(1) I have had the advantage of perusal of the judgment of my learned brother, in which he has dealt elaborately and fully with the main issues of fact that arise for our determination in these appeals. I am in entire agreement with his conclusions; that being the case, I felt somewhat hesitant to write a separate, concurring judgment. That hesitancy was reinforced by the consciousness that, though the case does involve the application of several principles of Hindu law, to the facts, those principles themselves are well settled, and enunciated in decisions that are now classic. Nor does the application of the principles to the facts of the case involve any novel departure in any respect. Nevertheless, I propose, in a brief compass, to survey the principles of Hindu law, that impinge on the facts and circumstances of this case. There are at least one or two refinements that render this expedient. I must make it clear, however, that I am not traversing the facts and evidence again, independently nor dealing with every aspect of the probabilities; my learned brother has discussed them so fully, that I shall assume the background, in adding my own observations.
(2) It is important, at the outset, to stress the general picture that emerges from the facts of the record. This is that of a very affluent family of Malabar, conducting Indigenous Banking as its main business or Kulachara, and possessed of very considerable income, both from agricultural lands and the family avocation. There was a steady flow of money to each of the branches that constituted the main family, and that was true not merely of the branch of Samu Pattar, which included Narayana Iyer and his brothers, but equally true of the restricted family of Narayana Iyer and his sons. Narayana Iyer was handling the family business de facto, and was in a situation to utilise the moneys that flowed into his hands from joint family resources, even before he became the de jure manager. As my learned brother has pointed out, it is very important, however, that these different periods should be distinguished from each other and particularly that a distinction should be drawn between the previous periods and the last period, after Narayana Iyer had purported to effect not merely a severance in status, but an actual partition between himself and his sons. This situation is complicated by the fact that Narayana Iyer was employed as an official in a bank, rising from a relatively subordinate capacity with a small salary, to a position of trust at the end, with quite respectable emoluments.
An added factor of complication is that he is supposed to have stood, perhaps unofficially, as some kind of guarantor in respect of the constituents whom he introduced to the Imperial Bank; according to the oral evidence, that situation enabled him to amass large perquisites, which might have been a kind of illegal gratification, but which, according to the appellants, formed the primary source of the acquisitions claimed by him as his self acquisition, which are the crux of the controversy in these appeals. But one undeniable circumstance is that there was a considerable nucleus of joint family estate, that an appreciable income from this nucleus passed through the hands of Narayana Iyer even when he was a junior member, and subsequently when a Manager, and that there was certainly "blending", in the sense that it does not in the least appear that Narayana Iyer segregated the joint family moneys over which he had control, or did not utilise them as freely as his own resources in acquiring the properties that mainly concern us.
(3) With this picture in view, I shall proceed to a discussion of the principles of Hindu law, in certain aspects, that arise for application to the issues of fact in the present case.
(4) When the learned Text Book writers of the past, like Sir Thomas Strange and Mayne, began their treatises of Hindu law, they must have been oppressed by the necessity to find English equivalents for Hindu law concepts, which were themselves unique, and quite unrelated to any Law of Real Property or Inheritance in Western civilisation; perhaps, they borrowed from translators of the Codes of Hindu law, like Colebrooke and others. Actually, these English expressions have subsequently become familiar to students of Hindu law, but the content is frequently very different from the dictionary connotation. The word "nucleus" for instance, implies, according to the Concise Oxford Dictionary, "a kernal of aggregate or mass, a beginning meant to receive additions". But, as the expression occurs in a standard treatise, such as Mayne, 11th Edn. Page 359 or Mullah, 12th Edn. Page 343, there are other shades of meaning that need to be noted with care. For instance, the proportion of the nucleus itself, in relation to the estate which is under judgment, is only one factor. Where this is considerable, the presumption arises that the acquired properly is joint property, and the onus certainly lies on the party alleging self-acquisition. But, as Mullah is at pains to emphasise, the income yielding capacity of the nucleus is equally an important factor.
"A family house in the occupation of the members, and yielding no income, could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small, might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions".
With regard to cases on this aspect, a reference might be made to the following as the most significant in the present context.
First we have Appalasami v. Suryanarayanamurti, AIR 1947 P.C. 189 at pp. 191 and 192. Next, the dicta in Srinivas v. Narayan, , may be noted, upon the question of the onus, where it is clear that the nucleus could have formed a source of the acquisition. Mallappa Girimallappa v. Yellappa Gowda, AIR 1959 SC 906 emphasises that the existence and the adequacy of the nucleus are, primarily, questions of fact. The presumption is certainly stronger where it is the manager who is responsible for the acquisitions, which he later claims to be his: Malleseppa v. Mallappa, . As far as cases in Madras are concerned, reference might be made to Narayanaswami Iyer v. Ramakrishna Iyer, and Manicka Mudaliar v. Thangavelu, a judgment to which one of us was a party, as well as the judgment of Veeraswami J. In Sivagnana Thevar v. Udayar Thevar, . Also see Amritlal v.
Surathlal, AIR 1942 Cal 553.
(5) In the light of these well-settled principles, the questions of fact would be, whether, during the crucial periods, Narayana Iyer was in receipt of a steady flow of funds from the considerable family estate, whether he did not acquire the properties in controversy with the aid of the funds, in part or in whole, since he appears throughout to have 'blended' them with his own earnings, whatever they might have been, and whether, upon any theory that even if family funds were thus utilised, they represented the saving from amounts strictly furnished for his maintenance, so that he accretions must be held to be self acquired, is at all maintainable. I shall commence with the argument of Mr. Sangameswaran for the appellants that the terms in Ex.P.3 dated 5-6-1953, which concerns the larger partition in the main family, itself shows that those properties now in controversy, part of which had been acquired by Narayana Iyer, then, were treated as his self-acquisition. The clause is to the effect:
"Except in the case of properties purchased in the name of individual members for convenience out of moneys found in the joint family business account books, the other properties standing in the names of individual members are their private (Swakaryam) properties and are not liable for division."
As my learned brother has shown, shortly after this very recital of agreement, two brothers of Narayana Iyer, namely, Ranga Iyer and Anantanarayana Iyer, raised difficulties, and Narayan Iyer had to purchase peace by paying each of them Rs. 15000 with interest, at 71/2 per cent per annum at the time of the final partition. According to Mr. Sangameswaran, the term is eloquent regarding the true character of the properties in question; it amounts to a very important admission, by persons who could claim these properties as joint family properties and adversely to their interest. The inference suggested is that the sons of Narayana Iyer are thereby precluded from later claiming that those properties are partible or, at the least, that the term is very important evidence to the contrary effect. Alternatively, it is claimed that, without bringing the other branches into the partition now, the properties cannot be divided at all; there cannot merely be a partial estoppel in such a respect. Per contra, a quite different view is conceivable, that the heads of the branches then participating in the general partition, including Narayana Iyer made mutual releases of possible claims in this respect.
The learned trial Judge, (Subrahmanyam J,) took the view that they found this the most convenient and expedient course, as, otherwise, each stood to suffer by an investigation into the sources of acquisition. In any view of this matter, it seems to me to be clear that the sons of Narayana Iyer would not be bound by any term in Ex.P. 3, and that, in fact, even as evidence, it is the most slender and unsafe basis for any inference upon the nature of the properties as self acquisition, if this aspect is to be interpreted as a question of mutual releases, obviously, the properties would be partiable within the branch of Narayana Iyer and his sons, as my learned brother has shown.
(6) This takes us to the next aspect, whether Narayana Iyer and his sons could not, in law, form a self-sufficient and corporate entity within the larger family, a sub-branch functioning as such, entitled to jural recognition. That this kind of entity has been recognised in Hindu law, appears to admit of no doubt. The question was discussed, at some length, by Bashyam Aiyangar J in Sudarsanam Maistri v. Narasimhalu, (1902) ILR 25 Mad 149 at p. 154. For the present purpose, I shall restrict myself to a very brief citation:
"But so long as a family remains an undivided unit, two or more members thereof whether they be members of different branches or of one and the same branch of the family--can have no legal existence as a separate independent unit; but if they comprise all the members of a branch; or of a sub-branch they can form a distinct and separate corporate unit within the large corporate unit, and hold property as such".
This aspect was discussed by their Lordships of the Supreme Court in Bhagwan Dayal v. Reoti Devi,, and, after pointing out that coparcenary was a creature of Hindu law, which could not be created by agreement of parties, except in the case of reunion, their Lordships affirmed that a sub-branch could also be a corporate unit, holding and disposing of family properties, subject to the limitations laid down by the law. This view reinforces what I have stated earlier, about the true significance of the recital for admission in Ex.P. 3. That takes us to another vital aspect of the case.
(7) The arguments of Mr. Sangameswaran for the appellant have to be carefully stated here, in order to do them justice. Learned counsel would agree that, in this case, there is a very considerable joint family estate, relevant to the purpose of acquisition; not merely this, but that the nucleus yielded a very substantial income, and quite substantial amounts did flow through the hands of Narayana Iyer. Mr. Sankara Aiyer for the plaintiff-respondent has furnished us with a table of such entries to be found in the accounts, fragmentary as these are, and the particulars need not be reiterated here. But Mr. Sangameshwaran's argument is that, as far as Narayana Iyer and his wife and children are concerned, the picture disclosed by the accounts is that of remittances made from time to time, for maintenance; they are not at all out of proportion to the affluence and conventional modes of spending in the family, and the individual items exhibited in the accounts strengthen the impression of the remittances being of that character. Per contra, learned counsel would argue that, though there is no scrap of documentary evidence about the perquisites enjoyed by Narayana Iyer, they were probably very considerable, far more than his fixed emoluments. Even if the acquisitions were made out of savings effected from amount given by Samu Pattar, the manager of this branch, for maintenance, the properties would still be impressed with the character of self-acquisition. That would be so, all the more, if Narayana Iyer's own earnings and perquisites had contributed to the acquisitions.
(8) The law upon this aspect appears to need some study, for, it is by no means so very clear and beyond a possible difference of interpretation, as one might desire. Presumably, the law seems largely from the text of Yajnavalkya in the Mitakshara, Ch. I S. IV to the effect that the self-acquisition of an undivided coparcener would be "whatever else is acquired by the coparcener himself, without detriment to his father's estate" (Pithrudruvya Virodhena) to which my learned brother has also referred. It is succinctly stated in Mullah (12th Edn) page 354, that "It is competent to the manager to allot to any individual member a portion of the family property to enable him to maintain himself out of its income. Any savings out of the income and investments of such savings will be the separate property of the member". Also see Mayne 11th Edn p. 361. The authorities relevant to this aspect are: Bengal Insurance and Real Property Co Ltd, v. Velayammal, AIR 1937 Mad 571; Ramayya Goudan v. Kolanda Goudan, AIR 1939 Mad 911. Latchandhora v. Chinnavadu, , and
Lachmeswar Singh v. Manowar Hossain, (1892) ILR 19 Cal 253 (PC). The problem here is: Where from joint family income, a part is diverted towards the maintenance of a junior member and his family, by the manager, without liability to account for any balance, and the junior member acquires property out of savings of such amount, is that to be treated as his self-acquisition, capable of disposition by him as such, without even his sons having a right to claim a share? Or, is this proposition too widely stated, which is the view adopted by my learned brother in his judgment?
(9) The decision in AIR 1937 Mad 571 appears, on the facts to relate to the special instance of the content or realisation of a policy of life assurance. The learned Judges referred to a presumption enunciated by Sankaran Nair J. in Balamba v. Krishnayya, ILR 37 Mad 483: AIR 1914 Mad 595 (FB) that the premia for a policy of insurance, upon his own life, were probably paid by an individual from his separate resources. In Venkatasubbarao v. Laxminarasamma, , this was again laid down as a general presumption, arising from the relevant social and economic background, that the content of a policy of life assurance must be held to belong to the assured as separate property, ordinarily speaking, and not treated as a joint family asset. But even this must be doubted, after the dicta of their Lordships of the Supreme Court in Prabati Kuer v. Sarangdhar. to the effect that "there is no proposition of law by which the insurance policies must be regarded as the separate property of the coparceners on whose lives the insurance is effected by a coparcenary."
Finally, in Karuppa Gounder v. Palaniammal, , the
latest view of the Madras High Court is that no general proposition can be advanced, and that this will be a question of fact in the individual case. The dicta in AIR 1939 Mad 911 and have been
referred to by my learned brother, and he has dealt with the facts of the former case extensively. (1892) ILR 19 Cal 253 (PC) proceeds to this extent, that profit made by a member of the joint family individually, without detriment to joint property, would be self acquired property in his hands. The difficulty, as my learned brother has pointed out, is that neither Ramayya Goundan's case, AIR 1939 Mad 911 nor , nor any other case, to which our attention has been drawn deals with the specific question of acquisition of property by saving from amounts given as maintenance, by a junior member, which the junior member attempts to claim as his self-acquisition, even as against his own sons, for whose maintenance, equally, the amounts were furnished in the first instance. With regard to the mode of self-acquisition set forth by Mullah, this may fall only within the item "The income of separate property, and purchases made with such income" for, presumable an amount furnished for maintenance has to be regard as separate property in the hands of the junior member, to whom it is given.
But, for two important reasons, the entire question whether the proposition, as stated is too wide or otherwise, is academic in the present case. First of all, in this case I strongly feel that we have only the facts of a substantial income flowing through the hands of Narayana Iyer, from joint family resources and of the "blending." There are really no data for the assumption that he had control only over amounts given as maintenance, and saving from such amounts. It is not at all permissible, on the present case, to speculate upon the dimension of other resources possessed by Narayana Iyer from perquisites and modes of illegal gratification in his employment in the Imperial Bank; that is simply to reckon with a super structure, which altogether lacks a foundation. As my learned brother has stressed, even in a very restricted view, the savings would be the outcome of sacrifices by the sons as much as by Narayana Iyer, and they would appear to be equally entitled to the benefit of the utilisation of such resources.
(10) Upon the theory of "blending", which is the next relevant aspect, I desire to add a few words to the discussion by my learned brother which includes references to the case-law. Obviously, the expression 'blending' is itself one of those unsatisfactory English expressions used in treatises on Hindu law which have been acquired a particularised connotation, to be distinguished from the literal or dictionary significance. For "blending" might be of income from separate property with income from coparcenary estate; or, equally, it might be of separate property itself with the coparcenary estate. Obviously very different considerations would apply, where a manager or other person in charge of a joint family estate chooses to treat what is indisputably separate property, which was of that character at origin, as joint property, by throwing it into the common stock or hotchpot, whichever expression might be used; as contrasted with the situation of "blending", where this has occurred prior to the acquisition itself, with regard to the respective incomes from separate properties and joint properties; and subsequent accretions are made from such a mixed fund.
