1. These two appeals arise out of the decree or the Subordinate Judge of Mayuram in O. S. No. 52 of 1948. The plaintiff is the appellant in App. No. 217 of 1950 while the other appeal is by the contesting defendant in that suit.
2. O. S. No. 52 of 1948 is a suit for partition filed by the plaintiff who is the undivided son of the first defendant, the second defendant being his mother. Defendants 3 and 4 are the sister and sister's son respectively of the plaintiff in whose favour defendants 1 and 2 have executed a settlement deed whose validity is challenged by the plaintiff in the action. Defendants 5 to 7 are the lessees in possession of the suit properties but they might he left out of account. The plaint contains two schedules A and B claimed to belong to the family, schedule A comprising the immovable properties and schedule B comprising the movable properties.
The learned Subordinate Judge has found that the movable properties had not existed and that they might therefore be left out of account. It is admitted that item 1 of schedule A is joint family property in which the plaintiff has a half share. But the question for consideration is whether the other immovable properties purchased in the name of the first and second defendants are joint family properties in which the plaintiff has any share. To appreciate the point raised it is necessary to set out briefly certain antecedent facts.
3. One Subramania Naicker had four sons Kandaswami, Marimuthu, Arumugha (1st defendant) and Vythilinga. Kandaswami Naicker died before 1005, leaving a son Krishnaswami Naicker. The five coparceners entered into a partition which is embodied in Ex. A-1, a deed dated 23-8-1903. The total properties of the family were valued at Rs. 4180. There were debts due by the family to the extent of Rs. 1580 leaving a balance of Rs. 2600. Each of them got property worth Rs. 500 and Kandaswami's widow was allotted Rs. 100. The property allotted to the share of Arumugha with whom alone we are concerned consisted of a filed house worth Rs. 450 in Shiyali and a punja thidal with trees worth Rs. 50 making a total of Rs. 500.
The property thus allotted to Arumugha in this partition constitutes item 1 of the A schedule as regards which there is no dispute. There is a clause at the end of the partition deed stating "the respective persons shall share the profits and losses of their respective toddy shop kuthagai." It is stated that there were two toddy shops which were conducted by the family and that one was taken by Marimuthu and the other by Arumugha. But it is however significant that no value was attached to these shops as an asset of the family to be divided between the coparceners.
4. The plaintiff was born in 1927 and his case is that the entire purchases by Arumugha, the first defendant, whether in his own name, or in the name of his wife, the second defendant were out of the profits of the toddy shop which Arnmugha was conducting as a continuation of this family trade. The purchases of the several items of immovable properties comprised in schedule A (of course other than item 1) started front 1913 and proceeded almost right upto the date of suit. The case of tho plaintiff is that all these properties were purchased out of the profits of tho toddy shop business conducted by his father though it might be with the assistance of his mother and that the toddy shop business itself was originally financed by funds borrowed on the security of the admitted ancestral property item 1 of the A schedule.
It is on this basis that the plaintiff claims that as the purchases were directly traceable to the aid of family funds, they must be held to be ancestral properties. On the other hand, the case of defendants 1 and 2 was that the bulk of the finances required for the conduct of the toddy shop came out of the funds of the childless widowed sister of the second defendant who gave this couple considerable amount of cash that she had, as well as her jewellery and that on this account, all the family properties belonged to the second defendant alone or, in any event, were the self-acquired properties of the first and second defendants.
5. An argument was also put forward in the Court below on behalf of the contesting defendants that even assuming that the first defendant utilised some funds raised on the security of property obtained by him at the partition of 1905, still, as he was the sole coparcener at that time and as admittedly this mortgage was dischaiged before the plaintiff's birth in 1927, there was no detriment to the paternal estate by reason of this borrowing so as to render the subsequent acquisitions joint family properties, in which the plaintiff would have a share.
This argument was rejected by the learned Subordinate Judge on the ground that he was bound by certain decisions to hold that even in such circumstances the toddy shop business would be treated as a joint family business and the purchases out of profits from this venture could be held to be joint family properties in which the plaintiff would have a share.
6. The learned Subordinate Judge, on a consideration of the evidence held that the toddy shop business was started by the first defendant with the aid not merely of funds raised on the security of the joint property hut also of considerable moneys received from the childless widow who was examined as D. W. 2 and whose evidence he was inclined to believe. There was also evidence that the second defendant contributed considerable labour for the conduct of this toddy shop business and was practically in management of it from 1933 onwards.
Taking these factors into consideration, tbe learned Subordinate Judge held that the toddy shop business was in the nature of a joint venture in which the first defendant and second defendant were each entitled to a half share, the first defendant being entitled to that share on behalf of himself and his undivided son the plaintiff by reason of the utilisation of the credit of the joint family for raising initially the funds with which the business was started.
On this reasoning, the Subordinate Judge held that in respect of all the properties purchased out of the profits of this venture and which were included in schedule A, the second defendant was entitled to a half share and the first defendant to the other half as the manager of the joint family. The plaintiff, therefore, was held to have a fourth share in all the A schedule properties except item 1 in which he was admittedly entitled to a half share. He also directed that the properties included in the settlement in favour of defendants 3 and 4 might be allotted to the share of the first and second defendants so that the equities of these alienees might be safeguarded.
