1. Of these two appeals from judgments of the Subordinate Judge of Chingleput it will be sufficient to deal in extenso with A. S. No. 74 of 1922, as the decision in A. S. No. 45 of 1923 will follow from the findings reached in the former appeal.
2. The following table shows the family relationship of the person to whom this appeal relates:
THANIKACHALA______________|___________________| | |1st wife=Thiyagaraja=2nd Appadural Raju| wife Defen- || dent No.2-5 Kuppusami_______|___________ || | |Defendent Defendent |No.-2 No.-2 |_______________|_____________| | |Defendent Defendent PlantiffNo.-3 No.-4
3. Thanikachala was by profession--the family profession--a toddy contractor, and acquired a certain amount of property. He was thrice married, and by each wife had one son. In 1891 he made a will favouring his third wife (then alone surviving) and her son Raju at the expense of his two elder sons, Thyagaraja and Appadurai, who quarrelled with him and left home. Thanikachala died in 1896 or 1897, and on 17th February 1897 the three sons executed and registered a partition deed (Ex. A) which embraced not only Thanikachala's property but certain other items, which were the self-acquired property of the eldest son Thyagaraja. Besides the share which came to him under this deed, Thyagaraja subsequently acquired further property, and in 1910 made a will disposing of all that he at that date stood possessed of. At that time, although he was twice married he had only daughters. A son, the present plaintiff, was born in 1914. Thyagaraja himself died on 9th April 1917, leaving surviving his two daughters by his first wife (1st and 2nd defendants), his second wife (5th defendant) and two daughters (3rd and 4th defendants) and a son (plaintiff) by that wife. It is said that doubts soon arose among these persons as to the operative effect of the will, so that professional advice was taken and the result was that a settlement ( Ex. II) was entered into on 5th December 1917, under which the entire property was distributed among the various members of the family.
4. The plaintiff sued by his next friend to upset this settlement and to establish that the whole of Thyagaraja's property was family property to which he is exclusively entitled as son, sole and undivided. The propositions which he sought to establish may be set out thus:
(1) The so-called family settlement is. not binding upon him, because he was not properly represented and it was not a fair settlement of a bona fide family dispute.
(2) It is, therefore, necessary to go behind this settlement, and to consider the effect of Thyagaraja's will. That will is inoperative because: (a) it dealt with family property, and (b) it was revoked, either in law by the plaintiff's subsequent birth, or if not so, by Thyagaraja himself.
5. In any event, it is urged that the will does not operate upon property acquired after its execution.
6. It would be possible, without deciding whether the plaintiff, as his father's son was entitled to all or some of the property, to support the settlement, on a finding that it was fair composition of a family dispute, conceived to avoid litigation. Such a course would involve an inquiry into the aspect which the several matters in dispute presented to the parties at the time the deed was executed. It is unnecessary, however, for us to resort to this method. We have examined the whole evidence in this case, and have reached the conclusion that, apart from the settlement, the plaintiff's claim to any except a very inconsiderable portion of the property must fail. That being so, the question whether the settlement makes adequate provision for him. cannot arise and it need scarcely be said that the plaintiff no longer presses for its cancellation. Whatever he gets under it will be more than he would have got had the parties gone to Court upon the will.
7. The question which first arises is whether the property of which Thyagaraja. died possessed was family property or self acquired. (His Lordship then examined the evidence and proceeded.) The broad conclusion may, however, I think, be deduced that substantially there was no partition of Thyagaraja's self-acquired properties among the brothers, so that although he brought them into the partition perhaps, in order to silence any claim his brothers or their issue might thereafter make, he took them out again and continued to enjoy them as his self-acquisitions. I do not think that such a course of action, if it is unaccompanied by any other evidence of an intention to convert the property to ancestral, is sufficient to impress upon it the quality of family property. (His Lordship then discussed the evidence and continued): It is next said that Thyagaraja's subsequent conduct in making no distinction between his earned property and his patrimony shows that he intended to treat all as family property. We may disregard the 'nucleus' theory, which has been dealt with by the Subordinate Judge in para. 30 of his judgment and not pressed here. It is admitted that Thyagaraja maintained one set of accounts for the whole property, stored all his paddy together, and sold without distinction toddy from the family trees and from his own. The proposition that where one among two or more coparceners does this it must be inferred that he has thrown all into the common stock is well established: see Radhakant Lal v. Nazma Begum  45 Cal. 733 Indar Sahai v. Shiam Bahadur  25 M. L. J. 57 Lal Bahadur v. Kanhaiya Lal  29 All. 244 Rajanikanta Pal v. Jagamohan Pal A. I. R. 1923 P. C. 57 But in the present case Thayagaraja until the birth of the plaintiff in 1914, stood alone, and it appears to me that no indication of his intentions can be obtained from the mere fact that he failed to maintain two accounts, where such a course could have served no practical purpose. The test affords no hard and fast rules, but a criterion to be applied reasonably and with due regard to the circumstances of the case, and so applying it, I conclude that it does not prove an intention which is negatived by other and more cogent considerations. My conclusion on the whole evidence is that, in spite of the partition, the property retained its quality as self-acquired.
