Abdur Rahim, J.
1. This second appeal arises out of a suit for partition instituted by two minors through their maternal grandfather as the next friend. The 1st defendant, who is the main respondent in the appeal, is the father of the plaintiffs. The only question for consideration is whether upon the facts proved and found, the lower Appellate Court was justified in refusing to pass a decree for partition. It is settled law that a Court is not bound to grant a decree for partition of joint family property as a matter of course in a suit instituted on behalf of minors: see Chelmi Chetty v. Sub-banna 42 Ind. Cas. 860 : 34 M.L.J. 213 : 41 M.K 442. following Bachoo v. Mankorebai 31 BB. 373 : 9 Bom. L.R. 646 : 11 C.W.N. 769 : 6 C.L.J. 1 : 17 M.L.J. 343 : 2 M.L.T. 295 : 34 I.A. 107 and Kamdkshi Ammal v. Chidambra Reddi 3 M.H.C.R. 94. So far the law is not disputed but there has been much discussion as to the nature of the grounds which would justify the Court in decreeing partition at the instance of a minor.
2. The facts found by the lower Appellate Court are: the 1st defendant, the father of the minors--who are only 6 and 4 years of age--has married a second wife, there had been estrangement between him and the mother of the minors and the latter has gone away to her father's house and is unwilling to come back to the 1st defendant. The Subordinate Judge characterises her allegations against the 1st defendant as to ill-treatment and immorality as a myth and holds that the plaintiffs have not made out that the 1st defendant refused to maintain the plaintiffs or their mother or that he had in any way neglected them. Ha finds that some old family debts have been discharged though apparently with money found by the 1st defendant's mother during his minority. It is admitted, however, that the 1st defendant has sold a house belonging to the family, but the Subordinate Judge has refrained from considering whether the sale was for necessity or not, though the Court of trial was disposed to regard it as an act of malfeasance. Upon the facts the conclusion of the Subordinate Judge is as stated in his words: I can find no circumstances to suggest that the minors' interest is likely to suffer if the property is allowed to continue in the hands of the 1st defendant...', but he thought that this was a proper case in which he shall obtain a written undertaking from the 1st defendant not to alienate the family property during the minority of the minor plaintiffs, and that if any necessity arises in the furture for making an alienation he will apply for permission of the Court for that purpose.
3. The District Munsif in decreeing the suit was under the impression that a suit for partition by a minor member of a joint family stood on the same footing as a suit by an adult coparcener. In this he was undoubtedly wrong: in the former case the Court, as laid down in the rulings above mentioned, has a discretion, that is to say, it will rot decree partition unless it finds that it will be for the benefit of the minor that there should be a partition while where a major coparcener seeks partition, the Court has no option but to pass a decree to that effect. On the merits the District Munsif based his judgment in favour of the plaintiffs mainly on the ground that the 1st defendant, who is only 24, is likely to have sons born to him by his 2nd wife which will necessarily diminish the plaintiffs' share in the family property, and, therefore, a partition would be decidedly beneficial to the minors. The Subordinate Judge, in my opinion, is right in holding that this is not sufficient and valid con' sideration, and that there is much cogency in his argument that if it were otherwise, directly a son is born, it would lie with any one who so chooses, to break up the family by instituting a suit for partition as next friend of the minor. Mr. Grovinda-raghava Iyer who argued the case for the appellants has not been able to cite any sort of authority in support of his proposition.
4. The joint family tenure of property is the normal condition of the Hindu social system and the Court should not take the responsibility of depriving a Hindu minor coparcener of the advantages of that system unless it is satisfied that in the circumstances of the particular case it would be clearly to his benefit that he should be separated from the joint family. It is an incident of the joint family system that the share of a Hindu coparcener in the family property is liable to diminution by accession of new members by births; on the other hand, he enjoys the chance of having his share augmented by deaths. It seems to me that it is not for the Court to speculate how far the one chance counterbalances the other.
5. As for the decided cases, the Court has decreed partition in suits on behalf of a minor where the actual existing circumstances of the family made it manifest that a partition would be for the benefit of the minor, and not merely on remote hypothetical grounds. In Kamkashi Animal v. Chidambara Reddi 3 M.H.C.R. 94 which is the earliest decision in this Presidency on the subject that has been brought to our notice, the 1st defendant had denied the plain iff's adoption and Bet up a Will by the adoptive father of the infant which conferred on the defendant an exclusive title to the whole estate.