There is a passage in Mayne (11th Edn) at page 350, commencing, with a reference to Narayanaswami v. Ratnasabapathy, 1937-2 Mad LJ 906: (AIR 1938 Mad 136) and proceeding to emphasise that the rule as to a trustee mixing his funds with the funds of a cestui que trust did not furnish any true analogy. "It is difficult to see how by mixing the income derived from a separate property, such as a house or a landed estate or a specific investment, with the income of ancestral property, the corpus of the self-acquisition, which is easily distinguishable, becomes incorporated into the joint family property....... To say that there is a duty to keep an account of the income of his separate property is to say that a man cannot spend his separate income for family purposes except at his peril'. Per contra, my learned brother has set forth the dicta of Reilly J. in Periakaruppa Chetti v. Arunachalam Chetti, ILR 50 Mad 582 at p. 591: (AIR 1927 Mad 676 at p. 679), and approved in Nutbehari v. Nanilal, AIR 1937 PC 61, and also discussed the facts and the dicta in Suraj Narain v. Ratanlal. ILR 40 All 159: (AIR 1917 PC 12). The facts in Lal Bahadur v. Kanhaiyal Lal, (1907) ILR 29 All 244 (PC) have further been discussed. It appears to me, that in interpreting the case-law, the remarks fall consistently and harmoniously into place, and any possible conflict is immediately resolved, if a vital distinction is kept in mind.
As the passage from Mayne emphasises, where a man is dealing with the income from his separate property, the fact that he does not keep separate accounts, and chooses to "blend" that income with income from a source of joint property, cannot affect the corpus of the separate property itself. But, the position is clearly widely different, where the "blending" has occurred, with regard to the income, from the two sources, prior to the acquisition, the character of which is in question. Upon the present facts, all that can be said is that, even if the separate income and perquisites of Narayana Iyer went into the acquisitions which are in controversy, they could have done so only in part; considerable funds passed through the hands of Narayana Iyer from joint family income; nor could it be said for a moment that all that he had at command was only what his parsimony could effect as savings, from what was strictly a fund for maintenance. Narayana Iyer freely "blended" and used these sources of income, as far as we are able to gather, and acquired considerable immovable properties; could it be pretended that these are not impressed with the character of coparcenary estate?
The decisions to which Mr. Sangameswaran for the appellants has drawn our attention, particularly upon this aspect of "blending" are Lakkireddi Chinna Venkata Reddi v. Lakkireddi Venkatarama Reddi, AIR 1957 Andh Pra 93 and Venkatraju v. Yadukondalu, AIR 1958 Andh Pra 147. He has also stressed the dicta of the Supreme Court in Venkata Reddi v. Lakshmamma, . Actually, it appears to be obvious that these dicta lay down the true principles of Hindu law, which apply to the incidents of separate properties being blended by subsequent treatment, or being thrown in the common stock. In that situation, the legal concept of "blending" would be inclusive of an element of a conscious or volitional surrender of the separate right, by the owner, in favour of the joint family; no more haphazard accounting, nor utilisation of the income as such for family benefit, would do. As the Supreme Court observed "a clear intention to waive separate rights must be established." But these authorities have very little relevance to the present context of facts. The part of the theory of "blending" which is here relevant, is the "blending" of the income from both separate and joint family properties, prior to the acquisition, and to the acquisition of further estate from such mixed fund. Certainly, the presumption must be that the subsequent accretion is coparacenary in character.
(11) While upon this question of presumption or onus, I may refer to another point urged by Mr. Sangameswaran, that this is really immaterial, now that the extensive documentary and oral evidence in these appeals is before Court. Even so, the question remains whether the effect of this evidence is to justify any inference, which is contrary to the presumption. Certainly, that is not the case, and, hence, the conclusion upon the main issues of facts arrived at by the learned trial judge, with certain modifications, as my learned brother has pointed out, must be upheld.
(12) I shall next proceed to one matter, with regard to which both my learned brother and myself feel constrained to differ from the trial court; though this does not affect the actual result of the litigation in any important respect. This is with regard to the treatment of even the salary and emoluments derived by Narayana Iyer during the relevant period, as joint family income, because those were earned by him either through an office involving a skill or knowledge, to the acquisition of which the family had contributed, or though the freezing of certain family resources as security for the office, to the detriment of the family, as only a low rate of interest was earned by the fixed deposits concerned. The entire question is of considerable legal interest in the light of the developments which led to the enactment of the "Hindu Gains of Learning" Act XXX of 1930, and certain decisions subsequent thereto.
(13) As pointed out in such standard treatises as Mulla, Hindu texts classed "gains of science" as joint family property, if such "knowledge of science" had been acquired at the expense of joint family funds. But this term "science" was interpreted by the courts to mean some kind of special learning, as distinguished from ordinary general education, that all members of the family might be expected to received. We have a catena of decisions, of great interest, upon different professions, and the extent to which courts recognised that the pertinent "science", was acquired under such circumstances as to warrant an inference that the subsequent earnings by the member of the coparcenary must be treated as joint family property, and not his separate property. A very early case is Chalakonda Alasami v. Chalakonda Ratnachalam, (1864-65) 2 Mad HC 56. which related to expenses incurred for learning connected with the profession of a dancing girl. Holloway and Kindersley JJ. had occasion to deal with the profession of a pleader in this respect in D. Gangadharudu v. D. Narasamma (1871-74) 7 Mad HC 47 Lakshman v. Jamnabai, (1881-82) ILR 6 Bom 225 relates to the vocation of a pleader and the office of Sub Judge.
Similarily Metharam v. Rewachand, ILR 45 Cal 666:(AIR 1917 PC 105) related to the vocation of a broker and money lender. In Gokalchand v. Hukumchand, ILR 2 Lah 40 at pages 49 and 50: (AIR 1921 PC 35 at p. 38) there was an instance, probably unique, of an officer of the Indian Civil Service, who had acquired that qualifications by special education, of which he had the benefit. The Judicial Committee held that the salary subsequently earned, was partible property of the joint family. Their Lordships pointed out that there was a legal presumption in favour of the partibility, attaching to the gains, while presumption of detriment to the patrimony involved in acquiring this specialised learning, was a question of fact, but the court was of the view that the member had to prove that his case was an exception. Sometime after this, we have the enactment of the Hindu Gains of Learning Act XXX of 1930. The provisions of this statue need not be analysed here, but it is sufficient to note that, under this Act all gains of learning, whether the learning be special or ordinary, become the self-acquired property of the acquirer. On this particularised aspect, it seems fairly clear that it will not be justifiable in law, to treat the salary and emoluments of Narayana Iyer as partible property because he belonged to a family which followed Indigenous Banking as Kulachara Assuming that the Hindu Gains to Learning Act did not apply, even so there is no shred to evidence to prove that the joint family incurred any expenses for any special learning in this branch of knowledge, acquired by Narayana Iyer; clearly it is not enough that Narayana Iyer was adept in the family business and that that constituted a qualification which induced the Imperial Bank to employ him.
(14) But the matter becomes more complicated, when looked at from the point of view of possible detriment of joint family estate, resulting from the security given in the form of fixed deposits, for the bond executed by Narayana Iyer for his office. Upon this aspect, we may commence with the Commr. Of Income tax v. Sankaralinga Iyer, . That decision has subsequently been dissented from, and cannot be said to lay down the correct position at law. But it is of interest, upon its facts. In that case, the necessary shares to acquire the qualification of Managing director, we purchased out of joint family funds, which suffered a detriment in that sense; but the shares earned profits, which were included in the family income. Viswanatha Sastri J. pointed out that it was the individual who was appointed as the Managing director, and that his holdings of this block of shares was not the causa causans of his earnings.
In Commr. of Income-tax v. Kalu Babu Lal Chand, the kartha of a Hindu undivided family was one of the promoters of a company, and the Articles of Association of the company provided for his appointment as managing director. Most of the shares of the company stood in his name and that of his brothers, and the Supreme Court held that the case was governed by the principle laid down in In re Haridas Purshotham, AIR 1947 Bom 299, and that, in the circumstances, the remuneration of the Managing director received by the kartha was an asset of the undivided family, partible as such In this case, there is a reference to Gokalchand's case. ILR 2 Lah 40: AIR 1921 PC 35, though without any reference to the subsequently enacted Hindu Gains of Learning Act XXX of 1930, and Sankaralinga Iyer's case. has been doubted in a critical reference.
In Commr. of Income-tax v Palaniappa Chettiar, 1964-1 Mad LJ 61 at p. 65, a Bench of this court has pointed out that the Supreme Court has expressed the view contrary to that expressed in Sankaralinga Iyer's case. , and that the view of the Supreme Court was
certainly binding. But it would seem to be clear that the present situation is very different from the facts in to
which I have referred. In Piyarelal Adiswarlal v. Commr. of Income-tax, Delhi, , both Gokulchand's case, ILR 2 Lah 40: (AIR 1921 PC 35) and came in for reference. This was a
case very near to the present situation, on the facts, as the instance related to security of family property being furnished for a member to hold a particular office. The question discussed by their Lordships was whether this implied any "risk" in regard to the family property, or any "detriment". It was held that the emoluments received by Sheel Chandra were in the nature of salary, assessable under Section 7 of the Income-tax Act, as the salary was income of the concerned individual and not of the Hindu undivided family.
In the present context the words "risk of" can have, obviously, two differing connotations. Since the family assets were frozen in the form of a security (fixed deposits), and that security related to a guaranteed discharge of responsibilities by Narayana Iyer of his office, it could conceivably be argued that there was a "risk". But there is not the slightest warrant for any presumption that such a "risk" was anything except a theoretical factor, at any time. The more substantial argument is, of course, that the moneys were frozen in this form, earning only a low rate of interest. Conceivably, they could have been invested in the Indigenous Banking business of the family, in the form of Hundis and their renewals, and they could thus have earned very substantial rates of interest. But, as one of us observed during the course of arguments, there was no obligation on the family to invest moneys at a particular rate of interest, and no obligation on the Manager to do so. A potential difference of this kind, which could have been conceivably realised, cannot constitute a "detriment". In our view, therefore, the salary and emoluments of Narayana Iyer, as they are ascertainable, must be treated as his separate property, and we have to differ from the learned trial judge in this respect.
(15) I have now dealt with the main aspects of law, relevant to the findings of fact that we have arrived at in these appeals. Certain aspects, relatively subsidiary in character, remain for scrutiny. Learned counsel for the plaintiff respondent (Mr. K. S. Sankara Iyer) has drawn our attention to presumptions arising from the mixture of funds in the hands of a Manager, and to certain decisions relevant on this particular aspect. They are: Umrithnath Chowdhary v. Goureenath, (1869-70) 13 Moo Ind App 542 (PC); 34 Ind App 65 (PC); Tulasamma v. Venkatasubbayya, ILR 48 Mad 597: (AIR 1925 Mad 1125); which really relates to the accountability of an executor de son tort, who intermeddled with the estate, which principle might also apply to a Hindu in de facto management of joint family resources. Reference has also been made to Ramabai v. Raghunath, and
Rajanikanta Pal v. Jaganmohan Pal, 50 Ind App 173: (AIR 1923 PC 57). But, so long as the question is regarded as one of mixture of the funds from both joint and separate properties, by the maintenance of a common account or otherwise, this might not affect the separate character of the property already acquired, as I have emphasised; Mayne is specific that, here, the analogy of a trustee and a cestui que trust might not apply. Certainly, such mixture will raise a presumption with regard to the subsequent accretions from such mixed funds.
(16) With reference to the settlements, by Narayana Iyer in favour of defendants 2 and 4, regarded as gifts, learned counsel for the plaintiff-respondent cited certain decisions to show that the powers of a father or manager, while undivided, are very restricted in this respect; on stronger ground an individual cannot alienate his undivided share, or any portion thereof, by way of gift. Baba v. Timma, (1884) ILR 7 Mad 357 (FB), Rottla Runganatham Chetty v. Pulicat Ramaswami Chetty,(1904) ILR 27 Mad 162 and Peramanayakam Pillai v. Sivaraman, (FB) have been cited and relied on. As Ramaswami J. pointed out in Palvanna Nadar v. Annamalai Ammal, the occasion for a valid gift and the degree to which the gift could be made by the father or manager of a joint family, are both circumscribed. This decision was followed by Veeraswami J. in . In Ranganathan v. Controller of Estate Duty,
Srinivasan J. Pointed out that the father could not dispose of joint family property by gift or settlement, even to another member of the coparcenary, prior to a division. Gifts in favour of daughters, particularly with regard to occasions of their marriages, stand of course on a different footing. I do not think it is necessary to proceed further into these aspects, for, I find myself in entire agreement with my learned brother with regard to the gift or settlements in favour of the daughters, the degree of accountability of the defendants in the suit, and the extent to which they could, in equity, advance claims for improvements made bona fide in pursuance of the partition.
(17) Finally, I might make a brief reference to the question of reopening of the entire partition on the ground that it was not bona fide and that it was unequal. Since we are holding that valuable items, which were partible, were erroneously claimed by Narayana Iyer, as his self-acquisition and made the subject matter of separate settlements, it would be clear that the partition effected by him, in regard to what was admittedly joint family estate, was, in any event, imperfect and partial. The question is, whether that partition was not bona fide, and was so unequal as to necessitate the reopening of the entire partition in the manner in which the learned trial Judge, (Subrahmanyam J.) has directed. The twin criteria of bona fides and inequality have been applied to the facts, in several decisions of this court. It is sufficient to refer to Kandaswami v. Doraiswami, (1878-80) ILR 2-Mad 317 and Lakshmandada Naik v. Ramachandra Dada Naik (1879-80) 7 Ind. App. 181 (PC); Shiv Dayal v. Ramjiwaya ILR 12 Lah. 574: (AIR 1931 Lah. 603) may also be cited as well as Ratnabai v. Bhola Deo, AIR 1956 Nag
247. On the facts of the present case, I would agree that, even apart from this legal question, the only practicable course, and the course most in consonance with the interests of justice and convenience of parties, appears to be that adopted by the learned trial judge, in remarking the entire partition. This does not mean that the concerned parties will be precluded from pressing equities in their favour; for instance, to the extent to which the share of Narayana Iyer could be disposed of, his sons, who are settlees, may claim those allocations, and also claim that their shares may be localised as far as could be done with justice to the claims of others like the plaintiff in properties settled upon them. But these are refinements, into the details of which I need not enter; further, they have been adequately dealt with by my learned brother in his elaborate judgment. In any event, such a partition, which excluded very valuable properties upon what seems to be a deliberately erroneous claim, cannot be characterised as entirely bona fide or strictly equal.
(18) With reference to the arguments advanced on behalf of the 18th defendant by Mr. M. S. Venkatarama Iyer, and the matter of accounting. I do not think that any separate treatment of these aspects by me is called for, in the light of the findings furnished by my learned brother in his judgment, with which I agree.
(19) Before parting with the judgment. I certainly desire to express our indebtedness to learned counsel on both sides for the presentation of lucid and painstaking arguments during the course of a protracted bearing.
(20) These appeals arise out of proceedings for partition of the properties of a Hindu joint family whose ancestral home is in Palghat, Malabar Dt, now part of Kerala State, and whose properties are to be found in the States of Madras and Kerala. The principal parties to the suit are P. S. Narayana Iyer belonging to a family of six generations of money-lenders, and his four sons. The pedigree hereunder gives the history of the family.
| | |
Appu Pattar Samu Pattar Venkatarama Pattar
________________________________ (died April 1925) Died 1921
| | | |
Ramakrishna Narayana Iyer Sahasranama Iyer | Easwara Iyer 10
Iyer 2 Died 1912 |
| | |
Easwara Iyer Sesha Iyer |
3 4 |
| | | | |
P. S. Narayana Iyer Ranga Iyer Anantanarayana Lakshminarayana Ramanatha
(1st deft) 5 6 Iyer 7 Iyer 8 Iyer 9
The following genealogical table shows the names of the first defendant and his children.
