1. Defendants 2 to 5 have preferred this appeal against the judgment and decree of the Sub-Court, Dindigul, decreeing the plaintiffs' suit for partition of the properties described in the Schedules A to E, attached to the plaint and also the movables and into six shares and allotment of two shares to the plaintiffs 1 and 2, and one share to the first defendant. The second defendant has also been directed to render an account of the income from the properties of the family for a period of one year, September, 1957 to September, 1958, as claimed in the plaint. The following geneological tree, shows the relationship between the parties :--Nagayasami, the second defendant, and Ayyalu, the first defendant, are brothers. The first defendant's sons are the plaintiffs 1 and 2. The second defendant's son is the third defendant, fourth defendant, is the wife of defendant 3, and the fifth defendant, minor Renuka is their daughter. The plaintiffs case is that the second defendant and the members of his branch and the first defendant and the members of his branch are all members of a joint Hindu family, the two branches being each entitled to a half share in all the properties, immovable and movable, claimed in the suit. The plaintiffs also claim that all the properties involved in the suit including those standing in the name of defendants 2 to 5 (Schedules B to E) arc also joint family properties having been acquired by the second defendant with the aid of joint family properties of which he was in possession as manager of the joint family, though the relevant deeds were taken in the individual names of the second defendant and the members of his branch.
2. The main defence of the contesting defendants 2 to 5 is that about the year 1914, the father of the plaintiffs (Ayyalu, the first defendant in the suit) was given away in adoption to one Kochadai Naicker, the brother of the paternal grandfather of defendants 1 and 2, that after the adoption, the first defendant ceased to be a member of his natural family and became both, legally and factually, a member of the family of his adoptive father, with the result that Ayyalu was not entitled to any share in the properties of his natural family, and his sons, the plaintiffs 1 and 2, are, therefore, equally not entitled to any right or share in the properties. The further case of defendants 2 to 5 is that the several items claimed by them (Schedules B to E) are all their own separate properties and that in any event, the plaintiffs would not be entitled to any claim or share therein. The first defendant sailed with his sons, the plaintiffs, and supported their case.
3. The trial Court negatived the contentions of the contesting defendants ; it did not accept the defendants' case that the first defendant was given in adoption to Kochadai Naicker. It also found that the several items claimed as separate properties of defendants 2 to 5 were all joint family properties acquired out of and with the aid of ancestral properties. Out of a half share belonging to the first defendant, 2/3rds was allotted to plantiffs 1 and 2, 1/3 to the first defendant. Hence the appeal by the defeated defendants. As the first defendant is sailing with the plaintiffs, for the sake of convenience, defendants 2 to 5 are referred to as contesting defendants in this judgment and reference to the first defendant is made separately.
4. From the geneological tree, it will be seen that one Ayyalu Naicker, the paternal grandfather of defendants 2 and 1 had two brothers, The vappa Naicker and Kochadai Naicker. This Ayyalu Naicker, the paternal grandfather of defendants 2 and 1 is the senior-most member of his branch and his son one Alagar Naicker is the father of defendants 2 and
1. Ayyalu Naicker died long ago leaving behind him, his son Alagar Naicker and his grandsons, defendants 2 and 1. Thevappa Naicker also died long ago leaving behind him his son Alagarswami. The third brother Kochadai Naicker died on 16th February, 1946. It is the admitted case of both parties that in 1941, there was a partition between the three descendants of the three branches and the plaint A Schedule properties were allotted to the first branch of Alagar Naicker, the father of defendants 2 and 1. At that partition, Kochadai Naicker got his 1/3rd share in the family properties. Alagar Naicker, the father of defendants 2 and 1 died on 26th June, 1942. Kochadai Naicker of the third branch had no male issues. He had married twice. 'Kamakshi his first wife died in 1953. His second wife is one Alagammal. Kochadai Naicker and four daughters through his first wife, Chellammal who died in 1948, Sodammal who died sometime in 1952, Pappammal and Angammal. Sodammal had a son Rangaswami and daughter Angammal who was married to the first defendant Ayyalu. It will be seen that the first defendant Ayyalu has married Kochadai's daughters' daughter Alagammal, the second wife had two daughters Chinna Angammal and Lakshmi Ammal. Sometime prior to the suit, misunderstandings arose between the parties resulting in magisterial proceedings under Section 145, Criminal Procedure Code.
5. The two main questions that arise for determination in the appeal are : (i) Whether the first defendant Ayyalu was taken in adoption by Kochadai Naicker in 1914 with the result that Ayyalu and his two sons, plaintiffs 1 and 2 are not entitled to any claim or share in the suit properties and (ii) even if the first defendant and plaintiffs 1 and 2 still continued to be members of a joint family along with the second defendant (the case of the adoption being found against the contesting defendants) are the properties set out in Schedules B to E the separate properties of the contesting defendants, or, are they joint family properties,
6. The plaintiffs mainly rely upon several events, dealings and transactions amongst themselves and between the third parties evidenced by several documents till about 1946 in support of their case that Ayyalu was not adopted by Kochadai. The contesting defendants rely upon several events and transactions evidenced by documents starting from Exhibit B-7, dated 27th December, 1944, a registered deed executed by Kochadai in favour of the first defendant Ayyalu in which there is a solemn declaration by Kochadai that Ayyalu was adopted by him about 30 years prior to the deed, 1914 and that Ayyalu, ever since the adoption had been living with Kochadai as a member of his family and this deed of adoption, Exhibit B-7 was executed by Kochadai confirming the adoption with a view to avoid difficulties which Ayyalu may experience for absence of a deed of adoption. This deed of adoption is claimed to have been attested by Kamakshiammal, the senior wife of Kochadai and others who are near relatives of this Kamachi. In addition to the documentary evidence adduced on both sides, consisting of dealings and transactions among themselves, between themselves and strangers, payment of property-tax revenue, change of patta, Court proceedings, etc., the parties also adduced oral evidence on the question of this adoption.
7. We shall now take up the first question, i.e., whether the first defendant was given away in adoption to Kochadai Naicker in 1914. Even though there are no special rules of evidence to establish an adoption, the burden of proving an adoption is a very grave and serious one, as an adoption displaces the natural succession. It is true that if the adoption is questioned after the lapse of a long period, allowance will have to be made for the absence and disappearance of direct evidence of witnesses who had attended and participated in the function and too much importance ought not to be attached to discrepancies in the evidence which would be inevitable if witnesses speak about events and incidents which took place, decades back. A contemporaneous deed of adoption coming into existence at the same time as the adoption took place, would no doubt be stronger cogent evidence. Again transactions and dealings and documents in which reference is made to the adoption in question wherein third parties or relatives referred to the statuts of the person as an adopted son and persons who have knowledge of the family history of the party concerned have referred to that status would be evidence as to the fact of adoption. Conduct evidence of the members of the family, strangers, authorities, public and school authorities, acknowledging and treating the person concerned as an adopted son again would be useful evidence.