6. Innes and Collett, JJ., held that in such a case partition should be granted. Both the learned Judges were of opinion that it was not necessary that there should be actual malversation of the proparty of the coparcener as was the opinion of the lower Court and in the language of Innes, J., An action will not indeed lie, unless there is something clearly indicating that the interests of the infant will be advanced by a partition because, ordinarily speaking, the family estate is better managed and yields a greater ratio of profit in union than when split up and distributed among several parceners, and as a general rule, therefore, it is more profitable for an infant parcener that his share should continue an integral portion of the whole estate in the hands of kinsmen.' Collett, J.'s judgment is to the same effect, and it will be sufficient to quote only the general proposition laid down by him, viz., that ' Generally so great a change in the condition of a minor as a partition operates ought not to be allowed to take place, unless it is clearly for his benefit that it should be so.' In Thangam Pillai v. Suppa Pillai 12 M.K 401 : 4 Ind. Dec. 628. the coparceners had persistently denied that the minor plaintiff was their brother and it was held by Muthuswami Aiyar and Wilkinson, JJ., that this fact showed that the minor's interest in the joint family property would be in danger, if left under the management of the appellants and that justified a decree for partition. The case in Chelimi Chetty v. Subbanna 23 A.W.N. (1901) 155. has already been noticed where Mr. Justice Oldfield and myself accepted the proposition that in a suit for partition on behalf of minor the Court will not grant a decree unless it is satisfied that it will be for his benefit. In this we followed the judgment of the Privy Council in Bachoo v. Mankorebai 13 B.K 131 n : 13 Ind. Dec. (N.S.) 6 which affirmed the decision of Tyabji, J, in Bachoo v. Khushaldas 4 Bom. L.R. 883. The present question, it may be mentioned, was but incidentally under consideration in Chelimi Chetty v. Subbanna 23 A.K 495 : A.W.N. (1901) 155. the point for decisions there being, whether the institution of a suit on behalf of a miner ipso facto created a separation. In Bachoo v. Khuihaldas 4 Bom. L.R. 883 and Bachoo v. Mankorebai 13 B.K 131 : 13 Ind. Jur. 267 : 7 Ind. Dec. (N.S.) 88. it was found that a partition, when it was asked for, would not be beneficial to the minor plaintiff as division of the properties could not be effected without selling certain valuable properties and their sale at that stage would result in considerable loss. The proposition that was accepted by Tyabji, J., was that 'some malversation, danger or loss to the minor on the one hand or some benefit or advantage on the other must be proved before the Court can compel partition, for all the coparceners are minors.' It does not appear to me that any exception can be taken to this proposition considering it in the light of the facts which gave rise to it. In Mahadev Balvant v. Lakshman Batvant 19 B.K 99 : 10 Ind. Dec. (N.S.) 66 partition on behalf of a minor was allowed, the allegation in the plaint of disputes between the minor plaintiffs' mother and their stepbrother, separate residence of the former and the defendant's failure to support the plaintiffs being found sufficient to maintain the suit. Ranade, J., in the course of his judgment lays down that the Court has to see whether a partition would promote the interest of the minor plaintiffs in the circumstances as found by him. It seems to me that this is the test which is countenanced by all the authorities. Mr. Justice Kumaraswami Sastri in Shadagopa Naidu v. Thirumalaswami Naidu 30 Ind. Cas. 272 : 18 M.L.T. 129. sitting singly held that where a father sets up a hostile title and denies the right of his minor son to any share in the joint family properties and the father has been living apart from his wife with a concubine, it is the duty of the Court to order partition in a suit on behalf of the minor. He quotes with approval the proposition of Ranade, J., in Mahadev Balvant v. Lakshman Balvant 19 B. 99 : 10 Ind. Dec. (N.S.) 66. that no suit by a minor coparcener for partition should be decreed unless his interests were likely to be advanced thereby or protected from danger. As regards the second condition, no exception could be taken to it and as regards the first I do not think that either Ranade, J., or Kumaraswami Sastri, J., intended to countenance any speculative considerations such as the possible birth of other coparceners as a ground for partition. In Bhola Nath v. Ghari Ram 29 A.P 373 : A.W.N. (1907) 86. it is laid down by Stanley, C. J., that the Court has to determine on the entire circumstances of the case whether it would be for the benefit of the minor that a partition of a joint family property should be effected. In my opinion this proposition is entirely in accord with the other authorities already noticed. It will serve no useful purpose to attempt to define any further the circumstances in which partition should be granted or refused at the instance of the minor. All that is necessary in this case to lay down, having regard to the arguments addressed to us, is that a mere possibility of births of other coparceners in the family is not a good ground for partition. It is not necessary that actual malversation should be proved; it is sufficient if the interests of the minor in the joint family property are in danger. All the circumstances have to be taken into consideration in determining whether it would be for the benefit of the minor that his share should be set apart and secured for him.
