Venkatasubba Rao, J.
1. The plaintiffs seek to have a declaration that the will, left by their father Hassaji Rao, is inoperative in respect of the property dealt with by it, on the ground that it was at his death joint family property in which the plaintiffs have an interest. If the plaintiffs' contention prevails, the testator had no right to dispose of the property in, question and it devolves upon the testator's sons by survivorship.
2. In regard to the main facts there is little or no dispute. The earliest transaction, which I have to examine, is a division, effected among the members of this family, which is evidenced by the partition deed, dated the 20th of May, 1880. The parties to that partition were:
(1) Hassaji Rao, the testator,
(2) Ambaji Rao, his brother,
(3) Subba Rao, their Step-brother and
(4) Narasajirao, their paternal grand-father.
3. Ambaji and Hassaji, being minors, were represented by their mother Balu Bai as guardian at the partition. Under the partition deed, a small sum was set apart for an unmarried girl and the rest of the property was divided in the following proportion:
(a) One eighth to the grand father,
(b) One eighth to the mother of the testator,
(c) Three eighths to Subba Rao and
(d) Three eighths to Ambaji Rao and Hassaji Rao.
4. Ambaji was the elder of the two and the deed provided that the mother was to receive their share and manage the same till they came of age. The property that fell to the share of these two boys consisted of a house at Bangalore valued at Rs. 500 and moveables worth Rs. 193-12-0.
5. We next pass on to a transaction of the 23rd of February, 1895. On that date Ambaji and Hassaji (who had by then become majors) and their mother sold for Rs. 1,700 the house at Bangalore to which I have referred. The sale deed of that date has been put in evidence.
6. The next undisputed event is a partition effected on the 10th of January, 1921, between Ambaji and Hassaji. The deed recites that, with the aid of ancestral nucleus, they carried on a joint trade and acquired considerable property and they proceed to divide the same into two equal shares, Ambaji the elder taking a moiety, and Hassaji the other moiety.
7. The fourth important document in the case is the will in question. it was made on the 6th of June, 1925, and the testator appointed his brother Ambaji his executor. Hassaji married twice and both the wives were living at his death. By the first wife he had a son and by the second he had four sons. At the time of his death on 5th January, 1927, the former was with child, and after he died, she gave birth to a posthumous son. These two sons by the first wife are the plaintiffs in the case. When he made the will, the first wife was apparently living away from him and for some reasons alleged by the testator, he cut off his sons by the first wife--not with the proverbial shilling--but with a house of small value. The bulk of the property, he bequeathed to his four sons by the second wife. It is in these circumstances that the will is attacked by the plaintiffs, the senior wife's sons.
8. I have now stated the facts regarding which there is no dispute. Three points arise for decision.
(1) Did the partition of 1880 have the effect of separating Ambaji and Hassaji from each other?
(2) Was the joint trade of Ambaji and Hassaji carried on with any nucleus of ancestral property?
(3) If there was no such nucleus, were their acquisitions in trade joint, in which their respective sons could acquire a right by birth?
9. In regard to the first point, it must be observed that Ambaji and Hassaji were together allotted a three-eighths share, no attempt having been made to define separately their shares inter se. There was in fact no division between them, nor is there an agreement to hold the property as separate owners. The object of the deed was virtually to separate this branch from Subba Rao. The grandfather was not considered to be of much importance and he is treated more or less on the same footing as the mother of the boys. There is nothing in the deed to suggest that it was intended to effect a partition between Ambaji and Hassaji. It seems to me that, on the contrary, the clear intention was that they should continue to remain joint. In Palani Ammal v. Miithu Venkatachala Moniagar (1924) LR 52 IA 83 : ILR 48 M 254 : 1924 48 MLJ 83 (PC) their Lordships, after observing that a member of a joint family can take his share separating himself from the other members, go on to say:
the remaining co-parceners, without any special agreement among themselves, may continue to be co-parceners and to enjoy as members of a joint family what remains after such a partition of the family property.
In this case this is exactly what happened. There is a significant clause in the partition deed which the Court-translator has thus rendered:
there shall in future be between us only relationship by blood but no relationship in regard to property between Subba Rao and Balu Bai, Ambaji Rao, Hassaji Rao (together).
I am disposed to attach some importance to the position of the word 'and'. It could not be due to an accident that this word occurs after 'Subba Rao' and before the enumeration of the members of the other branch. This is however a slight circumstance and I have come to the conclusion, on a reading of the whole document, that it was not intended that Ambaji and Hassaji should cease to be amongst themselves, members of a joint family.
10. In the case I have cited, their Lordships proceed to observe thus:
That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous co-parceners had separated from them.
In this case, it is established by clear evidence that, after the partition of 1880, the two brothers lived under the same roof, had a common mess and, down to the second partition of 1921, continued to trade jointly and live as members of a co-parcenary. Applying the test laid down in the passage quoted above, 1 unhestitatingly find that there was no separation in 1880 of Ambaji and Hassaji from each other.