[After discussing the evidence His Lordship proceeded : ]
8. Ayyalu if he had been adopted by Kochadai must have been when he was very young, just a child and by the time of Exhibits A-1 and A-2 (the birth register extracts of the first plaintiff and the second plaintiff respectively in which the first plaintiff when he was born on 4th January, 1932, and the 2nd plaintiff who was born on 19th March, 1937, were referred to as the sons of Ayyalu Naicker, son of Alagar Naicker), deep rooted impression must have been crated in the minds of the relatives about the adoption and one would expect pointed reference to Ayyalu as the adopted son instead of referring to him in his natural family. But learned Counsel, Sri Rajah Ayyar submitted that in relying upon entries in extracts of Birth Registers, it will be unsafe to rely upon all the particulars mentioned therein and that the use of the entries in the Birth and Death Register extracts should be restricted to the limited information or limited details which the Officer concerned is enjoined by law to record and any extraneous information outside the precise ambit of the entries should be eschewed. Columns 9, 10 and 11 only require the officer concerned to record the name of the father of the child, the name of the mother of the child and the residence. He is not expected to record the further information concerning the details of either the father or the mother or their parentage, their ancestral history, etc. Under Section 35 of the Evidence Act, it is only the entry made by a public servant in the discharge of his official duties that is admissible as a relevant fact (Vide Ramalinga Reddi v. Kotayya (1917) I.L.R. 41 Mad. 26 : 33 M.L.J. 60, in which entries in Birth Registers kept by village officers were held to be admissible under Section 35 of the Evidence Act. Vide also Bagiammal v. Kamalammal I.L.R. (1965) 2 Mad. 556. Sri Rajah Ayyar drew our attention to some of the cases in which this note of caution was indicated that other particulars not strictly covered by the entries are not admissihle under Section 35 of the Evidence Act. In Venkayamma v. Gangayya (1933) 65 M.L.J. 703, a Bench of this Court held that an entry in the Death Register extract is not admissible to prove the age on the date of death, even though that factum was also recorded. Again in Gurusami Nadar v. Irulappa Konar (1934) 67 M.L.J. 389, in a Death Register extract, a particular person was described as a Christian and the learned Judge Varada chariar, J., observed that at best it is safe to rely upon these registers Only with reference to the fact of death and the date of birth. Here in Exhibit A-1, the Birth Register Extract, column 7 relates to particulars of the child's nationality and caste, but no such information is required to be recorded with reference to the particulars of the parents in columns 9 to 11. Our attention was also drawn to The State v. Kamruddin I.L.R. (1956) Nag. 282, in which the name of the child was recorded and it was held that it was inadmissible under Section 35 of the Evidence Act on the ground that each and every entry made in the register does not by itself become admissible under the Evidence Act and the entries do not require the officer to record the name of the child. Our attention was not drawn to any decision in which it as held that entries like the one in columns 8 and 9 in Exhibits A-1 and A-2 are admissible with reference to the parentage of the father of the new born child. If there is other independent evidence connecting the entries, no doubt the entries and the independent evidence may supplement one another. Here P.W. 2 has not given evidence with respect to the entries 2 in Exhibit A-1 even though columns 12 and 13 purport to refer to him. Again the first defendant has not spoken to the entries in columns 12 and. 13, if they purport to refer to him. The fact that no objection was taken as to the admissibility of this evidence does not matter and, the objection as to the inadmissibility under the Evidence Act can be raised even in the appellate Court (vide page 46 of Sarkar's Evidence Act eleventh edition). If somebody who gave the information had given evidence about his knowledge of the relationship, the entry would be corroborative evidence of the evidence of that witness under Section 157 of the Evidence Act, but not the entries themselves. We are, therefore, not inclined to attach much significance to the description of the first defendant with reference to his natural family and the absence of reference to Kochadai as the adoptive father.
[After referring to the documentary evidence His Lordship proceeded : ]
9. The resultant position is that Kmakshi, backed up by her grandson Rangaswami (who was then aged 35) attempted to assert and establish rights as the nearest heir to her deceased husband, but could not successfully do so, while on the other hand, the first defendant successfully asserted rights as the adopted son of Kochadai, was actually in possession of Kochadai's properties, paid kist, obtained pattas, mortgaged several items of properties, transported and sold paddy or grain, etc., and continued to do so right till December, 1956, even after Kamakshi's life time.
10. Learned Counsel Sri Rajah Ayyar placed considerable reliance upon these various categories of documents in support of his contention, the documentary evidence consisting of:
(i) conduct evidence of first defendant and third parties;
(ii) and clear admissions by the first defendant himself that he was the adopted son of Kochadai.
Learned Counsel invoked the aid of the well-known principle laid down by the privy Council in Chandra Kunwar v. Chaudari Narpet Singh (1906) I.L.R. 29 All. 184 (P.C.) : L.R. 34 I.A. 27 : 17 M.L.J. 103, that what a party himself admits to be true, may reasonably presumed to be so unless the party making the admission gives evidence to rebut the presumption and unless and until that is satisfactorily done, the facts admitted must be taken to be established. He also referred us to a recent decision of Kailasam, J., reported in Thirumal Reddiar v. Koppiah Reddiar , in which the learned Judge upheld
the case of adoption based upon the admissions of the party concerned in a series of documents, which admissions were not satisfactorily explained. The learned Judge has discussed all the relevant cases in which, even though there was no proof relating to the factum of adoption, either with regard to the giving and taking or in regard to the observances of the necessary ceremonies, the adoption was upheld on the ground that the party who had admitted the adoption had not satisfactorily explained as to why such admissions were made. It is sufficient to set out following head note:
It is no doubt true that the burden of proving an adoption is initially on the party asserting it. But where the defendant has himself admitted in a series of documents that the plaintiff is the adopted son of A the burden of proving that there was in fact no such adoption shifts to the defendant. What a party himself admits to be true may reasonably be presumed to be so. As it could not, however, be a case of estoppel, the party making the admission may give evidence to rebut this presumption. But unless and until that is satisfactorily done, the fact admitted must be taken to be established. Proof of admissions by the opposite party shifts the onus.
At this stage, it may be mentioned that in Chandra Kunwar v. Chaudari Narpet Singh (1906) I.L.R. 29 All. 184 (P.C) : L.R. 34 I.A. 27 : 17 M.L.J. 103, the Privy Counsel upheld the factum of adoption, because the party who admitted the adoption offered explanations with regard to his admissions which were found to be either absurd or unproved and the admissions were, therefore, given full effect. In the case decided by Kailasam, J., the lower appellate Court held that the factum of adoption had not been satisfactorily proved, despite the admissions of the party concerned in several documents. But Kailasam, J., reversed that judgment, taking the view that the recitals which constituted powerful admissions, threw the burden upon the other side and as the burden had not been discharged by satisfactory explanation, as to why such admissions were made, there was no need for further proof of the factum of adoption and the party should be held bond by what he had already admitted.
