1. The first defendant in O. S. No. 11124 of 1960 on the file of the City Civil Court Madras, is the appellant. The first respondent herein filed the suit for partition of plaint A and B schedule properties and for separate possession of her one-fourth share there-in and for rendition of accounts of the income derived by the first defendant from the properties from 19-4-1958 Her case was that the properties set out in the plaint A and B schedules belonged to her husband, Chellappa Naicker the father of defendants 1 to 3 and grandfather of defendants 4 to 8, that the said properties were acquired by Chellappa Naicker out of his own earnings, that Chellappa Naicker died on 19-4-1958, that the plaintiff and defendants 1 to 3 have succeeded to his properties each being entitled to a one-fourth share in them, that the first defendant refused to comply with the plaintiff's demand for partition, and separate possession of her one-fourth share, 'that he set up a will, alleged to have been executed by the said Chellappa Naicker bequeathing all the suit properties to him exclusively, chat the will set up by the first defendant was not true and valid and that, therefore, she has been compelled to file the suit for the reliefs abovementioned
2. The first defendant resisted the suit contending that himself and his father Chellappa Naicker constituted an undivided Hindu family, that even at the age of 15 he gave-up his studies and joined his father to help him in his trade as tinker and steel trunk manufacturer from 1930 onwards, that the A schedule properties were all acquired out of the earnings of the said joint family trade, that his father threw the earnings into thecommon family pot and the properties were acquired out of the earnings of the joint family business and that in any event the acquisition of properties were out of the joint exertions of himself and his father. He further contended that his father has executed a will under which the properties have been bequeathed exclusively to him and that the plaintiff and defendants 2 and S have no rights therein. He also pleaded that even if his father is taken to have died interstate, the properties being joint family properties, he is entitled to a half share in his own right and to a one-fourth share in the share left by his deceased father The first defendant also pleaded that even during the lifetime of his father the said business had, been gifted to him. Thus the substantial defence taken by the first defendant is that the plaint A and B schedule properties are not divisible and that they belonged exclusively to him and that the business conducted in the name of the father also belonged to him exclusively.
3. Defendants 2 and 3 supported the case of the plaintiff and they prayed for allotment to them of one-fourth chare each in the plaint schedule properties as also the business,
4. Defenoants 4 to 8 who are the sons of the first defendant-contended that the business and the properties set out in A and B schedules are ancestral and joint family properties as they have been acquired With the help of ancestral nucleus and by joint exertions of their father and grandfather. They also pleaded that the business of 'Dhanalakshmi Brand Steel Trunk Works' is a joint family business and not the exclusive business of their grandfather.
5. On these rival contentions the court below had to consider (1) whether the properties set out in the plaint A end B schedule as also the business of Dhana-lakshmi Brand Steel Trunk Works belonged exclusively to the first defendant as a result of the will said to have been executed and the gift said to have been made by his father Chellappa Naicker in favour of the first defendant and (21 whether the suit properties and the business continued to be the exclusive properties of Chellappa Naicker at the lime of his death or whether they belonged to the joint family of the first defendant and his father.
6. Though a will has been set up by the first defendant with a view to claim the properties as his exclusive properties, having regard to the fact that the genuineness of the will was successfully challenged by the plaintiff and defendants 2 and 3 in T. O. S. 6 of 1960 (O. S. A. 6 of 1960 Sundaram v. Rukmaniammal andothers) and the decision in the said testamentary suit has also been affirmed by a Bench of this court in O. S. A. 41 of 1961, Sundaram v. Rukmani Ammal, the first defendant has practically given up the defence based on the alleged will. Even the plea of gift put forward by the first defendant as the basis of his claim for the exclusive ownership of the business had been given up at the trial and he has specifically admitted in his evidence as D.W. 1, that there was in fact no gift of the business by his father to him. Therefore, we have to proceed on the basis that Chellappa Naicker died intestate, and that there was no gift of the business exclusively to the first defendant by Chellappa Naicker during his lifetime. Then the only substantial question that is to be decided is as to whether the suit properties and the business belonged to the joint family or whether they are the exclusive properties of Chellappa Naicker. If the properties and the business belonged to Chellappa Naicker exclusively, then the plaintiff and defendants 1 to 3 will be entitled to a one-fourth share each therein. However, if they belonged to the joint family of Chellappa and his son, then the plaintiff and defendants 2 and 3 will become entitled to only a one-eighth share each and the first defendant will be entitled to a 5/8th share. The court below, on a consideration of the evidence held that the suit properties and the business in question were the self-acquired properties of Chellappa and, therefore, the plaintiff became entitled to a one-fourth share in the plaint A and B schedule properties as well as in the business.