7. The plaintiff has filed App. No. 217 of 1950 claiming that he was entitled not to a fourth share as has been decreed to him but to a half share in all the items. The first defendant died after the decree of the lower Court and defendants 2 to 4 have filed App. No. 151 of 1951 urging that the plaintiff is not entitled to any share in the item other than item No. 1 of the A schedule.
8. Before considering whether the plaintiff is entitled to a fourth or any higher share on the purchases by the first and second defendants rang ing from 1913 onwards, it will be necessary to consider the basis upon which the case of the plaintiff rests. It has to be conceded that the plaintiff would not be entitled to any share in the properties standing in the name of the first and second defendants unless he is able to show that they are joint family property.
In this connection it has to he mentioned that the plaintiff was born in 1927 and that a good portion of the properties had been purchased before that date at a time when the first defendant was admittedly the sole coparcener. So far as the later purchases were concerned, they were either out of the profits of the toddy shop or out of the income from the properties already purchased. Unless therefore the plaintiff is able to establish that the toddy shop business was a joint family asset in which he had a share at his birth, his case must necessarily fail. The only manner in which this was sought to be proved was that two mortgages had been executed on the admitted joint family property and moneys raised and that these moneys had been utilised for conducting this toddy shop business.
It is also admitted that by 1910 the mortgages were discharged so that at the moment of the plaintiff's birth there was no encumbrance on the admitted family property item No. 1 of the A schedule. The question is whether the utilisation of the loan thus raised is sufficient to impress upon the toddy shop business the character or a family business in which the plaintiff would have an interest by birth, by reason of which all the properties acquired out of the profits of this business should be treated as joint family properties in which the plaintiff would have a share. As mentioned earlier this point was raised and argued before learned Subordinate Judge but was rejected by him.
9. Before dealing with the law involved on this aspect of the case, the facts proved might be set out. We have already referred to the partition deed Ex. A-1 and its terms. The next document to be referred to is a mortgage, Ex. A. 2, dated 20-8-1906 executed by Arumugha Naicker of the-filed house and the punja which had fallen to his share. Under this a sum of Rs. 400/- was borrowed carrying interest at 12 per cent. per annum, for doing toddy shop trade.
The endorsement of this mortgage shows that Rs. 200 out of the mortgage amount was repaid on 16-6-1907 and the entire mortgage was discharged by the payment of the balance on 16-5-'1908. Sometime later another borrowing of Rs. 350 was effected on the security of the same property by Ex. A. 5, dated 24-8-1908. It is recited that this also was received for the toddy shop trade.
The endorsement on this deed states that the principal and interest were repaid and the mort gage discharged on 8-3-1910. We might therefore proceed on the footing that two sums of Rs. 400 and Rs. 350 were utilised for the toddy shop busi ness which the first defendant was carrying on at that date.
The question is whether this mortgage on the security of the property obtained at the partition and this utilisation of funds by the first defendant for the business at a time when he was the sole surviving coparcener, are sufficient to impress the character of the family business on the toddy shop venture so as to confer rights by birth on the plaintiff in it and in the properties purchased from out of its properties when the plaintiff was born in 1927.
10. Before considering the details of the argument presented, on behalf of the appellant, it might be stated that it is settled that under the Mitakshra law the share of coparcenary property allotted to any member on partition becomes coparcenary property as regards his issue whether such issues were or were not born at the time of partition. But in the present case the proposition would cover the rights of the plaintiff only in regard to item 1 of the A schedule.
As regards the other properties, the argument on behalf of the appellant is rested on their having been acquired out of the income or with the aid or on the credit of joint family property. Reliance is placed on the following passage in Trevelyan's Hindu law 3rd Edn. at page 265, where dealing with the several sources of joint family property the learned author says;
"(g) Accretions to joint family property. Property acquired out of the income or with the aid or on the credit of joint family property, whether movable or immovable, the income of such property, the proceeds of sale of such property, and property purchased out of such proceeds, or from movable property belonging to the family, are joint family property."
11. Reference was also made to a passage in Maine's Hindu law, 11th Edn. where in a similar context it is stated in paragraph 222 at page 341:
"AH savings made out of ancestral property, aiid all purchases or profits made from the income or sale of ancestral property, would form part, of the ancestral or coparcenary property, whether such savings or acquisitions were made before or after the birth of a son."
Before dealing vvith the decisions on which the propositions above extracted in these text books are based it might be useful to refer to the texts which bear upon the point.
12. In the Mitakshara Chapter I, S. IV, verse 1 dealing with the effects not liable to partition the author commenting on the text of Yajnavalkya Chapter II Verses 119, 120 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 co-heirs. Nor shall he, who recovers hereditary property, which had been taken away, give it up to the parceners; not what has been gained by science."
13. The author sets out in verse 2 the text of Yajnavalkya in his own words and continues in verse 6:
"Here the phrase 'anything acquired, by himself, without detriment to the father's estate' must be every where 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 here-ditary 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 expense 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: (Editor: The text of the vernacular matter has not been reproduced. Please write
14. There is not much difference so far as the present point is concerned between the various commentaries and it might be taken therefore that what is acquired "without detriment to the father's estate" belongs to the acquirer himself. It will be noticed that these texts apply to cases where an acquisition is made by a coparcener while in a state of coparcenary with others. This particular feature is brought out by Devanna Bhatta in his Smriti Chandrika. Dealing with "property not liable to partition" in Chapter VII the learned commentator says in verse 11:
" 'Whatever else is acquired by the coparcener himself without detriment to the father's estate'; the meaning of this passage is made clear by Manu thus: 'What one brother may acquire by his labour without prejudice to the father's estate'. In bath texts, the use of the word 'father' signifies jointness. 'By labour' means by agriculture and the like requiring labour. 'Without prejudice' means without detriment.
