1. These connected appeals arise out of O. S. No. 54 of 1950 on the file of the Additional Sub-Court, South Kanara, which was a suit for partition of the properties belonging to a joint family consisting of the plaintiff and the defendants. Schedule A to the plaint is the genealogical tree showing the relationship of the parties from which it is scon that the ancestor was one Krishna Mardi through whose sons, Subraya Mardi and Ramappa Mardi the other members of the family originated. As is seen therefrom the plaintiff is the son of Ramappa Mardi and he claims partition and separate possession of a one-fourth share in the joint family properties described in schedules B to E at-tached to the plaint.
The main contest in the court below was with regard to certain items of properties claimed by the respective groups of defendants as not belonging to the joint family. It was contended that those were the self-acquisitions of the claimants thereto, and in regard to the other points in controversy before the learned Subordinate Judge there is no dispute here.
2. Appeal No. 189 of 1952 is by defendants 3, 4 and 8 to 11 who are the descendants of Seetha-rama Mardi, the first defendant and Appeal No. 559 of 1952 is filed by defendant 2, and defendants 5 to 7 who are the descendants of Ramachandra Mardi the second defendant.
3. In the plaint it is alleged that during the course of his family management the first defendant acquired items of properties contained in the C schedule in the name of his sons, defendants 3 and 4 from out of the income of the properties in B schedule and that he also acquired items contained in the D schedule in the name of his brother and his brother's sons, defendants 2 and 5 from out of the income from the joint family properties in his hands. The plaintiff, therefore, alleged that the im-moveable properties described in schedules G and D are the family properties of the parties and as such divisible. It was further alleged that the move-ables set out in the E schedule should also be made the subject of division on the same basis. In separate written statements each of the groups of defendants pleaded that the items in C and D schedules were acquired by the respective defendants from out of their separate earnings as a result of their profession as Purohits and as such they cannot be considered as having anything to do with the joint family.
This plea did not find favour with the learned Subordinate Judge who took the view that it cannot be contended as anything other than family properties, and that out of the income from the B schedule properties items in the G schedule were acquired and from the joint incomes of B and G schedules items in the other schedules were purchased and therefore they must be held to be partible.
The learned Judge also held that the Purohit Vrithi being a Kulachara or a family occupation, income derived out of such a profession must also be deemed to be joint family properties and even if B and C schedules properties were purchased with such incomes still the joint family has an interest in them with the result that they are also liable to be partitioned.
4. We have, therefore, to find out firstly whether the disputed items of properties were acquired with the income from the properties which have been held to belong to the joint family and even if the finding on that question is in the negative whether the Purohit Vrithi can be held to be a family avocation the benefits of which should be considered to be appertaining to the family.
5. The proposition of law is well established that it is not enough to show that the family had a nucleus of the family property in order that the later acquisitions made by the manager of the family should have the attribute of family character but what is necessary is that the nucleus must be such as to leave sufficient income therefrom after meeting the expenses as would enable the manager to acquire properties with that. So far as this question is concerned the only witness examined on behalf of the plaintiff, does not render such useful aid for he is not a member of the family and he could not depose with regard to the actual income from the admitted family properties.
On the other hand D. W. 1 has testified to the fact that when Ramappa became the yajaman the family owned very little properties and there were about 18 members in the house to be fed, guests to be entertained and ceremonies to be performed. He is not able to say whether any income was left after meeting these expenses. The family was getting 100 mudies of rice when Ramappa died and this information the witness got from his father as well as from the other members of the Mardi family.
The learned Subordinate Judge was of the view that when once the ancestral nucleus is admitted the onus lies on the manager of the joint Hindu family to prove that the properties acquired were his self acquisitions. This is stating the proposition of law in very wide terms. The existence of a nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What has to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made.
This is the second phase in the onus of proof which lies on the person who sets up the family character of the properties. In these circumstances after perusing the evidence of P. W. 1 and D. Ws. 1 and 2 we do not think that 100 mudis of rice would leave an appreciable surplus so as to form a basis for the acquisition of properties. The learned Subordinate Judge has animadverted on the non-examination of the first defendant in the case but the blame for that cannot be laid at the door of the present appellants who even though they are the descendants of the first defendant cannot compel him to get into the witness box and depose in their favour.