7. Aggrieved against the decision of the court below, the first defendant has come before us and he contends that on the evidence the suit properties as also the business should be taken to belong to the joint family of himself and his father. Though the first defendant put forward many alternative pleas, he has confined himself only with the plea that the properties set out in A and B schedules have been acquired from the income from the business in steel trunks and that the said business has been started and continued with joint exertions of himself and his father and, therefore, the suit properties as well as the business should be taken to belong to the joint family. It is also the plaintiff's case that the properties covered by the suit have been acquired with the income from the business though she would state that the business is the exclusive business of Chellappa Naicker. Thus, the ownership of the business is very material to find out the character of the properties set out in A and B schedules which have been admittedly purchased from the income of the business.
8. As regards the business, the first defendant, as already stated, put forward various pleas which were somewhat inconsistent. He stated in his written statement that the business was started with the joint family nucleus. Then he stated that the business though started by his father earlier without the aid of joint family was continued by the joint exertions of himself and his 'father 'and, therefore, it should be taken to be the joint family business of himself and his father. But at the trial the first defendant has not adduced any evidence to show that the family had any nucleus so as to enable his father to start the business in question. Therefore, the only plea put forward by the first defendant that has to be considered is whether the business which was admittedly started by his father in the year 1920 when the first defendant was only 15 years old without the aid of the joint family had become the joint family business after 1950 when the first defendant is said to have actively helped his father in the business.
9. Though the first defendant stated at one stage that the steel trunk business was started with joint exertions, that cannot obviously be true for the reason that in the year 1920 when the business was first started he could only be below ten years of age. Having regard to the admitted fact that there was no joint family nucleus to enable the father to start the business as a joint family venture and the business not having been started with the joint exertions of the first defendant, we can only proceed on the 'basis that the business in question was started by the father with the funds of his own. It is now well settled that when the members of a joint family, by their joint labour, or in their joint business acquired property, that property, in the absence of a clear intention to the contrary, would be owned by them as joint family property and their male issue would acquire a right by birth in such property. But if a single individual acquired properties by his own exertions without any assistance from the ancestral property, his male issue will certainly take no interest in it. In Sudarsanam Maistry v. Narasimnalu Maistry. ILR (1902) Mad 149, a Bench of this court held that the property acquired by all the members of the family by their joint labour would, in the absence of an indication of intention to the contrary, be taken to be the joint family property. The same principle was followed in Muni-sami Chetti v. Muruthammal, ILR (1911) Mad 211, as well as in Rajagopala v. Seshayya, AIR 1935 Mad 366. In Krishna v. Rengachari, : AIR1965Mad340 Anantanarayananand Ramamurti JJ. expressed the view that if members of a joint family who are joint in status carry on business and acquire property by their joint labour and exertions without the aid of any ancestral nucleus the presumption is that the property so acquired by them would be joint family property in which the son of the acquirer would get a right by birth, unless it is proved that the acquirers intended to own the property as co-owners between themselves in which case alone it will be joint property as distinguished from joint family property. The same view has been taken in Santhalingam v. Meenakshi Ammal, : (1970)2MLJ85 . It is in the light of the above legal position the evidence in this case has to be considered.
10. The first defendant has stated in his written statement that the business was continued by joint labour and industry and the earnings from the business were joint earnings and therefore the suit properties which have been purchased with such earnings are the joint family properties. He also states that from 1930 onwards he actively helped his father in his trade, having acquired all proficiency and skill in the trade. In his evidence he has stated that his father started the business of manufacture of trunks in 1920, that he joined his father in business in 1927-28, that he learnt the work of manufacture of trunk boxes when he was assisting his father, that from 1850 he is doing business exclusively as the father became old, that himself and his father jointly borrowed for the purpose of the business and house expenses and that, therefore, the business should be taken to be a joint family business. Admittedly in this case the business was started by the father in 1920 without the help of the joint family nucleus and without any detriment to the joint family. So the business was in its origin the exclusive business of the father. Whether that business came to acquire a joint family character would have to depend on the nature of the help or assistance given by the first defendant. It is not every act or work done or assistance given by a son to the father in the conduct of the business that will make the business a joint family business. If the work done or assistance given by the son is such as to lead to the inference that the father had intended to treat his exclusive business as a joint-family business, then alone the presumption of Joint family business could be invoked. In invoking such a presumption the joint exertion by the son with his father should be such that the father could be said to have intended to treat the business as belonging to both or to the joint family.
11. The learned counsel for the appellant relies on the decision in Haridas v. Devkuvarbai, : AIR1926Bom408 . In that case one Narayandas started business in Bombay as a piece-goods merchant without the aid of any joint family nucleus and amassed considerable wealth. While he was carrying on business his son Haridas was associated with him in the business. The trial court found that as the father advanced to old age more burden of the business was shouldered by the son and less by the father, and that the father and son lived and messed jointly. On these facts tt held that the business was the joint family business and all the properties acquired with the income therefrom are the joint family properties. The High Court affirmed that view holding that where a father and his son acquired the property by their joint labour and are, besides, joint in food and worship, they must be regarded as having constituted a Hindu joint family even though -there may not have been any nucleus of property which has come down from his father or grandfather, and expressed:
'For the formation of a coparcenary in Hindu law, such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son and other relation requisite for a coparcenary system, and these persons by living, messing and worshipping together, and throwing all the property acquired jointly into one common stock, manifest their intention to deal with one another and with outsiders as members of a coparcenary system under the Hindu Law.'
