1. This is an appeal involving title to a certain house which the plaintiff bought in Court auction. The question is whether the 8th defendant, in pursuance of a decree against whom the sale was held, was competent to mortgage the entire house as he did or as he purported to do in 1911, or whether defendants 2 to 6, who are his nephew together with his children, have also rights in the said house. It is common ground that the 8th defendant acquired the house under the will of one Poongavanam as his own separate property. The whole question in the second appeal is whether or not, after thus acquiring the suit house, the 8th defendant threw it into the common stock of the joint family consisting of himself and defendants 2 to 6 subsequent to his acquisition of it and before the family became divided in interest which event took place in 1904. Now, the District Munsif found that the 8th defendant had not thrown it into the common stock, that is to say, that he had not given up his own exclusive rights and treated the property as joint family property. On the other hand, the Subordinate Judge held, differing from the District Munsif, that the evidence did establish that the house was thrown into the common stock.
2. The first point that is pressed on me is as to Ex. VI. Now Ex. VI is a book containing a list which is headed 'List of particulars of house and manai, etc., ' and for the purposes of this case page 13 and part of page 14 have been printed in the documents. The house in question is said to be item No. 3 and these pages are signed at page 14 at the end of the 8th item by the 8th defendant, A. Appavu Padayachi. The District Munsif decided that Ex. VI was not genuine and Mr. T.R. Ramachandra Aiyar, without going so far as to say that the question of the genuineness of Ex. VI was concluded by the judgment of this Court in O.S. No. 303 of 1910, says that the Subordinate Judge has not given sufficient weight to Ex. VI as established in that prior suit. In fact he must go the length of saying that owing to the Subordinate Judge's treatment of Ex. VI and the evidence generally, the finding that the Subordinate Judge has come to is, in fact, a perverse finding. For, if he did not, with the exception of a point of law to be mentioned in a moment, the case simply resolves itself into a question of fact and appreciation of evidence, one Court taking one view of the evidence and the Lower Appellate Court another. The prior litigation referred to was between a plaintiff a stranger to this suit and defendants 2, 8 and others. It concerned not the suit house but a certain tope, and the High Court sent down to the District Judge for a finding on the question as to whether the suit land belonged to the 1st defendant (who is the 2nd defendant here), or whether it was the joint family property of all the defendants. Ex.VI here was Ex.II in that case, and the tope in question was entered on pages 15 and 16 with other family property, the 1st defendant purporting to have signed the document on page 1 6. As found by the District Judge, the 1st defendant denied his signature on page 16, and there was a difference between his alleged signature on page 16 and his admitted signature at the end of page 11. The finding was that there was no proof that the 1st defendant signed Ex. II at page 16 and that no inference can be drawn that the 1st defendant threw the lands into the common stock. The finding was accepted by the High Court.
3. Now, it seems to me that this decision can have no bearing whatever on the present case. The property In suit is different; the pages in the book in question are different; and it is to be noted that on page 11, according to the District Judge, the 1st defendant who is the 8th defendant here admitted his signature. It seems to me that the fact that in another place in the same book there may have been a forged signature of the 8th defendant cannot preclude the Subordinate Judge in this case from finding that the signature is genuine at pages 13 and 14 of Ex. VI.
4. It was then argued that transactions and conduct subsequent to 1904, the date of the partition, are inadmissible in evidence. This argument was directed I take it to Ex. I, VIII and XII, series and VII and IX which are relied on by the Subordinate Judge. It is said that these documents must all be held to be forgeries because from 1904 to 1906 there was ill feeling between these two defendants. The learned Subordinate Judge was quite sensible of that state of things and he regards the evidence as corroborating the other evidence that this house was thrown into the common stock in or before 1904. I think he is perfectly entitled to do so under Section 8 of the Evidence Act and if he finds on the evidence that there is no sufficient reason for regarding these documents as forgeries, I have nothing more to say to his finding in second appeal. So then treating the case purely on a question of fact and appreciation of evidence, it is clear that the second appeal is liable to be dismissed.
5. Now the further question arises whether the law which has been quoted to me makes any difference in this view. I will first deal with the cases cited on behalf of the appellant. The first is that in Lala Muddum Gopal Lal v. Khikhinda Koer . In that case there were two brothers and one of them was disqualified under the Hindu Law on account of a physical infirmity. The brother of the disqualified co-parcener nevertheless treated his brother as a member of the family entitled to equal rights until it became clear that the latter's malady was incurable. Their Lordships said that 'acts done out of kindness and affection to the disadvantage of the doer of them, should not be construed as a gift when it is plain that no gift could have been intended.' That really does not touch the present case in the slightest and it is a case from all the circumstances of which their Lordships inferred that the disqualified brother was not intended to be given a share by the other. The next case Krishnaji Mahadev Mahajan v. Moro Mahadev Mahajan I.L.R. (1890) 15 Bom. 32 also turns on a question of fact as to whether two brothers there had voluntarily thrown their property into the joint stock with the intention of abandoning all separate claims upon it. If they did so, the property would thereupon under the Hindu Law become joint property.