6. The attempt of Mr. M. K. Nambiar to show that from the evidence of D. Ws. 1 and 2 it is possible to gather that there would be a surplus sufficient to afford a basis for further acquisitions has not been successful. During the time the acquisitions were made the price of 100 mudis of rice would not exceed more than Rs. 300 or 400/- which would work out at the rate of Rs. 30 to 35/- per month and if a family of 18 members has to be fed, clothed and maintained from out of that income there will be nothing left for acquiring properties.
It has been held by this court in at least one decision that a managing member of a family having private income of his own is not hound to utilise any portion of it for the expenses of the family but that the expenses have to be met only from and out of the family funds. It is open to the manager to save his private income and accumulate the same for his own benefit. In these circumstances and after perusing the evidence of P. W. 1 and D. Ws. 1 and 2 which alone has been stressed by the counsel on either side before us, we do not think that there could be any appreciable surplus left out of which acquisitions under Exs. B-3, B-16 and B-77 could have been made.
7. Such being the case what we nave now to find is whether the acquisitions made under the above documents were from private funds. Ex. B-53 which is in favour of defendants 3 and 4 for a sum of Rs. 3500/- is dated 31-5-1934 when these defendants were capable of making acquisitions from and out of their own earnings by following the avocation of purohit. The second defendant deposed that he had been a purohit from his 18th year, that he has studied the Vedas and that he would be earning about Rs. 500/- cash a year in addition to his getting copper vessels, cloth, rice and cocoanuts.
He was a purohit for about 100 houses. The first defendant had also been earning as a purohit. So also defendant No. 3, who in addition to his officiating as purohit at religious ceremonies which require knowledge of Vedas and rituals was also a Mantravadha, that is, a person who practises black magic and is capable of scaring away devils and evil spirits. D. W. 2 stated that for purohit duties and mantravadha they were called not because they were members of the family but because of their knowledge and learning. No serious attempt has been made to minimise the proficiency of these persons in their particular arts.
P. W. 1 whose evidence alone has been brought to our notice on behalf of the plaintiff does not dispute the fact that detendants 2 and 3 are experts in purohitic lore and that they were earning by exercising that profession. But the attempt has throughout been that such earnings should be deemed to be income due to the family and not the gains of their proficiency in particular arts.
We are satisfied that even though defendants 2 and 3 hail from a family the members of which had been hereditarily following the profession of puro-hits still it cannot be said that they were able to earn so much not because they belonged to the family but because of their expert knowledge in Vedas and religious rites. It is needless to say that every member of a purohit's family even though unlettered and incapable of performing religious duties can officiate as purohit. What is required is learning in the special subjects and experience in the performance of religious duties.
8. With this back-ground let us analysis the details of several acquisitions. The consideration for Ex. B-53 consists of Rs. 2304 to pay a mortgage by the vendors in favour of one Nagappa which was discharged and receipt Ex. B-56 produced; a sum of Rs. 1000 retained with the vendee during the life time of the two vendors, a sum of Rs. 54 to pay theerva and lastly Rs. 142 paid in cash. In order to discharge the mortgage evidenced by Ex. B-56 Rs. 900/- was paid in cash and a mortgage, Ex. B-55 for Rs. 1400 was executed which was subsequently discharged under Ex. B-58.
For raising Rs. 900/- paid in cash a mortgage, Ex. B-54 was executed on 31-5-1934 in favour of one Vasudeva Bhatta which was subsequently discharged under Ex. B-57 on 1-6-1937. The above statement of details of consideration would show that the entire monies were not paid in a lump sum but that it took sometime for the vendees to pay off the various encumbrances. It seems to us that the evidence of D. W. 2 to the effect that the amount of consideration was found from and out of the earnings of defendants 3 and 4 is acceptable.
8a. The next document is Ex. B-60 dated 23-11-1945 the consideration for which was Rs. 7400/-. There are as many as ten items detailed in the document but it is unnecessary to reiterate the Same here. The various encumbrances reserved for being paid have been discharged as is seen from Exs. B-65, B-66, B-67, B-68, B-69 and B-70. A sum of Rs. 4303/- was paid in cash for which purpose Rs. 900/-was borrowed from D. W. 6 under Ex. B-71 and subsequently discharged by Ex. B-73.
