M.M. Ismail, J.
1. The plaintiff is the first son while the second defendant is the second son of one M. Venkatesam Chettiar, who died on 17th June, 1965. The said Venkatesam Chettiar, in 1937 or 1940, started a business under the name and style of Doraikannu and Company with a small capital coming out of his own earnings. Out of the income from the said business, the said Venkatesam Chettiar, purchased a large number of items of properties. The plaintiff herein instituted C.S. No. 399 of 1954, on the file of this Court impleading his father as 1st defendant, the 2nd defendant herein as the 2nd defendant and the 1st defendant herein (mother of the plaintiff and the 2nd defendant) as the 3rd defendant, for partition of certain properties. In that suit, he prayed that an account may be taken of what the joint properties of the said family were, that an account may be taken of the profits of the business referred to above and also prayed for partition of his one-third share in the said properties. In that suit the deceased Venkatesam Chettiar, contended that the business was his own business and the properties acquired out of the income from the said business constituted his self-acquisitions and therefore the plaintiff herein was not entitled to claim partition of the said properties and allotment of one-third share to him. The second defendant and the third defendant in the said suit, namely, the 2nd and the 1st defendants herein adopted the written statement of the deceased Venkatesam Chettiar. The said suit was transferred to and disposed of by the City Civil Court, Madras, as O.S. No. 1669 of 1965 on 17th May, 1956. The learned Additional Judge of the City Civil Court, Madras, accepted the case of the deceased Venkatesam Chettiar, that the business and the properties acquired out of the income from the business were the self-acquisitions of Venkatesam Chettiar and therefore the plaintiff herein had no right to claim partition of the said properties and dismissed the suit. Against this judgment of the City Civil Court the plaintiff herein preferred C.C.C.A No. 12 of 1957 and the Bench of this Court by its judgment and decree dated 9th September, 1960, allowed the appeal in part. The learned Judges disposing of the appeal found that the deceased Venkatesam Chettiar, did not inherit any ancestral property and that there was no nucleus of joint family property, the business of Doraikannu and Company was started by the deceased Venkatesam Chettiar as his own with a small capital coming out of his own earnings and the said business and the properties purchased out of the income from the said business were acquired without any detriment to any ancestral nucleus. However, the learned Judges on an appreciation of the evidence and on considering the law on the question came to the conclusion that the father, namely, the deceased Venkatesam Ghettiar, intended to deprive the business of its separate character and convert it into a joint family business. The learned Judges concluded:
We are, therefore, unable to agree with the learned Counsel for the respondents that the appellants' participation in the business from 1948 onwards was not such as would be sufficient to convert the separate business into a joint family one.... It was not disputed that the suit properties were all acquired out of the income from the business in question. Disagreeing with the trial Court, we hold that such of the suit properties as were acquired between January, 1948 and the end of 1953, are joint family properties and that the appellant is entitled to partition and separate possession of an one-third share in the joint family properties. The appellant will not be entitled to any share in the other suit properties which were acquired prior to 1948.
The result is, there will be a preliminary decree in favour of the appellant for partition and separate possession of an one-third share in the properties which we have held to be joint family properties and in the profits, if any of the business from 1st January, 1948 to 31st December, 1953.
2. It is now necessary to refer to the significance of the above-mentioned two dates. The Judges found that the plaintiff's participation in the business arose only on 1st January, 1948, and therefore the conversion of the self-acquisition as the joint family property was only with effect from that date. So also when at the end of 1953 the plaintiff gave notice to his father demanding a partition, the joint status between the plaintiff and his father came to an end with that notice. It is only with reference to these features, the learned judges provided in their judgment that the plaintiff was entitled to an one-third share in the properties acquired between these two dates and in the profits from the business referrable to the period from 1st January, 1948 to 31st December, 1953. Pursuant to this preliminary decree, a final decree was passed by the City Civil Court, Madras in C.M.P. No. 98 of 1960 on 20th August, 1962. Under this decree, item 6 of plaint 'A' Schedule in that suit was allotted to the plaintiff herein for his one-third share in the profits of the business and the plaintiff herein was directed to pay the defendants 1 and 2 therein, namely, the deceased Venkatesam Chettiar and the present second defendant a sum of Rs. 203.95 to equalise the value of the shares.
