1. The appellant instituted the suit on the footing that he had become entitled to the suit properties by the rule of survivorship, on the death of his uncle, one Subbarayudu, in July 1919. Subbarayudu left a will, Ex. XVIII dated 12th July 1913 and defendants 1 to 6 claim as legatees under that will. Questions were raised in the lower Court as to the genuineness of this will and after elaborate trial, the learned Subordinate Judge found that the will was genuine; but as the plaintiff's claim by survivorship, if well founded, would by itself suffice to defeat the operation of the will even if it were true, his learned Counsel here did not attack the lower Court's finding on the question of the genuineness of the will and confined his arguments to the plaintiff's claim under the rule of survivorship.
2. The question argued before us is substantially that raised by the 4th issue in the case. The latter part of that issue related to a contention that even if the suit properties were in any sense and to any extent the self-acquired properties of Subbarayudu, he had thrown them into the common stock and thereby made them joint properties. This aspect of the matter has not been pressed before us. On behalf of the appellant Mr. Kothandaramayya's main argument was that at a. time when the plaintiff was only an Infant, Subbarayudu must on the death of the plaintiff's father have come into possession not merely of the 5 acres of ancestral lands admittedly belonging to the family in their native village but also of a substantial sum of cash which must have formed a nucleus for Subbarayudu's subsequent earnings. In the lower Court, an argument seems to have been advanced to the effect that even the income from the family lands in the village could have been substantial, but the learned Subordinate Judge has found that the lands did not yield anything more than a few rupees in those days and even these few rupees were not shown to have come into the hands of Subbarayudu at any time, as he was serving as a public servant in a place far away from his native village. This part of the lower Court's finding has not been challenged before us either.
3. The story sought to be developed on the plaintiff's side in the course of the evidence was that about the time of the plaintiff's father's death, i. e., in 1876, some amount, put by one witness at about Rs. 1,600 and by another witness at about Rs. 5,000 stood in deposit in the plaintiff's father's name with a merchant of Cocanada known as Chinna Gopalam and that some years after the plaintiff's father's death this amount was withdrawn by Subbarayudu. It is contended that the evidence of P. Ws. 1 to 3 read in the light of Ex. D clearly establishes this part of the story. It may be conceded that if it is proved that this sum of Rs. 5,000 or any similar amount stood in deposit in Somaraju's name at about 1876 and came into Subbarayudu's hands after Somaraju's death, it will be a very important circumstance sufficient to throw upon Subbarayudu and those claiming under him the onus of proving that Subbarayudu's subsequent acquisitions are not traceable to that fund and have not been mixed with that fund. Attention has therefore been directed to a critical examination of this part of the plaintiff's story.
4. At the outset, it seems to us that the learned Subordinate Judge was justified in looking upon this part of the story with great suspicion, because it was not suggested even in the rejoinder statement filed by the plaintiff on 24th August 1928. It seems to us that the lower Court rightly suspected that this part of the story must be an after thought suggested by Ex. D, which is a letter purporting to have been sent to Subbarayudu in November 1884 wherein reference is made by Chinna Gopalam to some deposit standing with him in Subbarayudu's name and asking him for directions as to its disposal.
5. We may mention in passing that an attempt was made in the lower Court to lead further documentary evidence in support of this deposit by examining Chinna Gopalam's son, but as the witness was not able to appear before the lower Court and a commission for his examination was dismissed as made too late, that part of the evidence is not on record. In the interests of justice however we have looked into that matter to see what was attempted to be proved through that witness. It is made clear by the affidavit filed by that witness, in connexion with the evidence proposed to be given by him, that all that the materials in his possession could prove was that in June 1885 there stood in deposit with his father to the credit of Subbarayudu a sum of Rupees 3,000 and that after one or two withdrawals this account was finally closed in September 1885. For the purpose of this appeal, we are willing to take these facts as proved, but we do not think these facts by themselves will advance the plaintiff's case very far.
