1. The permanently-settled estates of Jaggompeta, Dontalooru and Rayavaram, the most important of the properties in litigation, belonged originally to Venkata Rao who died in July 1869. He left surviving him his widow, Venkayamma, his daughter, Chelikani Venkataramanayamma, and the latter's eldest son Niladri. Venkayarama, claiming to be the heir, took possession of the whole of his estate, moveable and immoveable, and held the same till her demise in July 1875. Then Venkataramanayamma succeeded to the property and died in July 1884, leaving behind her husband Sami Rao, Niladri, already referred to, and her second son, Appa Rao, as well as three daughters; the last four having been born subsequent to the death of Venkata Rao. At the time of their mother's death, Appa Rao was aged 13 years and Niladri was aged 19 years. He was, therefore, no longer a minor. He was, however, still treated as a minor, and Sami Rao, who had been managing the property ever since the death of Venkata Rao, continued to do so on behalf of both his sons. How long his management lasted does not clearly appear. The evidence, however, shows that sometime before 1889 Niladri had assumed the management, and had been carrying it on, on account of himself as well as of Appa Rao. But from 1889, when Appa Rao attained majority both the brothers jointly looked after the property and continued, to do so until September 1892, when Niladri died without male issue, leaving a widow Venkataramanayamma, and two daughters. The widow alleges that Niladri on his death-bed executed a will (Exhibit K), but this is now denied by Appa Rao. Sami Rao died on 28th November 1892. Until the death of Sami Rao, the widow and Appa Rao were on amicable terms, and the former's claim to a moiety of the whole property was admitted by the latter and both remained in joint possession of the estate. But in consequence of disputes having arisen,, she was ousted from possession of the property soon after Sami Rao's death. Thereupon the two suits, from which these appeals are brought, were instituted.
2. In one of these, Original Suit No. 12 of 1893 (Appeal Suit No. 165 of 1895), Appa Rao sued to set aside the alleged will (Exhibit K) of his brother, Niladri, and in the other, Original Suit No. 8 of 1893 (Appeal Suit No. 164 of 1895), the widow sued for possession of the whole of Niladri's property. The District Judge decided against the widow in both suits, and against both decrees she now appeals, Appa Rao being the first respondent. In Original Suit No. 8 of 1893 the appellant (Venkataramanayamma), based her case upon the will of Venkata Rao (Exhibit A), dated the 6th September 1866, which was, soon after its execution, deposited under a sealed cover in the District Registrar's office, and which has ever since remained there, and upon Exhibit K the alleged will of Niladri, dated, the 2nd September 1892. In her plaint she also prayed, in the alternative, that if her claim to the whole estate should be held to be unsustainable, such share as she might be found entitled to, should be decreed to her.
3. The principal defence of the first respondent as to Exhibit A was that it was revoked; as to Exhibit K that it was not genuine or valid. It will be convenient to defer the discussion of matters connected with Exhibit K until Appeal Suit No. 165 (Original Suit No. 12 of 1893 is taken up for consideration.
4. The first question, therefore, for determination is whether Exhibit A was revoked. The Hindu Wills Act does not apply to the case, and no special mode of revocation being prescribed, revocation, like any other question of fact, may be proved by apt evidence, though no doubt mere oral evidence in a matter like this should be received with great caution. What amounts to revocation in common law was clearly pointed out in Doe dem. Reed against Harris 8 A, & E., 11 cited for the first respondent. There Lord DENMAN, C.J., in the course of his judgment observed, ''Some doubt has been entertained whether any declaration could he sufficient without the word 'revoke' but upon full consideration, we think it impossible so to limit the testator's power of revocation, and that any equivalent word or words and expressions would be sufficient for that purpose.
But, further, we are now required to consider whether, without any language at all, a testator may revoke a will by the conduct he exhibits. and this appears to be tantamount to an enquiry whether conduct can give a positive declaration of intent. If it can, there can be no more necessity for words than for the use of a particular expression. Now, nothing is easier than to imagine such gestures and proceedings, connected with the will, as must fully convince every rational mind that the testator intended to revoke his will, and thought he had done so by the means he took for that purpose. But if he who has power to revoke by declaring a present resolution then to do so does in fact make that resolution manifest, it seems clear that the act of revocation is complete in every essential part.