3. It is after the death of Venkatesam Chettiar the present suit was instituted by the plaintiff. In the present suit, the plaintiff claims that on the death of his father, namely, Venkatesam Chettiar intestate on 17th June, 1965, he and defendants 1 and 2, herein, namely, the mother of the plaintiff and the 2nd defendant and his brother, the 2nd defendant, became entitled to one-third share each in the suit properties under the provisions of the Hindu Succession Act, 1956 and prays for partition of his one-third share and for accounting for the collections made by the defendants since the date of the death of Venkatesam Chettiar and also with regard to the business income. The plaint consists of three schedules 'A' Schedule containing 11 items of immovable properties; B Schedule mentioning 'the assets and outstandings in the business carried on in the name and style of V. Doraikannu & Co., including the goodwill valued at Rs. 40,000.' and 'C' Schedule mentioning 'Gold, cash and diamond jewels, silver wares and pledged jewels and iron safe in the premises No. 12, Washerman Alley, Peddunaickenpet Division, G.T., Madras.'
4. In that suit, defendants 1 and 2 filed separate written statements contending that the rights of the plaintiff, if any, in the joint family properties were settled as a result of the decree in the C.C.C.A. No. 12 of 1957 and thereafter the plaintiff has no claim whatever to the properties belonging to the family consisting of the deceased Venkatesam Ghettiar and the 2nd defendant and all the properties acquired subsequent to 1st January, 1954, were acquired by the deceased Venkatesam Chettiar with the help and assistance and joint efforts of the 2nd defendant. The 1st defendant also filed an additional written statement contending that items 1, 5, 6 and n of plaint 'A' Schedule absolutely belonged to her and therefore the plaintiff herein cannot claim any interest or share therein.
5. On the basis of these pleadings the following issues were framed....
(i) Are the suit properties joint family properties for the reasons contended by the defendants?
(2) Are the defendants estopped from contending that they are joint family properties?
(3) Are the defendants liable to account in respect of their managements of the suit properties, and if so, from what date?
(4) To what relief is the plaintiff entitled?* * * ** * * *
6. The contention of Mr. M.S. Venkatarama Iyer learned Counsel for the plaintiff was that Section 6 of the Hindu Succession Act, 1956, uses the words 'coparcenary property', there is a difference between joint family property and coparcenary property, Section 6 being applicable to coparcenary property only has no application to the suit properties : it is Section 8 that is applicable; after the separation of the plaintiff from the family by virtue of the action taken by him in O.S. No. 1669 of 1955 on the file of the City Civil Court, Madras, the deceased Venkatesam Chettiar and the 2nd defendant continued to constitute the joint family and the suit properties belonged to that joint family and on the death of Venkatesam Chettiar, his half share in the suit properties devolved under Section 8 of the Act on the plaintiff, the 1st defendant and the 2nd defendant, and on the death of 1st defendant her one-third share also devolved equally on the plaintiff and the 2nd defendant with the result the plaintiff is entitled to one-half share in his father's estate; in other words, the plaintiff is entitled to one-fourth share in the suit properties barring, of course, items 1, 5, 6 and 11 of plaint 'A' Schedule. It is the soundness of this contention which constitutes the only point for determination in this suit.
7. Section 6 of the Hindu Succession Act, 1956, is as follows:
6. When a Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or 'a male relative specified in that Class who claims through such female relative, the interests of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be under this Act and not by survivorship.
Explanation 1.--For the purpose of this section, the interest of a Hindu Mitakshara coparcenary shall be deemed to be the share in the property that would have been allotted to him in the property, if a partition in the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on the intestacy a share in the interest referred to therein.