6. If we could believe the positive evidence adduced by the plaintiff through P. Ws. 1 to 3, the position would no doubt be better but we are satisfied that their evidence is not reliable. P.W. 1 is, on his own statement, not likely to have been more than 15 or 16 at the time of the alleged conversation which he says he heard taking place between Gopalam and Somaraju, and we are not impressed with the reason which he gave for his having been present in Somaraju's house at the time of the alleged conversation; and his story as to the later conversation in 1883 or 1884 between Subbarayudu and the plaintiff's mother at which it is said that Subbarayudu asked the plaintiff's mother's permission to withdraw this amount is even less convincing. The same remark applies to P.W. 3. One cannot help feeling a suspicion that his services had been availed of in this case merely because he was probably the son of a clerk of Chinna Gopalam. On his own evidence, he must have been a student reading in school at the time of the conversation that he purports to speak to between Somaraju and Chinna Gopalam and later on between Subbarayudu and Chinna Gopalam's clerk. No probabilities appear in favour of his having been present at the time of the alleged conversation. P.W. 2, who says he was a pial school teacher in the pial attached to the house in which Somaraju was living just at the time of his death, would not even commit himself to any definite statement as to his age and coming from a Brahmin who claims to have been a pial-school teacher for the best part of his life, it is not easy to believe the statement that he does not know the year of his birth. When the value of his evidence turns upon his age at the time of the alleged conversation and the likelihood or probability of his having attended to it, it is not in our opinion safe to act upon the evidence of a person who on his mere estimate might have been 20 or 21 at the time but who would not permit his estimate to be canvassed by giving some more details as to the date of his birth and his age. There is also the circumstance that according to the story of some of these witnesses and the plaintiff's present story the plaintiff knew many years ago of these conversations and of the fact of this deposit though not all the details relating to the amount thereof. If that part of his ease is true, it is difficult to believe that the plaintiff would not have put it at the forefront of his case. In view of his omission to disclose it till a very late stage, we are unable to attach any importance to the story related by P. Ws. 1 to 3.
7. Failing credible positive testimony on the point, Mr. Kothandaramayya next falls back upon two lines of argument. As a matter of evidence and probabilities, Mr. Kothandaramayya contends that the deposit which is shown to have existed with Chinna Gopalam in 1884 as per Ex. D could not have been made by Subbarayudu from any funds of his own and he therefore asks us to infer that it must have been of funds derived either from his father or from his brother or at least a part of the same must have come from them. When we remember the relative positions of the father and the brother of Subbarayudu on the one side and of Subbarayudu himself on the other, we are not able to accept this contention. Eliminating the nominal income derived from the ancestral immoveable property the utmost that could be said to have been shown by the evidence as to the position of Subbarayudu's father is that he was a village schoolmaster earning Rs. 10 or 12 a month and in view of the needs and expenses of his family and the marriages that he had to celebrate, the learned Subordinate Judge was justified in the conclusion at which he had arrived that he could hardly have contributed in any degree to whatever might have been deposited in Subarayudu's name with Chinna Gopalam. Even as regards Somaraju, the indisputable documentary evidence in the case shows that the maximum salary that he drew at the time of his death was only Rs. 30 per mensem and he died in 1876 comparatively at an early stage. On the other hand, Subbarayudu was drawing at least Rs. 70 par mensem in 1876, Rs. 150 per mensem in 1878 and Rs. 200 per mensem from 1881 to 1883. In this state of facts, there is no justification for thinking that a sum of Rs. 3,000 deposited in Subbarayudu's name with China Gopalam in 1884 could not have come from Subbarayudu's own earnings. If Chinna Gopalam's account books prior to 1884 could be made available, it would certainly have been very useful to establish the truth but unfortunately Chinna Gopalam's son in his affidavit precludes all further investigation into that matter by a statement that the prior accounts have been thrown into the sea.