5. Such being the rule on the point, does the evidence here establish the first respondent's contention that, though Exhibit A has all along remained in the Registrar's office, yet it was in reality revoked? The evidence in support of it consists chiefly of the testimony of the seventh and the eighth witnesses called for the first respondent and certain circumstances connected with the enjoyment and devolution of the bulk of the property referred to in the will. Exhibit XXXIII, copy of the vakalat spoken to by the said seventh witness, the reception of which in evidence was rightly objected to on behalf of the appellant, both in the lower Court and here, on the ground that the original was not accounted for as required by law, must be excluded from consideration.
6. Now as to the evidence of the two witnesses relied on: Gourayya, the seventh witness, is a pleader whom Venkata Rao had employed to transact his legal business from March 1866, that is, for some six months previously to the execution of the will. The material portion of his evidence may be given in his own words: 'I heard that Venkata Rao executed a will. He spoke to me about a will. He told me he bad cancelled the will and the pattas, and he said that he would empower me to get back the will from the Registrar's office. He said that he had taken back the pattas. He said that he would give me a vakalat. He got that vakalat registered. I did not get back the will from the Registrar's office. I was not able at once to go to the Registrar's office as I fell ill. The vakalat was executed at Jaggampeta and I took it to Peddapur. Nilachalam asked me to return the vakalat as he heard that I was not well. He said that they would send somebody else. Nilachalam was the son of the kept woman of the Rajah and was looking after the estate under Venkata Rao. He was a confidential servant of Venkata Rao. I returned the vakalat to him. Nilachalam is dead.'Virayya, the eighth witness and maternal uncle of Nilachalam, referred to by the seventh witness, stated that he was a servant under Venkata Rao and that he (the witness) was present when Nilachalam informed Venkata Rao that he had brought the will, that thereupon Venkata Rao said 'Tear it', and that Nilachalam tore the paper which he led Venkata Rao to believe was the will. Turning now to the weight due to the testimony of these witnesses, Gourayya appears to be unconnected with either of the parties in the litigation. He is apparently independent and his cross-examination suggests no grounds for impugning his evidence, which is confirmed strongly by the fact that a vakalat to get back the will from the Registrar's office was executed by Venkata Rao on the 21st November 1867, presented for registration on the 24th idem and subsequently duly registered (Exhibits XL and XLa). The conversation, which the witness says took place between him and Venkata Rao, is therefore likely to have taken place. But the eighth witness's story is in itself so extraordinary that it cannot be depended upon in the absence of corroboration, and this is altogether wanting. Two matters are, indeed, relied on as corroboration. The first is that some of the papers connected with the cancellation of grants of land referred to in the will, one to Venkata Rao's sister and Anr. to his illegitimate sons, made about the time of the execution of the will, had been fraudulently abstracted from the records of the Collector sometime before 1871 (Exhibit XXXIX). The other is the fact that Venkayamma in that year complained (Exhibit XXXVIII) that such clandestine removal of the papers had taken place at the instigation of Nilachalam and Venkata Rao's sister. Wedo not, however, think that these matters can be accepted as affording any material corroboration of the story. That story, if true, implies that Nilachalam perpetrated a gross fraud on bis father with whom he was on confidential terms. What motive Nilachalam had for so deceiving Venkata Rao is not shown. The suggestion is that he acted in the way alleged in the hope of being able to rely on the will after the death of Venkata Rao in support of some claim he (Nilachalam) intended to make to the property, the grant whereof was recited in the will but the right to which he had relinquished, as was evidenced by the missing papers. The suggestion is a mere surmise and is too far-fetched to be safely acted upon. On the other hand, it is argued on behalf of the appellant that it was to the interest of Nilachalam that the will should have been destroyed; since, in that event, it might have been open to him as an illegitimate son to claim by inheritance a share of Venkata Rao's estate along with the widow or with the daughter or with the latter's son. The argument has little force, since it has not been shown that the connection between Nilachalam's mother and Venkata Rao had been of such a character as to give Nilachalam the status of an illegitimate son entitled to inherit under the Hindu law. Nor has it been shown that Nilachalam thought he had a right to set up such a claim. The evidence of the eighth witness being, in our opinion, incredi-ble and uncorroborated, must be rejected, and the fact that Exhibit A was not taken back from the Registrar's office and destroyed must be treated as unexplained.