8. The expression used in this section is 'an interest in a Mitakshara coparcenary property' while in Explanation 2 the expression used is 'a person who has separated himself from the coparcenary'. The argument of Mr. Venkatarama Iyer is that this section does not deal with the joint family property but deals with only coparcenary property and the suit properties are joint family properties only and not coparcenary property. Mr. Venkatarama Iyer further stressed that coparcenary property is one in which a person acquires right by birth and to the suit properties the 2nd defendant cannot be said to have acquired a right by birth, since it is only after the birth of the 2nd defendant as well as the plaintiff, their father converted what was originally self-acquired property into a joint family property, and with reference to this, there is a difference between self-acquired property being converted into a joint family property and the self-acquired property being blended with joint family property.
9. In this context, the learned Counsel laid great emphasis on the well-known passage of Mitakshara:
The wealth of the father or of the paternal grandfather becomes the property of his sons or of his grandsons, in right of their being his sons or his grandsons; and that is an inheritance not liable to obstruction. But property devolves on parents or uncles, brothers, or the rest, upon the demise of the owner, if there be no male issue; and thus the actual existence of a son, and survival of the owner are impediments to the succession; and on their ceasing the property devolves on the successor in right of his being uncle or brother. This is an inheritance subject to obstruction.
10. I am unable to accept this argument of the learned Counsel. In the first place, there is nothing in the provisions of the Hindu Succession Act, 1956, making a distinction between coparcenary property land joint family property. In fact, I asked Mr. Venkatarama Iyer to draw my attention to any provision contained in the Act from which it could be interfered that the Act makes such a distinction between the two kinds of properties. Mr. Venkatarama Iyer frankly admitted that he is unable to find any provision in the Act making such a distinction. Still his argument is that Section 6 of the Act uses the expression 'coparcenary property' and in the Hindu Law, there is a distinction between 'coparcenary property' and. 'joint family property'. In support of this submission the learned Counsel placed sole reliance on the following passage occurring in the judgment of the Privy Council in Anant v. Shankar (1943) L.R. 70 IndAp 232 : (1943) 2 M.L.J. 599 :
Now an impartible estate is not held in coparcenary; Rani Sartaj Kuari v. Deoraj Kuari (1887-1888) L.R. 15 IndAp 51, though it may be joint family property. It may devolve as joint family property, or as separate property of the last male owner. In the former case it goes by survivorship to that individual among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom, e.g. lineal male primogeniture. In the latter case jointness and survivorship are not as such in point--the estate devolves by inheritance from the last male owner in the order prescribed in the special custom or according to the ordinary law of inheritance as modified by the custom.
11. This passage in the judgment, in my opinion does not support the contention of the learned Counsel. For one thing, the Privy Council did not make a distinction between coparcenary property and the joint family property in the abovementioned passage. On the other hand all that the Privy Council points out is that even when an impartible estate is joint family property, yet it is not held in coparcenary. When the above observation was made, it was made with reference to the special features of the impartible estate. It is significant to note that the above statement is purported to be based on the decision of the Privy Council in Rani Sartaj Kuari v. Deoraj Kuari (1887-1888) L.R. 15 IndAp 51 , where Sir Richard Cough delivering the judgment of the Privy Council observed:
The property in the paternal or ancestral estate acquired by birth under Mitakshara Law is in their Lordships' opinion, so connected with the right to a partition, that it does not exist where there is no right to it.
12. It should not be forgotten that the above case dealt with the question of alienation of an impartible estate governed by Mitakshara Law by the holder thereof and the right of a member of the family to question the alienation, for the decision subsequent to Sartaj Kuari's case, the Judicial Committee observed:
Impartiality is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have : (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral from the very nature of the estate. The second is incompatible with the custom of impartibility as laid down in Sartaj Kuari's, case (1887-88) L.R. 15 IndAp 51, and the First Pittapur case (1899) 26 L.R.IndAp 83 : I.L.R. 22 Mad. 383, and so also the third, as held in the Second Pittapur case . To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore, still remains and this is what was held in Baijnath's case . To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara Law applicable to such property. Though the other rights which a coparcener acquired by birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death of a Hindu widow to her husband's estate. It is a right 'which is capable of being renounced and surrendered'. As a matter of fact, the dictum of the judicial Committee in this case that the right to maintenance is incompatible with the custom of impartibility cannot be said to be correct after the decision of the judicial Committee in Collector of Gorakhpur v. Ram Sunder Mal (1934) L.R. 61 I.A. 286 : 67 M.L.J. 274, where while stating: 'While the power of the holder of an impartible raj to dispose of the same by deed Sartaj Kuari's case (1887-88) L.R. 15 IndAp 51, or by will the First Pittapur case (1899) 26 L.R.IndAp 83 : I.L.R. 22 Mad. 383 remains definitely established, the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically reaffirmed. Nor must this right be whittled away. It cannot be regarded as merely visionary'.
