1. This appeal arises from a suit brought by a son (plaintiff l) against his father (defendant 1) for partition. There are other parties of lesser importance, plaintiff l's minor son (plaintiff 2), and minor sister (plaintiff 3) and various alienees from defendant 1 (defendant 2 to 5), but it will be convenient for the purposes of this judgment to refer the son and father as plaintiff and defendant simply. The plaintiff has obtained a decree from Ananthakrishna Ayyar, J. and defendant appeals. The question at issue in the appeal is whether the property in suit which, subject She setting aside of alienations, is valued by the plaintiff at Rs. 9,000, is joint family property or the self-acquired property of the defendant. It is common ground that the defendant did not sue-oft to any ancestral property, and that the first item of property which he acquired was a house site in the name of his wife Rangammal in 1897 for which he paid Rs. 150. At that time defendant's father was dead, and defendant was one of three brothers. Plaintiff was not yet born. In March 1898 the three brothers executed a partition deed, as result of which defendant retained this' house site after paying Bs. 50 each to his two brothers. Defendant very soon afterwards built a house upon this site which is now valued by plaintiff at Rs. 6,000 and by prospering in his trade of cutting and polishing jewels acquired various other properties. Plaintiff was isorh in 1901 and was brought up by defendant arid Rangammal.
2. Rangammal died in December 1919 shortly after plaintiff had become a major, and within a few months defendant married a second wife (as he says) or (as plaintiff says) brought a mistress into the house. The coming of this' woman, gave rise to an estrangement between the father and the son; and very soon the son, who was married in 1920, went and lived apart from his fattier. In 1921 plaintiff joined the Postal Department and i3 now permanently employed there. In 1932 plaintiff1 brought this suit for partition. These are the undisputed facts of the case. Now the partition deed of 1898 is a document of very great importance, and upon its interpretation much will depend. The deed shows that it deals with two items of property. The first is the sale proceeds (Rs. 130) of a house-site which had. been acquired in 1898 by one of the brothers in the name of his wife, Bs, 43-5-4 of this money was paid to each Of the three brothers. The second in the. house site which defendant had. purchased in the name of his wife. This, as already stated, was to be retained by defendant on payment of Rs. 50 to' each of his two brothers. The result of the partition therefore is to give an exact one-third share to each of the brothers although one of them contributed nothing to what was to be divided. Each of the two house-sites is described in fcha deed as the self acquired property of fche brother in the name of whose wife that sale deed stood. The learned trial Judge in construing this deed does not refer to this description of the property in the deed as self-acquired, but holds that the property was acquired as joint family : property by the three brothers, relying upon the presumption of Hindu law formulated in para 228 of Edn. 7 of Mayne's famous text book. But to apply this presumption it is surely necessary to hold that the property must have bean acquired by the joint labours of the members of the family, see Sudarsanam Maistri v. Narasimhulu Maistri (1902) 25 Mad 149, and in this case we have no assertions in the deed itself to negative any such fact, viz. (1) that each house-Bite is described as self-acquired property, and (2) that the brother who acquired no property himself had been living for five or six years separately' from the other two. In the face of these recitals is was not argued hera for the plaintiff that these properties were acquired as joint family properties but it was argued in the alternative that by this very act of partition the 'defendant renounced his seprate rights to the house-site and converted it into joint family property by throwing it into the common stock.
2. Now defendant did, no doubt, in one sense aud for one purpose throw his self-acquired property into the common stock, but the question is whether the mere consent of the defendant to allow his brothers a share in his self-acquired property converts that property inevitably and for all purposes into, 'joint family property, so that when ha holds the site after the partition free from all possibility of dispute from his brothers defendant must also hold, it barred from all possibility of disputing any claim ' which might be made by any future son of his. This does not seem to us logically to follow, and in 1927 it has been held by a Bench of this High Court in Gramani v. Danakoti Ammal 1927 Mad 383, which was considering a partition between brothers somewhat similar to this that:
where at a partition between brothers, one of them brought the self-acquired properties into the partition in order to silence any claim his brothers or their issue might thereafter make but took them out again and continued to enjoy them as his self-acquisitions, such a course of 'acting, if unaccompanied by any other evidence of an intention to convert the property to ancestral, is insufficient to impress upon it the quality of family property.
