Venkataramana Rao, J.
1. These two appeals are from the judgment and decree of the learned Subordinate Judge of Madura giving possession of the suit property known as Bodinaickanur Zamin bungalow in the City of Madura, to plaintiffs 2 and 3. Appeal No. 302 of 1934 is by the defendant; appeal No. 9 of 1935 is by plaintiff 1. The substantial question for determination is whether the suit property forms part of the impartible zamindari of Bodinaickanur and the plaintiff, as the present proprietor of the zamindari, is entitled to it or was it the absolute property of one Kamalammal and on her death, did it devolve on plaintiffs 2 and 3 as her daughter's daughters. The facts necessary for its disposal may be briefly stated. The major portion of the site on which the building stands was purchased by Bangarasami Naieker, a former Zamindar, some time prior to 1870. He died in 1871 and was succeeded by his son, Kamaraju Naieker, who was then a minor. The Court of Wards was in management of the estate on his behalf. During the period of such management, in or about 1874, the Court of Wards purchased a site, adjacent to the site already purchased and constructed the bungalow in question on the entire site at a cost of Rs. 40,000 or Rs. 50,000 and maintained it.
2. The said Kamaraja Naieker died in or about 1888. On his death, disputes arose as to the succession to the zamindari. The widow Kamalammal claimed to succeed to the zamindari as his widow and also as a legatee under a will alleged to have been left by him. One Kandaswami Naieker claimed to succeed thereto as the paternal uncle's son of Kamaraju Naieker on the ground that the zamindari was joint family property and it devolved on him by lineal primogeniture. He filed a suit O.S. No. 16 of 1889 on the file of the Madura Sub-Court for recovery of possession of the zamindari against Kamalammal. The said suit was compromised by a razinama dated 8th May 1890, on the construction of which the decision in this appeal mainly rests. Under the terms of the said compromise, the zamindari and its appurtenances were to be held and enjoyed by Kamalammal during her lifetime and thereafter by the said Kandaswami Naieker and his heirs. The rest of the property claimed in the suit was to be enjoyed by Kamalammal with absolute powers of alienation. It is the case of plaintiff 1 that the suit bungalow was part of the impartible estate of Bodinaickanur and under the compromise, Kamalammal had only a life-interest therein and thereafter it passed to him. The said compromise was acted on and while Kamalammal was holding the zamindari, one Viswanatha Nayakkar, alleging himself to be the illegitimate son of Kamaraju Naicker, claimed both the zamindari and the separate property of Kamaraju Nayakkar. He filed a suit, O.S. No. 31 of 1902 on the file of the Madura Sub-Court, impleading therein Kamalammal herein and also the defendant herein who is the daughter's son of the said Kamalammal by one Minakshi Ammal. It is the case of plaintiff 1 that by the final decree in the said litigation, passed in A.S. No. 118 of Viswanathaswami Naiker v. Kamulu Ammal Reported in (1916) 3 A.I.R. Mad. 39 on the file of this Court, it was determined that the suit bungalow was part of the impartible zamindari of Bodinaickanur and therefore, the title of the estate to the suit property is res judicata.
3. Plaintiff 1 therefore sought to recover possession of the suit bungalow on two grounds : (1) under the compromise in O.S. No. 16 of 1889 and (2) on the basis of the finding in A.S. No. 118 of 1906.1 There was also an alternative claim in the plaint on behalf of plaintiffs 2 and 3. They are the daughters of one Minakshi who is the daughter of Kamaraju Nayakkar by Kamalammal. Plaintiff 1 has married plaintiff 2 and the defendant is also the son of Minakshi. It was submitted in the plaint that in case plaintiff 1 failed to substantiate his claim to the property and it be found that Kamalammal was entitled thereto, plaintiffs 2 and 3, as her daughter's daughters, are entitled to the property. Minakshi having died, this claim can only be rested on the basis of the compromise in O.S. No. 16 of 1889. The main defence to the suit was that under the said compromise, the property was agreed to be held as the separate property of Kamaraju Nayakkar and on the death of Kamalammal, the defendant was entitled to succeed to the property as his daughter's son. Even assuming that the said property was the absolute property of Kamalammal, the defendant would be entitled to succeed to the suit property after the death of plaintiffs 2 and 3. He also set up a title by gift under an alleged oral gift by Kamalammal in 1920 and a title by prescription.