Vyasa also says. 'Whatever property is acquired by one's own exertions without making use of the fathers's property shall not be given to the coheirs'. "Without making use" means without using for the purpose of acquiring. The use of the word father here also signifies jointness". (as translated by Gholse).
In Setlur's translation of Smriti Chandrika the passage is rendered thus: (Chapter VII paragraphs 27 to 30)
"27. The principle contained in Yajnavalkya's test i.e., 'whatever else is acquired by the coparcener himself without detriment to the father's estate' is explained by Manu in his passage 'What has been acquired by labour without prejudice to the father's estate'.
28. In both the above passages, the word "father" signifies an undivided co-heir generally. "By labour' means by acts requiring labour, such as agriculture, etc. 'Without prejudice' means without detriment.
29. Vyasa, too: 'Whatever a man gains by his own labour without the assistance of the father's estate shall not be given by him to the co-heirs."
30. 'Without the assistance' means without deriving assistance for the purppse of gainimg. The word 'father' is used to denote an undivided coheir generally."
15. It would he seen from these extracts particularly that from the Smriti Chandrika that the Hindu law commontators did recognise the distinction between acquisition by co-heirs in en-joyment of. common coparcenary property and sole coparceners whose powers of alienation were subject to no legal restriction.
16. We might now take up for consideration the decisions in which the matter has been considered. The first decision to be referred to is -- 'Muddun Gopal Thakoor v. Ram Buksh Pandey", 6 Suth WR 71 (A), which was rendered in 1863. Though the actual facts of the case are not very relevant in the present context, what is of importance is that the test of impartibility of a coparcener's acquisition is founded on this property "having been 'acquired' without detriment to the paternal estate".
In that case the property acquired by a grandfather was distributed by him among his sons and the question was whether by reason of such gift the property became the self-acquired property of the sons so as to enable them to djsposc of it without reference to their grandsons.
The learned Judges held:
"This property cannot be said to have been acquired without detriment to the father's (i. e., ancestral) estate, because it was not only given out of that estate but in substitution for the undivided share of that estate to which the father appears to have been entitled. It cannot, therefore, be taken to have been given simply by the favour of the father, but upon consideration of the father surrendering some interest or right to share in the grandfather's estate, which he did by the acceptance of this separate parcel."
It was held that the donees took the property with the incident of coparcenary properties in which their sons would have a right by birth. It might he noticed that in that case the alienations were alt after the sons were bom and were of the property obtained from the grandfather so that the question in the present form could not possibly arise in that case. In 1869 we have the decision in -- 'Sudauund Mohapattur v. Soorjoo Monee', 11 Suth WR 436 (13).
It was a suit by the plaintiff Sudanund who claimed to be the adopted son of his deceased father, Chuckerdhur for possession of immovable properties which had descended to Chuckerdhur from his ancestors and also all properties acquired-subsequently by the father. The father had executed a will and the plaintiff contested its operative character on the ground that the property sought to bo conveyed by it was ancestral property which could not be disposed of by the father.
There was no dispute as regards the property which had been inherited by the father and the only contest related to that which the father had acquired from the profits of the ancestral cstafe. The father of Chuckcrdhur died in Bengal year 1225 or 1226 and two items of property had been purchased by Chuckerdiiur in 1226 and 1227, while Sudanund was adopted only in 1231.
The contention, that was raised, was that even if these two estates were purchased out of the proceeds of the ancestral properties, still those proceeds belonged entirely to Chuckerdhur and that Sudanund would have no interest in them
"so that the estates may be said to have been purchased out of the money, and sole property of Chuckerdhur."
The learned Judges Loch and Hobhouse JJ. said:
"But we cannot in our mind draw any distinction between investment of money derived from ancestral estates before adoption, and investment of similar money after adoption. That money is not the less the proceeds of ancestral estates if it was invested at one time or if it was invested at another time. In both cases, the money was entirely at the disposal of Chuckerdhur; in both cases he had an equat right to dispose of it as he chose; he might have invested it in the purchase of Government Securities or in other movable property; or he might have expended it or have done what he liked with it.
But in this particular case, he chose to invest it in the purchase of immovable property, he chose not to alienate that property; that properly was in existence at the time Sudanund was adopted; and we fail to see why Sudanund had not equally a vested right to that property as he had in any other similar immovable proeperty which Chuckerdhur had it in his power before the adoption of Sudanund to alienate, but which as a matter of fact he did not alienate ..... We think that, in the cases of these properties equally with any other, it was upon the defendant to sho-v that Chuckcrdhur had acquired them Out of the proceeds of self-acquired assets; and that as he failed to do so, these properties must be considered to be ancestral property."
It is not quite clear whether the two properties purchased in 1226 and 1227 were purchased out of "proceeds of ancestral property" or out of the income of the ancestral property. So far as the properties purchased after 1231 were concern ed they were held on the evidence to haye been purchased out of the income of the ancestral properties in which the son had acquired a right of adoption.
The next decision in order of date is -- 'Adurmoni Devi v. Chowdhury Sib Narain Kur', 3 Cal 1 (C) of the year 1877, but this does not really touch the present question, as it merely affirms the rule that property obtained by a father in a partition with his brothers is ancestral property in which the son would have a right by birth notwithstanding that the son was not born on the date of the partition -- a position of law which is too well settled at this date to be discussed.