6. A more interesting question has been raised this morning for the first time (there is no evidence of its having been raised in either of the Lower Courts), viz., that when a co-parcener throws self-acquired property into the common stock of the co-parcenary consisting of himself and others, a registered deed is necessary to effect the transaction. Three cases are relied on in this Court of which one was decided by myself sitting as a single Judge in Made Gouda v. Chenne Gowda : AIR1925Mad1174 . Now it is to be noticed that in both these cases, where a deed was held to be necessary, the transaction was, in the eye of the law, between strangers. In Made Gouda v. Chenne Gouda : AIR1925Mad1174 . I expressly said that I found it difficult to understand how the second defendant could be made a co-sharer as he was admittedly not a member of the joint family and therefore not a co-parcener; and in Venkata Reddi v. Kuppa Reddi (1918) 8 L.W. 400. Seshagiri Aiyar, J. who delivered the judgment of the Court came to the conclusion that the first and the fourth branches of the family there became divided inter se and that they held the A Schedule properties as tenants-in-common, i. e., that they had become divided. The question there was whether joint living, failure to keep accounts, the fact that marriage expenses were incurred indiscriminately without reference to the shares belonging to the two branches and that acquisitions were made jointly would constitute what was originally separate property into co-parcenary property; so that if the first branch elected to throw its extra share into the hotchpot, the transaction could only be regarded as a gift of half of the extra share to the fourth branch and would require a registered document. ' The third case that was principally relied on in this connection is Thylambal v. Krishna Pattar (1919) 32 I.C. 955decided by Coutts Trotter and Srinivasa Aiyangar, JJ. The former said that it is possible for a member of a 'Hindu family who has got self-acquired properties to convert them, if he chooses, into family property in which the other members of the family will have a vested interest and that the only question in that case was whether the facts pointed to the conclusion that the first defendant did convert his own property into family property or not. Not a word is said by the former learned Judge about the necessity of a registered deed. Srinivasa Aiyangar, J., while concurring in the judgment of Coutts Trotter, J., entertained some doubt as to whether a member of a joint Hindu family who owns immoveable property as his self-acquisition can convert it into a joint family property without an instrument in writing registered at least where the Transfer of Property Act is in force. The learned judge found difficulty in understanding the conversion of individual property into joint property except by way of a transfer and thought that such a conversion would on analysis be found to partake of the character of one or other of gift, exchange or sale. It is certainly difficult, speaking for myself and with all deference to the learned Judge, to see how the conversion would ordinarily be by exchange or sale. If the transaction were one by way of gift, it being impossible for a man to make a gift to himself, I gather we should have to conceive the donor as in the position of a stranger to the co-parcenary of which he is in fact himself a member. However, this is a question that need not be gone into by me at the present moment. The question is an interesting one raised by the learned Judge as a matter of doubt in his own mind and it still awaits as far as I am aware an authoritative decision.
7. Beyond this there is no authority that has been produced before me for saying that, where a co-parcenary owner of self-acquired property wishes to throw the latter into the common stock of the co-parcenary, he can only do so by a registered instrument. Nothing is said about this in the later cases on the point of throwing into the common stock, as for instance, Suraj Narain v. Ratan Lal I.L.R. (1917) A 159 a case in the Privy Council, where their Lordships say, 'In a 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 has done so is to be judged from all the facts of the case '; and in Kedar Nath v. Ratan Singh (1910) 20 M.L.J. 900 the question was considered as to whether a certain estate was the self-acquired property of one of the brothers or was the joint property of the three. It was said in comment on this and other cases of the kind that the transactions took place before the Transfer of Property Act, but whether that makes any difference in law, is, as I have said, a matter not yet decided. In Sudarsanam Maistri v. Narasimhulu Maistri (1901) 11 M.L.J. 535 Bhashyam Aiyangar, J. says, ' Property acquired without the aid of joint family property, by one or more individuals 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 no question is raised there as to whether when that took place a registered instrument is required. The result is that the point of law raised to-day on behalf of the appellant does not take his case any further.
8. I was then asked to convert this suit into a suit for general partition in order that the house in question might be allotted to the 8th defendant and that therefore his alienee, the Court auction-purchaser, might be decreed possession thereof. it is difficult to see how this can be done as the suit only concerned this one item of property.
9. The second appeal must be dismissed with costs of respondents 1 to 5.