7. That fact, however, is not conclusive against the alleged revocation, and we must now see how far evidence connected with the enjoyment and devolution of the property proves the revocation. In the will reference is made to grants of property already made to certain relations and dependants of Venkata Rao, the rest of his estate being left to his wife Venkayamma, and after her to his daughter Venkataramanayamma and to his grandson Niladri. Of the grants, inter vivos, the most important are those made respectively to the testator's sister, to his illegitimate sons including Nilachalam, and to the testator's daughter Venkataramanayamma. The sister got a village with a nett rental of about Rs. 4,000, the sons another with a rental of about Rs. 2,000, and the daughter two villages with a rental of about Rs. 6,000 per annum (Exhibits XXXV, XXXIV and XXXVI). It appears from the statements in the will and in Venkata Rao's grant (Exhibit XXXV) to his sister that what really prompted him to make the grants and to execute the will was his serious illness in 1866. However by October 1867, Venkata Rao had fully recovered and he then changed his mind about the grants and persuaded the grantees to relinquish their rights under the grants (Exhibits XXXIVa and XXXVIII). This was in October 1867. The very next month Venkata Rao employed Gourayya to withdraw the will, executed a vakalat to him for the purpose and even took the precaution of registering the vakalat. Considering that the three grants and the will came into existence almost simultaneously, viz., between the 6th and 14th September, and that the cancellation of the former was shortly afterwards followed by steps to take back the will from the Registrar's office, the inference, it is argued, is that Venkata Rao wished to get the will back because it also had been cancelled. Now, though the facts on which the above argument rests are true, yet the inference drawn therefrom is far from being conclusive. Nevertheless it would seem to be entitled to some weight when taken with the light thrown upon the matter by the conduct of Venkayamma, Venkatramanayamma, and Niladri, and by the views which they took of the titles under which they held the zamindari during the twenty-three years, which elapsed between the death of Venkata Rao and that of Niladri.
8. What then were the views taken by them? Three days after her husband's death Venkayamma wrote to the Collector of Godavari a letter which runs thus: ' My husband Sri Raja Rao Venkata Rao Bahadur Garu having been unwell, owing to the illneas he had, died on the 22nd of this month; I have a daughter called Chelikani Venkataramanayamma, a grandson (by-daughter) called Chelikani Venkatasurya Niladri Rao of the age of four years and a granddaughter (by daughter) called Venkayamma aged one year. I am the heir to the whole of my husband's property according to law. I shall from this day forward manage the affairs. I therefore request you will be good enough to cause Jaggampeta, Dontalooru and Rayavaram mittas which are standing in my husband's name to be entered in my name and grant me a dhimat (a written authority for collecting revenue)...' Under the orders of the Board of Revenue, the estates were registered in the name of Venkayamma who was described in column 9 of the register Exhibit IV bearing the heading mode of transfer by sale, gift or otherwise,' as having taken ' by inheritance.' After having held the property for about six years, Venkayamma became ill and wrote to the Sub-Colleetor of Godavari on the 14th July 1875: 'I am not therefore confident that I would live and consequently write to you in regard to the whole of my property. I have got a daughter by name Sri Raja Chelikani Venkataramanayamma, The said Venkataramanayamma is the chief heir to my zamindari consisting of Jaggampeta, Dontalooru and Rayavaram estates and to all other moveable and immoveable properties. I therefore request that the right to the zamindari consisting of the said estates maybe registered in her name...' On the 17th idem Venkataramanayamma herself communicated to the same officer her mother's death and after observing 'I am the reversionary heir to all the estates forming the moveable and immoveable property of my mother' concluded with a prayersa for the registry being tranferred to her name as heir (Exhibit V). Lastly on the 27th June 1884 Venkataramanayamma wrote to the Collector of the District informing him that she had fallen ill, that she did not expect to recover from that illness and that she had given to her two daughters some property and observed ' after my death my two sons are the, chief heirs to my estates and to the whole of my moveable and immoveable property' (Exhibit I). This view was endorsed, in equally distinct terms, by Niladri himself in his letter to the Collector, dated the 8th July 1884, intimating his mother's death and asking the estates to be registered in the names of himself and the first respondent which was accordingly done. Not only was no reliance placed on the will on these three important occa sions, but it is not shown that it was relied on or even referred to on any other occasion until, at all events, a month before Niladri's death in 1892. Such conduct on the part of the three successive holders