Walter Schwabe, C.J.
1. I agree with the judgment of Wallace, J., which I have had the opportunity reading and have nothing to add.
2. The contest in this appeal concerns certain houses, Nos. 100, 101 Thambu Chetty Street Madras, purchased by one Kalluram Lal, now deceased, on 31st December 1909. The plaintiff is the minor son of Kalluram's brother, Rajaram Lal, also deceased. The first defendant is the widow of Kalluram and the second defendant an alienee from her. The chief point at issue is whether the property is joint family property, the whole of which the plaintiff alone would be entitled to on the death of his father and uncle, or the absolute and self-acquired property of Kalluram Lal to which his widow succeeded in absolute right. The Trying Judge has found in favour of the plaintiff and the second defendant appeals.
2. The property originally belonged to Kalluram and Rajaram as joint family property having been bought by their father in 1872. On 4th October 1894 both brothers sold the property to one Ami Perumal Mudaly. Shortly after that, each brother in turn separately went insolvent. Early in 1895 each got a personal discharge, but, so far as appears in this case, each did not get a final discharge until his death in 1918. On the same date as the sale to Perumal Mudaly, the latter mortgaged the property with possession to one. Rangiah Chetty. Perumal Mudaly on 17th February 1897 created a further charge on the property in favour of his mortgagee, and later on borrowed various sums from him. For all that was owing up to 13th August 1900 Perumal Mudaly sold the property to Rangiah Chetty for Rs. 11,900. On 16th June 1904 Rangiah Chetty sold it to Rajagopal Chetty and Subbiah Chetty for Rs. 9,500 On the same date these two entered into an agreement with the maternal uncle of Kalluram and Rajaram to sell the property for the price paid by them, at any time within three years from that date. On 31st December 1909 Kalluram purchased the property, from these two for Rs. 10,000, having borrowed Rs. 9,000 of this on an equitable mortgage, Exhibit II (c), over the property itself which was subsequently replaced by another, Exhibit II, dated the 19th January 1910. Kalluram mortgaged the property in 1910 and 1913, and he died in 1918. Thus the property which had originally been the joint family property and was sold by both brothers in 1894 came in 1909 into Kalluram's possession by purchase.
3. The plaintiff was born in the interval in 1907. His case is two-fold, based on the common foundation that the brother% never divided. He claims, first, that the property never passed out of the possession of the family and that the series of transactions noted above between 1894 and 1909 never deprived the family of it; and, secondly, that, even if the family had lost it, Kalluram's purchase in 1909 was a purchase for and on behalf of tire joint family. The defence case is, that Kalluram and Rajaram were divided in status at least from the date of their separate insolvencies, that there was no re-union before 1909, that the series of transactions was a genuine series which for the time carried the property wholly out of the possession of the brothers and, therefore, it ceased to be joint family property, and that the re-purchase by Kalluram was for himself alone with his own private funds and not with any joint family funds.
4. The real point for decision is whether before the birth of the plaintiff and at the time of Kalluram's purchase the brothers were or were not divided. It will be convenient to discuss first what was the real nature of the series of dealings with the property from 1894 to 1909. It is true that the plaintiff did not, in the plaint, put forth the contention that they were benami or colourable, but that is not important. They were produced as part of the defence and the plaintiff's business there was only to explain them away as far as he could. They were, however, before the plaintiff when he called his evidence in Court, and I may note here that, except for a vague answer elicited from P.W. No. 2, which is not evidence, the plaintiff has not adduced any evidence about these documents. He relies entirely on inferences and suggestions and speculations drawn from the text of the documents. The initial assumption involved in his ease is that the sale of 1894 to Perumal Mudaly was, since the brothers were on the verge of bankruptcy, benami for the joint family. Having this as a foundation the plaintiff's Pleader ingeniously built upon it the rest of his case, that the sale of Pertfmal Mudaly to Rangiah Chetty, the mortgagee, was not really a sale but a mortgage, that Rangiah Chetty and Subbiah Chetty had only the mortgage right, that the brothers thus continued throughout to retain the equity of redemption, so that when Kalluram Lal ostensibly purchased from the Chetties in 1909, he was taking his stand on the joint family right to the equity of redemption, and that in that view it matters not whether the money paid ostensibly for the purchase but really to discharge the mortgage was Kalluram's own private money or not, since his redemption of the mortgage would be, as laid down in Visalatchi Ammal v. Annasamy Sastry 5 M.H.C.R. 150 , for and on behalf of the family and thus the property would in the end be as it was in the beginning, joint family property.
