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Tanneru Venkayamma Vs. Tanneru Gangayya - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1934Mad16
AppellantTanneru Venkayamma
RespondentTanneru Gangayya
Cases ReferredMahalakshmi Amma v. T. Nagappa
Excerpt:
- - the learned judge after discussing the evidence bearing on this question found that the illatom relationship set up was' not proved, but at the same time he was of opinion that the gift cannot be considered to have been prompted solely by love and affection but must have had something to do with the claim of illatom son-in-lawship set up by defendant 1. we are mentioning this at the very outset to dispose of an argument of the learned advocate-general that the gift being presumably made to silence the claim to son-in-lawship urged by defendant 1, should be construed in the light of a gift to the joint family of defendant 1. this plea is on the face of it untenable, for the motive which prompted the gift has very little to do with the construction of the deed, especially so, when.....madhavan nair, j.1. the plaintiff is the appellant. the appeal arises out of a suit instituted by the plaintiff, the widowed daughter-in-law, against defendant 1, her father-in-law, and the other members of the family for a partition and separate possession of her husband's share of the properties specified in schedules a, b, c and d of the plaint. defendant 1 had married two wives by his first wife, defendant 6, he had two sons, sri ramulu and punnayya. sriramulu died in 1911. his son is defendant 4. punmayya died in 1923. his widow is the plaintiff. defendant 5 is the brother of defendant 6 and brother-in-law of defendant 1. defendants 2 and 3 are the children of defendant 1 by his second wife.2. schedule a of the plaint comprises properties gifted by defendant 5 under ex. a to.....
Judgment:

Madhavan Nair, J.

1. The plaintiff is the appellant. The appeal arises out of a suit instituted by the plaintiff, the widowed daughter-in-law, against defendant 1, her father-in-law, and the other members of the family for a partition and separate possession of her husband's share of the properties specified in Schedules A, B, C and D of the plaint. Defendant 1 had married two wives By his first wife, defendant 6, he had two sons, Sri ramulu and Punnayya. Sriramulu died in 1911. His son is defendant 4. Punmayya died in 1923. His widow is the plaintiff. Defendant 5 is the brother of defendant 6 and brother-in-law of defendant 1. Defendants 2 and 3 are the children of defendant 1 by his second wife.

2. Schedule A of the plaint comprises properties gifted by defendant 5 under Ex. A to defendant 1, Punnayya, the deceased husband of the plaintiff, and defendant 4, the grandson of defendant 1; B schedule comprises properties that were subsequently acquired by defendant 1; 0 schedule comprises the ancestral properties of the family ; and D schedule consists of debts for which promissory notes and bonds were taken in the name of the plaintiff's deceased husband. The plaintiff's case as regards the 0 schedule properties has been given up before us. As regards the A, B and D schedule properties, the plaintiff's case is that the 'gift properties ' comprised in the A schedule were taken by the donees as tenants in common; that the B schedule properties are accretions to the properties in the A schedule, being acquired out of their income; and that the outstandings in the D schedule arose out of the management of A and B schedule properties by her husband. If this contention of the plaintiff is true she would be entitled to one-third share in the suit properties. But there is a further contention that owing to tb,e operation of a defence clause in the gift deed defendant 1 forfeited his share in the gift properties in favour of his son and grandson (plaintiff's husband and defendant 4) with the result that these two took the properties in two equal shares. For this reason the plaintiff claimed a half-share in all the suit properties. The case of the contesting defendants is that the gift by defendant 5 did not confer, a tenancy-in-common on the donees but only a joint tenancy with rights of survivorship of the coparcenary type and that even if the, gift constituted the donees tenants-in-common they contended that the properties were thrown into the common stock and treated as joint family properties, and were consequently impressed with the character of such properties, and the properties being undivided the plaintiff is not entitled to claim any share in them.