of the estate tells strongly against the case of the appellant, who has consequently attempted to explain it away by suggesting that Venkayamma, Venkataramanayamma and Niladri were all ignorant of the will and of its provisions. This suggestion is hardly consistent with the plaint which, while it asserts that Niladri was unaware of the arrangement made by Venkata Rao, refrains from saying that such ignorance was shared by Venkayamma and Venkataramanayamma; nor is there any evidence whatever on behalf of the appellant to prove the alleged ignorance. The probabilities are all the other way. It is difficult to see why Venkata Rao should have wished to keep the will a secret from his wife and his daughter who. were living on affectionate terms with him at the time he made the will in their favour. On the contrary, if, as was said in one part of the argument on behalf of the appellant, one of Venkata Rao's objects in making the will was to prevent his illegitimate sons laying any claim by inheritance to a share of the zamindaries along with his widow, his daughter and his grandson by the daughter, surely he would have taken care to let these latter know what he had done to secure their rights against the possible claims of the illegitimate sons. Again, there was no secrecy whatever attending the execution of the will. It was written by Jagga Raja, one of Venkata Rao's gumastahs, and was attested by the Karnam and the Village Munsif of the place. Moreover, about twelve months after the will was deposited in the Registrar's office, the vakalat for its withdrawal was publicly executed and registered, Vakil Gourayya having, as stated by him, paid a visit to the zamindar in connection with that vakalat and the then Sub Magistrate, in his capacity as a registration officer, having attended at the zamindar's residence to accept the presentation of the vakalat for registration (.Exhibit XLa). That, notwithstanding all these circumstances, Venkayamma, Venkataramanayamma as well as the tatter's husband Sami Rao who was residing with them all the time as a member of the family, somehow did not come to hear of the will in Venkata Rao's life-time is hard to believe. It is hardor still to suppose that even after Venkata Rao's death, no information reached his successors at any time before August 1892, and the more so as Jagga Raja, the writer of the will, was alive all the time. Then it is also suggested that the ladies probably thought the will amounted to nothing more than a mere statement of the rights they possessed under the Hindu law and so did not think it worth while or necessary to refer to, and rely upon, the will. This conjecture also-for it is nothing more--is a very unlikely one, for even if the ladies had supposed that the will amounted to nothing more than a declaration of their rights under the Hindu law, they would still almost certainly have alluded to it at all events as confirmatory evidence of their claim under the Hindu law. Another suggestion is that Venkataramanayamma did not wish Niladri alone to take the property to the exclusion of the first respondent and the omission to refer to the will was due to this cause. This ingenious argument, however, cannot account for Venkayamma's conduct in 1869, as the first respondent was not born till two or three years later. It is scarcely necessary to add that so far as Niladri was concerned, his admission that be and the first respondent were co-heirs cannot be explained except Upon the hypothesis that he was absolutely unaware of the provision of the will in his own favour. But in support of such hypothesis nothing is to be found in the evidence, whereas it is clear, upon the testimony of plaintiff's own fourth witness, Jalandanki Venkayya, that Niladri was aware of the will and of its provisions. In these circumstances the conclusion that the will was never after November 1867 treated as a subsisting testamentary paper seems irresistible. and how strong was the conviction in the minds of the members of the family that the instrument was not a subsisting one may be gathered from the suggestive ambiguity to which the persons, who drew up the plaint in this case, found it necessary to have recourse in alleging Niladri's exclusive right to the property. For, though several authenticated copies of the will had been obtained from the Registrar's office by the appellant's agent a month or two before the plaint was filed, yet Exhibit A is not referred to in the plaint, nor is it even alleged that 'the arrangements' under which Niladri got the estate were made by any will of Venkata Rao. When this is contrasted with the explicit statement in the plaint as to Exhibit K referred to therein by date and as the 'will' of the (sic) Niladri, it is pretty plain that the appellant's advisers were then unwilling to tie her down to the case that the arrangement, which, was set up as having constituted Niladri the sole heir, was the one made under the will in question. This remarkable unwillingness on their part even at that late hour, considering that there was no doubt either as to the genuineness or the validity of the instrument, can be attributed only to the grave distrust felt by those advisers as to the possibility of treating Exhibit A as a disposition still in force.
