1. A. S. No. 393 of 1947 is an appeal by defendants 1 to 3 in O. S. No. 12 of 1940 on the file of the Court of the Subordinate Judge of Tenali against the final decree passed therein. The suit was filed by the first respondent for a partition of the properties alleged to belong to the joint family and for incidental reliefs. Originally, there were five defendants to the suit. The parties were related as follows. The plaintiff was the widow of one Venkataratnam, and the first defendant his son by a predeceased wife. Defendants 2 and 3 were the minor sons of the first defendant. The fourth defendant was the natural son of the first defendant but had been adopted to one Venkatappiah, a brother of Venkataratnam. The fifth defendant was the daughter of Venkataratnam. The fourth defendant died during the pendency of the suit, and his minor son and widow were brought on record as his legal representatives and added as defendants 6 and 7 respectively. The fifth defendant died 'pendente lite'.
2. Venkataratnam died on 1-5-1938. The plaintiff as his widow claimed a fourth share of the joint family properties under the Hindu Women's Rights to Property Act. The properties in which she claimed a share included agricultural land, houses, moveable properties and assets of family businesses. The learned Subordinate Judge passed a preliminary decree for partition on 27-1-1941 declaring that the plaintiff was entitled to a fourth share of the joint family properties and incorporating the terms agreed upon by the parties for further proceedings for division and accounting. These terms 'inter alia' provided for the appointment of a commissioner to ascertain the joint family assets of all kinds as they existed on the date of the suit.
There was an appeal against this decree by defendants 1 to 4 (A. S. No. 25 of 1941), the main ground of appeal being that the Hindu Women's Rights to Property Act was not a valid enactment, in any event, in so far as it affected agricultural land and therefore the plaintiff could not claim a share in such land. This court held that the plaintiff was not entitled to a share in the agricultural properties following the decision of the Federal Court in -- 'In the matter of Hindu Women's Right to Property Act' and modified the preliminary decree passed by the lower court in the following among other particulars, It declared that the plaintiff be entitled to one fourth of the non-agricultural properties, defendants 1 to 3 one fourth and the fourth defendant to one half. It further declared that the plaintiff do get no share in the agricultural properties and that half the agricultural properties do go to defendants 1 to 3 and the other half to the fourth defendant. Certain matters which had Been referred to the Commissioner were directed to be decided by the Subordinate Judge himself. In pursuance of the preliminary decree-as thus modified by the High Court, there were further proceedings by way of division of immoveable properties and taking of accounts, and a final decree was eventually passed on 31-5-1947. This appeal is against that decree by defendants 1 to 3. The defendants 6 and 7 have filed a memorandum of cross objection, A S. No. 14 of 1948 is by the plaintiff.
3. There is now no dispute as regards immoveable properties. The dispute centres round certain items which form part of the account taking which are referred to in the judgment of the learned Judge as items of surcharge. Even among these, the appellants' counsel in A. S. No. 393 has attacked before us the findings only in respect of some of them, and we shall deal with them seriatim.
'Surcharge item No. 4': This relates to the jaggery business run under the name of Mattuppalli Venkatappaiah Jaggery Shop from 30-12-1917 to 13-12-1935. The plaintiff claimed that this business, though run in the name of the fourth defendant's father alone, was really a joint family concern and she claimed a share of the profit of this business. The amount of profit from this business in which the plaintiff claimed a share is Rs. 31,550.
The first defendant states that out of this amount a sum of Rs. 5,550 was drawn by Venkatapiah himself by 8-3-1931 and after Venkatappiah's death the balance of Rs. 26,000 was drawn by Venkatappiah's son, the fourth defendant. It also appeared from the evidence that these amounts were invested in a tobacco business which was being conducted by the first and fourth defendants along with other partners as their separate business. The learned Judge found that the jaggery shop, though run in the name of Venkatappiah alone, was a joint family business and Came to the conclusion that though the amount of Rs. 26,000 was shown in the accounts as having been drawn by the fourth defendant, it was really the first defendant who must be deemed to have drawn it on his own behalf and as the first defendant was in custody of the properties left by the fourth defendant he was liable to account. As, however, the sum of Rs. 5,550 had been drawn by Venkatappiah himself during his lifetime the learned Judge held that the first defendant could not be held liable to account for that sum. In the result he directed the first defendant to give to the plaintiff a fourth share of this amount of Rs. 26,000.