3. On these main contentions two issues were raised in the lower Court : (1) 'What was the nature of the estate that the donees took under the gift deed in question, whether they took the properties as joint tenants or as tenants-in-common,' and (2) 'Whether even if they took as tenants-in-common the properties were thrown into the common stock and were treated as joint family property and were consequently impressed with the character of such property. ' Another important issue was issue 6 : 'Whether the properties mentioned in the B schedule were acquired with the income from the A schedule properties and as an accretion to them. ' For the purpose of this appeal it is not necessary to refer to the other issues or to the other contentions of the defendants which are of a somewhat conflicting nature. The learned Subordinate Judge held that the gift created the donees joint tenants of the properties and that even if these were taken by the donees as tenants in-common, the properties, were thrown into the common stock and consequently became joint family property. He also held that the properties in the B and D schedules were all joint family properties. In the result the plaintiff's suit was dismissed. It may be mentioned that in the lower Court the plaintiff alleged a partition between her husband, and her father-in-law with a view to get a share of the C schedule, properties, but this was found against, and in this Court, as already stated, the claim to the C schedule properties has been abandoned

4. The main question for consideration in this appeal is, -what is the nature of the estate that the gift deed Ex. A conferred on the donees? The donor as already stated is defendant 5. In the course of the suit it was alleged by defendant 1 that he was the illatom son-in-law of the father of defendant 5 and that the gift was, made in consequence of the relationship. This was vehemently denied by defendant 5 and a considerable portion of the evidence and argument in the case was directed to this question ; but no issue was raised on this point and, as the learned Subordinate Judge rightly remarks, the question of illatom relationship does not help us in determining issue 1, for what we have really to consider is the nature of the estate created by Ex. A and this being purely a question of the construction of the deed is not dependent upon the motive which prompted the gift. The learned Judge after discussing the evidence bearing on this question found that the illatom relationship set up was' not proved, but at the same time he was of opinion that the gift cannot be considered to have been prompted solely by love and affection but must have had something to do with the claim of illatom son-in-lawship set up by defendant 1. We are mentioning this at the very outset to dispose of an argument of the learned Advocate-General that the gift being presumably made to silence the claim to son-in-lawship urged by defendant 1, should be construed in the light of a gift to the joint family of defendant 1. This plea is on the face of it untenable, for the motive which prompted the gift has very little to do with the construction of the deed, especially so, when the motive suggested is not mentioned in the deed also. And further, the coparceners of defendant 1, if he proves his illatom son-in-lawship, can in law have no claim to the properties in the family of affiliation : see Mayne on Hindu Law, p. 279.

5. We will now proceed to the consideration of Ex. A. The document starts by saying that the conveyance deed is executed on 13th February 1913 in favour of (1) Tanneru Veerayya Garu's son Gangayya Garu (defendant l), (2) Tanneru GaDgayya Garu's son Punnayya (deceased husband of the plaintiff) being minor by father and guardian Gart-gayya Garu, and (3) Radhavenkata-krishnayya (defendant i) son of late Sri-ramulu, the eldest son of Gangayya Garu, being minor, by paternal grandfather and guardian Gangayya Garu. Then it says that defendant 1 is the husband of his sister and the other two persons are the son and grandson of his sister and defendant 1. Not content with thus stating the relationship of the parties, it goes on emphasizing the individual relationship of the three donees to himself thus : 'Out of you Gan-gayya Garu is my brother-in law, Punnayya is my nephew and Eadhakrish-; nayya is the son of my another nephew.' Then it says:

Therefore out of affection I bear towards' you I have conveyed to you the immovable property described in the schedule below worth. Rs. 10,000 and I have delivered possession o the same to you now alone. Therefore from this date forwards you and your heirs should enjoy permanently the said property with absolute rights with water, trees, stones, treasure and hidden treasure standing thereon. But I, my heirs and my relations have nothing to do with the same. I shall get the pattas for the said land transferred in your name when you desire. You yourself should pay Sircar kists payable on the said land. Gangayya out of you should keep the said property in his possession, till his death and preserve the said property without causing any damage to it. One need not raise any dispute with the other in respect of the same. (The correct translation of this sentence is, no other person need raise any dispute). This is the dhakal (conveyance) deed of immovable property executed and given with my consent.