9. Such are the chief considerations which favour the first respondent's contention. Against it, no doubt there is the fact that the document was not actually taken back from the Registrar's office. Why Venkata Rao failed to get it back (as we have seen he intended to do) has not been explained, but this fact ought not to be pressed too strongly against the first respondent, since owing to the lapse of time almost alt the persons who would have been in a position to throw light on the matter were dead at the time of trial. In these circumstances Gourayya's evidence, coupled with the course of conduct referred to above, is entitled to great weight and the finding of the District Judge that the will was revoked must be held to be correct. On this finding it is unnecessary to go into the questions which would arise if the will were still in force.
10. Now Venkata Rao having died intestate it follows that, on Venkataramanayamma's death, the inheritance passed to Niladri and to the first respondent as his daughter's sons, and the question then arises whether at the time they succeeded to the estate, they took the property with the right of survivorship under the law, or separately without any such right.
11. Having regard to the well-known Mitakshara doctrine of right by birth giving rise to that form of joint property designated as 'unobstructed heritage,' as opposed to 'obstructed heritage,' it is difficult to see how the present question can be answered except in the negative. According to that doctrine only the man's son, son's son, and son's son's son acquire a right by birth and thereby a community of interest in the property of the father, grand father or great grandfather. Such community of interest, however, does not entitle any of the co-parceners to predicate, before a partition is effected, what the extent of his share in the joint property is, since the share is liable to diminution by the successive births of other co-owners. But that very circumstance renders it just and right that when any member of such a co-parcenary dies, his undefined interest should not vest in his own heirs, but should lapse to his survivors and go to augment their rights in the undivided family estate. Hence the rule of survivorship recognised under the Mitakshara system. When, however, under the same law, property passes by pure inheritance or obstructed heritage, it vests only in him who is the heir in existence at the time the inheritance opens, Narasimha v. Veerabhadra I.L. 11. 17 Mad. 297 and if there happen to be two or more co-heirs the share of each is not liable to variation by the subsequent birth of a person of the same class, but is fixed and definite. Consequently in such a case the reason for the rule of survivorship does not exist and the rule itself is totally inapplicable. This conclusion drawn from principle is well supported by authority also. In Gopalasami v. Chinnasami I.L.R. 7 Mad. 450 Turner C.J., and Brandt, J., expressed a strong inclination against the applicability of the doctrine of survivorship to a case like the present. and in Jesoda Koer v. Sheo Pershad Sing I.L.R. 17 Cal. 33 Petheram, C.J , and Banerjee, J., after a critical examination of the chief passages relating to the question in the Mitakshara and other works, and after referring to the leading decisions that throw light on the subject, held that the principle of survivorship under the Mitakshara law is limited (1) to property which is taken as unobstructed heritage (including property thereby acquired) and (2) to the joint property of re-united co-parceners; but does not extend to property which is inherited by two brothers as heirs of their mother's father and which does not fall under either of those descriptions. This considered decision was referred to with approval in the analogous case of Saminadha Pillai v. Thangathanni I.L.R. 19 Mad. 70 where SHEPHARD and BEST JJ., held that when a group of heirs took the estate of a deceased divided member after his mother, the rule of survivorship did not apply. The ratio decidendi of this decision and of the Calcutta ruling which in effect it followed is identical, viz., that survivorship does not exist in any case in which property passes as obstructed heritage. The heritage in the present case, being that of daughter's sons, is an obstructed heritage, and is, therefore, on the above principle, not subject to the incident of survivorship.