The Privy Council observed : 'One result is at length clearly shown to be that there is now no reason why the earlier judgments of the Board should not be followed, such as for instance, the Challpalli case , which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family, with the result that these members holding zamindari lands for maintenance could still be considered as joint in estate with the zamindar in possession.
13. It is in view of these decisions of the Privy Council, the position of law has been stated by Mulla's Principles of Hindu Law--Thirteenth Edition, paragraph 587 at page 568 as follows:
An impartible estate is not held in coparcenary though it may be joint family property. But at times it is referred to as coparcenary and a distinction is drawn between present 'rights, that is, the right to demand partition and the right to joint enjoyment, and future rights. In the case of an impartible estate, the right to partition and the right of joint enjoyment are from the very nature of the property incapable of existence, and there is no coparcenary to this extent. No coparcener, therefore, can prevent alienations of the estate by the holder for the time being either by gift or by will, nor is he entitled to maintenance out of the estate. But as regards future rights, that is, the right to survivorship, the property is to be treated as coparcenay property, so that on the death intestate of the last holder, it will devolve by survivorship according to the rules stated in para. 591, below. The right of a junior member to succeed to the estate by survivorship is not a mere spes successionis but a right of property which can be transferred.
14. For these reasons, I am unable to accept the contention of Mr. M.S. Venkatrama Iyer that the Privy Council in Anant v. Shankar (1943) 2 M.L.J. 599 : 70 I.A. 232 , made a distinction between coparcenary property and the joint family property, and in my opinion all that the Privy Council was pointing out was that even when an impartible estate is joint family property, still by virtue of the fact of its being impartible, certain legal incidents flowing from holding a property in coparcenary will not be available in respect of such an impartible estate.
15. It is useful in this context to refer to the following observations of this Court in Naraganti Achamma Garu v. Venkatachalapati Nayanivaru ILR(1882) Mad. 250 , approved by Judicial Committee in Udayarpalayam Case, that is, Kachi Kaliyna Rengappa Kalakka Thola Udayar v. Kachi Yura Rengappa Kalakka Thola Udayar :
Where the property is held in coparcenary by a joint Hindu family, there are ordinarily three rights vested in coparceners--the right of joint enjoyment, the right to call for partition, and the right to survivorship. Where impartible property is the subject of such ownership, the right of enjoyment and the right of partition as the right of an undivided coparnener are, from the nature of the property, incapable of existence. But there being nothing in the nature of the property, inconsistent with the right of survivorship, it may be presumed that right remains.
16. The second answer to the argument of Mr. M.S. Venkatarama Iyer based on the dictum of the Privy Council in Anant v. Shankar (1943) 2 M.L.J. 599 : (1943) L.R. 70 IndAp 232 , is that even that judgment has recognised the right of survivorship in respect of impartible property though not held in coparcenary and in Section 6 of the Hindu Succession Act, 1956, we are concerned only with the question of survivorship. The third thing to be noticed is that the judicial Committee in Anant v. Shankar (1943) 2 M.L.J. 599 : (1943) L.R. 70 IndAp 232 , was dealing with an impartible estate and not ordinarily partible property. Consequently even assuming that with reference to the special characteristics of impartible property, the Privy Council was making distinction between coparcenary property and joint family property, that distinction has no relevancy or validity with reference to the ordinary partible property governed by Mitakshara Law. The fourth thing to be noticed is that the acceptance of the argument of Mr. M.S. Venkatarama Iyer will lead to an introduction of a third category of property under Hindu Law. The Hindu Law recognises only two types of properties, namely, ancestral property in which a son acquires a right by birth and self-acquired property of an individual and does not recognise a third kind or type of property. In Lakshminarasamma v. Rama Brahmam (1950) 1 M.L.J. 350 : I.L.R. (1950) Mad. 1084, a Bench of this Court pointed out:
To ascertain the extent of the son's right in and to a particular property belonging to the father, it is absolutely necessary to determine whether the property is paithemaha or swayrjitha. The dichotomous division is fundamental. According to Hindu Law, (and in this there is no difference between the Dayabhaga and the Mitakshara) property must be one or the other. This division is not only mutually exclusive; it must also be exhaustive.
