1. This second appeal arises out of a suit to enforce a mortgage executed by defendants 1 and 2 in plaintiff's favour. The only question for determination in the second appeal is whether the first defendant was entitled to a share in four out of the mortgage items, namely, items 3 and 4 of Karur village and items 1 and 3 of Balambapuram village.
2. It has been found that the four items in question were acquired by the seventh defendant, the father of the mortgagors, in the years 1897, 1900, 1906 and 1908 in his own name, at a time when defendants 1 and 2 were minors. The seventh defendant contended that they were his self-acquired property and that the first defendant had no share therein which would pass under the mortgage. The first Court held that the first defendant had no interest in these items and passed a mortgage decree against the first defendant's share in the other items comprised in the mortgage; but on appeal the learned District Judge held that these items, though acquired by the father, had not been kept separate by him as self-acquired property and that the first defendant was therefore entitled to a share therein, which must be held to have passed under the mortgage. The seventh defendant has appealed, asserting his claim that these properties are his self-acquisition.
3. The learned Counsel for the respondent has insisted that the lower appellate Court has recorded a finding of fact with which I am not entitled to interfere in second appeal. As I am of opinion that the point of view from which the learned District Judge has approached the consideration of the question is not correct, I cannot accede to this contention of the earned Counsel for the respondent.
4. The trial Court found that though the family of the seventh defendant had a nucleus of ancestral property, the income therefrom would not have been sufficient even for the maintenance of the family. It also found that the seventh defendant was earning a salary as a clerk in some shop. The evidence and the probabilities indicated that to meet the expenses of the family, the seventh defendant must in addition to the income from the family properties have also spent portions of his own salary. These being the facts found by both the Courts, the question is whether on those facts, the properties acquired in the seventh defendant's name in 1897, 1900, 1906 and 1908 can be treated to be or to have become part of the joint properties of the family. In paragraph 4 of his judgment, the learned District Judge has referred to the decisions in Rajanikanta Pal v. Jagmohan Pal (1923) 44 M.L.J. 561 : L.R. 50 IndAp 173 : I.L.R. 50 Cal. 439 and Krishnamachariar v. Chellammal : AIR1928Mad561 as supporting the proposition that the very fact that the seventh defendant utilised a portion of his salary for the maintenance of his family is a strong point in favour of the view that he did not intend to keep his salary as his own separate property and that therefore the acquisitions, taking them to have been made out of the surplus of his salary, must also be treated as having been thrown into the joint stock. I am free to admit that the language in these and certain other decisions is calculated to lend colour to that view. Most of the cases relevant to this question have been discussed in a recent judgment to which I was a party (A.S. No. 229 of 1932) and I need not go over the ground here again. 1 take the law to be that where there is a nucleus of joint family property, the onus will no doubt be on the father in the first instance to prove that the acquisition of the properties which he claims to be his separate property was not made out of the income from the joint family property. But where, as in this case, it is clear that the income from the joint family properties would not have sufficed even for the maintenance of the family, there is no basis for any presumption that the acquisitions must have been made from out of the income of the joint property. As one conversant with Hindu habits and ideas, I cannot accept the proposition that a father who earns can spend any portion of his earnings for the maintenance of his family only under peril of losing his control even over the balance remaining in his hands. It is only by an overt act leading to an inference of an intention to abandon his control even over the surplus moneys in his hands that an intention to throw that portion of his earnings into the joint stock can be held to be established.
5. The way in which the lower Court has dealt with the matter practically throws upon the earning member the obligation of showing that he kept his earnings separate, whereas, as I understand the law, the onus is upon the other party to prove that the earning member had relinquished his separate right over his earnings. As I have already stated, the mere fact that he has spent a portion thereof for the maintenance of his family cannot to a Hindu mind suggest the inference that he did not intend to retain even the balance under his control. In paragraph 5, the learned Judge refers to the non-production of accounts by the seventh defendant. It appears that on a previous occasion the seventh defendant stated that he kept accounts, whereas he now denies that he kept any accounts.
6. Having regard to the status of the seventh defendant, I am not by any means certain, whether his former statement is more likely to be true than his present statement, but I do not wish to go the length of expressing a dissent from the learned Judge's view on a matter of this kind. Assuming that the seventh defendant is suppressing his accounts, it does not necessarily follow that the plaintiff has discharged the onus lying upon him. It is well-established that the inference from the non-production of accounts can only be drawn in the light of the other circumstances appearing in the case; and if the income from the joint property would hardly have been sufficient for the maintenance of the family, it does not seem to me that the mere non-production of accounts, from whatever apprehension or motive such a course might have been followed, would warrant the conclusion that these acquisitions by the father must be treated as having been thrown by him into the joint stock.
7. The result is that the second appeal must be allowed and the decree of the first Court restored with costs here and in the lower appellate Court, payable by the first respondent.
8. Leave granted.