7. We have here the fact that plaintiff's father, though a young man, has married another wife and that there have been quarrels between plaintiffs' mother and their father, with the result that they have been living separately. It is almost admitted that a house belonging to the family has been sold by the father. If the sale of the house was without necessity, that would be a strong circumstance to be considered along with other faots in connection with the question whether there should not be a partition. The lower Appellate Court, in my opinion, was not justified in holding that the sale of the house, even if made without necessity, would not affect the question whether there should be a partition. It is now contended before us by the respondents that the sale took place before the birth of the plaintiffs. I would, therefore, ask the Subordinate Judge to find whether the sale of the house took place before the birth of plaintiff and if not, whether the sale was justified by necessity, whether a proper price was obtained an whit, happened to the sale proceeds and the total value and income of the family properties. He will allow the parties to adduce fresh evidence on this point. The time for the return of the finding will be two months from the date of the receipt of the records and ten days for objections.
8. This is a suit for partition against a father brought by his minor sons through their next friend, their maternal grandfather. The lower Appellate Court has found that no case has been made out which would entitle the Court to decree a partition. Mr. Govindaraghava Aiyar has argued before us, first, that where it can be shown that there is a probability that the minor's financial position will in future be better if he has been divided from his father, the minor is entitled to a partition, and secondly, that if that proposition is too broad, on the facts found, he should be given a decree. He has contended that the sole question is, whether partition can in any way benefit the minor and he relies on the use of the word 'benefit' in cartain reported cases, in support of his contention. The latest case is that reported as Chelimi Cheity v. Subbanna 23 A P 495 : A.W.N. (1901) 155 and the language is as follows: 'The Court has to consider in such cases whether a decree for partition would be for the benefit of the minor.' My learned brother who was a party to that decision states that he did not intend to lay down that the probability of monetary advantage was the sole test, and, if I may say so, this is clear from the fact that the Court relied on the deoision reported as Kamakshi Ammal v. Chidambara Reddi 17 M.K 9 : 3 M.L.J. 132 : 6 Ind. Dec. (N.S.) 6, the earliest case on the subject. Mr. Govindaraghava Iyer has claimed, however, that that case also supports his proposition. It was one in which a suit was brought on behalf of an infant against a coparcener, not his father, for partition. The lower Court had declined to grant it, as it was not alleged by the plaintiff that the infant's interests were in danger through malversation. On appeal, it was argued that it was not necessary to prove malversation. Innes, J., begins his judgment as follows: 'The true rule seems to be that a suit on behalf of a minor for partition will lie, if the interests of the minor are likely to be prejudiced by the property being left in the hands of the coparceners from whom it is sought to recover it,' I lay special stress on the use of the words 'true rule,' because it seems to me that any passage in the judgment which might appear to state a wider proposition must be read in a limited sense, so as to bring it into accord with the statement, He then goes on to say that there is no foundation for the position that an infant can only claim partition when there is malversation, and in this connection he continues: An action will not indeed lie, unless there is something clearly indicating that the interests of the infant will be advanced by partition.' Then with reference to the facts of the case, he points out that the coparcener has set up a sole title to the property, and thereby assumed a position adverse to the interests of the infant, by bringing forward a Will which, if genuine, would be inconsistent with the existence of any rights in the infant; and he, therefore, concludes that the interests of the infant would not be. rate in the coparcener's hand. Collett, J., agrees that it is not necessary to prove malversation. He says that the plaint does set out facts which, if true, go to show that the minor's interests might be exposed to risk, if the suit were not now brought ; and quotes Strange's Hindu Law, page 206, as authority for the proposition that waste by the coparcener is not the sole occasion, but is only an instance that it may be for the benefit of a minor that a suit should be brought for partition. In that connection, he says 'so that, as we might expect, the benefit of ' the minor is what justifies such a suit.' He then refers to the texts and commentary quoted in 3 Digest, page 541, and says that the rule is 'that a partition during the minority of a coparcener cannot take place to the damage of his interests, but the motive is the protection of his interests, and consequently if it is in fact, as it may very well be, greatly for his benefit and for the protection of his interest that there should be a partition, a suit on his behalf may be brought.' Then comes a passage which is, I think, very important: 'it is obvious that it often may not be for the benefit of a minor that he should have a partition. If his rights are not denied or the property not mismanaged, it might not be so, he would lose, for instate, the possible benefit of a survivorship, and generally so great a chance in the condition of a minor as a partition operates, ought not to be allowed to take place, unless it is clearly for his benefit that it should be so.' I read these cases as laying down three propositions, first, that presumably it is for the benefit of a minor that he should remain a member of a family whose interest is to look after him, and secondly, that a possible financial position is not the test, and thirdly, that he has no right to claim partition unless there is an apprehended danger to his interest as it exists at the date of the suit. I cannot detach the use of the words 'benefit of the minor' from the rule laid down by Mr. Justice Innes at the beginning of his judgment that a suit will lie if the interests of the minor are likely to be prejudiced.