11. It is true that these admissions were made by the first defendant, after disputes had arisen, between himself on the one side, and the heirs of Kochadai on the other. On behalf of the respondents, it is urged that the probative value of these admission which are post litem mortem consisting of assertions of right by Ayyalu, is very little as there was contest between himself on the one side and Kamakshi and her partisans on the other. But Sri K. Rajah Ayyar accepted the position that if these documents were relied upon by the first defendant, in proof of his adoption as instances in which the first defendant had asserted right as adopted son, their probative value will be very little. But his contention is that the contesting defendants have relied upon these admissions as against the first defendant and in such a context, these admissions constitute valuable evidence. He further contended that the proper perspective of approach is first to take the documentary evidence during the second and third periods, 1944 to 1948 and 1948 to 1956, and ascertain how far the first defendant had given true and satisfactory evidence, explaining the admissions made by him and if on that question, the first defendant had proved himself to be a liar and his explanations are absurd, fantastic and incredible, be must be bound by his admissions and the question as to what weight should be attached to the documentary evidence for the first period and as to how far that evidence disproves the factum of adoption does not arise at all. His further contention is that the documentary evidence during the first period in which third parties dealt with Ayyalu as a member of his natural family or he himself claimed, still to belong to the natural family, cannot out-weigh the effect of the evidence during the second and third period consisting of admissions by the first defendant. His further contention was that is the first defendant has candidly admitted, why Exhibit B-7 (deed of adoption) came to be executed, why the various false recitals were made and why in the numerous documents, the first defendant claimed to be the adopted son, the position may be different. For instance, by way of illustration Counsel said that if the first defendant had deposed that Kochadai was very old, of a very weak intellect and could not understand the implications of any document he was executing, and that taking advantage of that situation, Exhibit B-7 was brought into existence, with false recitals or on a fraudulent misrepresentation that the document was of a different character altogether the Court may accept that explanation as naturally explaining the recitals therein, in the face of the documentary evidence to the contrary, during the earlier period. But where the first defendant had denied everything and took up the extreme step of totally disassociating himself from every event, putting the whole responsibility upon the second defendant, there is no justification for not pinning him down to what he had already admitted. If there were infirmatics attached to Exhibit B-7, if any fraud or unfair practice was practised in securing Exhibit B-7 both defendants 1 and 2 must be equally aware of the same and the first defendant may well not confess before the Court that both defendants 1 and a conspired together and exploited and took full advantage of the position in which Kochadai was placed. In other words, learned Counsel urged that on what ground and with what justification, Exhibit B-7 can be brushed aside when the clear admissions contained therein remain wholly unaccounted for.
(After considering the deed of adoption and discussing the evidence the Court aid : )
12. To sum up, in the absence of any evidence whatsoever, we do not see any reason why the Court should not proceed oh the footing that exhibit B-7 is a genuine document, solemnly executed by Kochadai and attested by his wife, friends and relatives, containing recitals which are absolutely true and correct. The real difficulty that the case presents is that the documents during the first period up to 1944, constitute equally powerful evidence and leads to the irresistible conclusion that there was no adoption. The evidence during that period too is as strong, overwhelming and convincing, and the problem is how to reconcile those two sets of documents. Reconciliation is impossible as they tend to diametrically opposite inferences and it is here speculation becomes inevitable. If one can speculate, it may be that the documents during the first period reflect the truth and Exhibit B-7 was secured from Kochadai by some overreaching or some unfair means without Kochadai knowing what document he was signing. It may again be that the second defendant with his influence in the locality, got the attestors to this document and got Kamakshiammal also to attest the document, without her knowing what the document was. Of course, this is a pure speculation, which if true, furnishes the solution. If only the first defendant had put forward this version or some other plausible explanation about the state of mind of Kochadai and how Kochadai executed the document whether without knowing the contents or under a misrepresentation, the position would be different. It is because of the totally unhelpful and false evidence of the first defendant, pretending ignorance at every stage, that the problem arises.
13. If the question of adoption rested with and concerned the first defendant alone, the matter would assume a different complex, but the question is, how far, are the plaintiffs bound by these admissions of their father and his holding out that he is the adopted son of Kochadai. In the case of joint family, the admissions of the father or the admissions of the managing member would not by their own force bind the other members of the family, and the admissions cannot be used against them on the ground that the managing member of the father as the case may be did not satisfactorily account for these admissions. The junior members can always prove that the admissions are either untrue or incorrect. If the managing member or the father had made an admission while acting on behalf of the family or for acquiring properties for the family or for protecting the interest of the family and where, what he does is on behalf of himself and on behalf of the members of the family, the admission made in that representative character may be used as against all the members. But, if such an admission was made by the managing member or by the father to advance his own interests and to acquire property for himself, and what he acquired would be his own acquisition which he is not bound to share with the other members or the sons, such an admission cannot bind the sons. The position is a fortiori if such an admission advances not only the personal interests of the managing member or the father but also prejudicially affects the interests of the other members. For instance, in this case, if Ayyalu wrongly made such admissions knowing thorn to be false and acquires property, it will be his self acquisition. The fact that in that process he claims to be the adopted son will not make the property joint family property, if actually there was no adoption. Further if the admissions were to be held to be binding upon the sons also, the sons will lose their rights by birth in the natural family. As soon as they were born in 1932 and 1937, they acquired rights by birth and how can that right be affected by anything which their father may do subsequently out of greed or in conspiracy with somebody else to exploit the weakness of third parties. Unless there is in law and in fact a valid adoption cutting away Ayyalu from his natural family, the rights of the plaintiffs will have to be adjudicated upon on their own merits and while doing so, the Court will have to take into account the entire facts. If the plaintiffs themselves have made any prior admissions to the contrary, they may also suffer under the same difficulty if they do not satisfactorily account and explain their prior admissions. But so long as they have not made any such admissions the admissions of the father cannot conclude the rights of the sons. How can the rights which the plaintiffs acquired by their birth in the ancestral property be taken away because their father had made certain statements which they themselves do not know how and when they were made or even would have been made despite their