17. In Mulla's Principles of Hindu Law, Thirteenth Edition, at page 246, in paragraph 220 classification of the property has been given only as follows:
220. Classification of property: Property, according to the Hindu Law, may be divided into two classes, namely, (1) Joint family property, and (2) separate property.
Joint family property may be divided, according to the source from which it comes, into-
(1) ancestral property and
(2) Separate property of coparceners thrown into common coparcenary stock. Property jointly acquired by the members of a joint family with the aid of ancestral property may or may not be joint property; whether it is so or not is a question of fact in each case.
The term 'joint family property' is synonymous with 'coparcenary property'.
'Separate' property includes 'self-acquired' property.
18.The acceptance of the argument of Mr. M.S. Venkatarama Iyer will not only lead to the recognition of a third kind of property in Hindu Law, but also to the conclusion that the Hindu Succession Act, 1956, has not dealt with that kind of property. The Courts of this Country as well as the Privy Council and the recoginsed text-book writers have indiscriminately used the expressions, 'joint property', 'joint family property', 'ancestral property' and 'coparcenary property' to denote one and the same property, without intending to make a distinction between the legal incidents depending upon the use of one or other of the expressions.
19. For instance, the following sentence occurs in Mayne's Treaties on Hindu Law and Usage, Tenth Edition.
The burden of proving that any particular property is joint family property, is in the first instance upon the person who claims it as coparcenary property. (Page, 373).
20. With a view to emphasize his contention, Mr. Venkatarama Iyer submitted that coparcenary is different from joint family and therefore from this difference it must follow that the joint family property is different from coparcenary property. I am unable to accept this argument either. The principle in relation to coparcenary is stated in Mayne's Treatise on Hindu Law and Usage, Tenth Edition, at page 341 as follows:
There is a most important distinction between a Mitakshara Coparcenary and the general body of the undivided family. Suppose the property to have all descended from one ancestor, who is still alive, with five generations of decendants. It by no means follows that on a partition everyone of these five generations will be entitled to a share. And if the common ancestor dies, so that the property descends a step, it by no means follows that it will go by survivorship to all these generations. It may go to the representatives of one or more branches or even by inheritance to the heirs of the survivor of several branches, to the total exclusion of the representatives of other branches. The question in each case will be who are the persons who have taken an interest in the property by birth. The answer will be, that they are three generations next to the owner in unbroken male descent. Therefore, if a man has living sons, grandsons and great-grandsons, all these constitute a single coparcenary with himself.
21. The distinction between the undivided family and coparcenary has been brought out with admirable precision and succinctness at page 348 of the same book as follows:
It is obvious that, on the twin principles of a right vested by birth in the male issue only and unobstructed heritage, the conception of a Mitakshara Coparcenary is a common male ancestor with his lineal descendants in the male line, and female members of the family who have no vested right by birth and come in only as heirs to obstructed heritage (Sapratbandha Daya) cannot be coparcenary with the male members, though, along with the males, they are members of the undivided family as corporate body.
22. Thus, though the undivided family may include males lower than great-grandsons, unmarried daughters and wives of male descendants, still the coparcenary as such consists of only the man and his sons, grandsons and great-grandsons, with the result the property of that coparcenary will necessarily be the property of the undivided family or joint family, even though persons other than the coparceners will not have a rights by birth. In other words, a joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters, while a Hindu coparcenary is a narrower body within that joint family including these persons who acquire by birth an interest in the joint property.