8. Some reliance was placed on behalf of the appellant upon the account that Subbarayudu had with P.W. 16's family and P.W. 15, the clerk of that family was examined at very great length with reference to the accounts of P.W. 16's family, to show the transactions that Subbarayudu had with P.W. 16's family. We do not think that part of the evidence is of any value for the case at all. It is true that after 1890 Subbarayudu was frequently depositing moneys with that family and drawing moneys from that account. Prior to 1890 his dealings with that family were only occasional purchases of jewels on credit. It is argued by Mr. Kothandaramayya that from this we ought to infer that Subbarayudu had no moneys to deposit at all at or about that time and this argument is sought to be supported by a statement in the deposition of P.W. 15 of what Subbarayudu is said to have told the witness in the course of a conversation, namely that before he became the Deputy Collector of Adoni (about 1891), Subbarayudu was not in a position to save anything at all. Taking that statement to be true, we do not think it proves much. The witness himself says that Subbarayudu made a reservation in respect of moneys that he spent on marriages and so on. It is admitted by the plaintiff that in 1883 or 1884 Subbarayudu spent Rs. 7,000 or Rs. 8,000 on the marriage of his daughter and the Upanayanam of the plaintiff. We have already referred to the sources available to Subbarayudu for putting by moneys required for the purpose of a function like that and we do not think the statement of P.W. 15 supports the argument that Subbarayudu could not have made the deposit with China Gopalam from: out of his earnings.
9. It is next said that the evidence establishes that Subbarayudu was a man of expensive habits. But the evidence also shows that in spite of his expensive habits he did save very considerable sum. But there is no reason for presuming that the expensive habits came into vogue in the earlier years of his service. As we have already observed, the very fact that he was able to spend Rs. 7,000 or 8,000 on marriages is an indication that he must have been prudent enough to put by some amounts towards meeting the expenses of that function.
10. It was next argued as a matter of law that it was for the defendants to prove positively that the amount that stood to Subbarayudu's credit with Chinna Gopalam in 1884 was his separate property and did not constitute joint family property. Reliance was placed in this connection upon the statement in Mulla's Hindu Law, Section 233, to the effect that where it is proved or admitted as to a Hindu family that it possesses joint property, the presumption of law is that all the property of which it is possessed is joint and that if any member claims any portion of the property as his separate property, the burden lies upon him to show that it was acquired by him in circumstances which would constitute it his separate property. There are no doubt observations of this tenor in some of the reported oases, but with all respect we think that this is too broad a statement of the presumption. In a line of cases in this Court beginning with Narayana Rao v. Seshamma, AIR 1915 Mad 426, it has been recognized that the presumption has to be stated with some further limitations and qualifications. Many of the cases bearing upon that point have been referred to in the judgment of Ananthakrishna Iyer, J., in Sankaranarayana Mudaliar v. Tangaratna Mudaliar AIR 1930 Mad 662, where the learned Judge points out that a party alleging that property held by an individual member of a joint family is family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired. The learned Judge takes care to add that, it is only after this is shown that the onus shifts to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. To the cases cited in this judgment we may also add Satchidanandan v. Subbarazu 1930 MWN 1016. An observation of Beaman, J., in Karsondas Dharamasey v. Gangabai (1908) 32 Bom 479 would seem to sound the other way, but the learned Judge himself stated the proposition in more guarded terms in Dwarkaprasad v. Jamnadas. (1911) 13 Bom LR 133 . We notice that none of the later Madras cases has been referred to in Sir D.F. Mulla's book in this context. As we have already pointed out, no serious attempt has been made to show that Subbarayudu's deposit with Chinna Gopalam in 1884 or any of Subbarayudu's subsequent acquisitions could have reasonably come out of the ancestral lands.