protests and objections. In respect of their rights by birth in the ancestral estate, they are regarded as the representatives of the father. The consequences of the father not explaining or trying to explain his prior statements and admissions cannot be visited upon his sons who have got rights of their own independently of the father. Reference may be made to the Bench decision of the Nagpur High Court, in Jagmohan v. Ranchodas I.L.R. (1945) Nag. 892, in which it was held that in a joint Hindu coparcenary a , son does not derive interest in the coparcenary property through his father and hence the son cannot be said to be the representative in interest of the father under Section 21 of the Evidence Act, which deals with the binding nature of admissions. The same view was held about the scope of Section 21 of the Evidence Act in the decision in Nagendra Nath Ghosh v. Lawrence Jute Co., Ltd. A.I.R. 1921 Cal. 197, in which it was held the admission of a member of a Hindu family cannot be used as against the other members of the joint family. Reference may also be made to Pratap Kishore v. Gyanendranath in which it was held that admissions about the factum of adoption cannot be used as against the other members of the joint family. On the same principle it has been held that in a suit on a mortgage executed by the father where the father has unambiguously admitted the receipt of the consideration, the admission is held prima facie proof against the father only and a decree is passed against him. But as against the sons, the admission of the father cannot be used with that effect and the burden will be upon the mortgagee to prove that he advanced the loan. (Vide the decision of the Privy Council in Thakur Bhagwan Singh v. Bishambhar Nath (1940) 2 M.L.J. 452 (P.C.),. In Sreeramulu v. Thandava Krishnayya (1942) 2 M.L.J. 452, this decision of the Privy Council was followed and it was held that if the mortgagee wanted to enforce his mortgage rights against the sons' interests the mortgagee would have to establish that the mortgage had been executed by the father either for legal necessity or for payment of an antecedent debt and the recitals by the mortgagor alone would be insufficient against the sons to shift the onus of proof. Some of the decisions of this Court have held that the admission contained in the recitals in documents as against the executant has no application upon persons who get the property in their own right. The same view was taken in Muthachi v. Kandaswami Muthirian (1945) 1 M.L.J. 207, This rule is based upon elementary commonsense that a man cannot be bound and cannot be called upon to explain what another man has said, why he said so and when he said so. The question, therefore, is whether the totality of the entire evidence for and against, establishes whether Ayyalu has been adopted in 1914. The documentary evidence for the first period, as observed earlier, decidedly in favour of the plaintiffs and against the contesting defendants. When we come to Exhibit B-7, it can be only used as a piece of evidence and not as admission; i.e., the execution of a deed of adoption. For instance, if as early as 1914, a deed of adoption had come into existence contemporaneously along with the adoption though the recitals in the deed would not have the effect of admission by the plaintiffs so as to be bound by them, it would certainly be powerful cogent evidence against the plaintiffs. But in the instant case the deed of adoption was not contemporaneous and it was executed 30 years later. The onus in proving the adoption is very heavy on the person setting up the adoption especially when there is no contemporaneous deed of adoption. (Vide Pratap Kishore v. Gyanendranath) . As the adoption results in changing the course of succession and depriving several persons of their rights in properties, high standard of proof has been uniformly insisted upon for proving an adoption and the evidence to support it should be such that it is free from all suspicions of fraud and so consistent and probable as to leave no occasion for doubting the truth (vide Kishori Lal v. Mt. Chaltibai , and Gokul Chandra v. Biswanath . In Dal Bhahdur Singh v. Bijai Bahadur Singh (1929) I.L.R. 52 All. 1 (P.C.) : 58 M.L.J. 446 : 57 I.A. 14, it was observed that very grave and serious onus rests upon a person who seeks to displace the natural succession of property by the act of an adoption and that in such a case, the proof requires strict and almost severe scrutiny and the longer the time goes back from the date when the adoption was made to the time when it comes to be examined, the more necessary it is having regard to the fallibility of human memory and the uncertainity of evidence given after the lapse of such time, to see that the evidence is sufficient and strong. In Padmalav Achariya v. Srimatyia Fakira Debya (1930) 60 M.L.J. 619 (P.C.), when emphasising the strict standard of proof in proving an adoption, the Privy Council pointed out that the evidence should be free from all suspicion and fraud and so consistent and probable as to leave no occasion for doubting its truth. It was also observed that if the particular adoption is improbable and is not supported by contemporaneous evidence which ought to have been forthcoming and the case of the party setting up adoption is highly suspicious, the adoption cannot be hold to have been proved. The relevance of this decision is that in that case, the fact was that the man was aged 30 and he had already had children who had died and he would have himself adopted a son from the other branch of the family at a time when his own wife was enceinte and might bear him a natural son as in fact she did it was held that it was improbable that he would have authorised the adoption. Ultimately the defendants' case of adoption was rejected in the view that grave suspicions in which the defendants case was involved were not dispelled and that the adoption in question was highly improbable. In Raghavamma v. Chenchamma , the Supreme Court did not accept the case of
adoption as it noticed rival sets of documents one set tending- towards the inference of adoption and the other contra. In that case there was no deed of adoption and the Supreme Court observed that Pitchayya who was said to have made an adoption was about 25 years old and had ordinarily every prospect of having children of his own and therefore, it was highly improbable that an adoption would have taken place. Emphasis was also laid upon the absence of a contemporaneous deed of adoption. The rival sets of documents are discussed in paragraphs 15 and 16 of the Judgment of the Supreme Court, the Supreme Court commenting upon the fact (being against the case of adoption) that there had not been a consistent pattern of conduct from which the Court should draw the inference that an adoption must have taken place. An examination of all these cases shows that if there is no contemporaneous deed of adoption and if there is no satisfactory proof of the giving and taking and if the inference of adoption is to be drawn from the recitals in the documents and the assertion of rights in documents dealing with the estate as the adopted son, etc. etc., the documentary evidence must manifest one consistent pattern of conduct and if there were rival competing sets of documents, it cannot be said that the grave and serious burden could be said to be discharged. This principle well applies to the instant case. There are competing sets of documents one set tending to establish adoption and another establishing that there could never have been such an adoption. In the instant case the document Exhibit B-7 itself bears intrinsic evidence that the adoption was highly improbably and could not have taken place. When Kochadai had married two wives it cannot be said that Kochadai lost all hopes of begetting natural children.
* * * * * * * * * * * *
It is unnecessary to burden this judgment by a detailed reference to the evidence as we are satisfied that the evidence adduced about the factum of adoption is simply worthless and is wholly insufficient to discharge the grave and serious onus that lies upon the contesting defendants, which onus had become heavier still by reason of the valuable evidence afforded by the documentary evidence during the first period. Our conclusion, therefore, is that the contesting defendants have failed to establish that the first defendant was given in adoption to Kochadai.