4. Mr. M. S. Ramachandra Rao, learned counsel for the appellants, did not dispute the finding of the learned Judge that the jaggery shop was a joint family business. But he contended relying on the actual entries to be found in the accounts, that the first defendant could not be held liable for this amount of Rs. 26,000. The fourth defendant was a major at the time of these drawings. The monies were invested in the tobacco business which commenced in January 1939 in which the fourth defendant had a two-anna share and the fourth defendant thus obtained the benefit of these monies. A sum of over Rs. 30,000 is the profit appertaining to the fourth defendant's share in that partnership. Therefore the fourth defendant cannot be allowed to have the benefit of these monies, namely, the profit from the investment of the monies in the tobacco business and at the same time escape from the liability to account to the plaintiff and other members of the family for their shares of the amount drawn and invested by him. We see considerable force in this contention.
5. In the last will and testament of the fourth defendant (Ex. ZZ) dated 16-12-1940 there is a reference to the investment made by him in the new tobacco business as follows:
'I and my natural father along with others have been carrying on business in tobacco (foreign trade) since 22-1-1939. In respect of this, we have also entered into a partnership deed, dated 1-3-1939. As per that partnership deed I have a share of Rs. 0-2-0 in the rupee. In this business I have separately invested a sum of Rs. 23,250 from out of my private money, i.e., from out of the money relating to the account standing in the name of Mattupalli Venkatappayya Garu's adopted son Radhakrishnamurthi. That business is still carried on. There are all account books relating to this foreign tobacco trade. Until the profit and loss from that business are determined it cannot be found as to what amount is due to me from the concern. After my lifetime the accounts of this partnership business shall be looked into by my natural father and the amount falling to my share shall be realised by him.'
Ex. X(a), the account relating to the fourth defendant contains entries of drawings aggregating to Rs. 26,000 between the dates 13-11-1938 and 3-4-1939. The partnership in respect of the new tobacco business was dated 1-3-1939. The plaintiff is naturally not very much concerned as to who pays her her share of the amount of Rs. 26,000. But Mr. Rangachari, learned counsel for the plaintiff, rightly pointed out an omission on the part of the learned Judge. The learned Judge was undoubtedly right in saying that the first defendant could not be made liable for the sum of Rs. 5550 which had been drawn by Venkatappiah himself in his lifetime. But surely the plaintiff is entitled to her fourth share out of this amount from the fourth defendant's legal representatives, who will also be liable to pay the first defendant a similar fourth share.
6. The main contention on behalf of the defendants 6 and 7 was that the first and fourth defendants were undivided till the date of the decree of this court in the appeal against the preliminary decree or at any rate till the date of the memorandum of appeal to this court, that is, 17-2-1941. The first defendant according to their ease, was the manager of the joint family consisting of the first and fourth defendants and it is the first defendant who should account for all the monies though they may be shown as having been drawn in the name of the fourth defendant. The learned trial Judge held that the fourth defendant should be deemed to have been separated in status even by 30-6-1938 the date of the plaint. Mr. T. M. Krishnaswami Aiyar, learned counsel for the legal representatives of the fourth defendant, attacked this finding on the ground that the filing of the suit by the plaintiff who was the widow of Venkataratnam in exercise of her right under the Hindu Women's Rights to Property Act did not bring about severance in status among the coparceners, namely, defendants 1 and 4. The plaintiff was not herself a coparcener though she might have a statutory right to a partition of the family property, and as she was not a coparcener there was no scope for the application of the doctrine of unilateral declaration of an intention to separate.
He referred us to the ruling of this court in -- 'Seethamma v. Veerana Chetty' : AIR1950Mad785 in which the position of a person like the plaintiff was discussed with reference to her status in the joint family, taking into consideration the provisions of the new statute. The preliminary decree passed by the learned Subordinate Judge declared only the right of the plaintiff to a fourth share and did not purport to effect a severance among the other coparceners. It was only the decree of this Court that specifically declared the rights of each of the coparceners to a share and directed a division among them. Mr. Krishnaswami Aiyar was however willing to concede the grounds Nos. 11 and 12 in the memorandum of appeal against the preliminary decree filed in this Court (A. S. No. 25 of 1941) may be treated as a declaration of an intention to separate on the part of the first and fourth defendants who were joint appellants. Grounds Nos. 11 and 12 run as follows:
'11. The lower Court erred in not declaring in its decree that the plaintiff is entitled to a one fourth share, defendants 1 to 3 to a one fourth share and the fourth defendant to a half share.
12. The lower court should have directed a division and separate possession of the respective share to the defendants 1 to 4.'
Mr. M. S. Ramachandra Rao for defendants 1 to 3 did not seriously urge that by the filing of the plaint there was an immediate severance in status. But he relied on the written statement filed by the fourth defendant on 26-9-1938. Paragraphs 3 and 5 are material, and they are as follows:
'3. Late Venkatappiah became divided from his brothers even by the years 1912 and 1914 and for sometime carried on separate business of his own. He also executed a will dated 7th July 1931 by which he bequeathed all his property to this defendant.
'5. This defendant has no objection for a partition of his share of the property. He is liable for costs of the suit.'