11. Reference was next made to certain entries in the accounts of P.W. 16's family relating to some Savings Bank deposit in the plaintiff's name of a sum of Sections 600 odd and a story was built with reference thereto that it represented certain moneys given for the plaintiff's benefit into the hands of Subbarayudu by the plaintiff's aunt, the moneys having come into her hands partly from her father and partly from presents given to the plaintiff at the time of his Upanayanam. We are not impressed with the evidence relating to this part of the story. There is no doubt a statement in Ex. DDDDD that that amount was withdrawn from a Savings Bank account that stood in the plaintiff's name. But in view of the indications appearing from the evidence that Subbarayudu made deposits in the names of various people, this by itself cannot be made much of when we find that the amount so withdrawn is subsequently taken into an account standing in the name of Subbarayudu's wife. It is also important to remember the time at which this transaction is said to have taken place. It was just about the time when the plaintiff had applied to Subbarayudu for some money stating that he was pressed by debts and the plaintiff admits that Subbarayudu did not pay him more than Rs. 25 at the time and that the plaintiff had to discharge his debts by the sale of his concubine's jewels. If in circumstances of that kind Subbarayudu admitted to the plaintiff that he had with himself Rs. 600 odd belonging to the plaintiff and the plaintiff was asked to fill in the withdrawal form to enable Subbarayudu to withdraw that amount, it is scarcely likely that the plaintiff would have quietly taken Subbarayudu's refusal to help him at that time.
12. The conduct of the plaintiff seems to us to be a matter of some significance in this case, not merely at that particular time in connection with the particular item but with reference to the case generally. Even if it should be assumed that the plaintiff is entitled to invoke some presumption of Hindu law in his favour, the weight of such presumption and the nature of the evidence required to rebut the same will vary according to the circumstances of each case; and the stale nature of the plaintiff's claim must certainly count against him. This suit has been filed just on the last day of the expiry of the 12 years' period after Subbarayudu's death. The fact that the plaintiff is suing as a pauper is a double-edged circumstance. Poverty may no doubt be a justifiable explanation in certain circumstances but suing as a pauper equally suggests that this is a mere speculative suit which the provisions of the law relating to pauper suits sometimes encourage. The conduct of the plaintiff during Subbarayudu's time is of even greater significance. If during the best part of Subbarayudu's time, he had treated the plaintiff as one having any legal rights to the properties in his possession, the plaintiff might well claim that there was no occasion for him to go to a Court of law. But the plaintiff's evidence makes it clear that Subbarayudu never countenanced any such claim. For many years, the plaintiff was admittedly out of favour with Subbarayudu. On more than one occasion he applied to Subbarayudu in very submissive terms for help and Subbarayudu did not accede to his request. It is therefore not the case of a person who had been treated as a co-parcener but of one whose claims have never been recognized. In those circumstances, even if the plaintiff could invoke any presumptions in his favour, it will be too much to expect from Subbarayudu's representatives any more positive evidence than they have found it possible to produce in this case. The learned Subordinate Judge also points out that by reason of the plaintiff's delay in instituting this suit for so many years even after Subbarayudu's death, many other persons who could have given useful evidence on points material to the case have also died.
13. We may refer in this connection to the objection, taken on behalf of the appellant, to the use made by the lower Court of the statements contained in Subbarayudu's will. Belying upon the judgment of Sundaram Chettiar, J., in Satchidanandan v. Subbarazu 1930 MWN 1016, the learned Subordinate Judge has treated certain statements in Subbarayudu's will as relevant evidence. Before us, Mr. Kothandaramayya has questioned this view and he relied in support of his argument upon the observations in T. Venkataratnam v. T. Beshamma (1904) 27 Mad 228. Sundaram Chettiar, J. was prepared to go so far as to think that the observation in T. Venkataratnam v. T. Beshamma (1904) 27 Mad 228, as to the inadmissibility of such statements should not be regarded as good law after the judgment of the Privy Council in Virayya v. Adenna . We do not think it necessary to go so far as that. Statements of fact in a will like that of Subbarayudu must come under Clause 7, Section 32, Evidence Act, but in this view they will be admissible only if they are statements of relevant fact and are contained in documents relating to the transaction mentioned in Section 13, Clause (a). The observation in T. Venkataratnam v. T. Beshamma (1904) 27 Mad 228 is distinguishable, as the statements then in question could hardly be described as statements of fact. The will there in question contained a bald statement that three-fourths of the properties dealt with thereby were the self-acquired properties of the testator. As pointed out in the judgment, it was fairly clear from the evidence that the testator had acquired the properties by developing his original ancestral properties. The learned Judges accordingly observe that it was merely a statement of the belief of the testator, honest though it might be, that the property thus acquired by him was his self-acquired property.