9. Reliance is also placed on a passage in a case reported as Bhola Nath v. Ghasi Ram 29 A.K 373 : A.W.N. (1907) 86. which is as follows: 'The question for the Court to determine is whether or not it is shown to be for the benefit of the minor that partition of the joint family property should be effected.' This language, however, must be read with the facts of the case and the other observations. The suit was by a minor for partition of his share in a joint family consisting of himself, his father and his uncle. He alleged that his father had admitted to a share in the property the son of a deceased uncle, who, according to the plaintiff, had separated from the rest of the family long before the date of the suit. The first Court dismissed the suit on the ground that there was no evidence of malversation. The High Court pointed out that that was not necessary; that the allegations, if proved, show that the family was endeavouring to deprive the plaintiff of a part of his lawful interest in the family property. The Court then used the following words: 'The Subordinate Judge has overlooked the fact that there are circumstances other than malversation which, according to the authorities, will justify the institution of a partition suit. These are such circumstances as in the interest of the minor render it advisable that his share should be set aside and secured for him.' Undoubtedly it those facts were proved it would be necessary even against the father in that case that the minor's share should be secured to him at once, and in my opinion, the case is no authority for any broader proposition than this.
10. Then there is a decision of Tyabii, J., in Bachoo v. Khuskaldas 4 Bom. L.R. 883. That was a suit by a minor against his uncle and an alleged adopted son of the uncle. The learned Judge, in considering whether he should be given partition, states that some malversation, danger or loss the minor on the one hand, or some benefit or advantage on the other hand, must be proved before the Court will compel partition. He then examines the condition of the estate-and comes to the conclusion that there would possibly be heavy monetary sacrifices in realizing the estate, and adds that if the plaintiff were separate, he would entirely lose his chance of gaining the whole estate by survivorship, if the alleged son died before him. It is suggested that he Language of the learned Judge indicates that malversation, danger or loss need not be proved, if some benefit or advantage can be proved (vide the language on page 888) and that, in this case it must be to the benefit of a minor to be separate from a father who has married a second wife and will possibly have other children. If this is what the learned Judge meant it goes beyond the principle stated in KamahsM Ammal v. Chidambara Beddi 17 M.K 9 : 3 M.L.J. 132 : 6 Ind. Dec. (N.S.) 6, and I am not prepared to follow it. Rather to the same effect is the decision in Mahadev Balvant v. Lakshman Balvant 19 B.K 99 : 10 Ind. Dec. (N.S.) 66. Speaking for myself, I find some difficulty in understanding what Ranade, J., meant this latter case by his distinction between the positive and negative aspect of the case but if he means that even where nothing shown against the father, it can yet be for the benefit of the minor to be removed from the family, I am unable to follow him A recent decision of this Court is that of a single Judge reported as Shadagopa Nvidu V Thirumalaswami Naidu 30 Ind. Cas. 272 : 18 M.L.T. 129. There the learned Judge states as follows: It is now settled law that a minor plaintiff can file a suit for partition if there are circumstances which show that it would be for his interest to separate his share, and it is not necessary to prove malversation on the part of adult members' He refers to Mr. Justice Ranade's discussion of the subject in Mahadev Balvant v. Lakshman Balvant 19 B.K 99 : 10 Ind. Dec. (N.S.) 66. With approval. Hat case, however, was one in which it was found that partition was necessary to protect the minors' interest from danger; and the learned Judge