23. As pointed out in Mayne's Treatise on Hindu Law and Usage, Tenth Edition, at page 360, 'under the Mitakshara system there can be no joint family property in respect of which the male issue of the joint owners do not take a share by birth.'
24. Again, for the formation of a coparcenary under Hindu Law, a nucleus of property which has come down to the father from his father, grandfather or great-grandfather is not necessary, provided the persons constituting it stand in the relation of father and son or other Relation requisite for a coparcenary system. The decision of a Bench of the Bombay High Court in Laldas Marandas v. Motibai : (1908)10BOMLR175 , is instructive on this point. The head-note correctly sets out the decision and the same is as follows:
Where the father and his son acquire their property by their joint labours and are besides joint in food and worship they must be regarded as having constituted a joint Hindu family even though there may have been no nucleus of property which has come down to the father from his father or grandfather or great-grandfather. For the formation of a coparcenary in Hindu Law such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son or other relation requisite for a coparcenary system and those persons by living, messing and worshipping together and throwing all the property acquired joint in one common stock, manifest their intention to deal with one another and with outsiders as members of a coparcenary system under the Hindu Law.
25. Again in Rangbhai Ramchandrabhat v. Sitabai Bandbhat : AIR1918Bom174 , a case directly in point, another Bench of the Bombay High Court has held to the similar effect and the following head-note represents the decision in that case:
A Hindu, who was living with his two sons, obtained certain self-acquired property which he treated as joint family property. One of the sons next separated from the family; and the father and the other son lived joint as before. On their death, the separated son claimed to recover the property on the footing that it was the self-acquired property of his father:
Held, that the property was the joint family property of the father and his united son; that, on the father's death, the united son took it by survivorship; and that on the latter's death his widow had life-estate, to which the reversionery interest of the separated son had been postponed.
26. Beauman, J., in the course of his judgment observed:
I see no difficulty in principle in holding, as I believe this Court has repeatedly held that a member of joint Hindu family who has acquired property of his own may convert it into' joint family property in the ordinary sense of the term and thereafter that all the members of the family will have the same rights in it as though it had been acquired originally by their exertions or descended to them from a common ancestor.
27. Consequently, the argument of Mr. Venkatarama Iyer that there was originally no ancestral property inherited or obtained by Venkatesam Chettiar and it was he who acquired the properties as his self-acquisitions and converted them into joint family properties has no significance or consequence so as to invalidate the claim of the second defendant that the suit properties are joint family or coparcenary properties which will devolve by survivorship under Section 6 of the Hindu Succession Act, 1956, but for the existence of the 1st defendant whose presence attracted the application of Explanation (1) of that section, but excluded the plaintiff from taking any share in the interest of the deceased Venkatesam Chettiar by virtue of Explanation (2). In this context, I am also of the view that the distinction sought to be made by Mr. Venkatarama Iyer between self-acquired property converted into joint family property and self-acquired property thrown into hotchpot or blended with the joint family property has no substance. The two decisions of the Bombay High Court referred to by me above will support this conclusion of mine. Further the principle of law in this behalf has been stated in Mayne's Treatise on Hindu Law and Usage, Tenth Edition at page 359 as follows:
Where the members of a joint family acquire property by or with the assistance of joint funds or by their joint labour or in their joint business or by a gift or a grant made to them as a joint family, such property, is the coparcenary property of the persons who have acquired it, whether it is an. increment to ancestral property, or whether it has arisen without any nucleus of descended property.
28. Again in Sudarsanam Maistry v. Narasimhulu Maistry ILR(1902) Mad. 149 : 11 M.L.J. 353, it was stated:
Mr. Mayne in paragraph 277 of his book while laying down that property acquired by the members of a joint family by their joint labour, would form their joint property, suggests a doubt as to whether their male issue would by birth alone acquire a right in such property. Apparently he inclines to the opinion that they would not and that also appears to be the view taken by Bombay High Court in Chatturbhooji v. Bharambhi Naranji ILR(1885) Bom. 438, cited by Mr. Mayne. If the joint acquirers intended to hold the property so acquired as co-owners and not as joint family property in the Mitakshara sense of that expression, this view would be perfectly sound. But, if, as supposed, the property was acquired by all the members of the undivided family by their joint labour, it would, in the absence of any indication of intention to the contrary, be owned by them as joint family property and in that case their male issue, who by their birth, become members of such undivided family, necessarily acquire a right by birth in such property.