14. Mr. M.S. Venkatarama Ayyar for some of the contesting defendants, raised a new point before us that on the admissions of the plaintiffs and the first defendant in their pleadings as well as in their oral evidence, it must be held that the estate of Kochadai was jointly acquired by defendants 1 and 2 by their joint labour and joint exertion, and the estate should, therefore be, treated and dealt with as joint family property. Learned Counsel urged that on their own showing (i.e., plaintiffs and first defendant), defendants 1 and 2 conspired together set up a false case of adoption and secured the properties of Kochadai, as against the claims of his widows, daughters and their children and that the joint labour and joint exertion consisted in bringing into existence Exhibit B-7, deed of adoption with false recitals, conducting criminal proceedings to a successful termination, fighting the opponents, entering into several transactions, describing and holding out the first defendant as Kochadai's adopted son and as a result of these efforts, they successfully resisted the claims of the widows, and the daughters of Kochadai. Learned Counsel also urged that the fact that in that process they put forward an unfounded and untenable claim to the property would not detract from the acquisition being a joint acquisition with the aid of joint labour and joint skill of defendants 2 and 1. This aspect based upon the peculiar doctrine of Hindu law of members of a joint family jointly acquiring the property by their joint labour and exertion (without the aid of ancestral nucleus) thereby impressing upon the acquisition the character of joint family property, was developed for the first time before us in the course of the arguments and the only justification pleaded for advancing this argument is that, that question has to be decided only on the admissions of the plaintiffs and the first defendant without any need for taking fresh evidence. Counsel also placed considerable reliance upon the decision of the Supreme Court in Firm Sriniwas Ram Kumar v. Mahabir Prasad (1951) S.C.J. 261 : (1951) S.C.R. 277 : I.L.R. (1951) 30 Pat. 673 (S.C.), where the Supreme Court granted relief to the plaintiff on an alternative case (though not pleaded by the plaintiff) which was not only admitted in the defendant's written statement, but was expressly put forward as an effective answer to the claims of the plaintiff made in the suit, the reason being that there was nothing improper in giving plaintiff a decree upon the case which the defendant himself admitted. In that case, the plaintiff filed a suit for specific performance of a contract, in part performance of which, the plaintiff had paid a substantial sum of Rs. 30,000 to the defendant. But the defendant denied the contract and pleaded that the money was taken by him only as a loan and not as part payment in pursuance of a contract of sale. The trial Court found against the plaintiff on the question of the factum and truth of the contract of sale but passed a decree for the sum of Rs. 30,000 accepting the defendant's admission that he had received Rs. 30,000 from the plaintiff. On appeal, though the High Court affirmed the finding of the trial Court that the plaintiff had failed to make out the factum of the agreement of sale, reversed the decision of the trial Court and dismissed the plaintiff's suit even with regard to the decree passed against the defendant for the sum of Rs. 30,000 on the ground that the plaintiff had not pleaded nor sought relief on the basis of such a case. When the matter wont on appeal to the Supreme Court, the concurrent finding that there was no agreement of sale was accepted. On the question as to whether on the admission of the defendant that he received Rs. 30,000 from the plaintiff as a loan, a decree could be granted to the defendant, the Supreme Court held that the High Court had taken too rigid and technical a view of the matter and that there was ample jurisdiction to the Court to award relief to a party on an alternative basis where the same is admitted by the concerned party in answer to the claim of his opponent.
15. Mr. M. K. Nambiyar, learned Counsel for the respondents, urged that the facts of the case inFirm Srinivasa Ram Kumar v. Mahabir Prasad (1951) S.C.J. 261 : (1951) S.C.R. 277 : I. L.R. (1951) 30 Pat. 673 (S.C.), were peculiar and easily distinguishable, and contended that it is not open to a party to allege one set of facts as against his opponent who has denied that case, and then turn round and allege another set of facts with a view to carry on the fight, and claim relief on the ground that his own case was false but that the opponent's case was true, and accepting the same, relief should be granted to him. Our attention was drawn to the decision in Govindaraj v. Kandaswami , which followed the leading decision of the Calcutta High Court in Ramdoyd v. Junmenjoy Coondoo I.L.R. (1887) 14 Cal. 791 (F.B.). Mr. M.K. Nambiyar drew our attention to the decision in Nagubai v. B. Shama Rao , in which it was held that evidence let in on one issue on which the parties went to trial, should not be made the foundation for the decision of another and different matter, which was not present to the minds of the parties and on which they had no opportunity of adducing direct evidence. Learned Counsel also relied upon the following observations of the Supreme Court in Venkataratnana Devaru v. State of Mysore , in which it was held that relief should not be
granted on a new plea, on a new point, not taken in the pleading nor any issues raised but merely upon the admissions of the party:
The object of requiring a party to put forward his pleas in the pleadings is to enable the opposite party to controvert them and to adduce evidence in support of his case. And it would be neither legal nor just to. refer to evidence adduced with reference to a matter which was actually in issue and on the basis of that evidence, to come to a finding on a matter which was not in issue, and decide the rights of parties on the basis of that finding. We have accordingly declined to entertain this contention.
It has to be recognised that a party cannot be awarded relief on a basis not pleaded by him and on which there is no issue, merely taking advantage of some statements in the pleadings or in the evidence made or given for a different purpose and with reference to a different issue. Such deviation from the pleading is permissible, very rarely and only in exceptional circumstances, if it can be postulated that the other side has unambiguously and unequivocally admitted, completely the factual or the legal basis on which relief could be moulded. In other words, it is the clear admission of the opposite party in the pleadings that confers jurisdiction upon the Court to award relief on a basis different from one covered by the issues on which parties wont to trial. Mr. Nambiyar stressed that, however liberally the pleadings (plaintiff's and the first defendant's) may be construed in the instant case, they do not amount to a clear unequivocal admission either legally or factually, to a plea of joint acquisition by defendants 2 and 1 by their joint labour and joint exertion. We see considerable substance in this argument and we have no hesitation in holding that there is no substance in the new point developed by Mr. M. S. Venkatarama Ayyar (1956) 1 W.L.R. 29 : (1956) 1 All E.R. 247 and that neither in the pleadings nor in the evidence, is there such a clear unequivocal admission that the acquisitions were made by the two brothers as joint acquisitions with the aid of joint labour and joint skill. The statement of the law of joint acquisition, one method by which property when acquired becomes joint family property, is contained in Section 281, page 345 of Mayne's Hindu Law, 11th edition.
In the first place, it has to be observed that the plaintiffs do not plead as a fact that the acquisitions were made by the brothers with their joint labour and joint exertion. The language used is deliberately guarded, i.e., it is believed because at that time, they were minors. Secondly, what is pleaded is a specific understanding came to between defendants 1 and 2 that the properties of Kochadai to be divided between defendants 1 and 2 in some proportion, after securing the same as against Kochadai's widows and daughters. What is pleaded is not a case of joint acquisition by joint labour and joint skill, which de hors any agreement, and by its own force, impresses upon the acquisition, the character of joint family property. The essence of this doctrine of Hindu law is the association of members of a joint family for which nothing else is necessary. Here what is pleaded is a specific agreement or a contract. In the case of joint acquisition in pursuance of a contract rights of the parties would depend upon the terms of the contract express or implied, but in the case of joint acquisition with the aid of joint labour and joint skill, a well-known mode of acquisition of joint family property, the acquisition will have to be shared by all the members, their respective branches in equal shares with rights of birth to all the members. In the case of acquisition by contract, the issues will have no right in the properties jointly acquired.