Mitter J. had to deal with the question in the present form in -- 'Gunga Prasad v. Ajudhia Per-shad', 8 Cal 131 (D). One Sheodayal Singh executed a mortgage bond on which a suit was laid and the property was brought to sale. The sale of the property was however resisted by some of the sons of Sheodayal Singh and the question was whether the property mortgaged was the self-acquired property of Sheodayal in which his sons had no interest.
The finding of the Court was that the property was purchased with the income of the ancestral property, and that as Sheodayal Singh had no sons at the date of the purchase he was a full owner of the income ot these family properties with the aid of which the mortgaged properties were purchased. The question is thus stated by Mitter J. :
"Therefore the question which we have to determine is whether under the Mitakshara law a son on his birth becomes a joint owner with his father in a property purchased by the father before his birth out of the income of the ancestral property. I think this question should be answered in the negative. An examination of the Mitakshara law will show that the son on his birth becomes a co-owner only in a property which was inherited by the father, from his father, or other lineal ancestor within three degrees."
The learned Judge then proceeded to set out the texts hearing upon the point and concluded the discussion thus :
"The result is, that a son becomes co-owner with his father only in a property which was inherited from the father of the latter. But property acquired out of the income of the ancestral property is not a property inherited. It is true that if property be purchased out of such income after the birth of the son, the latter acquires a joint interest in it. But this is so not under any special texts of the Mitakshara, but because he is jointly interested in the profits arising out of the ancestral property after his birth. But he has no such interest in the profits of such properly before his birth."
He went on. to add :
"This view of the Mitakshara law, however, is contrary to the ruling in 11 Suth WR 436 (B). We cannot therefore dispose of this case upon the ground mentioned above without reference to a Full Bench. But this is not necessaty as we arrive at the same conclusion upon another ground."
17. The decision was referred to and commented on by the Calcutta High Court in 1884 in -- 'Isree Pershad Singh v. Nasib Kooer', 10 Cal 1017 (E). It was a suit for partition by one of the co-widows of one Baijnalh Singh against her sons who had earlier partitioned the properties without giving her a share. Subsequent to this partition, properties had been acquired by the sons out of the income from the properties thus divided between themselves. Two of the defendants who resisted the plaintiffs's claim put forward a contention that the plaintiff would no be entitled to a share in the properties purchased by the sons after the partition since at that date they were entitled to the income of the properties absolutely
This however was negatived by a reference to the Jaw as stated by Macnaghten that a mother was entitled at a partition with her sons not merely to the property which had descended from her husband but also to the subsequent increases not attributable to the exertions of the sons without reference to the family properties. Garth C. J. referred to the passage in the judgment of Mitter J. in 8 Cal 131 (D) and to the decision in 11 Suth WR 436 (B), and expressed his preference to the earlier decision. It will however be seen that the present question did not directly arise for consideration before the court.
18. The decision of the Bombay High Court in -- 'Jugmohandas Mangaldas v. Mangaldas Na-thubhoy', 10 Bom 528 (F), may next be referred to. It was a suit for partition. The facts were as follows: One Manordas died in 1792 leaving five sons. He left a will dated 1789 whereby he directed his property to be equally divided among his five sons of whom Rarndas the grandfather ot defendant 1 and the great grandfather of the plaintiff was one. The property was not however divided until 1852 long after the death of Ramdas and the share pertaining to Rarndas was received by the executors of his son Nathubhoy, Ramdas also having left a will.
Nathubhoy's son Mangaldas, defendant 1 and father of the plaintiff contended that the properties bequeathed to him under the wills of Manordas, Ramdas and Nathubhoy were self acquired properties and this was contested. There was a subsidiary question whether the plaintiff was entitled to any part of the property which was bought prior to the birth of himself and his brothers out of the income of the ancestral property. What is relevant in the present context is the contention relating to these subsequent acquisitions. Scott J. dealing with this point said (at page 550) :
"The defendant further argued that all the property he had purchased by means of the income of ancestral property, before the birth of the son, was self acquired, and did not vest in the latter at his birth. He cited, in support of this contention, a dictum of Mitter J. 8 Cal 131 (D).
The seems to be in conflict with the rule that the accretions and accumulations follow the corpus, I shall hold that all the property acquired out of the income of the ancestral property is of the character of that from which it came, on the principle that aceesorium scquitur suum principale. A fortiori, does this apply to property consisting of accretions made with tne aid of the ancestral property after the birth of the son."
On appeal Sargent C. J. delivering the judgment of the Bench stated at page 580:
"It remaiRt to consider the question as to the accretions of ancestral estate during defendant 1's lifetime prior to the plaintiffs birth. The case of 8 Cal 131 (D) where Mitter J. held that the grandson has 'no interest in the income of the anees-tral estate which has accrued before his birth', was relied on by defendant 1. But this is opposed to the ruling of the Privy Council in -- 'Umrithnath Chowdhry v. Goureenath', 13 Moo lad App 542 (G) where it was held that accretions made by the investment of the profits of the ancestral property were ancestral property, and this ruling a con-sidered both by Mr. Mayne para. 248, and the learned authors West and Buhler at page 723 to be the correct view, on the ground that the accumulations would follow the character of the fund from which they proceeded."