6. On 11th February 1913, defendant 1 executed a deed of relinquishment of right in which he states that in consideration of Ex. A, he has given up his illatom right alleged to have been held by him in the property belonging to the donor's father. This is Ex. 1. Two day after the execution of Ex. 1 another document Ex. B appears to have been executed by defendant 1. From the evidence of P.W. 2 and D.W. 10 it would appear that this was brought about as defendant 5 felt some difficulty that defendant 1 might afterwards say that the conditions in the gift are not binding on him and also that he may lay claim to his right as an illatom son-in-law later. After referring to the quarrels regarding the illatom right and the execution of the relinquishment deed this document runs as follows:

I shall keep the property Conveyed to us jointly till my death. (The correct translation of this sentence is, shall keep jointly the property) and maintain my wife and children and we shall enjoy the said property. If I fail to maintain them as written above, I shall have nothing to do with my share out 01 property situated in Peravali village and Amirtalur village, which is worth Rs. 10,000 and which is conveyed to me and others under a dhakal (deed) executed by you on 10th February 1913. I shall give it up to my grandson and son and go separate. I or my heirs shall never raise any dispute in respect of the same.

7. One of the questions discussed before us is whether these three documents should be considered to be part and parcel of the same transaction and whether Exs. 1 and B can be relied on in construing the terms of Ex. A. It appears to us that Ex. A is complete in itself and, strictly speaking, the documents that were executed admittedly later cannot give us any guidance in understanding the import of its terms and should not be relied on to interpret it. But in this case the question is not of any serious importance as the later two documents do not in any way modify the terms of Ex. A or the nature of the estate conveyed by it. In fact both parties have invited our attention to all these documents. Ex. 1 is not very helpful except as showing the motive for the gift which we have pointed out is not relevant in construing Ex. A; and Ex. B after again referring to the motive of the gift states how defendant I hopes to deal with the property conveyed to them. It also contains the defeasance clause relied on by the appellant to show that defendant 1 has forfeited his right to his share of the properties conveyed under Ex. A. The question, therefore, regarding the nature of the estate conveyed under Ex. A will have to be decided solely with reference to it terms.

8. It is admitted by both parties that what we have to find out from the language of the document is the intention of the donor in making the gift; that is did he intend that the donees should take the properties as tenants-in-common or did he intend that they should take it as joint tenants? Mr. Srinivasa Ayyangar argues that the terms of the document should be interpreted in the light of the well-known presumption that joint tenancy is unknown to Hindu Law and not only are there no words in the document to dispel this well-known presumption, but on the other hand the whole tenor of the language used in the document and the specific statements contained in it show clearly that the donor intended to constitute the donees tenants-in-common. On the other band the learned Advocate-General argues that the donees being members of a joint Hindu family, the donor must have intended the gift properties to be held in the way in which joint family property is usually held by its' members, that is as co-parceners, and that at least there is one term in the document, which we shall presently refer to, which distinctly shows that the creation of joint tenancy, and not tenaney-in-common was what was intended by the donor when he made the gift. The question is which view is right. In Janakiram Ghetty v. Nagamony Mudaliar AIR 1629 Mad 273 it was held that where a bequest was made by a Hindu to his divided brother and his sons who were at the time members of a joint undivided family but the will did not expressly indicate that the donees were to take the properties as joint tenants, the donees should be deemed to take the properties as tenants-in-common. In Jogeswar Narain Deo v. Ramachandra Dutt (1896) 23 Cal 670 it was pointed out by their Lordships of the Privy Council that:

The principle of joint tenancy is quite foreign to Hindu law and that the ordinary rule is that if a property is given to two or more persons they take it as tenants-in-common.