P. S. NARAYANA IYER (1st defendant) (died 26-5-1951)
| | | | | | |
Seshammal Easwara Iyer Alamelu Ammal Venkatsubramania Meenakshi Ramachandra Kr ishna
Deft 9 Plff; born 1901 Deft 10 Iyer; Deft 2, born Ammal Deft 3 born Iyer Deft
Married Married 1919 Married 1908; Married Deft 11 1913 Married died Feb
1910 1916 1924 Married 1930 1951
-- -- | 1924 | =
Married Married | | Married Annapurni
Subramania Iyer T. R. Subramania | | Ammal Deft 12
(died) Iyer _______|_______ ______|______
| | | | | |
| | P.V.Narayanan P.V.Seshan P.R. Nara P.R. Venkata-
| | Deft 5 Deft 6 yanan chalam Deft 8
| | Deft 7
| | | |
| T.S. Ramanathan T.S. Narayanan P.S. Venkitaraman
| Deft 15 Deft 13 Deft 14
| | |
P.S.Thrivikraman P.S.Narayanan P.S.Venkitaraman
Deft 12 Deft 13 Deft 14
Ramachandra Iyer, the third son of Narayana Iyer instituted one suit for partition, O S 36 of 1950 in the Subordinate Judge's court, Kozhikode and the eldest son, Eswara Aiyar, instituted another suit for partition of the same properties on the original side of this court. The latter suit was numbered as C.S. 367 of 1950 and the suit instituted in Kozhikode was transferred to the Original side of this court, to be tried along with C.S. 367 of 1950 and numbered as C.S. 474 of 1950. The parties will hereafter be referred to with reference to their ranks in C.S. 367 of 1950 instituted on the original side of this court. The second defendant and his two sons have preferred the appeal O.S.A. 74 of 1959 against the decree in C.S. 367 of 1950. The appeal by the second defendant against the decree in the connected suit C.S. 474 of 1950 is the other appeal O.S.A. 75 of 1959. The plaintiff in C.S. 367 of 1950, to the extent the decree went against him, has preferred the appeal, O.S.A. 31 of 1960. O.S.A. 28 of 1960 has been preferred by the widow of the 4th defendant who died pending suit, with reference to the special claims put forward by her in the suit C.S. 367 of 1950. O.S.A. 29 of 1960 is a connected appeal by her preferred against the decree in C.S. 474 of 1950 to the same end.
(21) The contention of the parties in both the suits has been the same, and the properties are dealt with in the judgment with reference to the schedules to the plaint in C.S. 367 of 1950. The plaintiff and defendants 2 to 4 are the sons of the first defendant. Defendants 5 and 6 are the sons of the 2nd defendant. Defendants 7 and 8 are the sons of the 3rd defendant. The fourth defendant died in February 1951 subsequent to his filing the written statement, and his widow, Annapurni Ammal, was brought on record as the 19th defendant. The first defendant Narayana Iyer died on 28-5-1951, after filing his written statement, and his sons have been recorded as his legal representatives. The plaintiff amended the plaint by addition of paragraph 12(a), claiming that, on the death of the father, his one-fifth share in the joint family properties devolved on his sons the plaintiff and defendants 2 and 3, and that the plaintiff was, therefore, entitled to a 4/15th share in the joint family properties. The second defendant filed an additional written statement, and, therein, he denied the claim of the plaintiff to a 4/15th share, and pleaded that under the will and codicil dated 18-4-1943 and 14-3-1951, respectively left by the 1st defendant, he was the sole executor and legatee of all the assets left by the 1st defendant, and that the plaintiff had no right to claim a share of any of the properties. Though a will has thus been put forward in the written statement, the will has not been disclosed in the affidavit of documents or filed in the course of evidence, was not probated and had not been relied upon by the 2nd defendant in these proceedings. The case has been stated and discussed and rights claimed and adjudicated without reference to any will or codicil.
(22) Narayana Iyer is the eldest of five brothers and the son of Samu Pattar who died in April 1925. Samu Pattar's brother. Appu Pattar, died in 1900 itself. In the larger joint family to which Narayana Iyer belonged, the partition of the joint family properties was taken upon in 1932 and was finalised in 1939 by a registered deed of partition dated 9-9-1939, evidenced by Ex.P. 4. The two sons of Appu Pattar then living, his two grandsons by the predeceased son Eswara Iyer, the son of Venkatarama Pattar, the younger brother of Samu Pattar, and Samu Pattar's five sons were the parties to that partition. In view of the vastness of the properties and large business dealings, considerable time was taken in effecting division. But, it must be stated that the division was made in an atmosphere of cordiality and compromise. The parties had the assistance of one T. G. Ramaswami Iyer, a retired District Judge, appointed as Arbitrator, and three of their family lawyers as advisers. Even during the progress of the partition in the larger joint family, which was proceeded with in stages, from about 1938, the relationship between the plaintiff and his father got strained. Letters passed between Narayana Iyer and the plaintiff, and under Ex.P. 5, dated 13-1-1940, the father intimated the plaintiff that they would cease to be joint thereafter and that the plaintiff would have his rights as divided member satisfied by division by metes and bounds. The father proceeded with the division of the properties, purporting to exercise the power of the father to enforce division, and sent a memorandum of division to each of his sons on 12-2-1940. This was later followed up by a registered deed of partition Ex.P. 1 dated 26-10-1943.
In effecting this partition between himself and his sons, the father retained to himself immoveable properties, cash outstandings and securities of considerable value which were in his name, claiming them as his self-acquisitions in which his sons had no interest. He purported to divide only the properties which were allotted for his share in the partition of the larger joint family, and, here also, he claimed that, in respect of the properties allotted for discharge of debts, to the extent he had discharged joint family debts, by payment of cash, the cash was out of his separate funds, and to that extent he could appropriate the family properties. This partition, it must be stated, was accepted by the 2nd and 4th defendants without demur. The evidence shows that the 3rd defendant remonstrated at first, but was later made to submit to the partition. He sought an exchange of one of the properties allotted to his share with another, and got it. The plaintiff repudiated this partition wholly and declined to accept in discharge of the amount due to him from the larger joint family the property which his father allotted. He filed the suit O.S. 1 of 1940 on the file of the Subordinate Judge's court, Palghat, for recovery of the amount of Rs. 27,653 impleading all the members of the larger family and the decree Ex.P. 10 passed on 20-7-1943 was satisfied by payment by Narayana Iyer. In this suit the 3rd defendant has joined the plaintiff in impugning the partition as unequal and unfair. The second and fourth defendant in these proceedings affirmed the partition and stated that they had taken possession of the properties allotted to their respective shares by their father in 1940. They have gained substantially by their submission to their father, being the recipients of considerable favours from him by way of settlement of valuable properties.
(23) The principal contest in the appeals is about the immovable properties claimed by the father as his self-acquisitions and but for the settlement he made, it might not have been necessary for the parties to fight out to the last the issues as to the character of these properties. One of the valuable items referred to as the Nilambu forests of "Karulai estate" items 210 to 282 of the A schedule to the plaint, the father had settled on the 2nd defendant and his sons by a registered deed Ex.P. 21 dated 21-6-1949. By another registered instrument Ex.P. 22 dated 30-11-1949 he settled another very valuable property a bungalow by name Venkata Vilas in Madras in favour of the 2nd defendant and his sons and the 4th defendant. Also a fixed deposit for a sum of one lakh in the General Bank Ltd, that he had in his name, he divided into two fixed deposits of Rs. 50,000 each in the names of the 2nd and the 4th defendants about the same period. Three houses in the city, items 337, 338 and 339 he settled on his three daughters by registered deeds of gift dated 3-11-1949. It is these various settlements, ignoring completely the plaintiff and the 3rd defendant, that sparked off the simmering discontent and led to the institution of the suits by them.
(24) In the immoveable properties which the plaintiff claims as belonging to the joint family and set out in the A schedule, there is no dispute about items 1 to 171, as they have been specifically allotted at the partition of the larger joint family to the branch of Narayana Iyer. Items 172 to 282 also had been allotted at that partition to this branch, to enable Narayana Iyer to discharge the debts amounting to about Rs. 90,000 payable by the larger joint family to his sons, that is, the plaintiff and defendants 2 to 4. There was a claim that these items were given to Narayana Iyer personally, subject to his liability to discharge the debts due to his sons. As regards the remaining items, 283 to 341 the claim by Narayana Iyer was that these, excepting the items claimed by the 2nd and 4th defendants were his self-acquisitions. The 2nd defendant claims items 327, 328 and 330 as his self-acquisitions, and the 4th defendant claims a portion of item 341, an extent of 29 grounds and 1777 Sq. ft as his self-acquisition. There are some minor items in dispute like jewels and outstandings which it is not necessary to set out here at this stage.
(25) The learned Judge of this court, Subrahmania Nadar J, who tried the suits on the Original Side, in the main held that all the properties acquired by the 1st defendant and standing in his name as well as the items claimed by the 2nd and 4th defendants are all joint family properties. He held that the gift in favour of the 2nd and 4th defendants of item 336 is void. He also held that the gift of the Karulai estate in favour of the 2nd defendant is void. The learned Judge, however, upheld the gift of the three houses, items 337 to 339 of the plaint A schedule in favour of the three daughters. The fixed deposits of Rs. 50,000 each in favour of the 2nd and 4th defendants were held not binding on the estate. Excepting the sums acknowledged to be due to the plaintiff and defendants 2 to 4 on account of deposits made by them in the larger joint family and undertaken to be paid by Narayana Iyer out of the properties allotted specifically for the purposes, all the other outstandings to the credit of the father and brothers in deposits or otherwise in the General Bank Ltd, which the father had started were held divisible between the plaintiff and defendants 2, 3 and 18. The partition effected by the father in 1940 followed up by the registered partition in 1943, was held void and not binding on the plaintiff and 3rd defendant. The claim for improvements put forward by the 2nd defendant with reference to the properties which he had taken possession of under the partition effected by the father, was negatived. The 2nd 3rd and 18th defendants were directed to render account of the profits of the properties in their respective possession from the date of division of status, namely, 13-1-1940. The learned Judge gave certain directions for the taking of accounts, and the decree finally provides for the division of the properties equally between the plaintiff and defendants 2 and 3 and defendant 18 as the legal representatives of the 4th defendant.
(26) The first question that calls for consideration in these appeals relates to the finding that all the immoveable properties set out in the A schedule to the plaint are joint family properties. As would be seen presently, the family was one of the richest in Palghat and plenty of funds were available even to the junior members of the family. The normal presumption as to acquisition by individual members where substantial nucleus is established would apply, but difficulty arises in this case by reason of the fact that Narayana Iyer had independent sources of income, which cannot be considered to be negligible. Added to it, at the partition in the larger family, several items of properties in the name of individuals coparceners, including some of the disputed items, were considered as the personal property of their acquirer, and left out of consideration.
(27) Now, of the acquisitions prior to the partition proceedings in the main family, the first purchase in Narayana Iyer's name was a site at Purasawalkam, Madras, for a sum of Rs. 15,000, in May 1920. This property had later been sold by him in 1936 for a sum of Rs. 17,500 and the cash has been received by him. This alienation as such is not challenged. Next comes the acquisition of item 336 in the plaint A schedule, the bungalow 'Venkata Vilas' in Luz Church Road, Mylapore. It had been purchased in 1920 for a sum of Rs. 50,000 and improvements have been made to it estimated at Rs. 10,000 within about six months after the purchase. The site on which the buildings items 337 to 339 stand was purchased in December 1920 for a sum of Rs. 17,500. Also portions of the site of items 329 were acquired for small sums in 1926 and 1929.
(28) The principal contention raised by learned counsel appearing for the 2nd defendant in these appeals is that, as at the partition in the larger family these acquisitions had all been considered to be not joint family properties, the plaintiff can have no claim to these properties as properties of the family. Now when the larger joint family was joint, properties had been purchased not merely in the name of Narayana Iyer, but also in the names virtually of all the members in the several branches of the larger family. The plaintiff, in his evidence, has spoken to the investments in the names of several members of the family. The second defendant admits in his evidence that the majority of the members of the family had properties in their names and that, if each investment by the members were also taken into account, all the members of the larger joint family had investments in their individual names. It is also clear from the evidence that few of them had individual sources of income, apart from family funds. At partition of the larger joint family, the members agreed that except where an investment in the name of a member was expressly stated in the accounts of the larger family to have been made for the family out of the common funds of the family, the properties in the individual names were not to be brought into the hotchpot for the division among the members of the family. Such property would be taken by the individual as his personal property. Learned counsel for the second defendant contends that by reason of this agreement, the sons of Narayana Iyer are precluded from claiming a share in the properties held by Narayana Iyer at the time of partition in the larger joint family and not taken into consideration at the partition.
(29) As already stated, this family was one of the richest in Palghat and a well known firm of bankers in Malabar and in parts of Madras. The family had extensive transactions; its banking business was spread over Malabar, Madras, Coimbatore, and Madurai and was making good profits. the family properties were to be found besides in Malabar, in Coimbatore and Madurai. The family had forest lands, wet lands and dry lands, tile factories and ginning and groundnut factories. There is also evidence of the family having carried on some business in piecegoods. Samu Pattar, the father of Narayana Iyer, had assumed charge of the family business as manager in 1900, when Appu Pattar died, and continued his hold over the family till his death in 1925 and during this period, the family was having according to the 2nd defendant, the highest volume of business. During Samu Pattar's time, the banking business went under the style of E.N.A. Samu Pattar.
Even before Samu Pattar died, the evidence shows that Narayana Iyer was actively participating in the family concerns, though he had entered service in the Madras Bank which subsequently became the Imperial Bank, Madras in 1907. For some years he was in the Tuticorin branch, later he was transferred to Madurai and from there after some years he was posted to Madras. He retired from the bank in 1924 and in 1925 admittedly assumed de jure managership of the joint family and was in sole management thereafter. The 2nd defendant admits that between 1925 and 1933, properties worth over five lakhs were acquired for the larger family.
After the division in status in the larger family as the actual partition by metes and bounds progressed between 1933 and 1939, Narayana Iyer, the first defendant herein was in management of the affairs of the larger family by common consent: and it is admitted that, during this period, about four lakhs worth of properties were acquired for the larger joint family. The ginning factory and tile works were acquired for the family during the managership of Narayana Iyer between 1929 and 1931. All the new acquisitions for the larger joint family were the subject of partition under the 1939 registered partition (Ex.P4) in the main joint family. It will be seen from the records that as on 26th August 1932, the branch of Narayana Iyer had drawn from the funds of the main joint family a sum of Rs. 4,13,226 1-6 the branch of Appu Pattar Rs. 2,43,415 4-0, and the third branch (Easwara Iyer's branch) Rs. 13,702 2-7. There is some evidence that the drawings, subsequent to the death of Samu Pattar, by the branches became heavy and the business was getting dull and this led to the branch of Easwara Iyer demanding partition by the notice dated 26-8-1932.