states as follows: 'The defendant has set up a hostile title and has denied the rights of the minor plaintiff to any share of the properties, and while this is found against, it is the duty of the Court to safeguard the interest of the minors by declaring their rights and giving effect to such a declaration.' He thon refers to the case reported as Kamakshi Ammal v. Chidambara Reddi 3 M.H.C.R. 94. With approval and to Thangam Pillai v. Supai Pillai 12 M.K 401 : 4 Ind. Dec. (N.S.) 628 I have pointed out what in my opinion is the law laid down in Kamakshi Ammal v. Chidambara Reddi 3 M.H.C.R. 94. As to Thangam Pillai v. Suppa Pillai 12 M.P 401 : 4 Ind. Dec. (N.S.) 628. that was a case in which an illegitimate son of a Sudra sought a partition of the family property against his father's legitimate sons. The legitimate sons denied that he was their illegitimate brother, contending that his mother was a married woman. The Court, having found in favour of the illegitimate son on the facts, held in the circumstances it could not be said that the plaintiff's interest in the joint family property was not in danger in being left in the management of the defendants. I do not think, therefore, that Kumaraswami Sastri, J., intended to lay down any proposition wider than that in Kamakshi Ammal v. Chidambara Reddi 3 M.H.C.R. 94. If the language of Tyabji, J., and Ranade, J., in the Bombay cases does intend to give a wider meaning to the rule, their view is not in accordance with that taken in this Court, and I should not be prepared to accept it.
11. The proposition as stated in Mayne's Hindu Law, 8th Edition, page 662, is as follows: 'A suit cannot be brought by, or on behalf of, a minor to enforce partition, unless on the ground of malversation cr some other circumstances, which make it for his interest that his share should be set aside and secured for him. Otherwise he might be thrust out of the family, at the very time, when ha was least able to protect himself.' This proposition is, in my opinion, in entire accord with the law as laid down in Kamakshi Ammal v. Chidambara Reddi 3 M.H.C.R. 94 and does not warrant the contention put forward for the appellants. The next question is whether on the facts the case is brought within this limited rule. The lower Appellate Court finds that the plaintiffs' mother went to her father's house for confinement and did not return in spite of her husband's entreaties, and that in consequence he married a second wife about a year after this occurrence. He points opt that the marriage of the second wife is not opposed to law and considers that such a marriage cannot be made a ground for partition, unless it was done with a view to act prejudicially to the interest of the children by his first wife. He then finds all the allegations against the 1st defendant, of waste of the property, extravagance, drinking and concubinage, to be false and states that there is but one piece of evidence against the father, namely, that he alienated a house. We are now told in this Court that the alienation was before the birth of the children. We cannot, of Bourse, take that as a fact, but I should speaking for myself rather be inclined to accept the finding of the lower Appellate Court that the plaintiffs have not shown that this alienation was made against the interests of the minors. As, however, my learned brother is of opinion that we should have a finding as to the circumstances in which the house was sold, I agree with the order proposed by him.
In pursuance of the order contained in the above judgments, the Subordinate Judge submitted the following
1. In pursuance of the order of the High Curt directing this Court to take evidence and to submit findings on the following issues, the following findings are submitted. The issues are:
(i) Whether the sale of the plaint house took place before the birth of the plaintiffs; and if not, whether the sale was justified by necessity; whether proper price was obtained; and what happened to the sale proceeds
(ii) What were the total value and income of the family properties?