The division set up in 1912 and 1914 was found against by the trial court and the learned counsel for the first defendant did not attempt to canvass that finding. But he contended that the declaration in the fifth paragraph of the written statement that the fourth defendant had no objection to a partition of his share of the property is sufficient to bring about a division in status at any rate from the date ot the written statement. The grounds of appeal only indicate what according to defendants 1 and 4 ought to have been done by the trial court itself. We agree with Mr. Ramachandra Rao that defendants 1 and 4 must be deemed to have become divided in status in any event from the date of the fourth defendant's written statement. The subsequent conduct of the parties also supports this view. The partnership deed relating to the tobacco business started in January 1939 proceeds on the footing that the first and the fourth defendants were divided (Ex. 23).
6a. It follows from the above facts, that it is the fourth defendant who would be liable in respect of the amounts of Rs. 5550 and Rs. 26,000 drawn by Venkatappiah and the fourth defendant respectively from the profits of Venkatappiah jaggery shop. That considerable amounts were invested in the tobacco business which commenced in 1939 in the name of the fourth defendant is clearly established. The first defendant deposed as follows:
'Ex. X(a) shows that Rs. 26000 were drawn from his (4th defendant's) account on the death of Venkatappiah from 13th November 1938 till 3rd April 1939. Defendant 4 took this money. It was credited as the capital ot the 1939 January tobacco company.'
This statement is borne out by the accounts (vide Exs. NNN-2, AAAA-2 BBBB-2, PPP-2 & QQQ-2). We therefore set aside the decree ot the lower court in so far as it makes the first defendant liable for the sum of Rs. 26,000 drawn from the jaggery shop amounts. For this amount as well as for the amount of Rs. 5550 drawn, by Venkatappiah during his lifetime it is the fourth defendant (and his legal representatives) who should, be held liable both to the plaintiff and to the first defendant.
7. 'Surcharge item No. 5': The next item relates to insurance policies taken in the names of the members of the family. They are as follows:
1. a policy in the name of Venkataratnam for Rs, 6000. ,
2. A policy in the name of Venkatappiah for Rs. 5,000.
3. and 4. Policies in the name of the first defendant for Rs. 2000 and Rs. 5000 respectively, and
5. a policy in the name of the fourth defendant for Rs. 10,000.
From the evidence it is clear that the premia in respect of these policies were paid from and out of the joint family funds. But it is also clear that the joint family accounts specify definitely the amount of the premia as relating to the policy effected by this or that coparcener. There seems to have been a separate kbata in which the amounts paid towards the premia for the several policies were separately entered. The first question which falls for decision as regards the amounts pf these policies is, are the amounts of the policies joint property or do they form the separate property of the individual coparceners concerned. There appears to be little direct authority on the question. From a commonsense point of view, it is obvious that when one of the coparceners insures his life he intends the benefit of the policy for his heirs and not for the other coparceners. The presumption, therefore, would be that the profit, if any, made by means of the policy would not be joint family asset. The utmost that the other coparceners in equity can claim is that the assured should be debited with the premia which have been paid from joint family funds.
8. In support pf the contention that the amounts of the policy should be treated as joint family property if the premia were paid from joint family funds, learned counsel cited two decisions of this court. In -- 'Oriental Govt. Security Life Assurance Ltd. v. Ventedu', 35 Mad 162 (C), four sons of one Nagiah filed a suit against an insurance company to recover the amount alleged to be due to them on a life insurance policy executed by the company in favour of the said Nagiah. The policy was intended for the benefit of Nagiah's wife and children. He died in 1902 leaving four sons and two daughters- The four sons claimed to be entitled to the amount to the exclusion of the two daughters of Nagiah. The company repudiated their exclusive claim on the ground that all the children of Nagiah including the daughters were entitled to the amount. It was held that the sons were entitled to the policy amount. The District Judge held that the premia paid for the policy came out of the joint family property of Nagiah and his sons and that the sons alone were entitled to the amount. This finding was not impeached before this court and the plaintiffs' (sons') title to recover the whole amount was admitted. The learned Judges observed that there could be no doubt that this view was correct. This is all that there is in this decision bearing on the point, and we fail to see what principle we could deduce from it which would govern the present case.
Obviously, whether the policy was joint family- property or the separate property of Nagiah, the only persons who would become entitled to it in law would be the sons and they were the plaintiffs in the suit and their title was admitted. There was no conflict between persons claiming it as joint family property and persons claiming it as the separate property of Nagiah. The decision in -- 'Srinivasa Iyengar v. Thlruvegadathaiangar', AIR 1914 Mad 226 (D) does not take us any further. In that case, the plaintiff and the first defendant were step brothers and the sons of one Doraiswami Aiyangar who had taken out a policy of assurance. The premia for the policy were paid Out of funds belonging to the whole family. It was held that both the plaintiff and the first defendant were entitled to shares in the amount recovered from the insurance company. Here again the same result would have followed if the policy amount had been treated as the separate property of Doraiswami Aiyangar.