(30) Ramakrishna Iyer, Narayana Iyer and others, the then members of the three branches numbered in the pedigree, on 5-6-1933 entered into the agreement, evidence by Ex.P.3, for partition of the larger family with the help of the arbitrator and advisers already referred to Clause 3 of the agreement refers to the resolving of the following disputes between the parties:
(a) The contention of the first branch, that is, Appu Pattar's branch, that they are entitled to extra share.
(b) The claim for extra remuneration by Samu Pattar's branch, and
(c) The decision as to how the drawing from the family funds till that date should be adjusted.
Under the agreement, the first and second branches abandon their claim for extra remuneration. It must be noticed that these two branches have been particularly responsible for the large acquisitions of the family. Evidently a quid pro quo was found in other provisions. As regard the withdrawals by the three branches--withdrawals by Narayana Iyer's branch being the heaviest and Appu Pattar's coming next--it was agreed that the withdrawals from the family till 26-8-1932, should be treated as common and joint family drawings and as common expenses of the family.
The next important clause (Clause 6) in the agreement runs thus:
"Except in the case of properties purchased in the name of individual members for convenience out of the monies found in the joint family business account books, the other properties standing in the name of individual members are their private (swakaryam) properties and are not liable to division.
The dictionary meaning of the word "swakaryam" is 'personal property', 'private affair'. Provision is made for the inter se division of the properties allotted to the respective branches among the members of the branches. It will be seen that Narayana Iyer and his brothers each got 1/15th share in the joint family properties. The agreement also provided that the members may have their own separate business pending completion of the partition. The partition was proceeded with by the parties smoothly, and in 1934 there was a division of the immoveable properties then available, parties entering into separate possession of their shares. The parties avoided even an award and a perusal of the registered partition deed dated 9-9-1939, Ex.P. 4, shows the friendly manner in which the senior members of the family had proceeded with the partition and avoided any wasteful ligitation. In fact, the very agreement, Ex.P. 3, states that they had been advised by friends and well-wishers that if the disputes were not amicably settled, there was likelihood of huge loss and hardship to the family and big litigation cropping up.
Due notice was taken of the fact of difficulties in allotting equal shares in the immoveable properties and disparities in the allotments were adjusted according to the satisfaction of the concerned parties. The deed recites that accounts had been taken of all the immoveable properties belonging to the joint family and divided. At the ultimate partition, they had divided the properties into 9 shares, instead of providing for subsequent division inter se in the first and second branches. Provision was made for discharge of the debts due to Narayana Iyer's sons from the common family, and immoveable properties of the common family were set apart for the said purpose and placed in the possession of Narayana Iyer. They are items 172 to 283 in schedules A to the plaint, and comprised in the J schedule of the partition deed. The partition deed provided that excepting as regards the provision for the male children of Narayana Iyer the other debts payable to the children, sisters, wives etc, of the respective shares should be discharged by them out of their respective shares.
(31) It will be apparent from the above proceedings relating to the partition in the larger family that not merely the members of the branches of Appu Pattar and Eswara Pattar, the sole survivor of the third branch, but also the other members of Samu Pattar's branch, that is, the brothers of Narayana Iyer, gave up their claim to share in the properties and funds that stood in the name of Narayana Iyer at the time of partition in the larger family. It is relevant, in this connection, to point out that, shortly after 5-6-1933, two of the brothers of Narayana Iyer, Ranga Iyer and Ananthanarayana Iyer, placed difficulty in the way of the amicable partition and this dispute was a matter of separate settlement between Narayana Iyer and the two younger brothers, Narayana Iyer agreeing to pay each of them a sum of Rs. 15000 with interest at 7 1/2 per cent at the time of the final partition. On this, they disclaimed all interest over what Narayana Iyer claimed as his self-acquisitions. This settlement between Narayana Iyer and the two brothers is evidenced by Ex.P. 7. This settlement is also the subject of reference and recording in the intermediate partition agreement between the ten members of the joint family, (Ex.D. 44), dated 22-8-1934.
(32) But the fact that the members of the larger family while settling their affairs, agreed not to bring into the hotchpot the acquisitions in the name of one or other of the members unless it had been shown as acquisition for the family in the Joint family accounts, cannot by itself conclude that the properties thus left out had been acquired by the members with their separate earnings and not with funds drawn from the joint family. The reasons which prompted the members of the main family not to probe into the acquisitions by the several members may be manifold. That all the members of the family had properties in their own names or at least cash investments of large amounts, is a matter of evidence. We do not have any evidence as to how the paddy income was divided and employed. It may be that the drawings were more or less equal, and according to equities, if all aspects of the matter were taken into consideration, and the difficulty of bringing the other assets into the hotchpot might have been felt by the members, since each had his own acquisitions. Where the investment were in cash, all the investments may not get disclosed and those whose investments were in immoveables would be at a disadvantage. Appu Pattar and Samu Pattar, and, in later days Narayana Iyer, had done much to swell the estate. The family owed not a little to them and special claims were advanced on this basis.
These considerations might have weighed with the heads of the branches in not pressing for putting into the hotchpot the properties held by the individual members of the branch. The parties were evidently advised that insistence on such full disclosure might lead to interminable disputes. The income from some of these properties and investments held by individual members might not have been brought into the joint family chest and assessed to incometax in that manner and they might have escaped assessment as individual income also. It may be that the value of the estate to be divided and the share allotted to the parties as per the record would swell up considerably if all the properties were brought in and the parties might have thought of avoiding the same It is a desire for secrecy it is contended--that led to the payments to Renga Iyer and Anantanarayana Iyer being shown as amounts due to them for Varadakshinai and due to their mother. I respectfully agree with the remark of the learned Judge at the trial that it was a wise decision on the part of the members of the family not to disturb the apparent titles as regards the properties and funds held by individual members of the larger family. But, as observed by the learned Judge, this does not lead to the conclusion that the properties or funds held by the individual member had been acquired as a result of his own separate exertions or out of his separate resources so as to disentitle his own son a share in those properties as member of his immediate branch of the coparcenary.
(33) the matter will have, therefore, to be considered independent of the provision in the partition agreement of the main joint family. One view could be, that acquisitions made by Narayana Iyer were out of the drawings from the joint family or other joint family income and would, therefore, be joint family properties of the larger joint family itself. Substantial and adequate nucleus could be shown, and in fact, as would be seen presently, has been established. As such the acquisitions could have been claimed by the main joint family itself as acquisitions of the family. But the members of the larger joint family would now be precluded from claiming any interest in the same. They renounced all their claims or interest therein, each member of the larger joint family relinquishing his claim against the properties in the hands of the other members. It is a case of mutual or cross releases. As the several members who participated in the partition were only representing their own branch and were not there in their individual capacity, the relinquishments would enure in favour of not only the members who actually participated in the partition and accepted the relinquishment but their children also. As each member gave up a possible claim against the other member in consideration of their not claiming the properties in his individual name, the release should be deemed to have been acquired at the expense of giving up a claim for a share in the properties in the hands of the other members of the family. Thus viewed, all the properties in the names of individual members would, as between themselves and members of their immediate family, be partible joint family properties.
(34) Another way of viewing the matter is to regard the acquisitions of each member as acquisitions for his branch. It should be noticed that, without being properties liable to be thrown into hotchpot in the division of the properties of the larger joint family, it was possible for Narayana Iyer to acquire properties for himself and his children, that is, to have properties separately for his branch. Narayana Iyer could have invested savings out of the drawings from the family chest and other funds of the family that passed through his hands, the larger family not expecting him to account for the same. Of course, there is no question of any misappropriation as other branches were also making such acquisitions. Again, Narayana Iyer who had independent income, might have mingled the funds and acquired properties with funds thus mixed and mingled. Ex facie, these acquisitions will be the joint family properties of Narayana Iyer's branch.
(35) The contention the learned counsel for the second defendant that Narayana Iyer's branch by itself could not hold joint family properties when they are not also the properties of the larger family, is not tenable. The partition proceedings in the larger joint family may be some evidence of the fact that there are no other properties of the joint family, but it does not preclude the members of the immediate joint family showing that, as between them and the head of their branch, the other properties were joint family properties. That separate branches as corporate bodies could hold joint family property in a larger joint family, is well established by decisions. The leading case on this subject is the decision of Bashyam Aiyangar J. Sitting with Arnold White C. J. In (1902) ILR 25 Mad 149 at p.154. After setting out the Mitakshara conception of a Hindu family, Bashyam Aiyangar J observed:--
"According to the above conception of a family, there may, of course, be one or more families all with one common ancestor, and each of the branches of that family, with a separate common ancestor.
As regards the property of such family, the 'unobstructed heritage' devolving on such family, with its accretions, is owned by the family as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate 'unobstructed heritage' which, with its accretions, may be exclusively owned by such branch as a corporate body.
The main family and its branches may possess joint property not only by operation of law but also by act of parties. Property acquired without the aid of joint family property, by or more individual members thereof--whether they belong to different branches or to one and the same branch of the family--may by act of parties be incorporated with the joint property of the main family or one of its branches and a stranger may also give property to the family as a whole (vide Radhabai v. Nana Rav, (1878-79) ILR 3 Bom 151) or to one of its branches (vide Kunacha Umma v. Kuttimammi Hajee (1893) ILR 16 Mad 201 (FB) as a corporate body. Even if the undivided family is not possessed of any nucleus of property, which has come to it as 'unobstructed heritage', it may be that, by act of parties property acquired jointly by all the members or separately by one or more members thereof, can be impressed with the character and incidents of unobstructed heritage or joint property belonging to the main family or to any of its branches. Property devolving by inheritance as 'obstructed heritage' on all the members of joint family (vide Gopalasami v. Chinnasami (1884) ILR 7 Mad 458) or upon any one of them, may likewise be impressed with the character of joint family property. But so long as family remains an undivided unit two or more members thereof--whether they be members of different branches or of one and the same branch of the family--can have no legal existence as a separate independent unit, but if they comprise all the members of a branch, or of a sub-branch, they can form a distinct and separate corporate unit within the large corporate unit and hold property as such. Such property may be the self-acquisition or 'obstructed heritage' of a paternal ancestor of that branch as distinguished from the other branches which property has come to that branch and that branch alone as 'unobstructed heritage', or it may be the self-acquisition of one or more individual members of that branch, which by act of parties has been impressed with the character of joint property, owned by that branch and that branch alone to the exclusion of the other branches".
(36) In . The Supreme Court has affirmed the position. Subba Rao J stating the legal position thus
"Coparcenery is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body of a family unit. The law also recognises a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one can acquire hold and dispose of family property subject to the limitations laid down by law Ordinarily the manager or by consent, express or implied of the members of the family any other member or members can carry on business or acquire property subject to the limitations laid down by the said law for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance"
(37) Before examining in detail the nature of the acquisitions made by Narayana Iyer which commenced in 1920, we may, at the outset set out the extent of the wealth and resources of the family, whose affairs Samu Pattar the father of Narayana Iyer, was in management till 1925 and in which Narayana Iyer himself participated actively till he assumed sole management in 1925. (After discussing the evidence in this regard, His Lordship proceeded) thus we find that even during the lifetime of Samu Pattar who had been in management of the family from 1900, Narayana Iyer was participating in the management and handling the resources and funds of the family.
(38) Since the acquisitions of Narayana Iyer in this case start from 1920 when he was only a junior member of the family and they are in three distinctive periods the scope of enquiry will also vary according to the periods of acquisition. The first period is the period during which Samu Pattar was in management that is, till about October 1925. From 1925 to 13th January 1940 is the second period when Narayana Iyer was the manager of the entire joint family. Till August 1932, he was the manager of the entire joint family. There is a division in status in the larger joint family in August 1932 and the partition in this family progressed till it was finalised in 1939. But, right through the period, he continued to be the manager of his own branch. The acquisitions of after the partition in his branch in January 1940 would have to be considered from a different angle and this will be the third period of acquisition.
(39) The legal position as to acquisitions by members of a family like the one under consideration is clear. The family was one to whose members fluid resources were easily available. The evidence shows that members drew cash from the family chest for the mere asking and as regards Narayana Iyer even during the period of his father's management he need not even ask it was available to him for taking at his will. When a coparcener seeks to prove that an acquisition made by a member is partible the first task is to show that at the relevant time, the joint family had nucleus ample enough to enable the acquisition. If in this he fails the person in whose name the property stands need not prove out of what funds he acquired the properly to establish that it is impartible. It is well settled that if in fact on the date of acquisition by a member of a joint family of any particular item of property the join family had sufficient resources with the aid of which the property in question could have been acquired, the property should be presumed to be acquired from out of the joint family funds and so partible property of the family. Of course it is only a presumption: the person claiming the property as his own could show the contrary and establish that the acquisition was without the aid of joint family property.
(40) In ILR (1948) Mad 440 at p. 447: (AIR 1947 PC 189 at P. 192) the Judicial Committee stated the legal position thus: "The Hindu law upon this aspect of the case is well settled, Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property;"
vide also and Amritalal v. Surathlal, AIR 1942 Cal
(41) In the case of a junior member, it may be open to him to show that, even though the joint family had ample uncleus, the funds were not at all available to him. In the case of a manager of a joint family, the burden is heavier. If a manager of a joint Hindu family in charge of adequate funds claims that the immoveable property which had been acquired in his name was acquired by him out of his separate assets, the burden of proof lies heavily on him to establish his claim. It is needless to point out that the manager as the head of the family has control over the income and expenditure and he is the custodian of the surplus, if any. In Gajendragadkar J (as he then was) delivering the judgment of the court observed:
"...... in our opinion, there is no doubt that where a manager claims that any immoveable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparceners".
(42) Before examining the contested items of acquisition, there is one argument advanced on behalf of the 2nd defendant which may be dealt with immediately. This relates to the theory that acquisitions from allowances made by the joint family without liability to account for the balance or, as put for the 2nd defendant, acquisitions out of the savings from the maintenance allowance provided by the manager to a member of the family are his personal property. It may be noticed that in this case, the drawings of Narayana Iyer's branch was to the tune of over Rs. 4,13,000 by 1932. It is admitted that each branch has been drawing large amounts. The contention on behalf of the 2nd defendant is that, apart from the drawings, the funds of the joint family were not available to Narayana Iyer, and that these drawings represent allowance for family expenses of the branch spread over decades. It is represented that though the total has gone up over four lakhs, it represented debits of small amounts for family expenditure for clothes, jewels of female members and expenses incurred on festive occasions like marriage, deepavali etc. It is argued that it is unlikely that any surplus amount was left out of these amounts. It is further contended that in law the purchases made out of the savings from the maintenance allowance would not constitute partible property of the joint family.
(43) First to examine the case on the merits: It must be remarked that the entire accounts of the family are not before the court, and the accounts available are not complete (After discussing the merits of the case, His Lordship proceeded:) In the absence of complete accounts, from the few accounts produced, it is difficult to agree with the contention of the 2nd defendant that the drawings against Narayana Iyer's branch represent only maintenance allowance and the amounts spent on occasions like marriage, deepavali etc.
