1. The following are the undisputed facts of this case. The plaintiff and the defendant's father were brothers. They both got employment about the year 1870 in the Public Works Department as Overseers with decent salaries. The defendant's father died in 1875 leaving three infant boys aged from 6 years downwards, the present three defendants. After his death these three children lived with their paternal grandfather, the plaintiff's father, in Saint Thomas Mount, Madras. The plaintiff lived in distant places whenever he was posted for work. The family had then property consisting of houses and land valued at some Rs. 6,500 yielding a rental of from Rs. 300 to 400 a year, and a fund of Rs. 8,000 invested in Government promissory notes of the 4 per cent. loan. There were also valuable family jewels which the plaintiff values at Rs. 8,200. The defendants admit that the plaintiff is entitled to his half share of the houses and land and to a half share of the fund of Rs. 8,000, which converted into other securities is admittedly in the plaintiff's possession now. They also admit that he is entitled to half of the family jewels in their possession, but their value, they say, is only Rs. 1,200 as against the Rs. 8,200 claimed. The judge has allowed the greater part of the plaintiff's claim in respect to these jewels, and the defendants appeal on this point. They also appeal in regard to the properties which they say are family properties in the plaintiff's possession which ought to have been brought into hotchpot. They confine their appeal to a house worth Rs. 2,400, jewels worth Rs. 4,200, various funds worth Rs. 16,000 and decree amounts worth Rs. 1,500, or to proper-ties worth in round numbers Rs. 24,000. The judge disallowed these as well as other claims they have now abandoned on the ground either that the properties was non-existent or was the self-acquisition of the plaintiff. The plaintiff admits the existence of the house worth Rs. 2,100, of jewels worth Rs. 4,200, and of funds worth Rs. 6,000 over and above the fund of Rs. 8,000 already referred to, but claims all these items as his own on the ground that they were acquired with his own funds. The defendants have failed to prove the existence of any other properties than those admitted by the plaintiff. Therefore, the only two questions we have to decide in appeal are, first, what is the value of the jewels that are or ought to be in the possession of the defendants, and, secondly, whether the properties admittedly in the possession of the plaintiff and claimed by the defendants as family properties are such, or whether they are the plaintiff's self-acquisitions.
2. In regard to the first question we find, on what must necessarily be a rough calculation, that the value of the family jewels for which the defendants are answerable is Rs. 6,003 as against the Rs. 8,200 claimed by the plaintiff and Rs. 1,200 admitted by the defendants. The plaintiff has included in his claim for Rs. 8,200 for jewels, several jewels which were admittedly missing when he took stock of them and made out a list of what were missing (Exhibit XI). The ascertained value of some of these amounts to Rs. 900. But there are two or three other valuable jewels, such as neck ornaments, of which the exact value cannot be traced, but of which the approximate value cannot be less than Rs. 300 or 400. We agree with the District Judge that the defendants are not responsible for these missing jewels, as their step-grand-mother was in actual possession of all the family jewels till her death in 1895, so Rs. 1,300 must be deducted on this account, plus Rs. 100 the value of a gold ring set with rubies which the plaintiff admits he has taken possession of. We also think that the defendants are entitled to deduct another Rs. 800 for jewels expended on the occasion of the marriages of two of them. The cost of these marriages was a legitimate charge on the family funds and the plaintiff contributed nothing towards it. So that, deducting Rs. 2,200 in all from Rs. 8,200 claimed, we have a balance of Rs. 6,000 chargeable to the defendants on account of the family jewels, as we agree with the judge that their dissipation of the bulk of them in other ways was quite unjustifiable, assuming it to be true.