14. The judgment of the lower Court, as stated in the report of that case, emphasizes the distinction recognized in Vandravan Jekisan v. Manilal Chunilal (1891) 15 Bom 565, between a statement relating to a relevant fact and a statement in respect of a fact in issue, for the purpose of admissibility under Section 32, Clause 7. Whether the learned Judges meant to adopt that distinction or they were of opinion that the statement in the will then in question was not a statement of fact but merely a statement of opinion, it is not easy to say, because their observations upon this point are contained in a single sentence. But either of those grounds would suffice to distinguish that case from one like the present. We may also add that as early as Nallasiva Mudaliar v. Ravan Bibi AIR 1921 Mad 383, statements similar to those now in question, contained in a mortgage deed were held admissible under Section 32, Clause 7: see also Nagammal v. Sankarappa Naidu AIR 1931 Mad 264, Appaswami Pillai v. Ramu Tevar AIR 1932 Mad 267, and Hurronath Mullick v. Nittanund Mulliok (1873) 10 Beng LR 263. Mr. Kothandaramayya drew our attention to an observation of the Privy Council in Pattabhirama Rao v. Narayanamoorthy AIR 1922 PC 102, where their Lordships treated a statement in a will as irrelevant. No reference is made in that judgment to Section 32 apparently because the statement there could not be said to have been made in documents of the kind described in Clause 7, i. e., a document relating to a transaction falling under Section 13, Clause (a). We are accordingly of opinion that statements of fact contained in Subbarayudu's will were rightly held by the lower Court to be admissible in evidence. Statements of that kind will of course justify scrutiny in the light of the other evidence in the case because they are self-serving; but that is different from saying that they are inadmissible in evidence.
15. In the present case, the facts established by the evidence on the one side or the other substantially go to corroborate the truth of the statements in the will. We may therefore safely accept those statements so far as they go as substantially correct, though Mr. Kothandaramayya is right in saying that those statements throw no light upon the character of the deposit made by Subbarayudu with Chinna Gopalam. An argument was faintly suggested that Subbarayudu was educated at the expense of his paternal uncle Sriramulu and that that circumstance was sufficient to attract the operation of the rule relating to the partibility even of gains made by learning thus acquired. There is very little proof of Subbarayudu having been educated at Sriramulu's expense. We do not think Exs. A and B serve to establish that fact. On the other hand, even apart from the recitals in the will, there is a substantial volume of positive evidence that Subbarayudu was educated by his paternal aunt's husband. Even assuming for the sake of argument that he received help from Sriramulu, it would not be of much use to the plaintiff's case because the evidence is more in favour of the view that Sriramulu was a divided uncle though it does not clearly appear when he became divided. Again on the plaintiff's own showing, Sriramulu was having a lucrative practice as a vakil and if Subbarayudu had really been educated out of Sriramulu's earnings as a vakil, that would not suffice to impress Subbarayudu's earnings with the character of joint property. In this view it is unnecessary to consider Mr. Kothandaramayya's argument as to whether Subbarayudu's education was an education of a 'special' kind or not within the meaning of the rule of Hindu law.
16. The appeal accordingly fails and is dismissed with costs. The appellant will pay the court-fee payable to Government on the Memorandum of Appeal.