2. The first part of the first issue: The sale-deed in question is dated 15th June 1907. The sale deed is Exhibit X. The plaintiffs' case is that the 1st plaintiff was born or at least was in the womb of his mother on that date. The defendants' case is that the 1st plaintiff was born on 11th March 1909, i.e., subsequent to the sale-deed in question. It is admitted on the plaintiffs' side that the 2nd plaintiff was born subsequent to the date of the sale-deed, the difference in age between the 1st and 2nd plaintiffs being admittedly 2 years. In the plaint filed in the suit on 4th November 1914 the age of the 1st plaintiff is given as about 6 and that of the lend plaintiff as about, and that of their mother, the 2nd defendant, is given as 22. These ages are given by the plaintiffs' materral grandfather and next friend. The 2nd defendant, when examined by this Court on 25th November 1916, i e., about 4 years after the date of the plaint, deposes that her age at that time was 26 and that the plaintiffs were 5 years and 3 years old respectively when she left her husband's house 3 years prior to that date. It appears from the plaint that she left her husband's house about 7 or 8 months before the date of the plaint. It appears from Exhibit. D that the 1st defendant also admits her having gone away one year before that date, 26th March 1915, i e., about March 1914. It is seen, therefore, that the 1st plaintiff was aged about 5 in March 1914, that is, he must have been born in the year 1909. Taking the age given in the plaint as 6 for the 1st plaintiff at the time of the plaint (4th November 1914), the 1st plaintiff must have been born in 1908 or 1909. Then the defendants produced an extract (Exhibit A III) from the birth register of Rakkiapalayam where the plaintiffs were admittedly born, and the Original birth register for the year 1909 is marked as Exhibit XIV. It appears from Exhibits XII; and XIV that a son was born to Kasia Gounden of Avanasilingampalayam on 11th March 1909. Plaintiffs' next friend examined as P, W. No. 1 admits that be is the Monigar's Gumastah for Rakkiapalayam; that he was writing the Birth Register for all these 17 years and submitted them to the Taluk Office; and also that he wrote entries relating to the birth of the two plaintiffs in the Birth Registers. The defendants' case is that this relates to the birth of the 1st plaintiff. But the suggestion on the plaintiffs' side is that it probably relates to the 2nd plaintiff. It may be noted that the plaintiffs' next friend has not even attempted to get an extract from the Birth Register to prove the date of the birth of the 1st plaintiff or of the 2nd plaintiff, though he must be expected to know that that is the best evidence available. The defendants took out summonses for the production of the Birth Register from 1906 to 1910. but the Tahsildar has sent only the Register of 1909 (Exhibit XIV), and has sent a letter (Exhibit XV) to the effect that he is searching for the other registers. So, these Exhibits XIV and XV support the defendants' case that the 1st plaintiff was not born on the date of the sale-deed, Exhibit X, unless this extract relates to 2nd plaintiff Seeing that the defendants have not produced the extract from the Birth Register with regard to the other plaintiff) I am inclined to hold that this relates to 1st plaintiff.
3. It is argued for the plaintiffs that the 1st defendant at one place of his deposition, now taken in this Court, states that his second marriage was four years ago; that his first marriage was 10 years prior to that; that the 1st plaintiff was born 2 years after the marriage and that this takes us to the year 1906 as the year of the 1st plaintiff's birth. Then again, it is argued that the 1st defendant has stated m 1916 that he was married 10 years prior to that (page 7, printed papers, line 15) and that the 1st plaintiff must, therefore, have been born sometime about March 1908 and he must have been conceived about June 1907. The 1st defendant states in Exhibit D, his plaint, dated 27th March 1915, that he had been married to 2nd defendant about 9 years before that. If it be remembered that these periods of time are given only approximately, no such definite inference can be drawn as suggested by the plaintiffs' Pleader.
4. Then the plaintiffs' Pleader relies upon the medical certificate given by the Assistant Surgeon of this place. It is marked as Exhibit C. Therein, the Medical Officer examined as P. W. No. 4 states that the boy (1st plaintiff) has completed 11 years according to his opinion. In his evidence also be gives the same opinion. The ground upon which he has given his opinion are:
(i) Permanent canines are present.
(ii)Anterior premolars or bicuspids are present.