16. Learned Counsel Mr. M.S. Venkatarama Ayyar, then invoked the doctrine of promissory estoppel relying upon the decision in Lyle-Meller v. A. Lewis & Co. Ltd. We are unable to see how that principle has any application to the instant case as there is no basis for the plea and the whole argument, it was conceded by Mr. Venkatarama Ayyar, rested only on what is pleaded in paragraph 11 of the plaint. That promise is bereft of particulars and details. There is no issue, and no evidence was adduced about any particular promise, what proportion of the estate, and what properties of the estate should be given to the second defendant. We are clear that there is absolutely no scope for applying this doctrine of promissory estoppel in the instant case.
17. When the case of the contesting defendants has been throughout that the first defendant is the adopted son of Kochadai and that he got the properties in that right, we see no ground to award relief to the defendants on a totally inconsistent new Case that the properties were acquired by defendants 1 and 2, a case totally destructive of the case of adoption. Among other things, a reference to paragraphs 9 and 27 of the written statement of the second defendant would show that according to him, he was never responsible for securing any property of Kochadai Naicker and that Ayyalu got it only by virtue of position as an adopted son and that there was no agreement between defendants 1 and 2, as pleaded in paragraph 11 of the plaint. It is rather strange that the defendants who specifically and categorically deny this particular stand of the plaintiffs in their pleading plaint paragraphs 11 and 21 should now turn round and ask for a relief on a case directly contrary to their own pleadings. For all these reasons, we reject the new point sought to be raised by Mr. M.S. Venkatarama Ayyar, as totally lacking in substance.
18. We will now take up for consideration point No. 2, i.e., the character of the properties set out in Schedules B to E. This is discussed in paragraphs 66 to 72 of the judgment of the learned Judge. The learned Judge has proceeded on the footing that as the family owned sufficient ancestral nucleus, which would yield an income between Rs. 12,000 and Rs. 16,000 per annum, all the properties set out in Schedules B to E must be held to be joint family properties, as they could have been acquired with the assistance of ancestral nucleus inasmuch as defendants 2, 3, 4 and 5 who claimed these properties as their own separate properties have not made out their own independent separate resources with which these properties could have been or were acquired. Even at the outset, it has to be mentioned that the entire perspective of approach is not correct. There is an essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family and the female members of a joint family. In the case of male members of a joint family, there is a presumption that if the joint family had sufficient ancestral nucleus, the properties standing or acquired in the name of junior members are joint family properties unless the presumption is rebutted by showing that the properties are the separate properties of the particular member or members in whose names the properties stand or were acquired. There is no such presumption in the case of properties standing in the name of female members. In the latter case, it is for the party who claims properties as joint family proper ties to specifically plead the particulars and details, in the pleadings and establish the same by adducing necessary evidence. If there is no pleading and if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of the female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question. If the plaintiff on whom the burden lies adduce no evidence, no further question arises and the female member in whose name the property stands, must be held to be the beneficial owner of the property in question. In Raghavachari's Hindu Law, fifth edition, at page 283, foot-note 180, reference is made to some of the cases in which it was held that, the presumption that property in the name of a coparcener is joint family property, is inapplicable where it stands in the name of a non-coparcener such as a female member of a joint family.
19. Reference may be made to the earliest Bench decision of this Court of Turner, C.J., and Muttuswami Iyer, J., in Narayana v. Krishna I.L.R. (1884) 8 Mad. 214, 218, where the law is stated in these terms:
There is not, so far as we are aware, any case in which it has been held that, where property stands in the name of a female member of a Hindu family, it is to be presumed that it is the common property of the family, and that it is incumbent on a person who asserts that it is the property of the lady in whose name it stands to prove it. Nor is there any. ground on which such a presumption could be founded.
Where a family lives in coparcenary, the presumption which exists in the case of male members arises from the circumstance that they are coparceners. On the other hand, the ladies are not in an undivided family coparceners ; whatever property they acquire by inheritance or gift is their separate estate, and, although it is not unusual for property to be transferred to the name of a female member to protect it from the creditors of the male members, or to place it beyond the risk of extravagance on the part of the male members, such dealings are exceptional and can afford no ground for a general presumption.
The same principle was laid down in a Bench decision of the Calcutta High Court Protap Chandra v. Sarat Chandra A.I.R. 1921 Cal. 101, 104, where Mookerjee, A.C.J., pointed out that it was manifestly erroneous to draw the presumption and put the burden of proof on the female member to establish that the property is her own separate property. It was pointed out that in the case of coparcener, the presumption is founded on the fact of union and that there can be no such presumption where the property stands in the name of a non-coparcener such as a son-in-law or a female member of the family. In this decision the decision of the lower appellate Court (Sub-Court) was reversed by the High Court because the lower appellate Court (Sub-Court) started with an erroneous presumption against the female members and also threw the burden wrongly upon them. In Baijnath Das v. Bishan Devi (1921) I.L.R. 43 All. 711, the same view was taken that a female in a joint family not being a member of the family in the sense of having a right in the family property, there is no presumption that the property purchased in the name of a female member is joint family property. We may next refer to the Bench decision of the Calcutta High Court in Bhuban Mohini Dasi v. Kumud Bala Dasi A.I.R. 1924 Cal. 467, where again, after referring to a scries of decisions, it was observed that there is no presumption that property standing in the name of a Hindu female who is a member of the joint Hindu family belongs to the joint family and is not her stridhana property. The Bench has referred to the statement of the law by the Privy Council inDiwan Ran Bijai Bahadur Singh v. Indrapal Singh (1899) I.L.R. 26 Cal. 871 (P.C.) : L.R. 26 I.A. 226 : 4 Cal. W.N. 1, Our attention was also drawn to another Bench decision of this Court of Krishnan and Venkatasubba Rao, JJ. reported in Offg. Assignee v. Natesa Gramani A.I.R. 1927 Mad. 194. The earlier bench decision of this Court in Narajana v. Krishna (1884) I.L.R. 8 Mad. 214, was followed and it was observed that it would be quite an illogical and dangerous doctrine to say that a lady in whose name the property stands is not its owner and that it must be presumed that the male members of the family are the owners. It may be useful to refer to the following observations of Venkatasubba Rao, J., at page 196:
I entirely agree and my only reason for delivering a separate judgment is that a somewhat novel but wholly fallacious argument has been advanced before us with which I should like to deal shortly.