(44) The proposition without any qualification that an acquisition from the savings of the joint family income given to the acquirer by the manager without liability to account for any balance arising after he has maintained himself, will not be partible property, is too broadly stated. No doubt, as between the other members of the family and the branch of the acquirer the property would not be partible; but the character of such acquisition in the hands of the acquirer vis a vis his male children would not be the same. The cases particularly relied upon ILR (1940) Mad 322: (AIR 1939 Mad 911) and are all cases where claim for shares in such acquisitions was made by the other members of the family, and not by the children of the acquirer. The proposition, as set out in Principles of Hindu Law, Mullah, 12th Edn at page 354 is:
"It is competent to the manager to allot to any individual member a portion of the family property to enable him to maintain himself out of its income. Any savings out of the income and investments of such savings will be the separate property of the member."
Reliance is placed by Mulla for this proposition on the decisions in ILR (1937) Mad 990: (AIR 1939 Mad 571) and ILR (1940) Mad 322: (AIR 1939 Mad 911). The former case related to a case of insurance policy and proceeded on the presumption that, where an assured is shown to have money available from private as well as joint family sources, the premia for life would be paid from the man's own money. The question that had to be considered in that case was as to who was entitled to the insurance money--whether the widow of the assured or the undivided younger brother of the assured. On behalf of the brother, it was contended that only one premium had been paid, that it was furnished from the joint family funds, and that the policy money should, therefore, be regarded as acquisition for the joint family. It was also contended that the assured, as the elder, was by right the manager, and that a manager could not take money from the family funds for his own aggrandisement. Their Lordships left the question open as to what would have been the position, had the assured been the managing member of the family.
The evidence in that case showed that the mother was managing the property of the family, and that she used to pay money to the assured for his personal expenses. She had stated that she paid him a sum of Rs. 175 for insuring his life. A question was mooted as to whether any profit made out of money paid to a member of a joint family by the manager for his personal use which he is free to spend as soon as he receives it, must, because he chooses to invest it for some purpose which is clearly not intended for the benefit of the family, be deemed to be a family acquisition. Their Lordships, following the decision of the Privy Council in (1892) ILR 19 Cal 253 (PC) observed that a profit made by the member of a joint family from the enjoyment of joint property without detriment to it is his separate self-acquired property. They observed further: ILR (1937) Mad 990 at p. 1002: (AIR 1937 Mad 571 at p 575).
"When money is given to a member of a family by the manager from family funds to be spent by him for his personal use, it seems to us that any profit made by him can hardly be said to be in detriment of the joint family ".
As already stated, the decision in ILR (1937) Mad 990: (AIR 1937 Mad 571) was actually based upon the fact that the assured had other source of income, there being evidence that he was borrowing money from other persons. Whatever it may be the money in that case was given for the personal use of the acquirer by the manager. It was not for the branch of the acquirer or his family. The claim was made as against the acquirer by his brother. In my view, this makes a distinction. It must be noted, however, that in it is observed thus:
"We are also of the opinion that there is no proposition of law by which the insurance policies must be regarded as the separate property of the coparceners on whose lives the insurance is effected by a coparcenary, and that the proceeds of an insurance policy do not belong to the joint family "
Their Lordship further observed:
"...... but the question is not whether Ram Ran Vijaya Sinha look out the policies for the benefit of his own family but whether he did so without detriment to the joint family funds. If it was the latter, then anything obtained with the joint family funds would belong to the joint family, and this is the result in view of our finding that it was the joint family which had paid for these policies and not Ram Ran Vijaya Sinha individually"
With reference to insurance policies, this court has, in laid down that, having regard to the modern social
conditions and the growth of individual consciousness in market contrast to the more corporate outlook of earlier days the general presumption must be that the amount of the policy belongs to the assured as his separate properly and does not become a joint family asset. It is observed in referring to the above case, that no general proposition can be advanced in the matter of an insurance policy of a member of coparcenery and each case must be dealt with in accordance with the circumstances surrounding it.
(45) In ILR (1940) Mad 322: (AIR 1939 Mad 911) each one of the brothers in the family, as soon as he married set up family separately for himself, being given a portion of the family property approximately roughly of his share for his own exclusive enjoyment. The brothers began to cultivate and live separately and enjoy the lands allotted to them by the father. The allotments were reasonable portions of the family lands by way of a fair provision for maintenance. The plaintiff, one of the brother's claimed partition of properties standing in the name of individual brothers as also money outstanding in their names, other than the original joint family properties. It was contended for him that the Hindu law stamps the savings derived from every portion of the joint property with the character of joint family property so as to make them divisible among the members as of the family property itself. Krishnaswami Iyengar J. observed at page 326 (of ILR Mad): (at page 913 of AIR):
"As I have said, the joint family acting through the manager has made an allotment of property to the member concerned in order that he may maintain himself out of it without having to bring its yield into the family granary for common consumption. In such a case it is impossible to argue that the family could have intended to make the member accountable for the income of the property so allotted. The idea, undoubtedly, when an arrangement of this kind is made, 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"
The parties in the case belonged to the caste of Gounders, and it was noticed that, according to the undisputed evidence in that case in the community, as soon as a son married he left the family residence, and set up family for himself and began to live separately with his wife in a separate house or the portion of house allotted to him by the father or manager of the family. Commensality ceased, but no separation in estate followed. The judgment notices that it often happened that a portion of the family lands was allotted to the member in order that he may cultivate it and maintain himself, his wife and children out of its income (page 324 (of ILR): (at 912 of AIR)). The property allotted to each brother for his maintenance was more or less his share which he would have got on a fair partition. Now it cannot be denied that if, after there had been a partition acquisitions were made by working on the land the acquisitions would be joint family property of the separated member as between himself & his children. It is well established that sons, grandsons & great grandsons in an undivided joint family acquire vested interest in the income of the family also. It may be that, as between the brothers, the property having been exclusively allotted for the maintenance of one of them, the others can lay no claim to the savings, but between the acquirer and his sons, these savings would, in my opinion, be joint family property.
When maintenance allowance is to a member and his children, if savings are made therefrom, such savings are at the expense of the children also. The acquisition is by use of joint family income. It may be that the father is not accountable to the larger joint family, because it is already accounted for by receiving the amount for the maintenance of himself and members of his family. But he will have to account to the members of his own family, as they too have interest in the said income. The question in this form did not arise in, ILR (1940) Mad 322: (AIR 1939 Mad 911). Their Lordships in that case were concerned only with the heads of the four branches of the family. In the other decision relied upon by learned counsel for the 2nd defendant, also, this question did not arise for consideration, But it may be noticed that the junior members of the branches were also parties in that case, and the contention was that the purchase out of the savings of the income from the lands which the respective branches had taken for their maintenance would constitute self-acquisitions of the respective branches.
(46) In the Principles of Hindu Law by Mullah, 12th Edn. at page 337 the learned author specifies property acquired in the following nine ways as separate property or self-acquired property of the acquirer:
1. Obstructed heritage, that is the property inherited as obstructed heritage by a Hindu from a person other than his father father's father or father's father's father;
2. Gift--A gift of a small portion of ancestral moveables made through affection by a father to his male issue in his separate property;
3. Government grant;
4. Property lost to family and recovered by a member without the assistance of joint family property;
(5) Income of separate property, and purchases made with such income;
(6) Share obtained on partition by a coparcener;
(7) Property held by sole surviving coparcener;
(8) Separate earnings of a member of the joint family; and
(9) Acquisitions made by means of learning now declared by the Hindu Gains of Learning Act 1930 as the separate property of the acquirer.
Maintenance allowance by the manager of a joint Hindu family to a junior member does not come under any one of the heads of separate property referred to above. The allowances are not provided simply on the favour of manager and therefore, cannot come under the category of gifts of small portion of the ancestral moveables made through affection by a father to his male issue. In the Mitakshara, Chapter I, Section IV, referring to effects not liable to partition, the author, commenting on the text of Yajnavalkya, says:-
"The author explains what may not be divided, whatever else is acquired by the coparcener himself, without detriment to the father's estate, as a present from a friend, or a gift at nuptials, does not appertain to the coheirs. Nor shall he, who recovers hereditary property which had been taken away, give it up to the coparceners; nor what has been gained by Science".
Verse 2 runs thus:
"That which had been acquired by the coparcener himself without any detriment to the goods of his father or mother; or which has been received by him from a friend, or obtained by marriage, shall not appertain to co-heirs or brethren................ "
Verse 6 is as follows:--
"Here the phrase "anything acquired by himself, without detriment to the father's estate"
must be everywhere understood and it is thus connected with each member of the sentence; what is obtained from a friend, without detriment to the paternal estate; what is received in marriage, without waste of the patrimony; what is redeemed, of the hereditary estate, without expenditure of ancestral property; what is gained by science, without use of the father's goods. Consequently, what is obtained from a friend, as the return of an obligation conferred at the charge of the patrimony, what is received at a marriage concluded in the form termed Asura or the like; what is recovered, of the hereditary estate, by the expenditure of the father's goods; what is earned by science acquired at the expenses of ancestral wealth; all that must be shared with the whole of the brethren and with the father."
The expression "without detriment to the father's estate" in the original is "Pithrudruvya Virodhena". The translation is from the Principles of Hindu Law by J. C. Ghose.
(47) The property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family. The manager as the head of its family has control over the income and expenditure and he is the custodian of the surplus, if any. So long as he spends the income for the family purposes, he is under no obligation to economise or save, and the family purposes are the maintenance, education, marriage, sraddh and other religious ceremonies of the coparceners and of the members of their respective families. If, for convenience sake, he himself takes the responsibility of realising the entire income of the family and maintaining the family members and he distributes the income of the family to the heads of the branches under him so that they may maintain themselves and their children, such an allowance cannot be deemed to be gift of the father or the manager. It is in discharge of his obligation to maintain the junior members of the family out of the income of the family. In the circumstances, in my view, even though as between the manager who disburses among the heads of the several branches and inter se between the heads of the several branches none of the heads of the branches are accountable they will hold the maintenance allowance received by them vis-a-vis their own children as income of the family and any savings or acquisition therefrom would be joint family property vis-a-vis the members of the branch in question.
(48) The aforesaid discussion answers the contention of learned counsel for the 2nd defendant that acquisitions from the drawings for maintenance could not be joint family property as between Narayana Iyer and his sons. But, on the facts of this case, this question does not even call for decision. It has not been established that the drawings are just allowances by the manager for the maintenance of Narayana Iyer's branch and Narayana Iyer and no other funds of the family apart from those drawings.
(49) At this stage it will be convenient to elaborate a little more on the private or personal resources of Narayana Iyer, already adverted to. He got employed on a salary of Rs. 100 per month in the Bank of Madras even in 1907 and at the time of his retirement in October 1924, he was drawing a salary or Rs. 1175 plus house rent allowance of Rs.
100. He was bill manager of the Bank and he recommended the loans applied for by the constituents; and the loans went upto several lakhs. The case for the 2nd defendant is that grateful constituents paid Narayana Iyer large sums as presents. He states that sovereigns in hundreds used to be given to Narayana Iyer on occasions like Deepavali and New Year. But except the evidence of the 2nd defendant, there is nothing tangible on which an inference could be made that substantial amounts running upto several thousands were received by Narayana Iyer as presents. True, Narayana Iyer was occupying the post of bill manager and had to recommend loans and, on his report, depended sanction for loans on applications by the constituents a sinecure post from the point of view of the constituents. It may be that Narayana Iyer received certain mamool presents from constituents, more as complements on occasions like New Year's day Deepavali etc.
According to the 2nd defendant, Narayana Iyer had gold bars and silver bars and the purchases were made out of the sale proceeds of the bars. There is no evidence whatsoever of Narayana Iyer converting gold and silver bars into cash and investing the sale proceeds and issuing cheques on the funds thus secured as deposits. But, all the same, he admits that Samu Pattar's branch had no separate property of its own before 1934. According to the 2nd defendant, strangers paid Narayana Iyer for advice tendered. No constituent has been called to depose that Narayana Iyer was being given hundreds of sovereigns as presents leave out of illegal gratifications. There is no evidence of any large independent investment by Narayana Iyer. True, he was drawing a fairly high salary. One can also imagine that he must have been receiving some amounts and even sovereigns as mamool from constituents and those who sought his advice in the matter of acquiring loans. But, in the absence of any evidence as to the quantum, it will be speculation and unsafe to build a case of Narayana Iyer being possessed of very large amounts as personal earnings. The utmost that can be said is that Narayana Iyer had independent resources of his own by way of salary and certain presents received from the constituents. A line has to be drawn as to what could be readily imagined and what is established by legal evidence.
A member of an undivided family can certainly have separate acquisition of property for his own benefit from his personal resources, and keep it impartible between himself and his children. But, when it is established that substantial family funds were available to the member to make purchases or that he blended his earnings with the joint family assets, then the onus would be on the member to prove that the acquisition in question was made wholly out of his own earnings. The law as to blending is summarised in Hindu law. Principles and Precedents by Reghavachariar. 4th Edn. at pages 252 and 253 thus:
"Whether a person having control of the joint family property brings into his separate account or he brings his separate estate into the joint family account, the effect is the same and the properties become blended so as to invest the separate property with all the incidents of joint family property. The real question for determination is what is the true conclusion to be drawn when people united by bonds of close relationship and living as members of a joint family draw for the joint family expenses out of a fund enriched by other contributions. If they confuse the income of the joint properties with the separate ones, their intention presumbly is that the separate properties are to be treated as joint family ones..........The onus of proving such blending or throwing the separate property into the joint stock, is however, on the person alleging it and cannot be held to be discharged by the mere proof of the existence of a common till or a common bank account if the accounts are clearly kept and there is no confusion of income".
In ILR 50 Mad 582 (591): (AIR 1927 Mad 676 at p. 680) Reilly J observed:
"The fact that the manager of a joint Hindu family, who has his own separate property, keeps money which is the income of the joint family property and money which is the income of his separate property in the same box or the same money bag and cannot say of any coin to which income it belongs, indicates nothing if he keeps separate accounts of the two incomes. Nor would paying both incomes as received into the same account in a bank by itself alter the position so long as he maintained, separate accounts of them. But, if no separate accounts of receipts and expenditure under the two heads were maintained, and if the general expenditure for the support of the whole joint family were provided from the box or money bag of bank account on a scale which exhausted the whole of both incomes or much exceeded the income from the joint family property for a considerable time, an inference or intention to surrender the separate right to the joint family might properly be drawn in many cases. We cannot however, appreciate the significance of an act until we know the circumstances in which it is done. Similar acts in different circumstances may have very different significance".
This statement as to the law of blending, as set out by Reilly J has been referred to with approval by the Privy Council in AIR 1937 PC 61.
(50) The case of ILR 40 All 159: (AIR 1917 PC 12) is of considerable assistance on the facts of the present case. There, of the two brothers, Raj Narain and Ram Narain, Raj Narain practised as a pleader at Lucknow. He was manager of the joint family. Ram Narain practised as pleader at Hardoi, where he was very successful and became very rich man. During the time when Raj Narain was kartha and after Ram Narain became kartha, properties were acquired at Hardoi in the names of Raj Narain, Ram Narain in the name of the son-in-law of Ram Narain and in the names of others. Books of accounts of the family were kept at Lucknow, where Raj Narain lived, but Ram Narain, who was at Hardio acted as manager of the properties at Hardio as well before and after he became the manager of the family. There was evidence of his receiving money from Lucknow to make purchase of an item of property, and he received income and made disbursements in respect of joint family properly at Hardoi. But the purchases at Hardoi were made, to a large extent, not with the joint family moneys but with fees earned by Ram Narain in his practice as a pleader and the contest in the case related to these properties. The family was admittedly a joint Hindu family and possessed ancestral property. Their Lordships observed at p. 163 (of ILR All): (at p. 14 of AIR)
"In the Hindu joint family the law is that, while it is possible that a member of the joint family should make separate acquisition, and keep moneys and property so acquired as his separate property, yet the question whether he had done so is to be judged from all the circumstances of the case."