11. I now turn to the second point. Within four or five years after the partition of 1880, the two brothers came down from Bangalore to Madras. They were then quite young and at first tried to make a living by working for wages in embroidery. This lasted only for a short time. It is unnecessary to follow their fortunes during this period, for, the brothers began a joint trade about the year 1896. I have already referred to the fact that the family house was sold in 1895 and that it fetched Rs. 1,700. The question is, was this sum or any portion of it utilised in the joint trade? In the later partition of 1921, there is a distinct statement that the trade was carried on with the nucleus of ancestral property. There is also the significant circumstance that it was very soon after the sale of the house that the trade was started. Ambaji Rao was examined as a witness for the defence and I cannot accept his evidence without reserve, for, I cannot regard him as a truthful witness at all. He has impressed me very badly and I find that the proceeds of the house were utilised in the trade. The evidence of Ambaji in regard to the disposal of the sum of Rs. 1,700, I regard as a mere idle invention. It is opposed to the probabilities of the case as well as to the recital in the later partition deed. It is also opposed to his own conduct, for, in 1926 he sells a property which fell to his share and in the sale deed he joins his sons and grandsons as vendors, which fact shows that he treated the house as joint family property. Further, there is a recital in that sale-deed that Hassaji and Ambaji lived as members of a joint family. I therefore hold that ancestral funds were employed in the trade and that the acquisitions were made with the help of such nucleus.
12. I now pass on to the third point. Granting for a moment that there was no such nucleus, what would be the position? I have held that after the partition of 1880 Ambaji and Hassaji continued to be co-parceners. Where property is acquired in the course of a business carried on by members of a Hindu family by their joint labour, the property so acquired may become joint family property, notwithstanding the fact that it was acquired without the aid of ancestral nucleus. This proposition is now well-established. See dicta of Bashyam Aiyangar, J., in Sudarsanam Matistri v. Narasimhulu Maistri : (1901)11MLJ353 . A clear enunciation of this principle is contained in the judgment of Bakewell, J., in Madhavaiya Chetty v. Damodharam Chetty (1912) 12 MLT 240 which has been followed in Ratna Mudaliar v. Vijiarang Mudaliar (1926) 23 L.W. 716 The latest case on the point is Haridoss v. Devkuvarbai ILR (1926) B 443 There is nothing thus in law to prevent the property, acquired in trade by joint exertions by members of a joint family, from becoming joint family property--in the sense that the sons of the acquirers get a right by birth in that property. In each case, it is a question of proof whether they intended to acquire the property as partners or as members of a joint family. See again Haridoss v. Devkuvarbai ILR (1926) B 443. In the present case there can be no doubt that Ambaji and Hassaji intended to acquire the property not as partners but as members of a joint family. The joint trade was carried on for 25 years and, during the whole of that period, they had a common mess, they lived with their mother under the same roof and conducted themselves in every particular as members of a co-parcenary. From the funds of the joint trade they acquired immoveable properties, obtaining sale-deeds indifferently in the name either of Ambaji or of Hassaji. The evidence of Ambaji on this matter is worthless. He pretends that, at the start, he and his brother agreed to share the profits equally, that in the books of the trade they were shown as partners and the sums drawn by each were treated as drawings by partners. He asks me to accept his story that at the partition in 1921 books were handed to Hassaji who burnt them on some day. No motive for the burning has been alleged. It is admitted that the brothers were on friendly terms and Ambaji himself was made the executor of Hassaji. Any books left by Hassaji must therefore be in the possession of the former. The statement of Ambaji is incredible and I must dismiss it as an absolute myth. The deed of 1921 is not described as a deed of dissolution, but, it is called a partition deed--a fact which negatives the theory that the brothers were partners. Ambaji deposes that he left the drafting of the deed to his younger brother who described the position incorrectly. Without any hesitation, I come to the conclusion that the brothers traded jointly and acquired the property not as partners but as members of a co-parcenary. It follows from this, that on the death of Hassaji his property survives to his sons whose right cannot be defeated by his will.
13. I have now found:
(1) that the partition of 1880 did not effect a severance between Ambaji and Hassaji;
(2) that ancestral funds formed the nucleus of the property acquired;
(3) that the brothers traded jointly and that they acquired the properties in question as members of a joint family.
I may, however, remark that the finding that there was ancestral nucleus would be quite sufficient to dispose of this case; for, if Hassaji made the acquisitions with the aid of ancestral funds and nothing further was found, his sons would have a right in them by birth. Similarly, the plaintiffs can succeed on the finding that the partition of 1880 did not effect a severance inter se, coupled with the further finding that the brothers thereafter jointly made the acquisitions. In this event, the finding that there was ancestral nucleus would be unnecessary. I have, however, recorded findings on all the three questions raised and argued before me, as I entertain no doubt in regard to any of them.
14. The case depends mainly upon the documents filed and the conduct of the parties as disclosed by them. I have accepted the oral evidence of Krishnaji Rao and of Rajagopal Chetty examined for the plaintiffs, as it is consistent with the documentary evidence and the probabilities of the case. Even the evidence of Ambaji in main points supports the case of the plaintiffs. I do not think it worth while to discuss the oral evidence in greater detail.
15. In the result, the plaintiffs' claim must be allowed. I declare that the will of Hassaji is inoperative in regard to the joint family property to which the suit relates.