Rs. 3975 under Ex. B-72 dated 23-11-1945 was raised from one Seshagiri Rao which amount was also discharged under Exs. B-74, 75 and 76. Exs. B-63, B-93, B-94 and B-96 show how monies were raised for this purpose. It seems to us that defendants 3 and 4 raised the necessary funds out of their self-acquisitions. Ex. B-77 dated 15-8-1946, is a sale deed for Rs. 5000/-. We do not think it is necessary to advert at any length to the various items the consideration of which has been satisfactorily proved.
By the time these documents came into existence defendants 3 and 4 had income derived from properties acquired under Exs. B-53 and B-60 and in addition they had their own private earnings. We feel, no doubt, whatever, that the source for the acquisitions under these documents was also the private properly of defendants 3 and 4.
9. It is then urged by the learned counsel for tile plaintiff-respondent, that since the kulachara of the family consists of purohit duties oven if such duties can be performed only after years of duty and experience, still the income derived from such a profession should belong to the family. The learned Subordinate Judge was inclined to accept that argument which is against the principles laid down in texts of Hindu Law. In Manusmrithi Chapter I Verse 206 that Sage has laid down the law in the following terms:
'Wealth, however, acquired by learning, belongs exclusively to any one of them, who acquired it; so does anything given by a friend, received on account of marriage, presented as a mark of respect to a guest.'
10. It is clear from this passage that any wealth acquired by learning belongs exclusively to the acquirer and such acquisition being one of the chief sources of private property even from the early days, it is too late in the day to say that the earnings of defendants 3 and 4 should be impressed with joint family character. Their Lordships of the Privy Council in Gokul Chand v. Hukam Chand Nath Mal, ILK 2 Lah 40: MR 1921 PC 35 had to consider whether a member of the Indian Civil Service who received his entire education with the aid of the family funds should be allowed to claim the earnings made by way of salary, as his self-acquisition.
Lord Sumner in delivering the judgment held that the official salary was partible property of the joint family since it resulted from a special educational training and as the officer in that case had not discharged the onus which was upon him of proving that, that training was not at the expense of the joint family his acquisitions' should be held to be joint family properly.
His Lordship further held that in considering whether gains are partible there is no valid distinction between a direct use of the joint family funds & a use which qualified the member to make the gains by his own efforts. The case law on the subject up till then in vogue was discussed, the earliest of them being Luximon Row's case, (1631) 2 Knapp 60 As a result of the hardship which arose out of this decision the Hindu Gains of Learning Act (XXX of 1930) was passed section 3 of which is as follows:
''Notwithstanding any custom, rule or interpretation of the Hindu law, no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by reason of
(a) his learning having been, in whole or in part imparted to him by any member living or deceased, of his family, or with the aid of the joint funds of his family, or with the aid of the funds of any member thereof or
(b) himself or his family having, while he was acquiring his learning been maintained or supported wholly or in part, by the joint funds of his family or by the funds of any member thereof.' It is clear therefrom that even if the member had his education with the aid of the joint family funds still it cannot be held that his acquisitions were joint family properties. There is no evidence in this case that either the first defendant or defendants 3 and 4 had any specialised education or training imparted to them by the expenditure of the joint family funds. The study of the Vedas and other Hindu scriptures which these persons are alleged to have undertaken was only in their family house and not in any University or college and that too was in the traditional style of the father imparting his knowledge to his son.
We do not think that there is any justification for holding that defendants 3 and 4 would not have been able to perform the duties of a purohit or the 3rd defendant as Mantravadhi without the assets of the family being expended on their training and education. As stated already, there is hardly any evidence that any sum of money was spent for the training of defendants 3 and 4 in the study of the Vedas and Sastras.
11. Learned counsel for the appellant invited our attention to a few cases where the subject of such acquisitions has been discussed.
12. Sulaiman C. J. and Mukherji J. in Hanso Patak v. Harmandil Patak : AIR1934All851 have held that in the United Provinces the income received as amounts paid by Yajamans at their discretion either by way of charily or by way'of remuneration for personal services rendered by a priest cannot be claimed as of right and cannot amount to a family property. Mukherji J. in his judgment referred to Chelabai Gavarishankar v. Har-govan Ramji, ILR 36 Bom 94 and held that the case of hereditary priests cannot be applied to a case like that.