Their Lordships further observed at p. 164 (of ILR All): (at p. 14 of AIR).
"The position with regard to the private earnings of Ram Narain is this: It has not been established that any circumstances existed from which it could be inferred that there was any joint family estate in the separate earnings of the four brothers, and it must be accepted that the earnings of Ram Narain were moneys which he was at perfect liberty to use in any manner that he thinks fit. At the same time, it would be quite consistent with the principles which regulates joint family estates that he should in fact have brought them into the joint property and made them part of the whole. The question is: Has he done so?"
Their Lordships then referred to the manner in which accounts were kept. The accounts showed receipts from the professional income and receipts from the professional income and receipts from properties which were admittedly joint family properties. Their Lordships referred to the account as an "omnibus" account. The entries showed certain payments of joint accounts, of revenue payments in respect of villages which were joint family property, of income received from such villages, of fees received for professional work as pleader, of payments for the purchase of villages in the name of Kartha Raj Narain, and of payments for salary made to servants at Lucknow. A balance was struck of these incomes and expenditure from the mingled source. Proceeding, their Lordships observed at p. 166 (of ILR All): (at p. 15 of AIR):
"Now there is nothing whatever to show that out of this account payments were from time to time transmitted to the joint family accounts that were kept at Lucknow, and this, in their Lordships' opinion, is a most material matter, because, if no such remittances were made, it follows that the balances that were carried forward from time to time and brought into account against future purchases were blended balances of Ram Narain's own earnings and of joint moneys, that they remain so blended throughout the whole period of time"
Their Lordships commented on the fact that apart from the omnibus book it was not shown that a separate joint property account was kept and concluded that the books blended Ram Narain's professional income with his receipts and payments on account of joint properties and thus afforded evidence upon the question under consideration.
In Mayne's Hindu Law, 11th Edn. the position is stated thus at page 350:
"To say that there is a duty to keep an account of the income of his separate property is to say that a man cannot spend his separate income for family purposes except at his peril. Where, however, no accounts are kept of the joint income, the inference may in a proper case be made that what is claimed as self-acquisition was really made at the expense of the joint family"
The case of (1907) 29 All 244 has some similarities with the present case. The action in question was between the sons of one Durga Prasad. Durga Prasad had two brothers when his father died. He was eldest and aged about 20 at the time of his father's death in 1849. In 1852, he entered the service of Government Educational Department and ultimately was raised to Inspector of Schools on a salary of Rs. 750 at the time of his retirement in 1885, with a pension of Rs. 4000 a year. Durga Prasad got divided from his two brothers in 1886 and obtained certain properties for his share. Till his death in 1894 he lived with his sons as member of the joint Hindu family. He left two Wills of his properties, contending that they were his self acquisitions. The division was unequal and reasons were given in the wills for the inequality. The two sons who were aggrieved by the dispositions, questioned the validity of the Wills, contending that all the properties were ancestral. Their Lordships concluded that there were no properties of Durga Prasad which could be classified as self-acquisitions according to Hindu law, observing at pp. 254 and 255.
"It is admitted that Durga Prasad and his sons lived together as a joint Hindu family, and it is established that there was a considerable nucleus of ancestral property in his hands after the partition. The onus was therefore on the respondent to prove that his subsequently acquired property was his separate estate. How has the onus been discharged? The most available evidence on the point is that contained in the books of Lakshminarain, a native banker of Bareilly, with whose firm Durga Prasad kept account from 1866, the year of the partition, until 1884, when it was closed. Those books were produced on behalf of the appellant, and the clerk who produced them said--"I know Durga Prasad. He had an account with the firm. The income from villages and pay used to be deposited. There was but one account.' So far as their Lordships are able to form an opinion, this appears to be a correct description, and it was not controverted by the learned counsel for the respondent. The entries show that properties of considerable value were from time to time purchased by Durga Prasad and that he did not in any way discriminate between the sources of his income, but blended them all in one general account. There is oral evidence also that his sons when they became of age to earn their own living gave the pay which they received to their father with whom they lived and by whom they were supported.
This is strong evidence that there was but one common stock of the whole family, into which each voluntarily threw what he might otherwise have claimed as self-acquired; and that the property purchased by or with the assistance of, the joint funds, was joint property of the family, and not of any particular member of it".
No doubt, by merely mixing income from the joint family property with the income from the separate property, the corpus of the separate property does not get incorporated with the joint family property. As pointed out in Mayne's Treatise of Hindu Law and Usage, 11th Edn at page 350 "the intention to benefit the family by spending the income of the separate property for family purposes cannot be converted into an intention to transfer the property itself to the joint family". But, where the income from the joint family and the personal earnings are mixed together and acquisition made such acquisition should normally be held to be joint family property. It is an acquisition at the expense of the joint family. At the very source there is blending. It is not a case of impressing an acquisition from separate funds with joint family character later where there may be room for ambiguity and difference of opinion.
(51) Now the acquisitions of immoveable properties whose character has to be examined, fall in three periods as hereunder. The bungalow Venkata Vilas item 336 of the plaint A schedule acquired on 12-9-1920, and the properties adjoining Venkata Vilas on which three small bungalows, items 337 to 339 were put up acquired in December 1920. Item 329 was first acquired in 1926 and added to later: item 340 in 1934, item 283 to 325 and 326 in 1934, and items 330 to 333 usufructuary mortgage right of the main family by assignment in 1939. The four items 336 to 339 were acquired when Narayana Iyer was a junior member of the family. The other items above referred were all acquired after he became manager of the family on Samu Pattar's death. Items acquired subsequent to the division in status in 1940 form a distinct category.
(52) The most contested of these items is Venkata Vilas purchased under Ex.P. 50 on 19-9-1920 for a sum of Rs. 50,000. The sale deed refers to the receipt of Rs. 50000 on 4-8-1920 through O.A.O.K. Lakshman Chettiar by means of cheques drawn on the Madras Bank given by the vendee. At that time, admittedly Narayana Iyer was cashier in the Imperial Bank of India (originally Bank of Madras). The plaintiff has secured and exhibited a certified copy of the personal account of Narayana Iyer for the whole of the year 1920 in the Imperial Bank (Ex.P. 124) (After discussing the facts His Lordship proceeded)
It is clear from the records that, till about 1940. Narayana Iyer never intended making any acquisition which would enure to him alone and not to be acquisition of his family. He had no favourites among his sons in 1935, when he started the General Bank Ltd, and when he purchased shares and made deposits of money equally in the names of his sons Statements of income for income tax subsequent to the partition have been prepared by a registered accountant and auditor. A single statement of income was being submitted for the properties allotted to him at the partition in the joint family and the income from the properties and subsequently acquired by him and claimed as his self-acquisitions.
(53) I agree, in the circumstances, with the inference of the learned Judge that Narayana Iyer did not regard himself as constituting a distinctive unit in regard to the holding of properties from the unit represented by the joint family consisting of himself and his sons. While there can be no question as to the character of acquisitions made by Narayana Iyer after his father's death and when he became the manager of the joint family as regards Venkata Vilas, apart from the positive aspect of the evidence discussed already, one can hold that, at any rate, it is a purchase from the blended funds. The principle as to blending in its practical application, if I may say so with respect, is lucidly set out in the headnote in Chabaldas v. Ramdas, (1909) 11 Bom LR 606:
If a Hindu having ancestral moneys spend them all on the support of his family, and, working independently, makes large extrinsic gains, which he keeps wholly distinct, he may treat the latter as his self-acquisitions. But if he mixes his gains with his ancestral moneys, he cannot afterwards be allowed to separate them by a mere account. Where there is an indiscriminate blending of ancestral with self-acquired properties, what is purchased out of the aggregate result is ancestral. Where, after a man has made such money he comes in for a small addition of a fixed and ascertainable character, which is ancestral and where he can account for the expenditure of it over and over again in maintaining his family, it may lose its infecting character and deprive his sons of the right to insist that it has coloured all the rest of their father's self-acquired property".
(54) The drawings of Narayana Iyer's branch for the joint family in the later years were considerable. Whereas on the 1st Chitrai 1931, the drawing was about Rs. 3,51,000, by August 1932, it had swelled to over Rs. 4,13,000. In April 1934 it had swelled to over Rs. 4,77,000. No accounts are available as to the receipts and disbursements by Narayana Iyer during his stewardship of his immediate joint family. The inference is therefore, irresistible that, even though Narayana Iyer might have had independent earnings during the period of his managership in his dealings he has so mixed his earnings with the funds of the family as to destroy their self-acquired character.
(55) I shall now take up for consideration items 327, 328 and 330 of the plaint. A schedule which are claimed by the 2nd defendant as his own personal acquisitions.
(After discussing the facts His Lordship proceeded):-
(56) These acquisitions by the 2nd defendant are after the division between Narayana Iyer and his sons which the 2nd defendant had accepted without demur. The plaintiff alone repudiated the partition in its entirety. The 2nd and 4th defendants had entered into possession of their properties which the father chose to allot to them. There is evidence that the 3rd defendant also took possession of some properties after some remonstrance. In such circumstances, the presumption of Hindu law as to acquisitions by members of the joint family cannot apply. Even assuming that the partition made by the father was ineffective when challenged on grounds of partiality, inequality and fraud, still it has brought about a division between the members of the family. The father had power to effect the division in status and by metes and bounds. The shares had been allotted. The question is not whether there has been acceptance of the division by all the members, but whether there is in law separation in estate and interest. It may be that the allotments may not stand scrutiny and there may have to be re-adjustment, but the legal effect of the partition as altering the status of the family cannot be undone. After the division in status the joint family with its incidents comes to an end, erstwhile coparceners become tenants in common and the approach to the character of the acquisition has to be from the perspective.
(57) Amongst tenants in common where one tenant in common acquires property in his individual right, with no intention of making it common property, the property will not be divisible. The 2nd defendant or 1st defendant for that matter or the 4th defendant may have received the rents and profits of the share of the plaintiff or the 3rd defendant in the properties which were admittedly ancestral and divided by the father but the persons in possession did not become thereby trustees of the rents and profits so received on behalf of the others who have not joined in the realisation of rents and profits. As noticed in Kennedy v. De Trefford, 1897 A.C. 180.
"There is no fiduciary relation between tenants in common of real estate as such. Nor can one tenant in common of real estate, by leaving the management of the property in the hands of his co-tenant impose upon an obligation of a fiduciary character".
A co-sharer would continue to be liable to account for the rents and profits received by him in excess of his share; but even if he fails to maintain separate account of his lawful share and is in possession of excess profits, the funds collected by him do not get impressed with the character of joint funds. There is no trust in favour of the persons who have not joined in the acquisition of the profits or in investments. Any property acquired with such income would be the exclusive property of the acquirer and others cannot claim any share in the property as such Section 90 of the Trusts Act has no application to such a case. In order that it may apply, it must be established that the party, against whom relief is sought, availed himself of his position and gained advantage by so doing, and that the advantage was gained in derogation of the right of the person interested in the property. A person standing in a fiduciary position to another cannot by taking advantage of his position, gain exclusively for himself an advantage which he could not have obtained but for the position.
There being no fiduciary relationship in this case the purchases made by the 2nd defendant and the 4th defendant which will be presently considered, cannot be regarded as acquisitions by parties availing themselves of their position and obtaining advantage in derogation of the rights of other sharers. In the circumstances, even if it is established that any of the acquirers had realised more than his due share of the profits from the common property and with such funds acquired properties, he cannot be called upon to hold the property for the benefit of the rest. There is no rule of Hindu law, which provides that the property which is acquired even after severance of joint family status, must be regarded as acquired for the family. It is only to the acquisition of properties by coparceners in coparcenary that the rules as to sufficiency of nucleus, blending, throwing into common stock and impressing with the character of joint family property apply.
(58) Learned counsel, Mr. K. S. Sankara Iyer appearing for the plaintiff, referred to the decisions in ILR 48 Mad 597: (AIR 1925 Mad 1125) and . The former was an action by a widow
against the intermeddler with her husband's estate who mixed up the moneys belonging to him with that of the estate and proceeded on the law well established that, where a trustee or a person who puts himself in the same position of accountability as a trustee, such as an executor de son tort by a virtue of his intermeddling with the estate, is proved to have amalgamated moneys of the testator with his own, and especially if he can be reasonably suspected of having destroyed the evidence which would otherwise be available to separate the two estates, then he is called upon to account for all sums that he alleges to be his own and to prove his ownership of them. Where a suit is instituted against such intermeddler alleging that the property in question belongs to the estate, the burden of proof is on the intermeddler to show that the property did not belong to the plaintiff's estate but to himself.
The other case also relates to the case of an
executor in the position of a trustee amalgamating the trust estate with his own, managing it as one unit and purchasing property out of such mixed estate in his own name. It was held that the presumption would be that the property had been purchased by the trustee out of the trust funds mixed up though it may be with his own property, and that, unless and until the trustee succeeded in establishing before a court of law that no part of the trust property formed part of the consideration for the purchase of that property and he had purchased it out of his own separate properly or properties, he would not be able to claim the property as his own. This line of cases have no application to the acquisitions by a tenant in common.
(59) Now between co-owners of tenants in common as pointed out in Kunjaiyyappan v. Unnaman, AIR 1955 Trav-Co 279 at p 280.
"If a co-owner in possession of co-ownership property acquires other property even with the use of co-ownership funds in his possession, the acquisition will not perforce become co-ownership property. The acquirer's obligation will only be to account for the co-ownership funds utilised by him." The 4th defendant under the sale deed, Ex.D. 87, dated 27-3-1944, purchased a portion of item 341 of the plaint A schedule, an extent of 29 grounds and 1777 sq. ft. The property had been put up in public auction in exercise of power of sale under S. 59 of the Transfer of Property Act, on the 8th August 1943 and the 4th defendant became the purchaser. He paid Rs. 3000 on the acceptance of the bid and the balance of Rs. 9000 was paid by him on 21-8-1943. The learned Judge, in the absence of accounts or documents showing that the 4th defendant was able to save Rs. 12000 out of his earnings, held that it was purchased by Narayana Iyer in the name of the 4th defendant. With respect, the approach to the question is erroneous. This was a purchase by a divided member of a joint family, and the burden is not upon him to establish affirmatively that he had funds for a purchase by himself. It would no doubt suit the 2nd defendant to take a neutral attitude with reference to the claim of the 4th defendant who is now represented by his widow, the 18th defendant. The 18th defendant has given evidence as D.W. 3. (After discussing the evidence His Lordship proceeded):
None of these contentions found acceptance with the learned Judge at the trial; and I agree with the conclusion of the learned Judge in the matter. The allotment of the J schedule properties under Ex.P. 4 cannot be considered to be personal to Narayana Iyer. In the partition proceedings he represented his branch, and these items have been allotted for the discharge of specified debts. If it was a joint family property any the offer of it in discharge of the debts was not accepted by the plaintiff, it reverted to the joint family estate as common property available for division among the members of the family, and on the findings already given the discharge of the plaintiff's debts should have been with funds of the family only. I am unable to follow the reasoning of the third defendant's claim that the J schedule properties should be divided equally between defendants 2 to 4 only. It follows, therefore, that items 172 to 282 in the plaint A schedule are all properties partible among the members of the family.