12. On the part of the first respondent, however, certain passages of the Sarasvati Vilasa, particularly paragraphs 632, 646 and 654, (Foulkee's transla tion, pp. 125, 128, 129, were relied on. The doctrine propounded in those passages is stated, in the very commencement of the disquisition, to be the teaching of Lakshmidhara. Dr. Jolly considers that, as it is not clear whether the author of the Sarasvati Vilasa meant to make the teaching his own, it does not possess more than a historical interest. (Hindu Law, p.202). The doctrine, in question, in the words of the same learned writer, is that 'property devolving on a daughter who has a son, assumes the nature of unobstructed property and is passed on by the daughter's son to his own son, in case he was alive at the time of the devolution of the estate' (Ib.). According to this view, a daughter's son, in existence at his mother's succession, takes a vested right the moment the property devolves on his mother. But it is well settled that the right of such an heir, to inherit his grandfather's estate is contingent on his surviving his mother and her sisters, if any. Moreover the assertion that, in the case supposed, the inheritance assumes the nature of unobstructed heritage, does not appear to be supported by any of the other treatises of the Mitakshara school, since none of them recognizes any exception to the fundamental theory that from the widow downwards the property devolves as obstructed heritage. This is necessarily implied in most of those treatises. In one of them at least, viz., the Vyavahara Mayukha, the author begins the discussion regarding the descent of a sonless separated man's property with words which have been translated, 'order of succession to obstructed heritage ''(Mandlik, p. 76)--words which, in the absence of subsequent qualification, must be taken to include under 'obstructed heritage,' even the case spoken of by Lakshmidhara. It is clear, therefore, that Lakshmidhara's teaching cannot, as pointed out by Mr. Mayne, be now accepted as law. (Hindu Law, fifth edition, note g to Section 519).
13. Muttayan Ghetti v. Sivagiri Zamindar I.L.R. 3 Mad. 370 and Sivaganga Zamindar v. Lakshmana I.L.R. 9 Mad. 188 were also referred to on behalf of the first respondent. But they clearly do not touch the present question. There, it was held that as between a man and his son the former's power of disposition over property, inherited by him from his maternal grandfather, is restricted as it is in the case of unobstructed property belonging to the man and his son. Whether this conclusion can be maintained after the decision of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari I.L.R. 10 All. 272 is open to doubt. Now the ratio decidendi of that case, in the concise words of SHEPHARD and DAVIES, JJ., in the recent Pittapur case I.L.R. The Court of Wards v. Venkata Surya Mahipati Ramakrishna Rao 20 Mad. 167 is this--'Where the right to a partition is wanting there is no restraint on the power of alienation.' See also Sivasubramania Nayakar v. Krish-nammal I.L.R. 18 Mad. 289 . Such being the rule laid down by the Privy 'Counoil and it being unquestionable, as is admitted by the learned Judges who decided the cases in Muttayan Chetti v. Sivagiri Zamindar I.L.R. 3 Mad. 370 and Sivaganga Zamindar v. Lakshmana I.L.R. 9 Mad. 188 that a partition of property inherited from a maternal grandfather cannot be claimed by a son of the man who thus inherited it, it would seem to follow that the view taken in those two cases to the effect that, though a son cannot ask for a share of such property, he can nevertheless impeach his father's alienation thereof, is no longer sustainable. But supposing it to be otherwise, those eases are quite distinguishable from this. In them the question related to a man's power to restrain alienation of immoveable property coming to his father as obstructed heritage. and in support of the view adopted there, Mitakshara, chapter I, Section 27, may, perhaps, still be relied upon as an authoritative text, upon the exact weight due to which no direct pronouncement has yet been made by their Lordships of the Judicial Committee. In the present case, however, the question is not between a father and his son seeking to restrain his father's alienation, but between the representative of a sonless deceased co-owner and the surviving co-owner claiming by survivorship the share of that deceased co-owner in property in which the co-owners took no right by birth, and therefore neither the survivor nor the representative of the deceased ought to be affected by any of the peculiar consequences flowing from such right.