9. In Yethirajula Naidu v. Mukunthu Naidu (1905) 28 Mad 363 it was pointed out by Subramania Ayyar, J. that Hindu law is quite familiar with one kind of joint tenancy, namely, the joint holding by members of an undivided Hindu family. How effect is to be given to these two principles in the light of the specific terms of a particular gift, was considered 'in extenso' by both the Judges in Janakiram Ghetty v. Nagamony Mudaliar : AIR1926Mad273 after considering the case law which has a bearing on the question. In Janakiram Ghetty v. Nagamony Mudaliar : AIR1926Mad273 it has to be noticed that the bequest was by a brother to his divided brother and his sons, who were members of an undivided Hindu family. In dealing with such class of oases it was pointed out by Kumaraswami Sastriar, J., that a difference should be made between cases where gifts to persons who form a joint family are made by persons to whom they would succeed according to the law of intestate succession if no will was made, for example, gifts by a father to his children and by a husband who died without issue to his wife or daughter, and cases where gifts are made by will by persons to whom the donees would not inherit and who could have no interest in the properties on the death of the testator but for the will, and that in the former class of cases, a presumption may be drawn that the donees were intended, to take the estate as joint tenants and that in the latter class of cases there is no ground or necessity for drawing such a presumption. Of course this is apart from the terms of the will which, whatever be the relationship of the testator to the legatees, may expressly state in the will that the legatees should take either as tenants-in-common or as joint tenants. This is the basis of the decision in Janakiram Chetty v. Nagamony Mudaliar : AIR1926Mad273 . In Karuppai Nachiar v. Sarikara Narayanan Chetty (1904) 27 Mad 300 the Full Bench pointed out that:

It would be revolutionary to hold that all property which comes to two or more persons who happen to be members of an undivided family is taken by them with benefit of survivorship, and there is no warrant whatever in the Mitakshara for such a general proposition.

10. Exhibit A should be construed in the light of these observations. The donor in Ex. A is practically in the position of a stranger to the donees, in the sense that in the ordinary course the chances of their succession to his property are too remote if not non-existent. The properties are gifted to the three named persons individually and not to all of them jointly. Though the donees form members of an undivided Hindu family, what is uppermost in the mind of the donor is not so much their relationship inter se with themselves as their relationship to him, for in the pre-amble portion he says pointedly that the first donee is his brother, in-law and that the others are his nephew and the son of another nephew, and a gift is made out of affection that he bears towards them. It is to be noticed that the individual position of each of the donees is emphasized and there is no reference to any joint family at all. Then comes the statement that from this time forwards you and your heira should enjoy permanently the said propesty with absolute rights, etc.

11. The words 'you and your heirs' are to be understood, according to the appellant, as words of inheritance, in which case heirs' would include all heirs generally including the male and the female. If so understood it is clear that the donor intended that the donees should take the estate as tenants in common. On the other hand the respondents contend that these words only define the absolute nature of the estate conferred by the gift and do not indicate anything else. If so these words have no particular significance in relation to the question whether the estate is to be taken jointly or in severalty. But it may be noticed that immediately after these words comes the statement that these 'should enjoy permanently the said property with absolute rights.' (The italics are ours). If 'you and your heirs' are used to indicate the absolute nature of the estate conveyed by the gift, then the statement that the property is to be enjoyed with 'absolute rights' will indeed be a repetition. Having regard to this fact it appears to us that the words you and your heirs' should be understood as words of inheritance. If these words are to be understood as words of inheritance then it is clear that the word 'heirs' would include female heirs as well : see Safdar Ali v. Mirza Maksudali Beg . The next noticeable feature in Ex. A is the statement that 'Gangayya out of you should keep the said property in his possession till his death.' This is emphasized by the learned Advocate-General to show that the donor intended that the property should be taken by the donees as joint tenants, for otherwise Gangayya will have no right to keep it in his exclusive possession. In support of this contention Mahalakshmi Amma v. T. Nagappa (1921) 62 IC 814 is relied on.

