by registered document dated 12-6-1931. The written statement further gave details of the partition, of 1931. Certain special rights were alsoclaimed in the alternative on behalf of the 5th defendant in respect of a house in item No. 5 and also to the value of Kuzhikoors. Finally they also pleaded the bar of limitation and adverse possession. The same contentions wore reiterated to another form in the additional written statement filed by these defendants on 15-9-1953.
7. The 2nd defendant who is the uncle of the plaintiffs and the youngest son of Kelu more of less supported the case of the plaintiffs, He stated that his father Kelu acquired the suit properties for the joint family in the name of his sons and as such, those properties belonged only to the joint family liable to be partitioned according to law. Items to 11, according to the defendant, were acquired with the cash on hand at the time when Kelu died and as such, they are also joint family properties. Kelu, so long as he was alive, was having full control and possession of the suit properties and subsequent to his death the plaintiffs and defendants were enjoying the same as members of the joint family. It was also stated that the deceased Kelu was a physician and having a decent income,
8. Defendants 4, 7 and 8 being the wife, daughter and grandson of Kelukutty filed a joint written statement. They disputed the existence of a joint family and also the right of the plaintiffs to have a partition of the suit properties. They gave in their written statement details about the acquisition of those properties which will be considered later when dealing with the different items. They disputed the right of the plaintiffs to any share in these items. They also contended that Kelukutly had separate earnings of his own by way of cultivation ana other works. Kelu did not have enough means to acquire all the suit properties. Finally they prayed for a dismissal of the suit, Defendants 7 and 8 filed an additional written statement reiterating their former contentions.
9. The 9th defendant who claims to be an assignee from the 3rd defendant stated that Chathunni the father of 3rd defendant had a half share right in item No. 1 and the 3rd defendant has transferred to him his 1/8th share in item No. 1 by a registered document. Therefore, he contested the rights of the plaintiffs to ask for a partition of the same.
10. The 10th defendant in his written statement contended that Chathunni and the 1st defendant alone had an equal half share in item No. 1 and that the other defendants are not entitled to any share in that item. The 1st-defendant has left a will dated 4-3-1950 bequeathing his half right in item No. 1 to the 10th defendant. As the 1st defendant was dead, the 10th defendant has become entitled to the half-share right in item No. 1 and as such, the plaintiffs are not entitled to ask for a partition in respect of that half share.
11. There is no dispute that the parties are Peruvamans governed by the Mitakshara system of Hindu Law. The 2nd defendant also appears to have died and the plaintiffs, defendants 1, 3 to 6 and 8 appear to have been impleaded as his Legal Representatives.
12. The learned Subordinate Judge came to the conclusion that Kelu was a physician having a moderate income and it was possible for him to acquire properties. He also held that among the sons of Kelu only the 2nd defendant was in a position to have some income. Apparently, the learned Judge was of the view that the father Kelu purchased the suit properties in the names of his sons either jointly or in their individual names. Therefore, the learned Judge considered these purchases in the names of the sons as a gift by Keluto his sons. Then the learned Judge observes in paragraph 25 of his judgment :
Where a Hindu instead of allowing his self-acquired or separate property to go by descent,makes a gift of it to his sons or bequeaths ib tothem, by will, it has been held in Madras that thefather can determine whether the property whichhe has so given shall be ancestral or self-acquired and unless he expresses the wish that it shall be deemed to be self acquired, it will be ancestral property'.
13. Having stated this principle of law relating to a gift by the father in favour of his sons, the learned Judge came to the conclusion that the father (Kelu) and his sons who lived together andexerted jointly acquired the properties in the nameof one or other of his sons. The learned Judge further stated at the conclusion of paragraph 38 of his judgment that even if it is held that item No. 1 was the self-acquisition of Kelu, the inference is obvious that he gave it to the 1st defendant as a gift for and on behalf of all his sons and treated it as a joint family property. No doubt, the learned Judge's conclusion is arrived at after a consideration of the several matters relating to the acquisition of item No. 1 and its transfer by Kelu in the name of the 1st defendant.