14. The finding upon this question of law must, therefore, be against the first respondent.
15. The next question to be considered is whether, though the brothers took originally as tenants in common, the first respondent is entitled to Niladri's moiety by survivorship in consequence of the mode in which the property was dealt with by them between 1884 and 1892. It was urged on behalf of the first respondent that, in cases like the present, unless the contrary is shown, it should, as a matter of law, be taken that the rule of survivorship prevails. We do not find any ground for this contention. No doubt, when two persons capable of forming a joint family under the Mitakshara, hold some property in common and the requisite legal foundation has been laid for the conclusion that that property is undivided family property, then the presumption of law in respect of all other property in the hands of any of the members of the family is that the same is joint, and if a member of such a coparcenary alleges that any particular property is, in faet, not part of the joint estate but his own separate property, he has to rebut the presumption and prove his allegation. But if that is done, and if an interest, in the particular property, is claimed by some other member on the ground that though originally separate it subsequently became joint property, the onus of establishing the claim is undoubtedly on the member who advances it.
16. Now here inasmuch as, according to the finding already arrived at, Venkata Rao's estate, with its accretions, devolved on Niladri and the first respondent as mere tenants in common, it is for the first respondent to show that, subsequent to such devolution, Niladri's share ceased to be his separate property and that the shares of the two were merged into a common wholewith the incident of survivorship attaching to it. In other words, the first respondent has to make out that he and Niladri had, by mutual consent, express or implied, altered radically the character of their title to the estate by substituting for the several ownership of each in his respective moiety (with absolute power to alienate and with right to transmit by inheritance to his own heir), a joint ownership, with a restricted power of transfer and a right on the part of the survivor to take the whole in the event of the other dying sonlees. Does the evidence prove that any arrangement of the kind took place? If the first respondent were able to satisfy the Court that, as alleged in his written statement, he and Niladri held other property which was joint and that they incorporated therewith the property now in dispute, the contention under consideration must succeed. But he has clearly failed to show any such incorporation. It is conceded that Niladri and the first respondent derived no property at all from any ancestor in their paternal line save Sami Rao, their father. It is conceded also that when Sami Rao left his father's house many years ago and went to reside with Venkata Rao, Sami Rao possessed no ancestral or other funds, and it is admitted that his subsequent acquisitions consisted only of certain jewels (said to be worth Rs. 10,000 or 15,000) which were presented to him by his father-in-law, his mother-in-law and his wife. But it is stated by the first respondent himself and two other witnesses, on his behalf, one his servant and the other his relation, that a couple of months after Venkataramanayamma's death Sami Rao, having himself fallen ill, handed over to Niladri the key of the box containing the former's jewels with the object of transferring the ownership in them to both the sons. This entirely uncorroborated story that a man, who had then two sons and a daughter living--the sons being in affluent circumstances whilst the daughter was not well provided for--took it into his head to give away to his sons alone the whole of the comparatively little property he had, in order that that little might form a common stock with which the extensive separate property in question was to become incorporated, is one which, on the face of it, bears evident marks of invention for the purposes of this litigation, and is therefore, altogether unworthy of serious consideration. Moreover, even if Sami Rao had really parted with the jewels, as alleged, how would that advance the first respondent's case? For nothing was done by the brothers with reference to the jewels, and it is difficult to understand how the mere fact of joint possession thereof by them lends the slightest support to the theory of incorporation. Nor does the first respondent's contention stand on a better footing with reference to the other circumstances relied on in proof of the alleged incorporation, viz., (i) joint residence and messing together, (ii) investment of the annual surplus income in trade for the benefit of both the brothers, or in property acquired in their joint names, and (iii) Niladri's expenses being in excess of those of the first respondent. In drawing inferences from circumstances like the above, it must be borne in mind that facts not distinctly inconsistent with the presumption of the continuance of the original tenancy in common cannot afford any support to the first respondent's contention Compare Robinson v. Preston 4 K. & J. 505. To support it the circumstances relied on should be unequivocal, and should point unmistakably to an