19. It might however be noted that the decision in 13 Moo Ind App 542 (G) does not support the particular point. It was a suit for a declaration by the plaintiffs as regards their title and joint possession of an undivided moiety of an estate called Majhoulee. This talook had been granted to the grandfather of the plaintiffs, one Hurjee. After Hurjee's death it descended upon his two sons Bacharam and Sheebloll. The estate however was registered in the name of Bacharam. The question was whether by reason of this registry the right of the younger son whose heirs were the plaintiffs had lost their rights.
James L. J. delivering the judgment of the Privy Council stated that right through both Hurjee as well as Bacharam were asserting title to the zamindari in their hereditary rights, and the mere fact that one of the two brothers was registered so as to be the proprietor to the outer world had no bearing upon the question of real rights to the property. The two brothers lived together and the marriage and funeral and other ceremonies were performed at the joint expense out of the income of the property. Impartibility and primogeniture having been negatived on the ground that no such custom was proved the plaintiffs were granted the declaration. This extended not merely to the property originally granted to Hurjee but also to the subsequent acquisitions which were made out of the income of the joint family properties.
Two observations may be made in connection with the decision of 10 Bom 528 (F). In the first place the decision of the Privy Council in 13 Moo Ind App 542 (G) is certainly not an authority for the wide proposition which it was treated as deciding namely that acquisitions made by a coparcener out of the income of ancestral property when he was absolutely entitled to do as the sole coparcener became coparcenary property in which the subsequently born or adopted son takes an interest by birth or by adoption. The other is that the joint family character of such acquisition is rested on the doctrine of accretion or an accession to the original ancestral property.
20. This Court had to consider the question for the first time in -- 'Ramanna v. Venkata', 11 Mad 246 (II). The case arose out of a suit by a minor son for setting aside a Rift deed executed by the father in favour of defendant 1 on the ground that the property gifted was family land. This land had been purchased before the plaintiff's birth out of the income of the family property. The suit havin been decreed an appeal was filed to this court and one of the grounds raised was that the land mentioned in the plaint having been purchased by the plaintiffs father before the plaintiff was begotten he acquired no right by birth in the property purchased. This contention was negatived by the court the learned Judges stating:
"We entertain no doubt that property acquired by means of income derived from ancestral property is also ancestral and that the son acquires a joint interest in it with his father by birth under the Hindu law. Any other view is inconsistent with Mitakshara, Chapter I, S, iv, Clause i, which defines self-acquired property. It is suggested by the appellant s pleader that the father may spend the income at his pleasure, and, therefore, if he invests it in land, he is at liberty to alienate it at his pleasure.
We are, however of opinion that the father is not liable to be called upon to account for the income of family property during coparcenary not because he has an absolute disposing power either over the family property or its income, but because it is presumed from the continuance of the coparcenary that the expenditure has been acquiesced in by the coparcener. If the father saves any part of the income, the saving is clearly part of the property of which the son can demand a partition. In the case of a childless Hindu widow, the income derived from her husband's property constitutes part of the widow's estate but in the case of a joint family the income of a family estate is, unless it has been expended bona fide in the ordinary course of management, part of that estate. The observations of Mitter J. in 8 Cal 131 (D) are a mere dictum."
We feel bound to observe that this reasoning does not appeal to us. The assumption that the power of a sole coparcener over the income from the property obtained on a partition is subject to the same limitations as when there are other coparceners present, is, in our opinipn, unjustifiable and does not accord with what is now clearly established law.
21. Further the other line of reasoning based upon the analogy of the character of the income obtained by a Hindu widow from her Husband's estates being treated as part of her husband's estate and the accumulations thereof and the purchases the refrom being ipso jure impressed with the character of the property from whose income they were acquired is clearly erroneous as seen in the later decisions of this Court such as for instance the decision in -- 'Akkanna v. Venkayya', 25 Mad 351 (I).
In a judgment rendered in that case by Benson and Bhashyam Aiyangar JJ. the position as regards the income derived by a Hindu widow from her husband's estate and the presumptions applicable to the property purchased out of the savings effected thereby is thus stated:
".....We are unable to uphold the finding of the District Judge that the property acquired by Parvatamma, on a usufructuary mortgage for a long term of years by means of the income derived by her from the jerayati land inherited from her husband, should be held to form an accretion to her husband's estate, and that her alienation of the same does not bind her reversioners.....Thequestion as to the power of disposition which a Hindu widow has over property acquired by her out of the income from her husband's estate, or out of savings from such income, has to be determined solely with reference to general principles and judicial decisions, there being no texts of Hindu law bearing upon it."
22. After referring to the decisions of the Privy Council in -- 'Balm Sheo Lochun Singh v. Babu Saheb Singh', 14 Ind. App 63 (J) and -- 'Sowdamini Dossee v. Administrator General, Bengal', 20 Ind App 12 (K), the judgment proceeds:
"The acquisition made by her out of the income of her husband's estate was not in the nature of an enlargement of that estate.....it was simply investment on a usufructuary mortgage, of her small savings over which she had absolute power of dis-posal and it is difficult to see on what principle it is to be presumed that she thereby intended to part with her power of disposition, for the benefit of her reversionary heirs. The acquirer of property presumably intends to retain dominion over it, and in the case of a Hindu widow the presumption is none-theless so when the fund with which the property is acquired is one which, though derived from her husband's property, was at her absolute disposal.