14. It must also be stated that the main circumstance that influenced the learned Judge to hold in favour of the plaintiffs regarding the joint nature of items 2 to 10 and 12 was the view he took about Kelu's ability to purchase the properties from his income as a physician.
15. Before we discuss these items, it is better to clear the ground by stating that the principle of law stated by the learned Judge regarding the gift by a Hindu father to his children, based on the Madras view is not quite accurate in view of the decision of the Supreme Court reported in Arunachala Mudaliar v. Muruganatha Mudaliar, 1953-2 Mad LJ 798 : (AIR 1953 SC 495). Their Lordships of the Supreme Court at p. 799 (of Mad LJ) : at p. 498 of AIR) of the report referred to the controversy on this point in the various High Courts as 'follows :
'The controversy arises, however, on the question as to what kind of interest a son would take in the self-acquired property of his father which ho receives by way of gift or testamentary bequest from him, vis-a-vis his own male issue...... Thisquestion has been answered in different ways by thedifferent High Courts in India which 3ms resulted in a considerable diversity of judicial opinion......The Madras High Court in Nagalingam v. Ramachandra ILR 24 Mad 429 has held that it is undoubtedly open to the father to determine whether the property which he has bequeathed, shall be ancestral or self-acquired but unless he expresses his intention that it shall be self-acquired, it should be held to be ancestral....... .This conflict ofjudicial opinion was brought to the Privy Council in Lal Ram Singh v. Deputy Commissioner of Partabgarh, 50 Ind App 265 : (AIR 1923 PC 160) but file Judicial Committee left the question open, as it was not necessary to decide it in that case.'
Their Lordships further observed on the same page :
'In view of the settled law that a Mitliakshara father has absolute right of disposition over his self-acquired property to which no exceptions can be taken by his male descendants, it is, in our opinion, not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in thehands of the doneo in which his sons would acquireco-ordinate interest.'
Then after discussing the various Hindu Law Texts bearing on the point, their Lordships observe at p. 801) (of Mad LJ) : (at p. 499 of AIR) :
'We hold, therefore, that there is no warrant for saying that according to the Mithakshara, an affectionate gift by the father to the son constitutes ipso facto ancestral property in the hands of the donee.'
Again discussing the Text regarding 'self-acquisition' their Lordships observe:
'Our conclusion, therefore, is that a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father, or ancestor.'
Their Lordships stated then that a Mithakshara father has complete powers of disposition over his self-acquired property and therefore, the father is quite competent to provide expressly, when making a gift either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch of the family. Finally, their Lordships observe :
'The material question which the court would have to decide in such cases, is whether taking the document and all the relevant facts into consideration, it could be said that the donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the apparent gift was an integral part of a scheme for partition and what was given to the son was really the share of the property which would normally be allotted to 'him and in his branch of the family on partition? In other words the question would be whether the grantor really wanted to make a gift of his properties or to partition the same? As it is open to the father to make a gift or partition of his properties as he himself chooses, there is strictly speaking, no presumption that he intended either the one or the other.'
16. Therefore, from the ruling of the Supreme Court cited above, it is clear that the statement of the learned Judge based upon the Madras view that unless the father expresses the wish that the gift should be deemed to be self-acquired, it will be an ancestral property in the hands of the son who receives the gift, is not sound.
17. Coming to the actual items, item 1, the learned Judge has come to the conclusion that it was Kelu who has acquired the properly out of his own income and that Kelu and his SODS were living together in the said item and have been treating it as tavazhy tarwad property. The learned Judge, in our view, has considered the material evidence regarding the acquisition and subsequent enjoyment of item 1 and has come to the correct conclusion that it is an item available for partition.
Mr. Gopalan Nambiar, learned counsel for the appellants contended that this finding of the learned Judge is not correct. Appearing for the' daughter and wife of the 1st defendant as also for the 10th defendant, a legatee under the will of the 1st defendant, Mr. Gopalan Nambiar contended that the 1st defendant has an absolute right to a half share in item 1 and that is not available for partition between the plaintiffs and all the other defendants.
