1. Those are appeals against decrees made in several suits brought by the plaintiff to recover property alienated by or taken from his late father Kotasamy Tevar. One ground of the plaintiff's claim to recover property so alienated is that the property which is of various kinds was ancestral property in the hands of the plaintiff's father in which accordingly he acquired an interest on birth. The alienations complained of were made after the date of the plaintiff's birth. If the property, which was originally acquired by Kotasamy's father Ponnu-sami Tevar, devolved upon Kotasamy by inheritance, it was unquestionably ancestral property in the hands of the latter. In point of fact, Kotasamy being one of throe sons of Ponnusamy took his share of Ponnusamy's property under his father's wili, but it is argued that, notwithstanding this, the property was still ancestral property in Kotasarny's hands. Now, there can be no doubt that it was fully competent to Ponnusamy to deal as he pleased with his self-acquired property of whatever kind either by gift or by testamentary disposition Bulwant Singh v. Rani Kishori I.L.R. 20 A 267 Pittapur case. He might therefore have bequeathed his property to a stranger, and his sons could not have called the disposition in question. Any of the observations made in Tarachand v. Reeb Ram 3 M.H.C.E. 50 which conflict with these propositions cannot, I think, be now regarded as good law. As the father is at liberty to make any disposition he pleases or to leave his self-acquired property to descend as ancestral property ; so in making any disposition in favour of his son he is at liberty to preserve for the property the quality of ancestral property. Whether in any given case the property was intended to pass to the son as ancestral property or as self-acquired property must be a question of intention turning on the construction of the instrument of gift. Following the principle laid down in Mollie Mahomed Shamsool v. Sheiwukram L.R. 2. IndAp Appeal 7 I think that if there are no words indicating the contrary intention, the natural inference should be that the father intended his sons to take his property as their ancestral estate.
2. If a partition is made by the father on the footing that the property is partible property, although there is in point of law a disposition made by the father, there can be no doubt that the father intends that the quality of ancestral property shall remain. That is the case in Muddun Gopal Thakoor v. Ram Buksh Pandey 6 W.R. 71 although other reasons were given for the decision, in the present case 1 think there was the same intention. No doubt he did not intend that his sons should take the property precisely in the same way as they would have taken it had there been no will. He intended they should take the property in sevo-ralty but otherwise the dispositions, especially the Provision that the property allotted for maintenance should fall into the mass of the property bequeathed to the Sons, are consistent with the ordinary rules of inheritance, and there are no words in the will indi-cating any intention that his sons should hold their shares free from the incidents of ancestral property. In the case in Jug Mohandas Mangaldan v. Sir Mangaldas Nathubhoy I.L.R. 10 it was considered that the will contained words showing an intention to create an estate different from that which the devisee would take as heir under Hindu Law. Here I can find no such words. In my opinion the issue which is raised in all the suits as to Kotasamy's power of alienation ought to have been decided in the plaintiff's favour, and therefore as it is admitted that Kotasamy acquired no property himself, the plaintiff is entitled to a decree in respect of all property given by Kotasamy to the defendant. The question then is what property is proved to have been given to the defendant, lent to him, or taken away by him. In suit 53 the defendant admits having received the items numbered 1 to 6 but disputes the value put upon them by the plaintiff and denies receipt of the other things claimed. As to the value there was an issue, but no evidence was adduced except a list marked as Exhibit J. Besides that there is nothing but the defendant's admission in his written statement which puts the value of the six articles at Rs. 1,680. The value he puts upon the diamond ear-rings is Rs. 500 and the value is given in the list J. The other five articles do not appear in the list or, at any rate, have not been identified. The Judge allows Rs. 4,400 for these six things. In any view this is wrong. There is no ground for allowing more than Rs. 1,680. As to the other articles alleged to have been given, viz., Nos. 7 to 25 and 42 and 43, there is again the list J. and the same admission made by the defendant in his evidence. The judge finds that Nos. 7 and 9-25 and 42, 43, appear in the list and that appears to be correct: the values in the list and in the plaint agree, in respect of those articles, therefore, the finding of the judge is justified.
3. Nine Articles (26-34) are said to have been borrowed by the defendant and not returned. The third issue relates to them. The loans are supposed to have been made in January 1893 when the ear-boring ceremony took place in the defendant's house.
4. Prima facie, the cause of action having arisen in the lifetime of the plaintiff's father, the suit not being brought till 1897, is barred by limitation under Article 49. The 8th and 9th witnesses speak to the loans. 'The Judge apparently believes them as he acts upon their evidence but does not discuss it, and overlooks the fact that they do not assign any value to the things lent, the evidence of the witnesses is not corroborated by the list on which the judge relies for that purpose in regard to some things (paragraph 120) and no previous demand is proved to have been made. In my opinion the plaintiff's case fails and the decree ought to be reversed with regard to those eight articles.
5. The 4th issue relates to another set of Articles (35-41) said to have been taken away by the defendant on the death of Kotasamy.
6. The evidence is that of the first witness. Although this witness speaks to a totally different occurrence, his evidence is mixed up with that of the 8th and 9th witnesses. He mentions things not mentioned in the plaint and omits the gold pen which is there mentioned. He gives no values or any details. There is also the 4th witness who speaks to some of the things left in charge of the defendant including the watch which admittedly was given to him. There is no trustworthy evidence that these seven articles, of which the Benares handkerchief is one, were in the exclusive possession of the defendant and were kept by him. Although the plaintiff had the advantage of interrogating the defendant through the Tahsildar (Exhibit V) and thereby obtaining admission as to the six first-mentioned articles, it does not appear that any demand in writing was made for the rest of the things before the suit was brought.
7. In the other cases in which lands are claimed by the plaintiff the decree must stand, not on the ground given by the judge, but on the ground that the late Kotasamy was not competent to dispose of the property by way of gift. It is only in regard to costs that it is necessary to say anything as to the charge of undue influence. Having heard and considered arguments bearing on the charge of undue influence we must say it would have been impossible to support the same on that ground. Although it has been repeatedly said that charge of fraud or undue influence ought to be specific, the plaints in these cases make nothing but a bare allegation of undue influence. No particulars seem to have been asked for or required, nor does any light seem to have boon thrown on the matter by the Vakil for the plaintiff in opening the case. Indeed, it is evident from what the Judge says on the very last day of the trial that ho was completely in the dark as to the coercion or undue influence. It is astonishing that the Judge should have allowed the charge to be presented without alleging any definite statement of the case from the plaintiff's vakil. It is even more astonishing that, after saying that the conclusion of the evidence that he did not understand what the case was, he should have persuaded himself in the end to find that the charge was established. At this finding he arrives by aid of the presumption which, in his opinion, arises from the relation in which the parties stood to each other. He conceives that Kotasamy, who is described as a man of much intelligence, bore such a relation to his trusted and favourite servant that undue influence might be deemed to exist. He considers that although Kotasamy might be said to have stood in loco parent is as regards the defendant, the doctrine which might be invoked to protect the latter should equally serve to protect the former. In our judgment there is really nothing that can be called evidence to support the finding, and therefore the costs which have been caused by setting up this hopeless charge ought to be borne by the plaintiff.
8. In A.S. No. 32 of 1899. O.S. No. 53 of 1897. I would give plaintiff costs on Rs. 1,680 plus the value in the plaint of the other articles found to be given in this Court and in the Court below. Respondent is to pay costs in this court on value stated.
9. I concur.