In the case of property inherited from her husband, it is. not by reason of her intention but by reason of the limited nature of a widow's estate under the Hindu law that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income.....The case, therefore, is not analogous to that of an undivided member of a Hindu family possessing joint family property, who. by throwing into the common stock the income he derives from his separate or self-acquired property, manifests his intention to impress such self acquired property with the character of joint family property."
23. This view of the powers of a Hindu widow over the income of her husband's estate as well as her power over acquisitions made out of such Income has been recognised and approved by the Privy Council in -- 'Rajah of Kamnad v. Sundara Pandiayswami Thevav', AIR 1918 PC 156 (L); --'Venkatadri Apparao v. Parthasarathi Apparao', AIR 1925 PC 105 (M) and in the othumalai case --Balasubramania v. Subbayya Thevar', AIR 1938 PC 34 (N) affirming the judgment of this court in --'Marudappa Thevar v. Collector of Tinnevelly', AIR 1935. Mad 1017 (O).
If this is so in the case of a Hindu widow who has no absolute dominion over the corpus of her husband's estate, the position as regards a sole surviving coparcener with unrestricted powers of disposition over the corpus must "a fortiori' be in favour of holding the property so acquired as self-acquired property, so that the analogy of a widow far from supporting the conclusion which the learned Judges in 11 Mad 246 (H) drew from it, would lead to an exactly opposite result.
24. The next case which might- be referred to is a decision of the Allahabad High Court in --'Bachcho Kumvar v. Dhararndas', 28 All 347 (P). One Paras Das was the managing member of the joint family owning a large extent of ancestral pro-perty. Paras Das and his cousin were the reversionary heirs of one Pardman Kunwar. But when the reversion fell in they were obstructed by a stranger who put forward claims to that property. There was a litigation which ended in a compromise, under which Paras Das got a fourth share in the property. Paras Das died leaving a will by which he purported to create interests in favour of strangers on the portion of the property so acquired under the compromise. One of the sons of Paras Das filed a suit challenging his right to dispose of the property by will.
The plaintiff's contention was that though normally the property, which his father inherited as a reversioner, would be his self-acquired property which he was competent to dispose of at his pleasure, the family property had been expended for conducting the litigation which resulted in Paras Das acquiring the property and that consequently it should be treated as joint family property in which the plaintiff would have a right by birth. The facts were that about Rs. 9000 was expended for this litigation and this sum was obtained from the surplus funds of the joint family in the hands of the manager. The same was replaced out of the self-acquired funds belonging to Paras Das within a short time. In other words. Paras Das took a loan from the family and repaid it after a short time.
The question was whether this temporary utilisation of family funds was "a detriment to the paternal estate" which rendered the acquisition of the reversionary interest coparcenary property in which the sons would have an interest. The learned Judges Stanley C. J. and Burkitt J. held that the property continued to be the self-acquired property ana was capable of being disposed of by Paras Das. They stated at p. 354:
"On behalf of the appellant it is said that the money was merely borrowed by Paras Dass and that this is shown by the accounts kept by him in regard to the property. The family was a banking firm and had a large amount of money at its disposal, and it cannot be said that the temporary use made by Paras Das of the money applied in the expenses of the litigation caused any real detriment to the ancestral property."
After dealing with the facts of the case they continued:
"In view of these facts we cannot see our way to hold that property, which admittedly would have been self-acquired property became an increment to the joint family property by reason of the fact that Paras Das applied money of the family in the prosecution of his litigation. The transaction we think ought to be regarded as a borrowing, by Paras Das, of money of the firm and nothing more.
The joint estate suffered no appreciable detriment by the transaction, and it would be, we think unduly extending the principle of Hindu law applicable to acquisitions by the aid of joint funds or joint exertion if we were to hold that the property which came to Paras Das from a collateral branch of the family, became joint family property."
With respect to the learned Judges we agree that this is the correct approach to the question.
25. The next decision in order of date is that of the Privy Council in -- 'Lal Bahadur v. Kanhaiya Lal', 29 All 244, (Q) which is cited in Mayne's Hindu law as the basis for the passage in the text extracted earlier. The headnote of the case which sets out the facts sufficiently to understand the decision makes it clear that this is not an authority for the position that sons subsequently born have rights in properties acquired by their fathers during a period when the latter were the sole coparceners. The headnote runs thus:
"A Hindu, the head of a joint family governed by the Mitakshara law, left property which on his death in 1849 passed to his three sons who remained joint until 1866 when they came to a partition amongst themselves. There was nothing to show that any of them then had any separate property. At that time one of them had two sons and another son was born to him after the partition. The father and these three sons lived together jointly and acquired other property.
The father died in 1894 leaving a will by which he gave a small allowance and a residence to each of his younger sous and left all the rest of his property to his eldest son describing it as his self-acquired property. In a suit brought by the two younger sons against their brother to set aside the will the Judicial Committee held that the share taken on partition by the father of the plaintiffs and defendant was ancestral property and that there being a nucleus of ancestral property the property in suit was not self-acquired.....and that the will was not operative."
The contention that was raised for consideration of their Lordships is to be found in the following passage in the judgment of Sir Andrew Scoble:
"But it was contended that any property acquired by Durga Prasad after the partition was acquired by him 'without the aid of ancestral funds, and with his own separate earnings", and that ho therefore had the right to dispose of it as a self-acquired property."