3. Thus the partition deed in this case cannot inevitably convert this housesite into joint family property, and the question before us is this. How did the defendant treat this property after the partition, as joint family property or as his own self-acquisition? Defendant's first action after the partition was to mortgage the site and the superstructure. This mortgage deed, which had naturally to be executed by both defendant and his wife, is Ex; 5, dated 25th July 1898. The property is described in it as purchased in the wife's name with defendant's self-acquired earnings. In January 1901 this mortgage is paid off and a fresh mortgage executed in favour of the Mylapore Fund (Ex. 5-a). The mortgage deed which was executed by defendant and Rangammal does not specify the nature of the property, but in the application for the loan (Ex. 6) it is described by Rangammal as 'self-acquisition of my husband' and defendant has also signed that application. Bo far then, before plaintiff was born, defendant has consistently treated this property as his self-acquisition. The next mortgage, also in favour of the Mylapore Fund is in 1904 (Ex.5-b). 'This is executed by defendant, Rangammal and plaintiff with defendant as his guardian, but again in the application form the property is described as self-acquired. The next mortgage is in 1912 in favour of a Marwari merchant. It is executed by defendant and his wife, plaintiff not being a party to it. The last mortgage (Ex. 4) is in 1916 in favour of the Mylapore Fund once more. Plaintiff is again one of the executants with his father as his guardian, and in the application form, the property is described as 'husband's property'.
5. Now the learned trial Judge lays (Ex. 5-b and 4) as acknowledgment ; by the defendant that the plaintiff had a share in the property mortgaged, but an analysis of the whole of these trans-' actions does not seem to us to bear out, this conclusion. Never once is the property specifically acknowledged by the ' defendant to be joint family property. Whenever he and his wife describe it, they call it self-acquired. In 1912 when the mortgagee is not the Mylapore Fund but an individual merchant there is no kind of acknowledgment of plaintiff's rights. The seeming inconsistency bet when the assertions in the application forms and the inclusion of plaintiff as a party to the two mortgages, can, it seems to us, be explained only as defendant explains it, by the insistence of the Fund on taking no risks, and on having the mortgages executed by every member of the family who could possibly lay any claim to the property. On a consideration of all these mortgages we are of opinion that defendant has never swerved from his intention to consider the property in question as his own self-acquired property.
6. It is finally sought to support the learned trial Judge's judgment by a reference to the fact that defendant has admittedly failed to produce his accounts-from the year 1920 upwards. It is argued from this that his accounts, if produced, would show that plaintiff had for some time been regularly handing over his salary to the defendant as his contribution to the family funds. The learned trial Judge is inclined to accept this inference, but does not believe' that there was any such systematic contribution for more than a very short-period. In our view it is extremely doubtful whether there was any such; contribution at all. In the first place plaintiff never called upon defendant,, to produce these accounts. In the second place plaintiff states that he did not begin to earn any salary until August 1921. The appearance of defendants second wife comparatively early in 1920, and the fact that plaintiff and defendant were corresponding in none too friendly terms in September 1920 seem to us to-suggest that by August 1921 plaintiff was definitely estranged from and living apart from defendant; and therefore it is highly improbable that he would have handed over any of his salary to him.
7. This is all the material evidence in the ease with the exception of a few stray passages in defendant's correspondence on which the learned trial Judge re-refuses to rely. It satisfactorily establishes, in our view, the position that the house-site bought by the defendant in 1897 was originally and has remained over since defendant's self-acquired property. And with this finding the appeal must be allowed, and it becomes unnecessary to consider whether defendant's later prosperity and acquisition of property was due wholly or in part to his possession of the house-site and the money which he borrowed on its security. Nor is it necessary to give any definite finding on the mortgage executed by the defendant in favour of defendant 5 since the determination of the question becomes premature unless plaintiff's right to partition is established. For the reasons which we have given, we hold that that right has not been established and that this appeal should be allowed and plaintiff's suit be dismissed with the costs of defendant 1 throughout.