5. Undoubtedly there are some matters unexplained in the case which would fit in with this theory. An impending insolvency is a likely motive for a fraudulent sale and for the concealment of the real ownership until all danger from creditors has been removed. The fact that the sale by Rangiah Chetty was for Rs. 2,400 less than he had bought the property for, might indicate that the figures were merely nominal and not real. The sale to Rajagopal Chetty and Subbiah Chetty was accompanied by a contemporaneous agreement to sell to the maternal uncle of the brothers, for whom Kalluram himself was eventually substituted. But I feel that this line of attack on these documents is too speculative, and that the attack has been developed since the date of the hearing of the suit in a manner which the defence cannot be expected to meet here. The case which the defendant was called on to meet by evidence in the Court was that raised in Issue No. 1, that is, the general question whether Kalluram and Rajaram were not divided in their lifetime before the birth of the plaintiff. The Trying Judge in his judgment so states the point for trial at page 18, line 25 of the printed papers. From a further remark at page 19, line 11, it would appear that it was only at the time of argument it was advanced that the whole series of transactions from October 1894 to December 1909 was colourable. Tins appears to be correct, as I find that the only hint in evidence of the present attack is the question to P. W. No. 2 noted above as to the nominal nature of the sale to Perumal. But, as he only came into the service of the brothers in 1901, he could not give any direct evidence, and I note that, the same man has attested the sale-deed to Rangiah Chetty and he was not asked a word about that. The learned judge in his conclusion at page 25 line 18 assumes the documents to be genuine transactions but supposes they were to get the property out of the hands of Rajaram's creditors and possibly out of the hands of Kalluram's creditors. But I feel sure that the attack of the plaintiff on these documents developed at the time of the argument and not in the evidence, has put the defendants at a disadvantage, of which they have reason to complain. Had the defendants had warning at the time of trial in the lower Court as to the particular points of the present attack, they might have been able to prove, for example, that the sale to Perumal Mudaly was merely the common dodge of the bankrupt for converting the immoveable property into cash, that the sale price to Rangiah Chetty was fixed at Rs. 11,900, because that was the sum total of the debts owing to Rangiah Chetty by Perumal Mudaly and Rangiah could not hope to get his money out of him otherwise, that no cash proceeded from Rangiah for that purchase. They might also have been able to show that the property had depreciated in value between Rangiah Chetty's purchase and the sale to Rajagopal Chetty and Subbiah Chetty and that the agreement of sale to the maternal uncle was the result of a genuine endeavour by the brothers to get a sort of right of preemption over the property to be exercised whenever financial circumstances permitted. It is a weak point in the plaintiff's case that no suggestion is made why these Chetties, one of them being a Professor in the Christian College, should oblige these bankrupt brothers and why it should be necessary to substitute Rangiah as the nominal purchaser in the place of a benamidar Perumal Mudaly who ex-hypothesi was willing to oblige.
6. I think that the only sound conclusion is that Rangiah Chetty at least insisted on a sale and that the property passed to him, but that each brother was keeping an eye on the property, and, when it came to Rajagopal Chetty and Subbiah Chetty, one of them found a chance of recovering it. It may be further noted that though the agreement to re-convey was taken from Rajagopal and Subbiah Chetty, no similar agreement was obtained from Rangiah Chetty. I think the strong probabilities are that, the sale to Rangiah Chetty was a genuine sale. On this point of the case I conclude that whatever grounds there may be for holding that the transfer to Perumal Mudaly was not a genuine one, there is no valid ground for holding that the sale to Rangiah Chetty was not what it purports to be and that the ownership of the brothers in the property passed by it. I will point out as worthy of notice that no creditor of either brother appears to have come forward at any time to claim that these alienations were nominal. This would indicate the public estimate of these transactions.