This argument was negatived on the reasoning that "it is admitted that Durga Prasad and his sons lived together as a joint Hindu family, and it is established that there was 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 discharg-ed?" After referring to the books of account of Durga Prasad, his Lordship continued: (at p. 254):
"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 be-came 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."
This decision has really no application to a case like the present.
26. The next case which is relied on in this connection is the decision of the Bombay High Court in -- 'Chabildas v. Ramdas', 11 Bom LR 606 (R), which arose out of a suit for a declaration that the properties included in schedules to the plaint were the self-acquired properties, of the plaintiff. The facts are complicated but the point decided is sufficiently brought out by the headnote which runs thus:
"If a Hindu having ancestral moneys spends 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.
Whereas 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 as-certainable character, which is ancestral and where he can account tor 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".
These passages would show that the real question at issue in that case was one of blending and not of any opint of the type now under consideration. Learned counsel for the appellant placed strong reliance on a passage in the judgment of Dcvadoss J. in a case in -- 'Vadamami Pillai v. Subramnia Chettiar', AIR 1923 Mad 262 (S). The case itself related to a person who had obtained on partition with his broilers land valued at Rs. 200 and burden-ed with debts to the extent of Rs. 500 and subsequently acquired with his income as Dnbash of certain commercial concerns, properties worth Rs. 40,000/-. The learned Judges held that the nucleus was not sufficient to impress the subsequently acquired property with the character of joint family property.
The case concerned a suit brought for the recovery of money due on a mortgage by deposit of title deeds which was executed by the father. The sons who were impleaded in the suit as co defendants, disputed their liability. One of the contentions raised by the plaintiff was the property, which was the subject-matter of the mortgage, was the self-acquired property of the father and that therefore they could not dispute the plaintiff's right to bring it to sale. The learned Judges Spencer and Devadoss JJ. both held that the mortgage would be binding upon the sons even if it was the joint family property.
They also held that the property was the self-acquired property of the father differing on the latter point from the Subordinate Judge who found otherwise. After dealing with the authorities relevant to the second question, Dcvadoss J. went on to add (at p. 268):
"Cases can be conceived where the family nucleus is mortgaged and money raised on the security of it with which a trade is started and acquisitions made out of the savings of the trade profits; or where the family nucleus is given as security for an appointment such as that of Debash or cash keeper & hut for such security the member could not have securad the appointment, in such cases it may reasonably be held that the family property was the means or the foundation of the fortune, that was acquired afterwards."
It is this passage which is relied on by learned counsel for the appellant as laying down that if the family property is mortgaged and the money raised thereby is utilised for the purpose of a business, such utilisation so infects the business as to render it a joint family concern. In our opinion these observations are obiter and do not apply to transaction by sole coparceners.
27. The last case relied on was--'Ayyangouda Basangouda v. Gadigeppagouda', AIR 1940 Bom 200 (T). There were other points involved in the case but the facts necessary for appreciating the discussion in relating to the present subject were these: A joint family possessed considerable properties which defendant 1 Ayyangouda inherited. He was then the sole surviving coparcener. One of the items thus inherited was sold by him for Rs. 3000 and the proceeds were utilised for the purchase of two properties in which the adopted son as the plaintiff claimed a share as part of the joint family property in which he obtained rights on adoption.
There can be no dispute that Ayyangowda's sale was within his competence for he was then the sole owner of the property and could convey a valid title by his sale which could not be questioned by an adopted son who came,into the family at a subsequent date for the latter's rights do not relate back for this purpose to a date anterior to his adoption:
"If Ayyangouda therefore had appropriated the proceeds of the sale for his private purposes he could not be made accountable to the plaintiff." But the question was whether if it was established that the proceeds were utilised in purchasing other properties, this would partake of the character of ancestral property in Ayyangowda's hand in determining the claim of a subsequently adopted son to a share therein. The learned Judge found as a fact that the moneys obtained by a sale were invested by Ayyangowda in a profitable business and that the profits made from that business enabled him to purchase the properties in dispute. On these findings Wassoodcw J. stated:
"Tf profits were made from business started with the proceeds of the sale of ancestral property, the investment made from these profits would, in my opinipn. form part of the ancestral copareenery property. Ordinarily, if such investments were made by the father or manager as head of the family, they would partake of the character of ancestral property, for the investor was clearly accountable to the other coparceners.....I do not think the position of the sole surviving coparcener, who has invested the ancestral funds in a fresh business start-ed by him, should be different merely because he was the sole owner of the entire property at the time of the investment.
I think the principle of accretion could pro-perry be applied to the profits made from investment of the ancestral funds by the sole surviving coporeener prior to the adoption. There is nothing in the texts or the authorities cited to suggest that the adopted son's right to a share must be restricted to the ancestral property which could be followed in specie. I think it is logical to regard the accretions to the ancestral fund as partaking of the same character as the corpus."
Indamarayan J. who agreed with the other Judge, rested his conclusion on the following reasoning:
"I will only add that a sole surviving coparcener has undoubtedly the right to alienate the family property to third parties without being accountable, but it does not follow therefrom that if he only converts part of the family property into a different kind of property or cash & keeps it in his own hands, such new property -- the result of conversion -- loses its character of joint family property. On a similar basis, to my mind, must be considered accretions to such converted property."