intention to effect a mutual transfer of the kind suggested. But those referred to above do not point to any such conclusion. The only fair inference to be drawn from them, taking them all together, is that the brothers did not feel any necessity for dividing either the corpus or the income, and found it convenient for the time being to live together and manage their property in common. To hold that because the brothers merely refrained from dividing what in law was separate--their conduct here amounted to nothing more--therefore they intended to effect a complete change in their relative rights would be unreasonable and unwarranted. Let us now look at each circumstance separately. So far as residence and food go, matters continued exactly as they had been prior to 1884, when the brothers owned no property derived from their father or mother. As to joint investment the interest possessed by the brothers in the business carried on with the aid of their surplus incomes, as well as in property acquired thereby, is prima facie of the same character as that possessed by them in bhe incomes so invested, see Robinson v. Preston 4 K. & J. 505 and there is absolutely nothing to show that in the present case their interest was otherwise. No doubt the brothers did occasionally borrow money on their joint promissory notes. But surely tenants in common may do so for the purposes of their common estate. Why, then, should it be assumed that such acts were done by the brothers as members of a joint Hindu family, the very point to be proved, and not as tenants in common as they were shown to have been at starting? Again, the argument founded on inequality in the expenses of the brothers is entitled to little or no weight, since it entirely disregards the ordinary latitude likely to be allowed between brothers out of natural affection and good feeling--a consideration which ought not to be lost sight of in dealing with an argument like that in, question, Lata Muddun Gopal Lal v. Mussumat Khikhinda Koer I.L.R. 18 IndAp 9. Lastly, as to the documents referred to in the argument with reference to this part of the case, it is to be observed that they really only bear upon one or other of the circumstances just dealt with, and therefore require no further notice. For these reasons, differing from the District Judge, we must hold that the second ground, taken for the first respondent's contention in regard to survivorship, also fails, and, consequently, Niladri's moiety passed to the appellant as his widow and heir.
17. There remains a minor point in Appeal Suit No. 164 raised by the appellant, viz., that certain inam lands included in tho plaint property, but found by bhe District Judge to belong to the second respondent, were really purchased with money which belonged to Niladri and the first respondent, and were, therefore, properly included in the present suit.
18. The second respondent admits in his evidence that he did receive from the brothers in November 1891 when, he was in their employ as a clerk, Rs. 4,000, which sum was entered in their accounts as sent to him for the purchase of inam lands. He also admits that he bought at a Court-sale held in that very month the lands in dispute for less than Rs. 2,000. He moreover concedes that he has not repaid any portion of the Rs. 4,000 sent to him as recited in the accounts. Nor is it his case that the sum was a gift or a loan to him. In these circumstances his interested evidence that the lands were acquired with his own funds cannot be depended upon and there is no other evidence to prove the plea. The property must, therefore, be held to have been acquired by him with the money and for the benefit of his then employers--Niladri and the first respondent.
19. We must now determine whether the alleged will of Niladri, Exhibit K, is genuine or not. This is the only question in Appeal Suit No. 165. The District Judge was of opinion that it is not, and with that conclusion we concur. Their Lordships then discussed the evidence relating to Exhibit K and proceeded.
20. To sum up then: We find that the will of 1866 was revoked, that there was no right of survivorship between Niladri and Appa Rao, that on Niladri's death the appellant as his widow succeeded to his property and that the will of 1892 is not genuine. The result of these findings is that in Appeal Suit -164 there will be a decree for partition and delivery to the appellant of a moiety of the disputed properties including the inam lands in the hands of the second respondent with proportionate mesne profits from 1st December 1892 until delivery of possession or three years from date of decree, the amount thereof to be ascertained in execution. Provided, however, that the following items in schedule C1 shall be excluded: Nos. 3, 17, 22, 23, 38, 75, 77, 81 and 87; and provided also that Nos. 37, 51, 97, 98, 103 and 121 in the sehedude to the Commissioner's report be included. Item No. 7 in plaint schedule C1 should be described as 'a box' only, and item No. 79 in the same schedule should be described as containing only two pearls. In Appeal Suit No. 165 there will be a declaration that Exhibit K is not genuine. In other respects both the suits must be dismissed, the parties will pay and receive proportionate costs in each case in the lower Court as well as in this Court. The decrees of the Court below will be modified accordingly.