7. I conclude, therefore, that the property passed wholly out of the hands of the joint family, if not in 1894 when it was sold to Perumal Mudaly, then at least in 1900 when it was sold to Rangiah Chetty and that the latter sale was a valid sale. The doctrine laid down in Visalatchi Ammal v. Annasamy Sastry 5 M.H.C.R. 150 is applicable to the case of a mortgage or to a wrongful dispossession of joint family property but will not apply to a case where the joint family disposed of the property by valid and voluntary alienation. See Bajaba Bajirao v. Trimbak Vishvanath 4 Ind. Cas. 255 : 34 E. 106 : 11 Bom. L.R. 1122 and Chokku Raoji v. Tatya Nama 59 Ind. Cas. 569 : 22 Bom. L.R. 1297.
8. On the main question whether the brothers were divided at the time of Kalluram's purchase I will first take up the evidence as to the source of the purchase-money. Such evidence as there is, is all one way Rs. 9,000 was borrowed on security of the property given by Kalluram alone and Rs. 1,000 in cash apparently came from some other source. The plaintiff's suggestion that the cash might have come out of the monies borrowed by the brothers for joint trade on the hundies, Exhibit B, series, is apure surmise. On the other hand, in the mortgage-deed by Kalluram, 'Exhibit III, dated 6th April 1910, there is a statement by him that this Rs. 1,000 was his own money. This document is attested by Raja-ram with the significant addition to his signature of the words 'after having read the whole document.' This note was obviously intended to fasten on Rajaram a knowledge of what Kalluram had said in the document. This is a document executed after the birth of the plaintiff and the effect of such a statement on the plaintiff's rights in the property as well, as his own could not have been absent from Rajaram's mind. This admission against his own interest by Rajaram, while of course not an estoppel against the plaintiff, is, in the absence of other evidence, reasonable proof that the Rs. 1,000 came from Kalluram alone. The conclusion is strengthened, to my mind, by the fact that the pro-note and the equitable mortgage for Rs. 9,000, Exhibit II, was executed by Kalluram alone. The plaintiff argues, if was still at that time necessary for Rajaram to hide his interest in the property in order to conceal it from his creditors. But I fail to find any satisfactory evidence that he was then in any worse financial situation than Kalluram, while at the same time the two brothers were publishing to the business world and, therefore, to their creditors their jointnes in trade by jointly executing hundies, Exhibit B series, for trade purposes. The lender of Rs. 9,000 would in his own interest not have refrained from getting Rajaram's signature to bind the whole joint family. The more the joint trade of the brothers suggested jointness in status, the more likely is it that their lender would have insisted on Rajaram's signing the equitable mortgages, if the property was really joint family property. There is thus strong probability that it was Kalluram's own money alone which went for the purchase in 1909.
9. That is some indication that the brothers were then divided, and that inference is further strengthened in three ways, first, the probability that the brothers were divided at the time of the insolvency, secondly, the conduct of Rajaram himself, and, thirdly, the conduct of his widow after his death. As to the first point, the two brothers went into insolvency in 1895 separately, as if divided, with separate creditors and separate list of assets. We have looked into the schedules, but they do not throw any light on the question of division. We are not told that any creditors or Official Assignee attempted to amalgamate the two insolvents and the two estates. It is not necessary in this case to decide whether the presumption of separate insolvency petitions would in law be a sufficient declaration of an intention to separate and would constitute a partition. The fact remains that in 1894 the brothers held themselves out to the world to be divided, and I see no good reason for supposing that this attitude did not represent the truth. The series of dealings with the property subsequent to the insolvency does not conflict with a divided status even if I suppose that they were all benami. The existence of a joint trade must be admitted and has weighed much with the lower Court, but that again is not inconsistent with division, while there is some oral evidence which there is no reason to reject including that of the brother's clerk, P.W. No. 4, examined for the plaintiff, that the brothers each had also a separate trade. The fact that when Kalluram bought the property in 1909, the sale-deed was, taken in his name alone, though the names of both brothers appeared on the original sale in 1894, by which the property left the family, is a point in favour of the status of the brothers being then a divided status.