4. It may be stated at once that the opinion of experts cannot be taken to be absolutely accurate, as has been observed in Taylor's Medical Jurisprudence, page 143; Boisogomoff V. Ndhapiet Jute Company 29 C.K 587 Bnsrur Venkata Bow, In re 14 Ind. Cas. 418 : 36 M.K 159 : 11 M.L.T. 93 : 22 M.L.J. 270 : (1912) M.W.N. 125 : 13 Cri. L.J. 226 and Jarat Kumari Dassi v. Bissessur Butt 13 Ind. Cas. 577 : 39 C.K 245 : 16 C.W.N. 265. Then coming to the reasons given in the certificate, it appears that they are not sound. No doubt, it appears from the medical books that permanent canines mike their appearance between the ages of 10 and 13 and permanent anterior premolars or bicuspids make their appearance between the 9th and 10th years (vide Lyon and Waddle's Medical Jurisprudence, page 40, and Taylor's Medical Jurisprudence, page 144). In India, there is a chance of these teeth even cutting earlier. If the grounds given by the expert witness be correct, his inference that the boy must be aged between 10 and 13, will also be taken to be correct. But there appears no reason for his saying that the boy must have completed 11 years. It is only his opinion not based on any specific grounds. The witness, while in the box, was asked to examine the boy's teeth and he admits that one of the anterior premolars or bicuspids is just now making its appearance in the left lower jaw and that that tooth is generally cut between 9 and 10; and that the other three anterior premolars are milk teeth and have not yet been shed. He also admits that the ridge observed in temporary teeth between the crown and the fan is not seen in this boy's teeth, though it is generally visible in the case of milk teeth but sometimes it is imbedded in the gum and is not visible. He also assumes, admittedly without any reason, that the ridge in the case of this boy is not imbedded in the gum. So, he is not justified in saying that the canines are permanent canines. Very probably, they are milk teeth, because it is only just now that one of the anterior premolars is making its appearance. It is generally after the cutting of the anterior premolars between the 9th and 10th years that the canines make their appearance between the 10th and 13th years. I think it may be taken, therefore, to be clear that the canines are not permanent teeth but are only milk teeth, and that the boy (1st plaintiffi is aged between 9 and 10. This conclusion corroborates the defendants' case that the Birth Register (Exhibits XIV and XV) relates to the birth of the 1st plaintiff. I must, therefore, find that the 1st plaintiff was born on 11th March 1909 and was not born on the date of the sale-deed, Exhibit X, and was not even in his mother's womb at that time. Consequently, the 2nd plaintiff also was not in existence on the date of the sale-deed, Exhibit X.
5. 2nd part of the first issue: I have to decide this issue on the assumption that both the plaintiffs or the 1st plaintiff at least had been born or at least had been conceived before the date of the sale-deed, Exhibit X. The plaintiffs' case in the plaint is that the 1st defendant unnecessarily sold the house and spent the sale proceeds for immoral purposes instead of utilising it for the purpose of plaintiffs' family. There is no allegation that the house was sold for an inadequate price. The defendants' case is that the house was sold for a proper value and there was a necessity for digging a well in the family garden and that a well was sunk with the sale-proceeds soon after the sale. In deciding, this issue, I shall first consider the fact whether a new well has been sunk by the 1st defendant in the garden belonging to the family, or not. The plaintiffs' case is that no new well has been dug; that there were 2 wells in the garden at the time of the partition; and that there are even now 2 wells. The 1st defendant and his witnesses state that a new well was 'sunk by the 1st defendant immediately after the sale to the north of the northern well previously in existence, and that the earth: removed by digging that well was used to fill up the old northern well, which was not in a good condition and in which water could not be properly baled out for the reason that the soil was bad and the piccota could not stand steadily for the purpose of baling water. No doubt, two wells are mentioned in the partition deed, Fxhibit B, as existing at that time in the garden. Now also admittedly, there are only two wells. But it will be seen from a reference to the old survey plan and the new survey plan (Exhibits XI and XII) produced by the 1st defendant that the old northern well was situate further south of the present northern well: there is nothing to show that these plans are inaccurate. They have been prepared by the Survey Department and it must be taken to be correct unless and until any mistake is pointed out therein. The new survey was in 1909. So, the new well must have been dug before the year 1909, and this supports the defendants' case that he dug the well in the year 1907 soon after the sale of the house. I find, therefore, that a new well, that is the present northern well, was dug by the 1st defendant about the year 1907 after the partition Exhibit B.
6. With regard to the price obtained for the sale-deed, it is mentioned in Exhibit X and it is also proved to be Ra. 400. According to the defendants' witnesses, it is a proper price; and seeing that the house was purchased by Arumugatha Gounden who is the owner of the house next adjoining the house in question, he is likely to have paid a higher price than what the others would have offered. Even according to P.W. No. I's (i, e., plaintiffs' next friend's) present evidence, the house would have been worth only Es. 500 at that time, but it must be remembered that the price of the house is given in the plaint as Rs. 260, and the value now given by P.W. No. 1 must certainly be somewhat exaggerated. I find, therefore, that the price obtained for the house, viz., Rs. 410 was a proper price.