It is contended that when a property stands in the name of a Hindu lady it should be presumed that the real ownership vests in the male members of her family. In the case of a Hindu married woman, her family is the family of her husband and according to this contention, any property standing in her name must be presumed to belong to her husband, her brother-in-law or her son as the case may be. This argument involves in the first place that we must presume that a lady in whose name the property stands is not its owner and that we must secondly presume that the male members of her family are the owners. I cannot conceive of a more illogical or dangerous doctrine. Is there any reason for starting with the presumption that a person is not the owner of the property when the document says she is? Is there again any reason for assuming without proof that the transaction had its origin in some act of the person related in a particular manner to the lady, in whose name the document stands?
For this somewhat strange contention the appeallant's learned Counsel relied upon Chunder Nath Moitro v. Kristo Komul Singh (1871)
15. W.R. 357, and Nobin Chunder Chowdhry v. Dockhobala Dasi (1884) I.L.R. 10 Cal. 686, On the facts, the decisions in these cases may be perfectly correct but if there are any observations in the judgments which maybe construed as to lend support to the contention put oreward, I must most respectfully but emphatically disagree with them. I may refer to Narayana v. Krishna (1884) I.L.R. 8 Mad. 214, where it was held that when property stands in the name of a female member of a Hindu family, there is no presumption that it is the common property of the family. The person who asserts that the owner is different from the one whose name appears on the face of the document, must prove that he asserts.
It is important to notice that this Bench decision of this Court dissents from the observations made in Nobin Chunder Chowdaury v. Dokaobala Dasi (1884) I.L.R. 10 Cal. 686, in which the view was indicated that the presumption would be against the female member and in favour of the joint family. The Nagpur High Court has taken the same view in the decision reported in Manikrao v. Deorao A.I.R. 1955 Nag. 290, In that case, it was observed that the mere fact that husband possessed considerable property raises no presumption that the property found in the possession of the widow belonged to the husband and that it is for the person making the claim to adduce evidence as to the source from which the property was acquired and if no account is given, it has to be held that the property belongs to her. The same view was taken again in Radha Gobinda Roy v. Durgarani Dassi I.L.R. (1955) 1 Cal. 207, 213. This line of distinction between properties standing in the name of a male member and that standing in the name of a female member of the family, whether she is the wife, or the daughter-in-law or the daughter, is well settled and reference in detail to all the decisions aforesaid is really not necessary. But Mr. Nambiyar, learned Counsel for the respondents relied upon the decision in Narayanaswamiv. Ramakrisana (1965) 1 M.L.J. (S.C.) 78 : (1965) 1 An. W.R. (S.C.) 78 : (1965) 1 S.C.J. 522 : (1964) 7 S.C.R. 490 : A.I.R. 1965 S.C. 289, as indicating a contrary view, i.e., that the presumption is the same whether it is male or female member of the joint family. We do not think that there is any warrant for that inference from the decision of the Supreme Court. That decision arose out of a suit for partition and the question arose whether the properties standing in the name of the wife, son and the grandson of a male member of the family were joint family properties or the separate properties of these individuals. The Supreme Court observed at page 292 as under:
The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleous for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. Vide Amritlal v. Surath Lal A.I.R. 1942 Cal. 553, Appalaswami v. Suryanarayanamurthy (1947) 2 M.L.J. 136 : I.L.R. (1948) Mad. 440 (P.C.).
With regard to the property standing in the name of the first defendant's son, the position is different. With regard to the property standing in the name of the wife and daughter of the male member, while dealing with the burden of proof and presumption and as to whether the acquisition must be deemed to be with the funds of the first defendant. The Supreme Court, at page 292 has observed thus:
It was also argued that acquisitions in the name of the third defendant and the sixth defendant should also be held to have been made with funds advanced by the first defendant himself and so there also should be presumed to have been acquired with joint family funds if it is shown that the joint family had sufficient nucleus for acquiring these at the date of the acquisitions and the first defendant does not show positively that the funds with which they were acquired did not belong to the joint family.
From this sentence it was argued that the Supreme Court was of the view that even in the case of properties standing in the name of female member, there is a presumption in favour of joint family and it should be rebutted by the husband. This sentence should not be divorced from the context and particularly from the important fact that it was not disputed that the acquisition in the name of the wife of the first defendant were made with funds advanced by him. It is also important to notice that in that case, it was clearly admitted that the acquisitions were made in the name of the wife with the funds of the first defendant, the male member and the only question was whether those funds supplied by the male member were his own separate property or the joint family property. On the facts, the Supreme Court held that the funds in the hands of the first defendant male member were his own separate properties. It will thus be seen that the Supreme Court had not to consider situation as in the instant case. We arc not prepared to hold that the Supreme Court intended to over-rule the unifrom view taken by all the High Courts in a series of cases and upset this well settled and well established rule of distinction in the matter of presumption.
20. There is one other important aspect which the lower Court has completely overlooked. It is the admitted case of the plaintiffs and the first defendant that in 1947, there was an arrangement between defendants 2 and 1 in pursuance of which the second defendant was allowed to enjoy a substantial portion of the ancestral property and the first defendant was given about 15 items, though the items left to be retained by the second defendant and the items taken by the first defendant were not equal. In paragraph 20 of the plaint, there is reference to this arrangement. In paragraph 31 of the plaint, it is stated that till 1957, second defendant has given the plaintiffs the amounts due to them, i.e., their share of the income up to 18th September, 1957, which means that so far as the income from the family properties are concerned, second defendant has accounted for the same. In paragraph 23 of the written statement of the first defendant, first defendant states that the second defendant was allowed to be in enjoyment of a major portion of Alagar Naicker's properties, because by that time first defendant secured possession of the properties of Kochadai Naicker. In paragraph (ii) of Exhibit B-319 the counter affidavit filed by the first defendant and his sons, it has been admitted that No. 1 of A party (meaning thereby the second defendant herein) "was allotted to enjoy a major portion of the estate of the father Alagar Naicker, as a measure of goodwill" and that this will not preclude No. 1 of the B party (first defendant) claiming a half share in all the properties left by Alagar Naicker. The relationship between the two brothers was throughout very cordial upto 19573 and in 1947 first defendant was assisted by the second defendant and was thus enabled to successfully resist the claims of the widow and daughters of Kochadai Naicker and that out of gratitude and such other considerations, first defendant allowed the second defendant to be in enjoyment of a substantial portion of the ancestrol estate, i.e., Alagar Naicker's estate and the first defendant was quite prepared and content to take those items mentioned in the pleadings along with the estate of Kochadai. This arrangement which was entered into in 1947 was of course tentative and can at any time be modified or cancelled and will not put an end to or take away the right of the first defendant to claim his legitimate half share in the ancestral estate as and when he decides to secure a partition by metes and bounds. But during all the time when this arrangement was in force, the two brothers will each be entitled to appropriate the income from the properties so allotted for themselves and as between