10. In this connection also the conduct of Rajaram (point 2 noted above) becomes important. We see him at a time when his minor son was alive attesting with full knowledge of its contents, Exhibit III, dated the 6th April 1910, by which Kalluram mortgaged the property and in which Kalluram states 'that none except myself has any kind of claim' in the property, and again attesting Exhibit IV, dated the 28th May 1910, a subsequent mortgage by Kalluram, in which Kalluram states that he is the absolute owner of the property. Then, after the death of Kalluram when if the family had remained joint, he became the manager of it, and where clearly it was imperative in his own interest as well as that of his son to put dealings regarding the property, which held put Kalluram as the sole owner, in their true light, he did nothing at all, but let things remain as they were. Even in a Will written by him, but not produced by the plaintiff he is said by C.W. No. 8, a High Court Vakil who attested the Will, to have made no claim to any immoveable property. This is a document in which at any rate he need not have been afraid to set out the real state of affairs, since he could have kept the knowledge of it from his creditors. Further, he is stated by several witnesses to have been present when Kalluram's widow after her husband's death took rental agreements, Exhibits VII and IX series, in her own name from the tenants occupying the property and he again did nothing. Against this the plaintiff has nothing to set worth mentioning except the fact that in Raja Ram's diary there are entries that in 1918 he paid sums of money from time to time to Kalluram's widow for the repairs of the house, and once paid Rs. 5 for stamp agreements for this house. Again, I would note that this is the point which the defence has not been given any opportunity of rebutting. It is not impossible, for instance, that the widow being then in seclusion got him to look after rental agreements and repairs and financed him for that purpose, and that the diary entries are merely noted for his own information of what he had paid out. The plaintiff's suggestion that these rental agreements were nominal for Rajaram because the latter was still in financial difficulties is not supported by any satisfactory evidence. I regard this apathy by the father of a minor son in the face of the dealings with the property as her own absolute property by the sonless widow of his brother as a very strong proof that division had in fact taken place before his son's birth, and that the property when purchased by Kalluram, became his sole absolute property.
11. As to the conduct of the widow of Rajaram Lal after his death, it is significant that, though he died in November 1918, she did not send any notices to the tenants on the property who were attorning to Kalluram's widow to attorn to the plaintiff, although she published notices warning intending purchasers not to buy from Kalluram's widow. It is remarkable that she, examined as P.W. No. 1, nowhere says that she was told by her husband that he and the minor plaintiff had an interest in this property. Surely, at least when he was dying, Rajaram would have made her cognizant of the true state of affairs, so that she may look after her infant's interest. It is clear that Rajaram left no record, oral or verbal, to his immediate relations that his minor son had any interest whatever in this property.
12. The Trying Judge has decided the case in the plaintiff's favour on the footing that the family never was divided and that either the purchase by Kalluram was for the joint family, or the series of transactions from 1894 to 1909 were benami and the property never passed from the family. The existence of a joint trade weighed most with him in deciding that there had been no division. I would lay more stress on the likelihood that the sale to Rangiah Chetty was a genuine sale and that the separate insolvencies indicated a real division of status, and on the fact that the consideration for the purchase came from Kalluram alone, and on the conduct of Rajaram and his widow after the death of Kalluram which are only consistent with the theory that they knew plaintiff had no right in the property bought by Kalluram. I consider that there is no evidence to show that throughout all the long series of transactions Rajaram was in such bad financial circumstances that we must presume that he was afraid to put forward in any quarter his claim or his son's claim to a share in this property.
13. For the above reasons, I would differ from the Trying Judge and hold on the first issue that at the time of Kalluram's purchase in 1909 the property had ceased to be joint family property, that the brothers had divided even before the plaintiff's birth and that plaintiff has had no right to any share in the suit property. My conclusion would be that the plaintiff's suit must fail in toto, as the property is self-acquired property of the first defendant's husband to which the plaintiff can have no manner of right, I would, therefore, reverse the decree of the Lower Court and dismiss the plaintiff's suit with costs to the second defendant here and below.