The decision in Manilal v. Bai Sushila, : AIR1956Bom402 was also relied on. In that case also a father was carrying on a business of his own. His two sons also joined the business later and the question arose as to whether the property acquired with the income of the said business could be treated as joint family property. The court held that as the father and two sons indisputably lived as members of a joint family and both the sons used to actively help the father in carrying on the business started by him without any remuneration for the work done by them, it must be regarded as joint family business. The learned Judges in that case distinguished an earlier decision of the Allahabad High Court in Kailashi v. Shankar : AIR1945All164 , in which it was held that if a business is started by an adult member of the family separately, the mere fact that his sons who are dependent on him and are being maintained by him gave him some help in the carrying on of the business would not necessarily make the business cease to be his own business and make it the joint business of himself andhis sons, but the father and the sons may so conduct themselves that from their conduct it may be apparent that the business of the father had become the joint business of the father and the sons by some arrangement between them, with respect, we are inclined to agree with the view expressed in : AIR1945All164 rather than the view of the learned Judges in : AIR1956Bom402 . It is not every help and assistance given by the son to the father in business without remuneration, will lead to the presumption that the separate business of the father has be-come the Joint family business. The conduct of the father and the sons with reference to the business should be such as would show an intention on the part of the father to give up his exclusive ownership of the business end to make it the joint business of him self and his sons. It is well established that the burden of proving that a member of a joint Hindu family threw his self-acquired property into the common stock lies on the person making the assertion and this burden can only be discharged by pre of the fact that the owner of the property clearly expressed his intention to abandon his separate and exclusive right in the property in favour of the members of the joint family and that the intention may be expressed by words or may be inferred from the conduct of the parties. In this case the defendant himself has stated that the licence for the business was issued in the name of his father till his death and that the income-tax and sales tax returns were submitted and assessments made in the name of the Hindu undivided family of himself and his son. He has also admitted that he has joined in execution of certain mortgages with his father for the purpose of the business because the creditors insisted that he should also join in the execution of the mortgages. The income of the business also has been utilised for the purpose of purchasing properties in his father's name. Further, in all the correspondence the first defendant has signed for and on behalf of his father who is shown as the proprietor of the business. On his evi-dence and the other evidence available in the case it is clear that the father had at no stage till his death given up his exclusive ownership of the business and made it a joint family business. In this connection it will be relevant to note the initial case put forward by the first defendant at the stage of the probate proceedings and later in this suit. While residing the plaintiff's claim for partition the first defendant had set up a case of outright Rift to him of the business by the father even during his lifetime and that can only be on the basis that the business was the exclusive business ofthe father right through till his death. The first defendant in his deposition has clearly admitted that there was no gift at all. Apart from this the properties purchased with the income of the business were also claimed by the first defendant as having been got by him under the will executed by his father. That also can only be on the basis that the income derived from the business with which the suit properties bad been purchased was exclusively of the lather's, and that the business and the income there from belonged exclusively to the father and not to the joint family of himself and his father. On the materials we are not in a position to say that the assistance given by the first defendant to the father who was conducting the business during his lifetime is such as to lead to the inference that the father gave up his exclusive right in the business and made it a joint family business. We are, therefore, of the view that the court below is right in holding that the business was the exclusive business of the father Chockalinga Naicker and that the suit properties which have admittedly been acquired with the income of the business are his exclusive properties and that the plaintiff is entitled to a one-fourth share in the suit properties.
12. The learned counsel for the appellant then contends that the court below erred in relegating the question of the first defendant's liability to account for a sum of Rs. 8,500 alleged to have been removed by him from the almirah on the third day of his father's death to final decree proceedings. According to the learned counsel that question has to be decided at the stage of the preliminary decree itself and should not have been relegated to final decree proceedings. The first defendant has questioned the existence of the said asset of Rs. 8,500 at the time of his father's death. The court below perhaps felt that the evidence as to the existence of the said asset is not sufficient as the parties have concentrated their attention only to the question as to whether the properties are joint family properties or not. As it is, there is only the assertion by the plaintiff and a denial by the first defendant as to the existence o- the said cash of Rs. 8,500 at the time of the death of Chullappa Naicker. It is only after looking into the accounts of the business and the bank pass books or other documents relating to the business it is passible to ascertain whether the said cash in fact was kept in the almirah. The court below having directed accounting in regard to the income derived from the immovable properties and also the rendi-tion of accounts in respect of the business thought it right to relegate the question as to the existence of the cash to the finaldecree proceedings. In the circumstances of the case, we cannot say that such a direction is erroneous.
13. The appeal, therefore, fails and is dismissed with costs of the plaintiff.