29. In this case, the case of the plaintiff himself in his plaint in G.S. No. 399 of 1954 marked as Exhibit P-1, was that he and his father and the second defendant were members of a joint Hindu family possessed of properties both immoveable and moveable. At the time when Venkatesam Chettiar acquired the properties and converted them into joint family properties in 1948, the plaintiff as well as the second defendant were in existence and consequently they became the property of the joint family consisting of the father and his two sons. The fact that neither the plaintiff nor the second defendant acquired a right by birth in the said properties cannot make those properties other than joint family or coparcenary properties. If the plaintiff had not got himself separated from the coparcenary any son born to the plaintiff would have acquired a right by birth in the properties. So also even after the plaintiff's separation when Venkatesam Chettiar and the second defendant continued to be joint, any subsequent born son of Venkatesam Chettiar or any son of the second defendant would have acquired a right by birth in the properties in question. Consequently, for the purpose of determining the character of the property, whether they are joint family property or not, the fact that neither the plaintiff nor the second defendant acquired right by birth is immaterial, because the conversion of the self-acquired property into joint family property took place subsequent to their birth. The moment the conversion has taken place, it will have all the incidents of the joint family or coparcenary property, with the result that any subsequent born son would have acquired a right by birth.
30. For these reasons, I am unable to accept the argument of Mr. Venkatarama Iyer that the suit properties are not the coparcenary properties to which Section 6 of the Hindu Succession Act, 1956, will apply. It is not disputed before me that if Section 6 of the Act applied, by virtue of Explanation 2 to that section, on the death of Venkatesam Chettiar, his undivided interest in the properties devolved only on the 1st defendant and the 2nd defendant in equal shares. Since I have held that the suit properties are coparcenary properties to which Section 6 applied, on the death of Venkatesam Chettiar on 17th June, 1965, the plaintiff herein did not acquire any right to inherit his half share in the suit properties and defendants 1 and 2 took the deceased Venkatesam Chettiar's half share in the suit properties in equal moieties.
31. Since the 1st defendant died during the pendency of this suit and the 1st defendant (plaintiff) and the 2nd defendant have been recorded as the legal representatives of the deceased 1st defendant, the question for consideration is, what will be the interest or share of the plaintiff in the share which the 1st defendant obtained in her husband's property. As I pointed out already, if the 1st defendant and the 2nd defendant took Venkatesam Chettiar's interest in equal moieties, the 1st defendant became entitled to one-fourth share in the suit properties, while the 2nd defendant became entitled to three-fourth share, namely, his original half share plus his half share in the father's half share, on the death of the 1st defendant, the plaintiff and the 2nd defendant became her heirs and they are entitled to take the 1st defendant's properties in equal moieties, with the result the plaintiff would be entitled to one-eighth share in the suit properties.
* * * *
[The discussion of facts is omitted.]
* * * * *
32. As a result of the above discussion of law and facts, my findings on the various issues are:
Issue No. 1.--The suit properties, namely, items other than 1, 5, 15 and 11 in plaint 'A' Schedule and plaint 'B' Schedule properties, are joint family properties of Venkatesam Chettiar and the 2nd defendant.
Issue No. 2.--No argument was put forward as to defendant being estopped for contending that they are joint family properties and consequently my finding is that the defendants are not estopped from, contending that the properties mentioned above are joint family properties of Venkatesam Chettiar and 2nd defendant.
Issue No. 3.--The 2nd defendant is liable to render an account in respect of his management of the properties mentioned above only from the date of death of the 1st defendant, that is 23rd January, 1968.
Issue No. 4.--In the result, there will be a preliminary decree for partition of the plaintiff's one-eighth share in the items other than items 1, 5, 6 and 11 of Plaint 'A' Schedule and Plaint 'B' Schedule properties. In view of the relationship between the parties, I do not make any order as to costs.