3. In regard to the second question the plaintiff's case is that he left the entire management of the family property to his father and never asked for or received a penny of the income himself. He lived on his salary and, besides, saved a good deal, out of which he acquired the properties in dispute. Not only did he forego his claim on the family property, but he used to make remittance to his father and the defendants by way of presents. This generosity be continued for twenty years, even after his father's death in 1892. Now, this conduct on the plaintiff's part is hardly natural, and is belied by his present conduct in suing for a partition of the family properties, when he is in more need of them now than he was before. But apart from this, the defendants have been able, handicapped as they have been by a long period of minority, to adduce evidence quite sufficient to show that the plaintiff's story is false. In his plaint he stated that his father was in management until his death in December 1892, and that after that the defendants have been in management. But in his evidence he was forced to admit that he himself held the management from 1889 when his father was seized with paralysis until 1892, and it is abundantly proved by the documentary evidence in the case, such as letters written by him to the defendants and by his own admissions, that the person who was managing the family property ever since 1892 is himself. He admits that he has held a fund of Rs. 8,000 under his sole control since 1889, and all that he seems to have done was to leave the land and the house property in the immediate charge of the defendants while constancy interfering in the management of that property also. Such being the state of affairs since 1889, the probability is that the state of affairs prior to 1889 was the same, that is, that the plaintiff controlled the fund of Rs. 8,000 while his father controlled the houses and landed property. They yielded about an equal income. That the plaintiff had some such fund to fall back upon is proved by the fact that in the year 1876. the year after the defendant's father's death, he paid into his own account with Messrs. Arbuthnot & Co., sums aggregating Rs. 1,900, his whole salary, and allowance for that year being only Rs. 1,080. We also find that from 1875 to 1887 he made remittances to his father. He says these payments were made in obedience to his father's demands and that they were purely charitable, but it is impossible to believe this. If his father was enjoying the income of the whole of the family property, he could have required no assistance from the plaintiff. The funds, the father had, were ample, namely, an income of Rs. 600 or 700 a year for the support only of himself, his wife and the three infants of his son. And the plaintiff's story in respect to these remittances to his father will in no way account for his making remittances to the defendants themselves on a much larger scale from the year 1839 to 1895.
4. There can, therefore, be no doubt that these payments were made out of family resources. Again we find in what the plaintiff calls his own private account entries made in the year 1874 of two sums of Rs. 260 and Rs. 40 paid in by the defendants' father, which, in the absence of proof to the contrary must be taken to have been on family account. The plaintiff's explanation that these monies were really his own, and that the defendants' father was only the medium for carrying them to the plaintiff's account, has absolutely nothing to support it. Then we have letters written by the plaintiff to his father regarding family properties. Exhibit A in February 1885 about investments of family funds, Exhibit X about family debts (the date of this Exhibit is not stated, but it must have been in some year previous to 1886 as shown by the intrinsic evidence) and Exhibit XXVI in July 1884 about remittances to the family. All these things combine to show that the plaintiff has all along been managing or helping to manage the family property and that he had family funds in his possession. Such being the case it lay on the plaintiff to show that what he claims to be his separate property, was not acquired by means of the family funds which he was controlling. He has not attempted to do this. He has not even produced any family accounts previous to 189?, to show that the family had not sufficient funds to make these acquisitions. The presumption, therefore, is that the properties he holds are family properties, as he was in possession of family funds from which he could have made the acquisitions. We accordingly so find on the second question.
5. The plaintiff will, therefore, have to give up' to the defendants half the house worth Rs. 2,400, half of Rs. 4,200 the value of the jewels and half of the fund of Rs. 2,000 invested in the Commercial Bank which are in his possession. The remaining fund of Rs. 4,000 which the plaintiff also has, is said to be the present surrender value of a Life Policy for Rs. 10,000 which the plaintiff has in the Oriental Life Insurance Company. We do not think the defendants are entitled to a share in this. We consider that the premiums paid by the plaintiff on account of this insurance can fairly be treated only as made from savings out of his own salary for the ultimate benefit of his wife and daughter. At all events it cannot be treated as an asset available for division during his life-time, for it is within his power to throw the insurance up altogether.
6. The result is that in supersession of the preliminary decree of the District Judge we shall pass a decree for the equal division by metes and bounds of the lands in plaint schedule A and of the houses in plaint schedule B, and of the house in the defendant's schedule I, one of which shares is to be delivered to the plaintiff and the other to the defendants and we shall direct the plaintiff to make over to the defendants half of the funds amounting to Rs. 8,000 in the plaint schedule D and half of the Rs. 2,000 invested in the Commercial Land Mortgage Bank (item No. 11 in defendant's schedule 3) and we shall direct the defendants to pay to the plaintiff Rs. 1,000 being the balance left after allowing the plaintiff Rs. 3,000 on account of his half share of the jewels in plaint schedule C and the defendant Rs. 2,000, on account of their half share in defendants' schedule 2.
7. The parties having lost and gained equally and both being to blame, we direct that each party do bear their own costs throughout.