12. The report does not contain the full terms of the deed. Probably the circumstance that the adult member was to manage the properties was the most important condition in the gift and there were no other circumstances to detract from its significance. We 'cannot understand that decision to lay down as a general proposition of law that whenever it is found in a gift or a will that an adult member is to manage the properties, then it must follow inevitably that the properties are to be held jointly by the legatees or the donees. A strict application of this provision will entail the result that the properties should remain undivided till the death of Gangayya. But it is admitted that the provision will not stand in the way of division if the parties agreed to divide the properties. It is a rule of construction that the deed should be construed as a whole. In the present case the gift is made, as already stated, by a person who is in the position of a stranger to the donees. It is stated that it is made in favour of each one of them, and further the donees and their heirs are asked to enjoy the properties. We think these features are sufficient to show that the idonor intended the donees to take the properties as tenants.in-common even though they are members of a joint family and it is stated that defendant 1 is to keep possession till his death. Ex. B, to which both sides have drawn our attention, also seems to convey the same idea. Assuming that it is permissible to refer to Ex. B, that document also shows that what was intended by the donor was the creation of a tenanoy-in-common and not a joint holding by all the donees.

13. After stating that 'I shall keep jointly the property' defendant 1 proceeds to say that if he failed to maintain the donees as written above 'I shall have nothing to do with my share of the property.' Evidently the properties gifted are treated by him as enjoyable ' in shares' by the donees which would suggest that he thought that the properties are to be held by the donees as tenants-in-common. However that may be, we are clear on the construction of Ex. A that the donor intended that the donees should take the properties as tenants-in common and not as joint tenants. It will follow from this view that the plaintiff's husband being entitled to one-third share in the properties, that share will now devolve on the plaintiff. But she claims a half share, and this is based on the contention that defendant 1 has forfeited the right to his one-third share as he has failed to maintain them as required under Ex. B. It is admitted that defendant 1, leaving defendant 6 and her children in Perivalipalem, went away to Alapadu. But it is nobody's case that he failed to maintain them as he left the Perivalipalem properties to be enjoyee by them. What Mr. Srinivasa Ayyangai contends is that the provision in Ex. B, if I fail to maintain them ' contemplates that defendant 1 should live with defendant 6 and her children at Perivalipalem and maintain them, and that if he did not actually' reside with them, that failure will bring about a forfeiture of his share even if he maintained them otherwise. We cannot accede to this construction of the document. On the face of it the contention is untenable. The appellant also put forward a special case of relinquishment and partition ; but, as already mentioned, this has been found against, and that finding has not been questioned before us in appeal. It therefore follows that the plaintiff is entitled to claim only one-third share of the gift properties. This is our decision on issue 1.

14. The next question is whether the gift properties were thrown into the common stock and treated as joint family properties by defendant 1 and the members of his family. Before dealing with this point it is necessary to state a few facts. The gift properties which cover an extent of 40 acres all lie in the village of Perivalipalem. Defendant 1 belongs to the village of Alapadu where he owns a considerable extent of ancestral properties. Besides the 40 acres obtained under Ex. A, defendant 1 had acquired 9 acres of land in Peravalipalem before the gift : see Ex. 19 dated 17th August 1911 ; and under Ex. 8 dated 25th April 1913 he purchased another extent of 6 acres and 7 cents of land in the same village in pursuance of 'an agreement to sell' executed on 29th December 1912 (see Ex. 8-A) which was prior to the gift. It is said that subsequently 4 or 5 acres also were added to the already existing lands in Perivalipalem. Thus in that village defendant 1 has three sets of properties, properties obtained under the gift, properties purchased before the gift and properties purchased subsequent to the gift, in all amounting to about 60 acres. These and the Alapadu properties were all under his management. The defendants' case is that there is no evidence that the gift properties in Peravalipalem were separately managed or that their income was separately kept; on the other hand what is stated is that the evidence will show that all the properties of the family including the Ex. A properties, were treated and dealt with on the same footing, and that from out of their joint income fresh properties were purchased and added to the existing lands. The defendants therefore contend that the 40 acres gifted under Ex. A were treated by the family as joint family properties, and that even if originally the donees took them as tenants-in-common, these must be considered to have been thrown into the common stock and were consequently impressed with the character of joint family property.