(60) The learned Judge, in considering the character of the properties and the assets in respect of which partition is claimed, approached the question from another angle. Narayana Iyer had to furnish cash security for his appointment. It was Rs. 10,000 when he was originally appointed at Tuticorin in 1907 as cashier of the Bank of Madras. Later, as he moved up in service and became the bill manager, he was asked to deposit a further sum of Rs. 40,000 as cash security. There is no dispute that the entire security amount of Rs. 50,000 was found by the joint family. The learned Judge, in view of this, would hold that the income earned by Narayana Iyer was not the income earned without detriment to the joint family property, and that, therefore, everything he received as such employed whether from the Bank or from the constituents of the Bank, formed the property in which his sons were equally with him entitled to a share. With respect, I find it difficult to agree with this view. The security deposit was earning interest at six per cent, and the family was getting interest right through the period of the service of Narayana Iyer. The letter of appointment (Ex.P. 20) runs:
"Your letter of the 3rd inst. applying for the post of cash keeper at Tuticorin branch was duly laid before the Board at their meeting on Monday evening last, and with reference thereto I am desired to inform you that the directors have approved of your being appointed to the post on six months probation on a salary of Rs. 100 per month. Your appointment will be subsequently confirmed if it is found that you carry out the duties of the office satisfactory. I shall be obliged therefore by your proceeding to Tuticorin at as early as a date as possible and by your arranging for the deposit of your cash security of Rs. 10,000 with that branch prior to taking up your appointment."
Subsequently, as already stated, a further sum of Rs. 40,000 was called for and the security deposit provided. Ex.P. 20(f), the pass book of Samu Pattar in the Madras Bank, shows interest on the security of Narayana Iyer being regularly credited to the credit of Samu Pattar.
(61) As my Lord, the Offg. Chief Justice, is also dealing with this and certain other questions arising in this case, I am not elaborating on this question. In the earlier part of this judgment, I have referred to the passages from Mitakshara and pointed out that the expression "without detriment to the father's estate" in the original reads "Pithrudruvya Virodhena". In my view, it involves the using up or consuming of the paternal estate.
(62) Learned counsel for the plaintiff has referred in this connection to the decision of the Privy Council in ILR 2 Lah 40: (AIR 1921 PC 35) and the decision of the Supreme Court in in
particular. But the present case, in my view, is governed by the decision of the Supreme Court in . In that case, the karta of a joint Hindu family was appointed the treasurer of the Central Bank of India, and, as treasurer, he furnished security to the Bank of certain properties of the Hindu undivided family. The question that arose for consideration was whether for the purpose of income-tax the salary and emoluments received as treasurer of the bank were assessable under the head salaries or under the head profits and gains of business or were assets in the hands of the undivided Hindu family. It was held that the mere fact that the joint family property had been lodged by way of security would not make the earning of the karta as treasurer a part of the income of the Hindu undivided family. The Supreme Court pointed out that Sheel Chandra, the kartha who entered the service as treasurer furnishing the security, had not received any particular training at the expense of the family fund; nor was his appointment the result of any outlay or expenditure or detriment to the family property.
Referring to "risk" or "detriment" to the family property considered in the case before the Judicial Committee in Gokalchand's case, ILR 2 Lah 40: (AIR 1921 PC 35) it is observed by the Supreme Court :-
"The word 'risk' in that judgment must be read in the context in which it was used. Family estate was used and the expenditure was incurred for equipping one of its members to join the Indian Civil Service. It was in that connection that the words "risk of" or "detriment to" family property were used. The latter case, Kalu Babulal Lal Chand's case, has already been
discussed. The facts and circumstances of that case were different. The cases which the Privy Council relied upon in Gokal Chand's case, ILR 2 Lah 40: (AIR 1921 PC 35) were all cases expended to fit a member of the joint family for the particular profession or avocation the income of which was the subject matter of dispute but the respondents were not able to refer to any decision in which it was held that the mere fact of giving joint family property in security for the good conduct of a member of the family employed in a post of trust was sufficient to make the emoluments of the post joint family property because of any detriment to the family property or risk of loss. It has not been shown that in this case there was any detriment to the family property within the meaning of the term as used in decided cases"
In the present case, one cannot find any detriment to the family by providing the security. Considering the resources of the family and the advantages to the family banking business by the deposits in a premier Bank, it cannot be said that substantial assets of the family have been so immobilised as to result in tangible loss for detriment to the family estate. The money has been earning interest right through. It cannot be said that there is any loss or profit even Narayana Iyer was not specially equipped at the expense of the family for this job. He was only a Matriculate and he rose up in the service by reason of his innate ability. Far from the furnishing of the security in any way being of detriment to the family estate after Narayana Iyer's entering service in the bank, the family overdraft facilities which were originally one lakh rose to five lakhs. There is no need to rely in this case upon the Gains of Learning Act, 1930, as it is nobody's case that Narayana Iyer had been especially fitted for the job at considerable expenses to the family; nor were large amounts expended by the family on the education of Narayana Iyer.
(63) With reference to the provision of residence to Narayana Aiyer at Madurai at the expense of the joint family, that by itself, in my view, could not make his earnings as acquired at the risk of or detriment to the joint family estate. The provision of the house at Madurai was only an investment by the family. To a member of the family, the family, at its expense could provide a residence. The family was doing banking business and it had dealings at several places in South India. Plenty of fluid resources were available to it, and, by acquiring a house at Madurai which would be of immediate use to a member, it could not be said that the family suffered any detriment. The house has remained intact as an asset. It is quite a different thing, and that has been taken into consideration, namely, the mixing up of the rents earned from the house with that of Narayana Iyer's own income. In my view, the earnings of Narayana Iyer as and when they were earned as also any mamool presents received by him would not at the very source get impressed with the character of joint family property or income.
(64) I shall not take up for consideration items 337 to 339 of the plaint A schedule. These are the properties in the City which were settled by Narayana Iyer on his three daughters and their children under three deeds of gift on 3rd November 1949.
(65) Even if they had been joint family property, it would have been open to Narayana Iyer when he partitioned the properties in 1940 to set apart these three items to his three daughters. The right of a Hindu father to make gift of a reasonable portion of ancestral property commensurate with the status and wealth of the family even after years of their marriage has been well recognised vide Sudararamayya v. Sitamma (1912) ILR 35 Mad 628 and Guramma v. Mallappa, . It cannot be said that in this particular case,
taking into consideration the affluence and wealth of Narayana Iyer's family, the gifts as such could not be supported as reasonable gifts by the father to his married daughters. The difficulty that arises in this case is by reason of the fact that the father had chosen to retain these items as his self-acquisitions at the partition he effected in 1940 and he settled them on his daughters long after only in 1949. Treating the properties as joint family properties, the learned Judge considers that, as the items in question would be very much less in value than the one-fifth share to which Narayana Iyer would be entitled on the date of the institution of the suit the properties should be deemed to have been allotted to the share of the first defendant immediately after the institution of the suit. The learned Judge considers that the items are not very much more in value than could reasonably be made a gift by the first defendant and his sons acting together at the time of partition.
(66) Learned counsel appearing for the plaintiff attacks this approach to this question and contends that after the division in status in 1940, the father has lost the power of making gifts of undivided joint family property in favour of his daughters. True but once the coparcenary is converted into a tenancy in common, there is no bar to a member of the family disposing of his share by gift. No doubt if there has been no division by metes and bounds, it would not be open to a member to claim rights in a specific item and settle it. But while directing division amongst tenants in common, the Court can give suitable directions when equity and justice demand it that the settlement may be upheld. The settlement is not void as such. In this case the properties in question have not been the subject of the 1940 partition proceedings, Narayana Iyer keeping them out from the hotchpot and claiming rights in them as his self acquisitions. The partition by metes and bounds of some of the properties effected by Narayana Iyer which has been challenged is only voidable and void it being reopened in the context of the case and the remaining properties being bought into the hotchpot for division. It is well settled that the moral obligation of a father to make gifts of reasonable portions of landed property of the family to his married daughters on his failure to do so devolves on his accredited representative in the joint family and even they could make the provision.
(67) The legal postion with regard to gifts in favour of daughters is summarised thus in :-
"The Hindu law texts conferred a right upon a daughter or a sister, as the case may be to have a share in the family property at the time of partition. That right was lost by efflux of time. But it became crystallised into a moral obligation. The father or his representative can make a valid gift, by way of reasonable provision for the maintenance of the daughter, regard being had to the financial and other relevant circumstances of the family. By custom or by convenience, such gifts are made at the time of the marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion. It is a normal (moral) obligation and it continues to subsist till it is discharged. Marriage is only a customary occasion for such a gift. But the obligation can be discharged at any time, either during the lifetime of the father or thereafter."
In view of this position--moral obligation of the father as well as any one else who may take the place of the father in administering the affairs of the joint family the fact that the father thought of discharging his obligation ostensibly in 1949, long after the division in status would not stand in the way of the gift being effectuated if it is possible by equitable adjustments at the partition. The alienations cannot be considered to be naked gifts which may not attract any equity. As already stated, from the manner of the acquisition of the property and the building of the three houses, having regard to the normal occurrence in an affluent family, it is very likely that the acquisition and the constructions at the very outset were with a view to benefit the daughters, though it might not have been expressed openly by the father. As pointed out by the learned Judge, the value of these items would be very much less than one-fifth share which Narayana Iyer would be entitled to and could therefore, be properly attotted to his share, that the settlement effected by Narayana Iyer may have effect on the properties. In the circumstances, even assuming the evidence on record does not warrant a finding that these items are self-acquisitions of Narayana Iyer, the settlement of these items by Narayana Iyer in discharge of a recognised moral obligation, could be effectuated as provided for by the learned Judge at the trial. These items would therefore, be left out of the partition proceedings.
(68) I shall next take up for consideration such of the items in part IV of the plaint B schedule, in respect of which there has been agitation before us in appeal.
(69) The agreement of partition in the main joint family provided for its members to have independent business pending progress of the partition proceedings which were naturally expected to take some time. The main business of the joint family was banking and in November 1935. Narayana Iyer started the General Bank Ltd, a private limited company. He contributed the capital for himself and his sons and the family deposits came into the bank. With the scanty materials before us merely on representations of parties, it will not be safe to give directions as to the actual mode of division and allotment.
(70) It is pointed out on behalf of the plaintiff that at the trial it was overlooked that the 18th defendant as the widow and legal representative of the 4th defendant could claim only one-fifth share in the estate and cannot claim to share with the other sons in the estate of Narayana Iyer in the division. The 4th defendant had died in February 1951, and Narayana Iyer, the father died only in May 1951. The proposition contended for is that, under the Hindu Women's Right to Property Act, 1937, the expression "separate property" in S. 3(1) of the Act means only self-acquired property of the coparcener and not the property which he got on separation as coparcener at the partition of the joint family property. This proposition was found acceptance in a number of decisions, the latest decision of this Court being Commr of Income-tax v. Thyagarajan, and the Full Bench
decision of the Patna High Court in Mt. Khatrani v. Smt. Tapeshwari, . It has therefore, to be held that the share of the first defendant, Narayana Iyer, would devolve on the plaintiff and defendants 2 and 3 only. The would each be entitled to a four-fifteenth share in the properties held divisible, the 18th defendant getting the remaining one-fifth share in the properties.
(71) Learned counsel for the 2nd defendant contends that, even if partition is necessary with reference to the properties retained by Narayana Iyer as his self-acquisition and now found to be assets of the joint family, there can be no redistribution of the properties which had been the subject of partition: Narayana Iyer in 1940. Learned counsel contends that the said partition, to the extent it went, is binding on all the sons. Mr. K. S. Sankara Iyer, appearing for the plaintiff however, contends that the partition was unequal and unfair, and, therefore, void. It is further contended that, by reason of the notice of severance under Ex.P. 5 dated 13-1-1940, the father had lost his power to divide the properties by metes and bounds and the partition is void and has to be ignored, as the actual division by metes and bounds was admittedly carried out only in February 1940 and followed up by the registered instrument in October 1943. It may be pointed out that, in February 1940 the father brought about a memorandum of division. It is unregistered, and, as by itself it purports to effect division, it is inadmissible in evidence as effecting the allotment of specific properties. It was so held in O.S. 1 of 1940 on the file of the Sub Court, Palghat.
The learned Judge has proceeded in the view that, after the division in status, the father did not have power to effect division of the properties which belong to him and his sons, the parties being Co-owners. The learned Judge has also found that the partition is invalid on the ground of unfairness, even if the father had power. It is needless to traverse the evidence in the case regarding the unfairness of the partition. One thing is clear, namely, that the valuation given to the properties cannot represent the true value. According to Narayana Iyer, the value of the family properties available for division is just Rs. 82,500, each sharer getting properties worth Rs. 16,500 only. It is Narayana Iyer's case that the valuation adopted by him was in terms of the valuation adopted in the partition in that larger family. The evidence with regard to this is challenged, and the document, Ex.D. 44, relied upon by the 2nd defendant is not accepted by the contesting parties. The original partition deed among the members of the larger family does not show the value of the properties. As pointed out by the learned Judge at the trial, the valuation given for some of the items is ludicrously low. To just mention one item, Narayana Iyer allotted to himself a mortgage valued at Rs. 20,000. On that mortgage he instituted a suit claiming Rs. 90,000. There has been a decree thereon in appeal for Rs. 53,000 odd.
(72) The power of the father of a joint family to divide family property at any moment during his life, provided he gives his sons equal share with himself, is well established. The consent of the sons is not necessary for the exercise of that power, the right of the father to sever himself and the sons inter separate being part of the partriae potestas that was recognised by the Hindu law. As noticed in Principles of Hindu law by Mullah. 12th Edn. at page 493:
"If the partition is unequal and unfair it is open to the sons if they are majors to repudiate the partition; but if they are minors, it is open to them to avoid it after they attain majority. The partition will be good until it is set aside."
The contention on behalf of the plaintiff that after the notice of severance the father has lost the power of partition by metes and bounds is, in my view, unsustainable. After notice is issued in the process of effecting division or partition in the family, the power will not be exhausted, as partition in Hindu law means both division of right and division of property. It means severance in status of jointness with its incidents of survivorship and the physical separation of shares. According to Mitakshara,
"partition is the adjustment of diverse rights regarding the whole by distributing them on particular portions of the aggregate. Before partition the right of each co-owner extends over the whole property. The effect of partition is to create in favour of each co-owner an exclusive right to a part in lieu of the joint right which he previously possessed over the whole" (Col. Mit. I, 1, 4).
The right to separate possession is dependent on the severance of status and must necessarily precede, for however short period, acquisition of separate shares, separation of shares being the natural end-product. The contention that a division in status would take away the right recognised in the father to effect partition, would be to nullify the right of the father to divide by metes and bounds as there could be no division by metes and bounds without an ascertainment of shares in the first instance. As pointed out in Mayne's Treatise on Hindu Law and Usage, 11th Edn at p. 550.