We are not able to accept this contention of Mr. Gopalan Nambiar. It will be seen that this item was acquired by Kelu as evidenced by Ex. B-1 dated 5th January 1890, the registered Marupat executed by Kelu. There is no dispute that this item was assigned by Kelu to the 1st defendant but the actual document of assignment is not itself produced. Under Ex. B-3 dated 24-8-1914 there is a renewal by the Jenmi of this item in favour of the 1st defendant and Chathunni the father of plain-tiffs and 3rd defendant. This renewal in favour of 2 sons is again significant There is again a second and third renewal in the name of both of them as evidenced by Exs. B-4 and B-5.
No doubt, it is seen that under Ex. A-1 dated 6-9-1943 Chathunni and the 1st defendant purport to divide item ,1 in certain proportions as between themselves treating the property as belonging exclusively to them. Following this Karar, both of them purport also to deal with their interest in the property independently. It is not necessary for us to consider these transactions excepting to refer only to Ex. B-65 dated 6-9-1943 under which the 1st defendant purports to bequeath his half share in item No. 1 in favour of the 10th defendant. If really the first defendant has a half share in item 1, then the will executed by him Ex, B-65 in favour of the 10th defendant regarding his half-share will be valid. But the question is, did Chathunni and the 1st defendant have exclusive rights to item 1.
18. The most important circumstance is the non-production of the deed of assignment by Kelu in favour of the 1st defendant originally. Almost all the other documents are produced in this case and it is rather curious that this assignment deed alone is not forthcoming. There is good justitication, in our view, for the criticism made by the learned Judge that the said document has been purposely suppressed, because that will go against the case of the 1st defendant.
The contention of the other defendants is that the assignment will clearly show that the father Kelu gave the property to Chathunni not for his exclusive benefit but for the benefit of every other member of the joint family. It is also seen that the father Kelu, so late as 1901 under Ex. B-2 sends a letter to the Panayamdar in respect of item 1. If the father had really given this item to the 1st defendant, it is not explained, as to why the father should still take interest in the property by writing a letter Ex. B-2.
This itself clearly shows that the father was actually in touch with the matters relating to this property and was treating the property as belonging to the entire joint family of which he was the manager. There is also the evidence of D. W. 3 that it was Kelu the father who took a leading part in getting the 1st renewal in favour of the 1st defendant and Chathunni. D. W. 2 has also given evidence to the effect that even at the time of the 2nd renewal it was Kelu who paid a renewal fee and the writing charges.
D. W. 3 has also deposed to the circumstances as to why Kelu took the renewal in favour of his sons and he has also stated that it was so taken for the benefit of all his sons. This evidence has been accepted by the learned Judge and we have also 110 hesitation in accepting that evidence. That evidence clearly shows that the hands of Kelu was to be seen in the renewals taken in favour of 1st defendant and Chathunni, and that could be explained only by the circumstance that Kelu intended the benefit of the transaction in favour of his sons to enure to all the other members of the joint family.
19. The learned Judge has also considered the evidence relating to the enjoyment of item 1. There is evidence to snow that the usufructs from item 1 were being enjoyed by all the members of the joint family. In the result, we accent the finding of the learned Judge that item 1 belonged to Kelu and that he assigned this property to the 1st defendant for the benefit of all his sons and the members of the joint family are entitled to a partition of the game.
20. Therefore, from this, it will follow that the 1st defendant has to exclusive right to half share in item 1 and the legacy in favour of the 10th defendant under Ext. B-65 falls to the ground. As the 10th defendant-appellant is interested only in respect of the rights claimed by him in item 1 under Ext. B-65 and as we have held against him on this point, his appeal fails and is dismissed without any order as to costs.
21. The other items will have to be considered separately. The learned Judge has already held that item 11 is the separate acquisition of Kelukutty and is not available for partition. The plaintiffs have not filed any appeal against that portion of the decree and it has become final.
38. In the result, the appeal regarding item No.of plaint B schedule is dismissed without anyorder as to costs, but the appeal is allowed regardingitems Nos. 2 to 10 and 12, and as defendants 4 to8 have succeeded regarding substantial items, theywill get the costs from the plaintiffs in this appealand in the lower court.