9. In these two cases it may be observed that the assured was the manager of the joint family and the other coparceners were all minors. It is not clear whether there were separate debits as against the manager, nor was there any other evidence to show that the assured intended to treat the policy as his own individual asset. These two cases were cited in a later case in -- 'Bengal Insurance and Real Property Co., Ltd. v. Velayammal' : AIR1937Mad571 . Though that decision was based on different facts, the following observations are apposite:
'The cases cited, -- '35 Mad 162 (C)' and --'AIR 1914 Mad 226 (D)' leave the question of a manager's power to insure his life, paying the premium from the family money for the benefit of some members only to the joint family, in some uncertainty.........The question then is whether any profit made out of money paid to a member of a joint family by the manager for his personal use, which he is free to spend as soon as he receives it, must, because he chooses to invest it for some purpose which is clearly not intended to be for the benefit of the family, be deemed to be a family acquisition. A profit made by the member of a joint family from the enjoyment of joint property without detriment to it is his separate self-acquired property: --'Lachmeswar Singh v. Monowar Hossein', 19 Cal 253 (PC) (F). When money is given to a member of a family by the manager from family funds to be spent by him for his personal use, it seems to Us that any profit made by him can hardly be said to be in detriment of the joint property.'
As early as -- 'Pokkunuri Balamba v. K. Krishnayya', AIR 1914 Mad 595 (G) San-karan Nair J. held that a presumption would arise where an assured is shown to have money available from private as well as from joint family sources that the premia for a policy on his life would be paid from the man's own money. This is because an insurance is prima facie intended for the benefit of the person taking out the policy. We think that the nature and incidents of a policy of life insurance taken out by a member of the joint family are well brought out in the following passage in -- 'Sugandhbai v. Kesarbai', AIR 1932 Nag 162 (H),
'A policy of life insurance is usually a personal contract between the person who is called the assured and the insurance company. It is true no doubt that an insurance policy could be taken out for the benefit of the joint family, but the presumption would be against that as a rule and in my opinion it would have to be proved that the policy was taken out with that intention and that the premia were paid out of the joint family funds. In the absence of any proof to that effect, I am of opinion that the correct presumption is that the policy was taken out as a personal policy for the benefit of the personal heirs of the assured.'
Of course, in such cases the assured must be debited with the premia paid by him or on his behalf from and out of the joint family funds. That is what was done in -- Manharanlal v. Jagjiwanlal', AIR 1952 Nag 73 (I) (vide page 75, column 2) and by a Bench of this court in A. S. No. 43 of 1938.
In our opinion, having regard to modern social conditions and the growth of individual consciousness in marked contrast to the more corporate outlook of an earlier day, the general presumption must be that when one of the members of a joint family insures his life, the amount of the policy belongs to the assured as his separate property and does not become a joint family asset. No doubt, there is clear indication that the member did not intend to treat it as his separate asset, the position would be different. In a case where each of the several members of the family has taken a policy in his name the presumption becomes stronger that the policies were not part of the joint family assets. The premia must be treated as amounts drawn by the individual members and they must be debited with those amounts. The learned trial Judge has practically adopted this course except in the case of the amount of Rs. 6000 paid in respect of Venkatappaiah's insurance policy which he has held to be a joint family asset. We think that logically all me policies should be treated in the same way. The respective amounts will be treated as the separate property of the respective assured and they would be debited with the amounts of premia paid towards their policies. The statement, Ex. CCCC-4, shows the amounts of premia paid in respect of the policies. Each of the members will be debited with the respective amount. As Venkataratnam's policy was assigned in favour of the first defendant, the first defendant must be debited with the premia paid in respect of this policy. The learned Judge has left open the claim to the policy taken in the name of the fourth defendant to be decided in a separate suit. That direction will stand. There is, however, one matter which needs to be cleared. The plaintiff would be certainly entitled to a fourth share of the premium amounts paid in respect of Venkataratnam's policy which was assigned to the first defendant. But this fact was apparently overlooked by the learned Judge who has not declared the plaintiff's right to it....
10. (After discussing the facts and evidence relating to other surcharges, their Lordships proceeded). In the result, there will be a modification of the decree in accordance with our above findings. We direct the parties to bear their own costs both in A. S. No. 393 of 1947 as well as in A. S. No. 14 of 1948 and the memorandum of cross-objections in A. S. No. 393 of 1947.
11. The properties and assets allotted to the fourth defendant's share, except the agricultural lands shall be divided equally between the defendants 6 and 7.