"Separation in status, with all the legal consequences resulting therefrom, is quite distinct from de facto division into specific shares of the property held jointly. The former is a matter of individual decision and is effected by the unequivocal expression of a desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined and upspecified share separately from the others, without being subject to the obligations which arise from the joint status. The latter is the natural resultant from his decision."
The question for consideration, however, would, in each case, be whether the notice of division in status is a step towards partition and is only a part of the integrated process of complete division intended at the very outset.
(73) There can be no doubt in this case, from a perusal of the correspondence at about the time the partition was effected, that the father intended to bring about not only severance in status but complete the partition by metes and bounds. In my view, in the circumstances it could not be said that, if otherwise the partition is valid, it is bad for want of power the power getting exhausted with the notice of severance of status. In Ex.P. 8, dated 11-1-1940 Narayana Iyer writes to the plaintiff that he is willing to effect a family partition in the branch whether by consent of all the sons, or in the exercise of his authority as father, and that, in either case, what he proposes is "only an absolutely fair and equitable partition." Fair and equitable partition can only refer to division by metes and bounds. In the next letter (Ex.P. 5) while declaring the division in status, he intimates that it only remains for the plaintiff to have his rights as a divided member satisfied by metes and bounds, and that he is ready and willing to effect the same.
(74) As the power of a father to effect division is subject to the distribution being equal, if the distribution effected by the father is unequal or there has been fraud in the division and is vitiated by undue favouritism, the partition effected would be reopened and adjusted. But the partition is not wholly void. The position is set out thus in Meyyappa Chettiar v. Commr. of Income-tax, Madras, .
"Under the Mitakshara law the father has the undoubted right and privilege of effecting a partition between himself and his sons, whether they are majors or minors, without their consent. He may divide the properties physically or may only bring about a division in status. This division may be between himself and his sons or even between the sons inter se. The partition so made however must be fair and equal. See (1878-80) ILR 2 Mad 317 and Venkatapathi Raju v. Venkatanarasimha Raju. 71 Mad LJ 558: (AIR 1936 PC 264) Mayne's Hindu Law, 11th Edn. 1950, pages 547 and 548). This power of the father is exercisable also by the grandfather but with the qualification that he can only separate himself from his grandsons and not make a division between the grandsons inter se. (See Subbarami Reddy v. Chenchu Raghava Reddi, 1945-1 Mad LJ 151: (AIR 1945 Mad 327) and Mayne 11th Edn page 548). If the partition is unequal and unfair it is open to the sons if they are majors, to repudiate the partition; but if they are minors, it is open to them to avoid that partition by appropriate proceedings after they attain majority. The partition therefore, will be good until it is set aside. It is not void and it is not without effect."
To the same effect that a partition is voidable at the instance of the parties concerned is the decision in Krishna Kesavan v. Janakiamma. AIR 1951 Trav-Co 38
(75) If it is merely a case of certain items being omitted or retained by the father as his self-acquisitions, then it may not be necessary to reopen the partition in its entirety. But where the whole scheme of distribution is unfair and it will not be possible to effect a fair and equitable distribution without bringing into the hotchpot for re-adjustment all the properties, then the partition will have to be set aside absolutely. No question of limitation in this regard was argued before us. In (1878-80) ILR 2 Mad 317 where the father's power to effect a partition was considered, the plea was that the division effected by the father was unequal. A finding was called for and it was found that the difference in income was 11 per cent in excess of the fair share. Their Lordships thereupon set aside the partition in its entirety and directed a repartition. As seen from the original records, their Lordships observe:-
"This inequality appears to us so great as to give rise to the inference of bad faith, since the father could hardly have overlooked it. However, that may be, we find the inequality so great that the partition which the father endeavoured to make by the instrument ought not, in our opinion, be accepted as valid or binding on the defendants".
In ILR 12 Lah 574: (AIR 1931 Lah 603), where a father effected partition between the plaintiff and the defendant and the partition was found to be not bona fide and unfair, it was held that where a suit for partition was brought by one co-sharer against the other co-sharers, it should embrace the whole family property. Reopening of partition in effect comes to ignoring the original distribution. If it is merely a case of dividing properties not already subject of partition, there will be no necessity for redistribution of the properties originally separated and minor re-adjustments may suffice. If inequalities are only slight, they could be ordered to be adjusted without reopening of the partition. But in this case, for more than one reason, the entire properties have to be considered at the partition. Apart from the patent inequality which it may not be possible to adjust otherwise, there is this factor, namely, that the father is dead and his interest in the property has also to be divided among the sons.
(76) On behalf of the 2nd defendant, and the 18th defendant, it is contended that a complete reopening of the partition, in the circumstances, would be unjust, as the members were put in possession of the properties by their father, and their possession could not be said to be wrongful. The 2nd defendant claims to have effected certain improvements to the properties in his possession. The learned Judge negatived any claim for equity based on improvements, in the view that the evidence of the 2nd defendant that he had separate funds of his own for investing on improvements could not be accepted. It has been observed that the improvements could not be said to have been made by him in good faith, so as to entitle him to recover from his brothers a proportionate value for such improvements. As already stated, the partition in this case is not void but voidable. The partition was effected by the father in February 1940 and the registered instrument of partition was in October 1943. The 2nd and 4th defendants stood by the partition. The third defendant, though he remonstrated against the proposed partition originally, later yielded to his father's directions and admittedly entered into possession of some at least of the properties allotted to him. It is his case that his consent to the partition, according to certain letters which have been exhibited in this case, was not free consent. Exs.D. 2 and D. 3 show that there has been exchange of the properties originally allotted to the 3rd defendant to suit his convenience.
The suit has been filed only in 1950. Of course, the plaintiff, at the very outset, repudiated the partition proceedings and stood by his repudiation. It is not possible at this stage of the proceedings to negative the claim for equity put forward by any of the persons in possession. The scheme of partition should be left in the first instance to the discretion of the Commissioner or other officer who will be entrusted with the task of effecting partition by metes and bounds. I would prefer to indicate the general principles to be followed in effecting partition between co-sharers as in this case. In R. C. Mittra's Tagore Law Lectures, on the Law of Joint Property and Partition in British India, adopting from Freeman on Co-tenancy the principles are stated thus at pages 415 and 416 II Edn:
"The fact that a co-tenant has located upon a particular portion of the lands of the co-tenancy and has enhanced its value by making improvements or by reducing it from a wild state to one fit for profitable cultivation, is a circumstance always deemed worthy of the attention of a court charged with the duty of making a partition. Such improvements are generally indispensable to a profitable and comfortable enjoyment of the property, and contribute to the general prosperity of the community. The law declines to compel one co-tenant to pay for improvements made without his authorisation; but it will not, if it can avoid so inequitable a result, enable a co-tenant to take advantage of the improvements for which he has contributed nothing. When the common lands come to be divided, an opportunity is offered to give the co-tenant who has enhanced the value of a parcel of the premises, the fruits of his expenditure and industry by allotting to him the parcel so enhanced in value or as much thereof, as represents his share of the whole tract. It is the duty of equity to cause these improvements to be assigned to their respective owners (whose labour and money have been such inseparably fixed on the land) so far as can be done consistently with an equitable partition".
While dealing with the question of payment of compensation for improvements, when the property is not susceptible of division, Freeman observes in Section 510, page 680, 2nd Edn:-
"The only good faith required in such improvements is that they should be made honestly for the purpose of improving the property, and not for embarrassing his co-tenants or encumbering their estate, or hindering partition".
It cannot be said that in this case, the improvements, if any effected by the 2nd defendant, were intended to embarrass the other co-sharers. Such improvements as are claimed should have been made in the ordinary course of enjoyment and profitable use of the property. The parties being divided in status at least, the moneys spent by the 2nd defendant could not be deemed to be that of his father or of the joint family. The reasoning of the learned Judge for negativing the claim for improvements is not available. The claim for improvements put forward by the 2nd defendant will therefore be a matter for consideration at the final decree proceedings.
(77) On the other point raised in the appeals relates to direction as to accounting by the 2nd, 3rd and 18th defendants. Sri M. S. Venkatarama Aiyar appearing for the 18th defendant pointed out that with reference to the properties which were in the enjoyment of the 2nd and 4th defendants, and to a certain extent by the 3rd defendant in pursuance of the division by metes and bounds effected by Narayana Iyer, their possession of the properties should not be held to be wrongful, and that they cannot be called upon to render account of their possession. They were realising income, while in possession off the properties in their own right, and at the most, in view of the subsequent reopening of the partition they should be deemed to be in possession as co-owners or tenants-in-common and are liable only to the extent of the profits realised by them in excess of their lawful share. The contention is that there could be no decree for accounting as such against them.
My attention has been drawn in this connection to the decisions in Mohesh Narain v. Nawbut Pathak. (1905) ILR 32 Cal 837 and Nallayappa Pillai v. Ambalavana Pandara Sannadhi. (1904) ILR 27 Mad 465 (FB). The principle deduced from these decisions is that every use of the joint property by one co-owner does not render him liable to account to the other even though the use is perfectly legitimate and does not constitute an invasion of the rights of the co-sharer, but that an action to account will lie, if it is alleged and proved that the co-tenant has received more than his just properties. In (1904) ILR 27 Mad 465(FB), the position is set out thus:
"As held by the House of Lords in 1897 A.C. 180 there is no relationship of trust or agent but in that of owner and as held in the other, and when one collects the rents of the whole, he does so not in the capacity of agent but in that of owner, and, as held in Henderson v. Eason, (1851) 17 QB 701 is answerable to his co-tenant only if he receives more than what comes to his just share and to the extent of the excess alone"
After the division in status with reference to the properties left undivided, the coparceners are in the position of tenants-in-common. There is no fiduciary relationship between them, and the ascertainment of profits is for the purpose of giving the coparcener out of possession his just share in the proceeds of the common property. The account that is taken in such cases where there is an ouster in the account of the proceeds of the family estate and not ascertainment of mesne profits since liability for mere profits is in respect of land or other property in which the plaintiff has a specific interest and not in a suit for partition where he has no specific interest in any item of property until decreed--vide Pirthiapal v. Jowahir Singh, (1887) ILR 14 Cal 493 (PC) at p. 509.
(78) In the present case, the contention of the plaintiff is that, apart from the liability of the properties which Narayana Iyer claimed as his self-acquisition, being divisible as the assets of the joint family, even the partition effected of the admitted joint family properties is unequal and unfair. This contention has been accepted and partition has been directed to be reopened with a view to equalise the shares. In the circumstances, the most convenient way of adjusting the rights of the parties would be to first ascertain the profits actually realised from the admitted joint family properties, that is, the properties that were the subject of division by Narayana Iyer in the exercise of his power, inclusive of the J schedule properties, from the date of division in status, 13-1-1940, till the date of the suit; and as the plaintiff admittedly did not take possession of any properties, to give him one-fifth share in these profits. To the extent defendants 2 and 3 and defendant 4 (now represented by 18th defendant) realised more than their one-fifth share of the profits by their possession and enjoyment, they shall be liable to the plaintiff for his one-fifth share of the profits in the admitted common properties. Deficiency, if any, will have to be taken from the estate of the father.
From the record it is seen that Narayana Iyer had, after intimating the plaintiff, been depositing in the General Bank profits realised from the share of the properties which he had allotted to the plaintiff. It would be open to the plaintiff to accept the sum in deposit in lieu of taking of accounts of the profits in the common properties. If he does not elect and there is deficiency, he shall be paid out from the amounts thus deposited by the father to his credit to the extent available. The balance, if any of the deposits made on this account would go into the general pool for division.
(79) With reference to the properties claimed by Narayana Iyer as his self-acquisition, none of the other sharers could be held liable for the profits. In fact, they would themselves be entitled to a share of profits in the same. It is Narayana Iyer that had excluded his sons from participating in the profits of the properties since the division in status, when he set up exclusive title to the same. The plaintiff and the defendants 2 and 3 being the legal representatives of Narayana Iyer as observed by the learned Judge, no purpose is served by taking account of the properties that had remained in the possession of Narayana Iyer till his death. However, as regards the "Karulai estate" and "Venkata Vilas" which have been subject of settlements prior to his death and before the suit, the donees if they had entered into possession would have to share with the plaintiff and the 3rd defendant the profits realised from them. Accounts will then, have to be taken of the profits, if any, realised from "Venkata Vilas" and the 'Karulai estate', that is, item 336 and items 210 to 282 from the date of the settlements till the date of the suit, and the profits shared by the plaintiff and defendants 2, 3 and 18. These directions as to accounting will be till the date of the suit and the directions of the learned judge as regards accounting from the date of the suit are, with respect, unassailable and stand confirmed.
(80) In the result, the preliminary decree will stand confirmed, subject to the directions as to accounting and division of the properties above made and in particular the following modifications. In clause 1 of the decree, besides items 337 to 339, items 327, 328 and 330 of the plaint. A schedule as well as 29 grounds and 1777 sq. ft. in item 341, shall stand excepted from the division. These excepted items are not joint family properties, and, therefore, not available for division. In the assets of the joint family property inclusive of the share of Narayana Iyer, which had devolved on his sons, the plaintiffs, the 2nd and 3rd defendants would each be entitled to 4/15th share; and the 18th defendant representing the 4th defendant is entitled to the remaining one-fifth share. Clause 15 of the decree declaring the liability of the 2nd defendant for the jewels on the person of Narayana Iyer shall stand deleted, as also clause 13 of the decree debiting the 2nd defendant at the partition with a sum of Rs. 25,000. Under Cl. 25 of the decree, in respect of the deposits made in the General Bank Ltd. by any of the sons after the division in status on 13-1-1940, they shall be entitled to be paid out the sums as their own earnings. In regard to the fixed deposits, Rs. 50,000 each (F.D. 196 and 197) if the plaintiff cannot establish and trace the same directly to the original fixed deposits in the name of Narayana Iyer at the time of division in status, the said fixed deposits shall be deemed to be the personal property of the 2nd and 4th defendant (now 18th defendant). Item 12 of B schedule part IV shall be left out of the division as it goes with item 330 of A schedule. In respect of these several amounts decreed, in the circumstances of the case, it is sufficient to award simple interest at 71/2 per cent per annum, instead of compound interest at annual rest as provided for.
(81) In the result, all the appeals succeed to the extent above indicated and are dismissed in other respects. Coming to the question of costs, all the parties have succeeded or failed to a certain extent. In the circumstances, the costs of all parties shall come out of the estate. Taking into consideration the time taken and the stakes involved, I fix counsel's fee of the plaintiff, 2nd defendant, 3rd defendant and 18th defendant at Rs. 5000 each. Defendants 9 and 10 (no appearance for the 11th defendant) will be awarded one set of advocate's fee Rs. 1500. The fees fixed are consolidated in respect of all the appeals and will be paid in O.S.A. 74 of 1959. The parties will of course, be entitled to the out-fees in the matter of court-fees, printing charges, etc., in all the appeals as taxed. The Official Liquidator of the General Bank Ltd, shall pay out of the estate in his hands the advocates fees as fixed and the out-fees on taxation.
(82) Order Accordingly.