8. The next question is whether the Will was revoked. That the mere birth of a son to a Hindu has the effect of revoking a Will has been decided against by a Full Bench of this Court [Subba Reddi v. Doraisami Bathen  30 Mad. 369, which so far as we are concerned, concludes the matter. It is contended, however, that shortly before his death Thyagaraja made certain statements which had the effect of a revocation. On the night of Friday the 6th April 1917, he developed symptoms of strangulated hernia, and by the Sunday his condition had become serious. The first statement is said to have been made on the morning of that day to Munisami Gramani the plaintiff's next friend in this suit and a collateral of Thyagaraja and to have run thus:
Just as I protected you, you must protect my son likewise; you must maintain accounts as you are doing now. You must entrust my son with the properties on his attaining majority. You must manage my business just as you have been doing during my life and render accounts to my daughter.
9. The witnesses to prove this utterance are Munisami himself (P. W. No. 1), Kuppusami Reddi (P. W. No. 3), and Doraisami Gramani (P. W. No. 5). Since the learned Subordinate Judge has given grounds which appear to me to be reasonable for not trusting their evidence, it will, I think, be sufficient to say that the oral revocation of a written and registered Will--that revocation amounting in itself to a nuncupative Will - needs to be proved by the most unexceptionable evidence and that the testimony offered falls far short of this standard. It is unnecessary, therefore, to consider whether the words uttered, would have amounted to a revocation. (After dealing with the evidence His Lordship continued). I agree with the Subordinate Judge that the fact of revocation has not been proved. The third and last question is whether the property which Thyagaraja acquired subsequent to the execution of the Will is devised by it. The answer depends upon the construction to be placed upon para. 9 of the document. The paragraph opens with a direction (I quote from a translation furnished by the Chief Interpreter) that
the cash income derivable in Sch. I shall be collected and Rs. 1,000 shall be spent for the Vinayaka installed by me, a temple shall be built and samprokshana performed.
10. The executrix is then enjoined to pay certain legacies, and there follows this sentence:
My eldest daughter and executrix Dhanakoti Ammal herself shall take the balance amount remaining after payments as aforesaid from the estate, and all other incomes due to me in respect of decrees, etc., made (or standing) in my name.
11. It is argued for the plaintiff that these directions refer only to the cash dues enumerated in Sch. I which are valued at Rs. 20,875 and that the executrix, now first defendant, is entitled only to the residue of these. The sentence last quoted appears to me to run counter to this view. The payments were to be made not from any specified fund but from the estate, and the executrix was to take the balance of the estate remaining. The further words 'and all other incomes due to me in respect of decrees, etc., seem to make this clear, especially as no amounts due under decrees are included in Sch. I. These words are wide enough to constitute Dhanakoti Ammal residuary legatee, and to embrace whatever property other than immovable, the testator may have died possessed of. Under Section 90 of the Succession Act, XXXIX of 1925, there is a presumption, unless a contrary intention appears by the Will, that it comprises all property as at the testator's death. The English Law is thus stated, a description of the property as that which the testator 'now' owns or occupies may, but it appears prima facie does not, show such a contrary intention as to exclude after-acquired property of the specified nature. (Halsbury's Laws of England, Vol. 28, para. 1311). The suit will contain no expression equivalent to the word 'now' and although it is true that there are no express words indicating that the testator intended to provide for subsequent acquisitions, it is equally true that the Will contains nothing to show that he wished to exclude them from its operation. The presumption against an intestacy in respect of those properties must, therefore, I think, prevail. If this be correct, the plaintiff would only be entitled to some after-acquired immovable property worth about Rs. 3,000.
12. It thus appears, that, if the settlement deed is set aside, the Will, being unrevoked and relating to the self-acquired property of Thyagaraja, must operate to defeat the plaintiff's claims upon the estate as it stood at the time of his father's death. The statement needs only the minor qualifications that the small amount of family property which Thyagaraja retained (enumerated in para. 28 of the trial Court's judgment) and the post-acquired land would devolve upon the plaintiff. The value of the property which he takes under the settlement deed has been variously estimated at from Rs. 19,250 (in the deed) to Rs. 70,000 or Rs. 80,000. There seems no doubt that it is worth a great deal more than the former figure, but it is unnecessary to attempt a precise valuation as the plaintiff's vakil agrees that, upon the findings recorded above, his client would be the loser by the avoidance of the settlement. It is clear that, in the circumstances, and notwithstanding whatever may be said as to the competence of the 5th defendant to represent her son's interest in the matter, the settlement is beneficial to the minor and must stand.
13. A. S. No. 74 of 1922 is accordingly dismissed but since it cannot be said that the plaintiff's next friend was not justified in undertaking this litigation, the order will be that one-half of the costs in both Courts will come out of the residue of the estate in the hands of the first defendant while defendants will bear their own costs.
14. A. S. No. 45 of 1923, the decision of which follows upon the above findings, is also dismissed with costs.
Kumaraswami Sastri, Offg. C. J.
15. I agree and have nothing useful to add.