The learned Judge referred to Colebrooke's Translation of Daya Sangraba at page 420 dealing, with gains of science and held that the earnings of a purohit or the fees received by a priest for performing the duties of a family priest cannot be treated as joint family property. Reference was also made to verse No. 206 in Chapter 9 of Manusmrithi as also to the text of Katyayana.
In our view this decision applies to the present case because the incomes received by a person officiating as purohit are paid at the discretion of the donors either by way of charity or by way o remuneration for personal services rendered which cannot be claimed as of right and therefore, cannot in any way amount to family property. It is not claimed that any family in the locality could com-pulsorily claim the services of defendants 3 and. 4 for performance of Sradbas or other religious cere-monies for the mere reason that they belong to a family of purobits.
The decision in ILR 36 Bom 94 which has been distinguished by the Allahabad Judges related to a case where the person was functioning as the hereditary family priest and but for that he could not have acquired any properties. It was also a case where the office carried with it a hereditary right in the nature of property and the incumbent cannot be deprived of it by anyone unless he has become a pathitha (outcast) or has declined to officiate.
It is nobody's case that anyone has appointed the family of the parties to this litigation as puro-hits. Nor is it obligatory upon all the members of the family to perform the duties of a ministering, priest. The only Madras case cited before us is a judgment of Venkataramana Rao J. in Venkata-subbamma v. N. Venkateswaralu : AIR1936Mad429 which related to a case of purohit service Inam. The learned Judge held that the maintenance of a widow of a former incumbent of an office of a purohit or a member of his family cannot be charged on the lauds or income of the purohit service inam land; nor can the income be taken into consideration in fixing the rate of maintenance.
The principle deducible from this decision helps the appellant to a great extent. If the income of a purohit service inam granted to the family which is a hereditary one cannot be taken as family income much less can there be any justification for considering the income earned by an individual by his own labour or learning as family property. In the case of purohit service inam lands it had already been granted either for services rendered or to be rendered and there is a fixity about the income but in the present case nobody has ever suggested that defendants 3 and 4 could be compelled to act as purohits and earn money out of it.
If they choose to remain idle and do not go about receiving gifts and other things from yajamans or officiate as priests at religious functions no blame can be laid at their door. Simply because of their study of the Vedas and the knowledge in religious ceremonies they were able to practise the profession of purohit without wasting away their life in idle pursuit manner it will not be possible to treat the income earned by them as joint family property. A decision conferring joint family character on the incomes obtained would be putting a premium on idleness.
We feel that the principle underlying the decision of Venkataramana Rao J. can be applied. No case has been brought to our notice which makes it compulsory upon us to decide that such income should be treated as joint family property. We are, therefore of the opinion that C and D schedule properties are not partible at all. This disposes of Appeal No. 189 of 1952 and a part of Appeal No. 559 of 1952, as well.
13. The other point raised in Appeal No. 559 of 1952 relates to moveables and cattle belonging to the family and shown in schedules E and E-1. We have not been shown any reason why 'they should not be divided. We agree with the learned Subordinate Judge in his discussion on that question in paragraphs 69 and 70 of his judgment. Mr. Srini-vasa Rao on behalf of the appellants in Appeal No. 559 of 1952 contended that the money spent for re-novating the family house by any junior meimber of the family should be paid over to him at the time of partition.
A recent decision of Krishnaswami Nayudu J. in S. A. No. 409 of 1952 (Mad) (F) is against that contention. Even in the case of co-tenants when one tenant in common makes improvements upon the common property unless the same is either necessary, or is made with the concurrence of others the per-son making the improvements is not entitled to any compensation. There is no evidence in the present case, whatever, that at the time, the repairs were effected the parties expected to get compensation from the joint family funds.
They were done either for enjoying greater convenience or out of gratitude to the family. It seems to us that no interference is called for in this respect. The result is that the appeals are allowed to the extent that the decision of the learned Subordinate Judge making the C and D schedule properties partible is Set aside. The parties will bear their costs in this court. The costs of all the parties in the lower court will come out of the estate.