7. As to what happened with regard to the sale proceeds, the 1st defendant states that he dug the new well with the sale proceeds and that the new well cost him about Rs. 400. His witnesses also state that he sunk a new well soon after the sale of the house, and that the cost of the well would be about Rs. 400 or 500. P.W. No. 1 Karichi Gounden states that he has recently sunk a well, admittedly a smaller one (as seen from the measurements given by him) at a cost of Rs. 200. His present evidence must be taken with a certain amount of discount. I think the defendants' evidence could be believed. Seeing that the well was sunk soon after the sale of the house and seeing that there is no evidence to show the 1st defendant was in possession of other funds for sinking the well, I hold that the sale proceeds were utilised for the purpose of sinkin the new well.
8. Whether the sale was justified by necessity: It appears from the evidence of 1st defendant and his witnesses that there was a necessity for digging a Hew well as the old northern well was not fit for use. It is only if there were means of irrigation that a number of crops could be raised in the garden and more profit could be obtained, I think that the purpose, viz., sinking a well, is a necessary purpose in the course of the management of the joint family property. It is suggested on the plaintiffs' side that the 1st defendant could have borrowed money instead of selling this house. But borrowing of money implies the liability to pay interest periodically. Whereas the sale of one house from which no income could be derived and which was not necessary for residential purposes, there being another house for their residence, incurs no such liability to pay interest and does not deprive the family of any income which they had been getting. I find, there' fore, that the sale of the house was justified by necessity.
9. Second issue: I think that this issue relates to the value and the income of the family properties at the time of the sale deed, Exhibit X. No doubt, evidence has been adduced, however, with regard to the present value and income, and with regard to the value and income about 10 years ago. First defendant states that the garden belonging to the family, i.e., S. Nos. 81 and 82 are worth Rs. 4,000 now and yield an income of about Rs. 200 or 300; and he states that the value 10 years ago was about Rs. 2,000 or 3,000 and income about Rs. 150. D.W. No. 5 Kasia Gounden, cousin of the 1st defendant, states that the garden is now worth Rs. 6,000 to 7,000 and the income will be about Rs. 400. He adds that the value 10 years ago would have been about Rs. 4,000 and the income Rs, 200. P. W. No. 1 Karichi Gounden states that the present value of the garden is Rs. 10,000 and the income about Rs. 800; and he adds that the property was worth about Rs. 7,000 ten years ago and that the income was Rs, 600 or 700. P. W. No. 5 Rama Gounden states that the net income now will be about Rs. 650 and it was about 10 years ago about Rs. 400. As regards the other items of properties (immoveable), they are: (1) The house in which the 1st defendant is living now: (2) A Kadu or Punja in Palankarai (item 3 of the plaint). The residential house is valued in the plaint at Rs. 200. The 1st defendant admits it is worth Rs. 300. As regards the Punja Kadu, it is seer, from the evidence on both sides (1st defendant, D.W. No. 5 and P.W. No. 1) that it was worth about Rs. 100 about 10 years ago; and that it is now worth Rs. 200 or Rs. 300. It appears to be generally used as pasture lands and in some years, horse-gram or some other gram (Naripayar) is raised and even then the latter are allowed to be grazed by cattle. I do not think that this property was yielding any appreciable income. The total income of the pre perties as given in the plaint is only Rs. 500, though the plaintiffs' next friend would now raise it to over Rs. 800. There is no other evidence that the family owned any other property, but 1st defendant admits that he has got cattle worth about Rs. 200 and that he has outstandings to the extent of Rs. 1,000. Taking all these facts into consideration, it appears to me that the garden (items Nos. 1 and 2 in the plaint Schedule II, Part III) was worth about Rs. 5,000 about 10 years ago and is now worth about Rs. 7,00t ; that its income was about Rs. 300, and it is now about Rs. 400, As regards the 3rd item, its value 10 years ago must be fixed, I think, at about Rs 100 and its present value will be fixed at Rs. 200 ; and it is not capable of producing any appreciable income. As regards the other house also, there is no income derivable there from. On the whole, I fix the value of the properties about 10 years ago at Rs. 5,400 excluding the house sold under Exhibit X and the present value at Rs, 7,500. I fix the income of the properties at i Rs. 300 about 1O years age, and at Rs. 400 at present.
10. This second appeal coming on for final hearing after the return of the findings of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following