1. The true question is as to whether the appeal is out of time. The appellant under Order 44 presented an application for leave to prosecute his appeal in forma pauperis accompanied by a memorandum of appeal as required by the order. The application for leave was two months out of time and was filed on the last day allowed for filing the appeal. Eight days later the court returned the application and the memorandum on the ground that the application was out of time and gave two days' time to explain the delay. Two days later the appellant again presented the memorandum of appeal with the full Court fee and applied under Section 149 that the delay should be excused. In the case of plaints insufficiently stamped Order 7, Rule 11 (Section 54 of the old Code). the Court is bound to give a few days to pay the correct fee. Delay could be excused if the insufficiency was caused by a mistake as to the amount of the requisite stamps. But under Section 149 it is now left to the discretion of the Court.
2. In Balkaran Bai v. Gobind Nath Tiwari I.L.R. (1890) A 151 the opinion was expressed that these provisions of Section 54 as regards a plaint were not made applicable to a memorandum of appeal by virtue of Section 582. To meet this decision a new Section 582-A was inserted which allowed the admission of insufficiently stamped memorandum of appeal presented within proper period of limitation provided the insufficiency of the stamps was caused by a mistake on the part of the appellant as to the amount of the requisite stamps. This enactment appears to us to recognise the correctness of the Allahabad ruling that Section 54 did not apply to memorandum of appeals as, if it did, there would have been no need for the new section. Then we come to the present Code which for Section 582-A substituted anew Section 149 not confined to memoranda of appeals but giving the Courta discretion in all cases to allow the payment of the fee at anytime. This in our opinion is the section which governs the present case, and with respect we are not satisfied as to the correctness of the ruling in Achuta Ramchandra v. Nagappa Bab Balgya I.L.R. (1913) B. 41 that under the present Code Order 7, Rule 11 is rendered applicable to memoranda of appeals by Section 148 so as to make it incumbent upon us to admit memoranda out of time where the conditions of the rule are complied with. In the present case we are not prepared to differ from the exercise of the single judge's discretion in admitting the appeal.
A.S. No. 227 of 1910.
3. Akkaraja Rama Doss had two sons, Sitaramayya and Janakiramayya. The plaintiff is the grandson of Sitaramayya. The defendant is the widow of Janakiramayya, who died in 1907. This suit is for the recovery of his property on the ground that the plaintiff and the deceased were members of an undivided Hindu family and that by survivorship the plaintiff has become entitled to it. The case for the defendant is that the properties were the self-acquisition of Janakiramayya.
4. The Subordinate Judge upheld the defendants' plea and dismissed the suit. Hence this appeal.
5. The plaintiff bases his claim on two grounds : (a) that Ram-doss the common ancestor of himself and Janakiramayya acquired large property with the aid of which the latter purchased the properties in suit and (b) that his grandfather Sitaramayya and Janakiramayya had thrown their earnings into a common stock, and that the properties sued for represent the savings and accumulations from the joint acquisition. We have heard Mr. Prakasam at considerable length and we are not satisfied that either of these allegations has been made out in this case. Ramdoss was apparently a man of methodical habits : he kept accounts and although owing to lapse of time, all of them are not available, Exhibit E which relates to the period immediately preceding his death shows that he left only Rs. 84 and odd at the time of his death. This sum has been proved to have been spent for his funeral expenses ; we see no reason to disagree with the conclusion of the Subordinate Judge that it has not been established that there was any nucleus of the property of Ramdoss in the hands of 'Janakiramayya. It has not been shown that any Inams were in the possession of Ramdoss and that they descended to his sons. Exhibit N has not been proved. The property mentioned in Exhibit D has not been shown to be ancestral property. There is no evidence that the Inam mentioned in Exhibit Cever was in the possession of Ramdoss.
6. As regards the theory of joint acquisition, prima facie the facts that the two brothers were lending their savings in their individual names, transacted separate business and kept separate accounts are against it. There is no reliable evidence that, Sitaramayya remitted his earnings to his father or brother On the death of Sitaramayya the properties left by him and the debts which he had advanced were all collected by one Gopala Krishnaya on behalf of the widow. No porv tion of these was mixed up with the earnings of Janaki-ramayya. On the other hand we have full and exhaustive accounts kept by Janakiramayya (Exhibit III Series) after the death of his father in 1870 which show with what small beginnings he began life and how they were augmented month after month. The totals in Exhibit III Series approximate to the properties now claimed in the suit. These accounts prove beyond doubt that the properties in dispute were the self-acquisitions of Janakiramayya.
7 . Mr, Prakasam laid stress on the fact that Ramdoss applied for a succession certificate to the estate of his son, Sitaramayya. There is nothing to show that the certificate was granted or that any moneys were collected by him, non constat that if any money if collected reached Janakiramayya and was mixed up by him with his own money. Subsequent to the death of Sitaramayya and Ramdoss, Janakiramayya brought up his brother's son and grandson, educated them and got them married. They were apparently living with their mother in Janakiramayya's house. From these facts Mr. Prakasam argues that they constituted members of a Joint family with the deceased and that the burden was upon the defendant to prove that the properties were not ancestral. We are unable to uphold this contention as the Subordinate Judge has pointed out, Janakiramayya appears to have done just as much for the descendants of his brother who have never made any claim to share in his property. Further all these relations including the plaintiff and his father appear to have been treated by Janakiramayya rather as dependants than as co-sharers. A joint family presupposes the possession of common property. Under the Hindu Law mere living together of the members of a family will not make them joint owners of properties acquired by each individual member. There must have been a nucleus of ancestral property which was utilized for the purpose of making the subsequent acquisitions or the members must have thrown their joint earnings into hotchpots with the intention of giving up their individual rights in them.Mr. JusticeChamier examinesall the previous rulings upon the subject in Raw Kishan Das v. Tunda Mal I.L.R. (1911) A. 677 and says that ' there is no presumption that property found in the possession of any one member is joint family property unless it is shown that the family as such possessed at least some property.' In another place the learned Judge says that it is only when there is 'ancestral property by means of which other property may have been acquired, then it is for the party alleging self-acquisition to prove that it was acquired without any aid from the family estate.' We entirely agree with these propositions. In Dhurm Das Pandey v. Mussamat Sham Sundri Debiah (1848) 3 M.I.A. 229 Lord Campbell states distinctly at, p. 240. ' It is allowed that this was a family who lived in commensality, eating together and possessing joint property.'. The Judicial Committee laid down that under these circumstances the mere fact that purchases were made in the names of individual members of the family was not evidence of separate ownership. Vedavalli v. Narayana I.L.R. (1877) M. 19 proceeds on the same principle.
8. We have found that there was no nucleus of ancestral property proceeding from Ramadoss and that his two sons did not throw their earnings into a common stock. On these findings the decisions quoted by Mr. Prakasam have no application. We agree with the Subordinate Judge in his conclusion and dismiss the appeal with costs.