them inter se there will be no liability to render an account. The very idea of allotment for convenient enjoyment, though reserving a right to effect a final partition by metes and bounds, carries with it the necessary implication that the two branches were entitled to deal with the income accruing from the properties allotted to them in any manner they like and either branch will have no claim as against the other in respect of properties purchased out of such income. The presumption of Hindu law that if the family owned substantial nucleus every acquisition by a member would be presumed to be joint family property, having been acquired with the aid of joint family property would not apply. The back-ground of the instant case in particular, shows that there was complete identity of interest, absolute cordiality and one-ness between first and second defendants till 1957-58, that the second defendant played a prominent part and helped the first defendant in a great measure, in securing Kochadai's estate, further it was during this period, the first defendant with the active assistance of the second defendant was held out as the adopted son of Kochadai. It will be meaningless and frustrate the very object of the arrangement if we import into this arrangement any liability to render account inter se between the brothers for the income. The only logical and rational basis on which this arrangement could be understood and worked out is that the income from the properties allotted to the two branches will belong to the respective branches. The principle of the Bench decision of this Court reported in Ramayya Goundan v. Kolanda Goundan I.L.R. (1940) Mad. 322 : (1939) 2 M.L.J. 639, and the recent judgment of Anantanarayanan Offg.C.J., and Natesan, J., in Venkatasubramania v. Easwara (1966) 1 M.L.J. 471 : I.L.R. (1966) 1 Mad. 468, would apply to this case. In the earlier Bench decision it was pointed out that if the joint family has made an allotment of property to a member, in order that he may maintain himself out of it without having to bring its yield into the family granary for common consumption, it is not possible in such a case to make the member accountable for the property so allotted. In that decision it was emphasised that when an arrangement of this kind is made, the predominant idea undoubtedly is that while the corpus of the property should continue to remain joint, the income should exclusively belong to and be at the disposal of the member concerned. It was also pointed out that there was no difference in principle between a maintenance arrangement in favour of a female member of the family and that made almost in similar circumstances to a junior male member of a joint Hindu family. The principle of this decision was followed in Latchendhora v. Chinavadu , in which it was held that properties acquired out of the income and the savings by a member of the joint family shall be deemed to have been acquired by him in circumstances entirely disassociated from the ownership of the joint family property. It was also observed that it would be unjust and inequitable that such properties should also be divided between the others who had nothing to assist the member concerned in acquiring the lands. It was observed as follows at page 36:
If out of the income derived from the lands allotted to a member of the joint family for his maintenance, he saves enough to acquire new properties, they must be deemed to have been acquired by him in circumstances entirely disassociated from the ownership of the joint property, to adopt the language of Lord Buck-master in Rani Jagadamba Kumari v. Wazir Narain (1922) I.L.R. 2 Pat. 319, 325 : 44 M.L.J. 503 (P.C.) : 50 I.A. 1, Further, it would be unjust and inequitable that properties acquired by one member out of the income from the lands allotted to his maintenance, should also be divided between others who had done nothing to assist the member concerned in acquiring the lands.
All the cases have been discussed in the recent Bench decision in Venkatasubramania v, Easwara (1966) 1 M.L.J. 471 : I.L.R. (1966) 1 Mad. 468, and it is sufficient to refer to the observations of Natesan, J., at pages 494 to 497. The learned Judge pointed out that the acquisitions out of the savings and income from the joint family property given to the acquirer would not be partible property as between the other members of the family and the branch of the acquirer, but the character of such acquisition in the hands of the acquirer vis-a-vis his male children would not be the same.
21. From the foregoing it has to be held that even if the second defendant had utilised the income from the properties left in his possession during the period 1947 to 1957, to acquire properties whether in his name or in the names of defendants 3 to 5 they are not partible properties. In this view no further question would arise in respect of C, D and E schedule properties, because they were all acquired after 1952. There is the further fact that in paragraph 31 of the plaint, plaintiffs have admitted that till 1957, second defendant had given them their share of the income, with the result that it has to be necessarily held that the acquisitions made by the second defendant during that period must have been only out of the share of the income from the properties of his branch. This is another independent ground on which also it has to be held that the acquisitions during this period cannot be regarded as joint family properties. In this connection it has to be noticed that the properties which have been purchased in the name of the plaintiffs during this period have not been brought into the hotch pot. Vide for instance Exhibit B-129 sale-deed, dated 15th July, 1954, in favour of the first plaintiff of an extent of 7 acres. The other 7 acres were purchased in the name of the third defendant. There are also other items. It will be highly inequitable and unjust if the plaintiffs and the first defendant who kept for themselves the properties purchased by them are allowed to claim a share in the properties purchased by the contesting defendants. The scheme of the purchases themselves show that by common consent, properties purchased in the names of the individual members, were agreed to be their own properties and not partible.
We are of the view that the learned Judge has been hypercritical in the appreciation of the evidence adduced on the side of the defendants. If a plaintiff, who puts forward a case that a land standing in the name of a female member of a family was really purchased benami in her name for some ulterior purpose, does not discharge the burden that is cast upon him, it is unnecessary to examine the defendants. case. Vide Bench decision of this Court in Parvatamma v. Subbayya (1931) I.L.R. 55 Mad.
22. For all these reasons, we hold that the items of B Schedule 1, 3, 4 and C, D and E Schedule properties are not partible properties and the plaintiffs and the first defendant are not entitled to any share therein.
23. There cannot be any accounting as between the parties inter se. If the second defendant is called upon to render an account during the pendancy of the suit equally the first defendant would be liable to render an account of the income from the properties which were left in his possession. In such case, where several members of the family are put in possession of separate items of properties for convenient enjoyment, the only relief that could be awarded is the relief of partition by metes and bounds, redistributing and reallotting the properties according to their legitimate shares taking into account the value of the properties and such other relevant considerations. If the first defendant had himself filed the suit for partition he could not have asked for accounts in view of the arrangement of 1947. That arrangement is cancelled only by the decision of the Court necessitating a final division by metes and bounds. For all these reasons we hold that the plaintiffs are entitled only to a decree for partition by metes and bounds and it is up to them to take proceedings for the passing of the final decree.
24. The conclusion is (?) The first defendant Ayyalu is still a member of the joint family of the contesting defendants and it is hereby declared that the plaintiffs 1 and 2 are entitled to each one-sixth share and the first defendant another one-sixth share in the A Schedule properties and the movables as per the lower Court decree (it) The B Schedule properties (except item 2) and to C, D and E Schedule properties are not partible properties and the plaintiffs and first defendant are not entitled to any share therein and (in) The plaintiffs and the first defendant are not entitled to the relief of accounting of the income from the properties. Under the peculiar circumstances and facts of this case, we direct the parties to bear their own costs throughout.