15. The evidence shows that subsequent to the gift (Ex. A) feelings between defendant 1 and his wife, defendant 6, became strained, that he wanted her and her children to leave Peravalipalem to go with him to settle down at Alapadu, that defendant 6 objected to this, and that in consequence defendant 1 went over to Alapadu leaving defendant 6 and her children at Peravalipalem, and settled down there taking to himself a second wife. This happened in 1916. Between 1916 and 1919, as defendant 1 was laid up at Alapadu with carbuncle and colic and as he was also absent on a pilgrimage to Benares, defendant 5 managed all the Peravalipalem properties and lent a helping hand in managing the Alapadu properties also. This management was carried on by him in consultation with defendant 1. Between 1919 and 1923 Punnayya, the husband of the plaintiff, was entrusted with the management of the Peravalipalem properties which, as already pointed out, included not only the gift properties but admittedly joint family properties also. The management by Punnayya went on till his death in July 1923. His management did not extend to Alapadu lands. To show that the gift properties were thrown into the common stock and blended with admittedly joint family properties, some acts of management during the three periods: (1) up to 1916, (2) between 1916 and 1919, and (3) between 1919 and 1923, consisting in the purchase of properties apparently from the joint income of all the properties, collection of rents, discharge of debts, etc., are referred to by the contesting respondents. These we will examine presently. But before doing so we may repeat here what we hive already pointed out that the appellant set up a case of partition between defendant 6 and her children on one side and defendant 1 on the other, whereby the Peravalipalem properties Were allotted to the former for their share, but this partition has been found against by the lower Court, and this finding has not been attacked before us. This has a material bearing as we will show presently on the question as to the nature of the subsequent management of the gift properties, especially management by Punnayya.

16. Having regard to our finding that the gift properties were intended to be held by the donees as tenants-in-common, the burden of proof that the properties were thrown into the common stock lies on the defendants. In 1915, under Ex. 5, defendant 1 granted a lease of the gift properties and the joint family properties in Peravalipalem covering an extent of about 33 acres to one Dasaratha Sriramulu and another. Exs. (11)(a) and 11 refer to the suit brought against them by defendant 1 on the lease and to the 'compromise' in which it ended. Except the management of all the joint family properties generally by defendant 1 or under his supervision, that is the only specific act of defendant 1 prior to his departure to Alapadu to which our attention has been drawn. We have already referred to Ex. 8 (1913) under which he purchased some properties in Peravalipalem. Ex. 15 series, 41, 41 (a) and D, have been referred to in connexion with the management by defendant 5. A promissory note debt due from defendant 1 under Ex. 15 was discharged by defendant 5 as may be seen from the endorsement on the note on 23rd May 1916. Prom the judgment (see the end of para. 50) it will be seen that defendant 5 during the period of his management also purchased some property in the name of defendant 1 : vide Exs. D (1916), E (1918) and 20 (1917). Exs. 41 and 44-A show that defendant 5 was maintaining a common account for all the lands. Here we may pause for a moment and consider how far the gift properties were treated as joint properties during these two periods of management. Admittedly the management was carried on exclusively by defendant 1 or by defendant 5 at defendant l's request and after consultation with him and under his directions. Defendant 6 and her family were maintained by defendant 5 and it is nobody's case that during these periods she or her children had any part in the management of the properties. In these circumstances, it appears to us that no inference against Punnayya can be drawn from the acts of management during these two periods; and further, during this time he seems to have been a minor also. Ex. 13-0, the Death Register of Peravalipalem village, which shows that Punnayya died in July 1923, states his age to be 26; but it is clear that the document, admissible to prove the date of his death, cannot be used as evidence to prove his age; and so the case has been argued on the basis that Punnayya became a major somewhere about the year 1918 and not before.