It will he seen that in this case there has been a sale of ancestral property with the result that when the adopted son emerged on the scene there was certainly a detriment to the paternal estate in the shape of his having lost the ancestral property in which he would have a share if the alienation had not been affected before his adoption. Secondly it will be noticed that the joint family character of the acquisition is rested on the theory of its being an accretion to the original property. -
28. We might now summarise the effect of these several decisions.
1. Property obtained by a coparcener on partition is ancestral joint family property in which sons horn or adopted subsequently have rights, notwithstanding that, at the date of the partition, the dividing member was a sole coparcener.
2. A sole coparcener has absolute rights of alienating properties thus obtained by him on partition and subsequently bom or adopted sons cannot question such alienations for the property has ceased to be family property at the date of their birth or adoption.
3. It follows that the income received by a sole coparcener from what might become joint family property on the emergence of a coparcener is till such date at the absolute disposal of such owner.
4. Where ancestral property is sold by a coparcener and the sale proceeds are utilised for the acquisition of other property, either with or without self acquired funds, the property so acquired would partake of the character of ancestral property in which sons subsequently born or adopted would acquire coparcenary rights because such property has been acquired "by detriment to the paternal estate", the detriment being that the original property, which would have come to him but for the alienation, is not available at the subsequent date.
Apart from cases of such detriment, where from the income of ancestral property a sole coparcener makes purchases the only legal basis for imputing joint family character to the subsequent acquisitions is the theory of accretion which would be dependent upon the intention of the acquirer. In such cases the mere utilisation of any portion of the income from ancestral property would not 'ipso jure' render the acquisition part of the ancestral property in which a son subsequently bom or adopted would acquire a right by birth.
5. In the present case though the money rais-ed on the security of ancestral property was used for running a business which produced the profits out of which the acquisitions were made, there was "no detriment to the paternal estate", since long before the plaintiff was born the mortgages had been discharged so that the ancestral property was available to him when he was born. There was therefore no detriment to the, interests of any coparcener, nor can the subsequent acquisitions be treated as coparcenary property by recourse to the theory of accession or accretion for no evidence of such intention can be gathered from the purchases or from their dealing.
29. The view of Mitter J. in 8 Cal 131 (D) appear's to be logical and is supported by the text of Smriti Chandrika which has been extracted above. But possibly it is too late in the day to affirm it with all its consequences. One thing is clear. There is no decesion of the Privy Council which lays down a contrary rule. None of the decisions had to deal with a case of acquisition by a sole coparcener and the decision usualiy cited in this context, viz., 13 Moo Ind -App 542 (PC) (G) was not a case of such an acquisition. So far as the decisions of the High Courts are concerned, the only relevant cases dealing with acquisitions by sole coparceners are 10 Cal 1017 (E); 10 Bom 528 (F); 11 Mad 246 (H) and AIR 1940 Bom 200 (T).
The decision in 10 Cal 1017 , (E) was rested on the authority of 11 Suth WR 4.36 (B), and in this case it was not clear whether it was the sale proceeds of the ancestral property or the income therefrom that was utilised for the purchase of the other property. The principle upon which the joint family character of the acquisition was sustained by the decision in 10 Bom 528 (F) was the theory of accession. The decision in 11 Mad 246 (H) by Muthuswami Aivar J. proceeds upon a theory of an incipient or inchoate coparcenary even when the property belongd to a sole coparcener and was rested upon the rule that a sole corpar-cener had not an absolute interest in the income from ancestral property which is not the law as subsequently understood.
Reference was also made to the analogy of a widow in respect of whom it was stated that she had no absolute interest in the income from her husband's estate which also is incorrect in view of the later decision. This decision cannot, therefore, be treated as resting on any correct principle in th" light of the law as now understood in respect of these several matters. The last decision to be noted is AIR 1940 Bom 200 (T), where it is rested on the theory of accession or accretion.
30. We Have only to add that the conclusion we have reached above is that the mortgages effected by defendant 1 on item 1 of A schedule in 1906 and 1908, which mortgages were repaid before 1910, and the utilisation of these moneys for starting a business of a toddy shop do not render that business a joint family business so as to make the properties purchased with its aid joint family proper-lies in which the son can claim a share in the partition. In this connection the decision in 28 All 347 (A) in our opinion lays down the correct law. We therefore hold that the only ancestral property in which the plaintiff would have a right to claim a share is item 1 of the A schedule anrl that he is not entitled to claim a partition in respect of other items in suit
31. The result is that App. No. 217 of 1950 is dismissed and the other appeal i.e., App. No. 151 of 1951 is allowed, both with costs. Advocate's fee in A. S. No. 151 of 1951 alone.
32. Learned counsel for the plaintiff drew our attention to the fact that defendant died after suit and that we should take into consideration this Circumstance and grant to the plaintiff relief on the basis of his succeeding to the interests of his father. Having regard however to the settlement effected and the challenge made as regards their validity, we do not consider it proper to travel beyond the pleadings in the case and to adjudicate upon any rights not put forward in the plaint. All the other matters could and ought to be agitated in other proceedings if the parties are so advised.
33. We have dealt with the ap peal on the footing that the plaintiff has no right to claim a share in the properties in suit other than item 1 of Schedule A on the ground that they were not properties which were held by his . father jointly with himself. There was a further contention rais ed, which found acceptance at the hands of the learned Subordinate Judge, that the acquisitions by the father were not with his own funds merely, but were the joint acquisitions of himself and his wife. Though this point was raised by the plaintiff-appel lant here arguments have not been heard on that point, and our decision does not conclude that ques tion in favour of or against the plaintiff-appellant.