17. We will now deal with Punnayya's management which commences from 1919 and continued till his death. Exs. 36 and 26 (a) are two receipts for rent passed by Punnnayya to Dasarathi Sriramulu for some of the lands in Peravalipalem village. Exs. 33 (1919) and 35 (1919) are receipts for rent passed by Sriramulu to defendant 1, Ex. 7 is a promissory note executed in favour of Punnayya on 15th January 1921. To complete the history of this promissory note, it may be mentioned that after Punnayya's death, along with the present suit, O.S. No. 14 of 1924 was instituted by defendant 1 to enforce this promissory note. It was held, see para. 72 of the judgment, that the suit debt belonged to the co-parcenary made up of Gangaraju and his sons and grandsons. It appears that no appeal has been filed against this judgment. It is clear that the proceeding on the promissory note does not affect the question that we are now considering as it took place after the death of Punnayya, and further, though O.S. No. 14 of 1924 has not been appealed against, the questions as regards the nature of the gift properties are raised in the appeals in the suits which were tried along with O.S. No. 14 of 1924. To return to the management by Punnayya: what is argued is that he collected rent from the Peravalipalem properties consisting of both the joint family and the gift properties. It is argued that unless the gift properties were treated as properties held jointly, he has-ino right to collect the rents from those shares in them belonging to defen. dants 4 and 1.

18. In our opinion, from these acts of management of Punnayya no such legal inference should be drawn. Punnayya had just emerged from his minority and was asked by his father to continue the management which was carried on before that period by defendant 5 and defendant 1 himself; and further defendant 1 himself was also having a hand in the management as may be seen from Exs. 33 and 35, etc. Once the gift properties have been shown to be properties held by the donees as tenants-in common, the defendants have to show by satisfactory evidence that the properties have been treated as joint family properties. Treatment of the properties as joint family properties by defendants 1 and 5 will not affect the case so far as Punnayya is concerned, and as regards his own management, the fact that he merely carried on the management under the supervision of his father cannot by itself show that he treated the gift properties as joint family properties and thereby waived his separate claim to them. While repudiating the case of the plaintiff of partition and relinquishment by defendant 1 of his share, based upon the separate management by defendant 5, Punnayya, and other acts-which casa has now been found in his favour by the lower Court-defendant 1 makes it clear in his evidence-and this, it may be mentioned, is necessary to support his case of non partition-that the management of Punnayya at Peravalipalem Was not absolute, but subject to his directions. This appears from various portions of his evidence and cannot be contested by the respondents; for that forms a part of their case relating to the plea of non-partition. The evidence placed before us is not enough to bring home to Punnayya that he has consciously surrendered his claim to a separate share in the gift properties and elected to blend it with the other family properties.

19. Mere management, assuming that it went beyond the collection of rents, etc., of the properties following a course that existed before and was adopted as a convenient arrangement more or less to stifle the dissatisfaction of defendant 6 and her family against defendant 1's marriage and settlement at Alapadu, and that too not exclusive management-for we find his father also collecting rents is not, in our opinion, enough to discharge the burden that lies upon the defendants to show that the gift properties have lost their original character. For these reasons we would hold it has not been proved that the properties gifted 'under Ex. A have been thrown into the common stock and become impressed with the character of the joint family properties.

20. The last question for decision is whether the Schedule B properties are accretions to the gift properties and whether the outstandings shown in Schedule B are traceable to the rents collected from the gift properties and their accretions. No serious attempt was made by the learned Counsel for the appellant to deal with these issues. Schedule B consists of 17 acres of land and two houses. The lands consist of 8 items. Some attempt was made to show that the purchase of items 5 and 8 of the land covering about 6 acres and 7 cents may be traced to Ex. 8. In this connexion the evidence of D. Ws. 1, 9 and 10 was read to us. The evidence is extremely vague and cannot be acted upon. Item 10, one of the houses in question, was also stated to have been purchased from the income of the gift properties, but there is no satisfactory evidence to prove it. No. further arguments were addressed to us on these issues. We hold that the appellant has not shown that Schedule, B properties are accretions to the gift properties, that the outstandings in Schedule D are traceable to the rents of the gift properties and their accretions.

21. In the result the appellant will be entitled to a third share in the properties gifted under A and the mesne profits in the 1/3 share. As asked for in the plaint the appellant will be entitled to future profits from the date of the suit. The lower Court will proceed to pass a final decree in the light of the above observations. The appeal is allowed. The parties will pay and receive proportionate costs.


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