4. The learned Subordinate Judge held that the suit property appertained to and formed part of the zamindari of Bodinaickanur and that the title to the estate was also res judicata; but he held that under the compromise in O.S. No. 16 of 1889, Kamalammal acquired an absolute title to the suit bungalow and therefore on her death it devolved on plaintiffs 2 and 3. The pleas of the defendant in regard to the gift and title by prescription were both negatived. Mr. K.V. Krishnaswami Ayyar on behalf of the defendant urged three contentions before us : (1) The finding of the learned Subordinate Judge that the property forms part of the zamindari of Bodinaickanur and the title of the estate thereto is res judicata is wrong. (2) The defendant is not bound by the compromise in O.S. No. 16 of 1889 on the ground that neither Kamalammal nor Kamaraju Nayakkar had any right to deal with the suit bungalow. (3) The gift in favour of the defendant by Kamalammal ought to have been upheld. Dealing with the first contention, we may remark at the outset that the finding of the learned Subordinate Judge is vitiated by a wrong assumption of fact which is the foundation for his decision on res judicata and by a wrong assumption of law which is the foundation for his decision on the question of fact that the suit bungalow formed part of the zamindari. The assumption of fact is that in the prior litigation in A.S. No. 118 Viswanathaswami Naiker v. Kamulu Ammal Reported in (1916) 3 A.I.R. Mad. 39, the High Court found that the suit bungalow was an appurtenance to the zamindari. The finding of the High Court in regard to the suit bungalow is to the following effect:
Item 55 of Schedule A (the bungalow in the present suit) the next item claimed by the plaintiff is a bungalow in Madura built by the Court of Wards during the minority of the late zamindar at a cost of Rs. 60,000 on a site inherited by the zamindar and his brother from their father. Respondent 1 (the widow Kamalammal) contends that either the bungalow became the joint property of the two brothers as the site was joint property, or that it was built as a town residence for the zamindar and was intended to pass with the zamindari and that in either view the plaintiff's claim must fail. We agree with this contention.
5. It will thus be seen that the finding only negatives the claim made by the plaintiff in that suit that the property was the separate property of Kamaraju Nayakkar. The character of the property, viz. whether it is joint property inherited by Kamaraju Nayakkar and his brother or whether it formed part of the impartible zamindari of Bodinaiekanur was left open. Therefore, it is not possible to understand on what basis the learned Subordinate Judge could have held that the finding in A.S. No. 118 of Viswanathaswami Naiker v. Kamulu Ammal Reported in (1916) 3 A.I.R. Mad. 39 is res judicata in this present litigation. The presumption of law which the learned Subordinate Judge lays to himself is to this effect, namely that when properties are acquired by the holder of an impartible zamindari, he acquires them with a view to incorporate them with the zamindari. There is no such presumption and the learned Judge's view is entirely unsound. When the holder of an impartible zamindari purchases a property, if the acquisition is made out of the funds of the estate, prima facie, it would be property of the zamindari, but if the acquisition was made out of the income of the zamindari, it would prima facie be the separate property of the zamin-dar unless by express declaration or by acts and circumstances and by necessary implication the intention to incorporate the said property with the zamindari is made manifest. The intention can only be by the holder of the estate and not by a guardian and manager of the property on his behalf. Therefore, when a claim is made to certain property on the ground that it was part of an impartible estate, it must be proved on the evidence adduced in the case that it was part of that estate and there is no presumption one way or the other.
6. Now let us see what is the evidence in this case. The facts as found by the learned Subordinate Judge are the following : (1) The site was purchased both by Bangaraswami Nayakkar and also by the Court of Wards. (2) An expenditure of about Rs. 40,000 was incurred by the Court of Wards in building the bungalow. (3) The expenses for the maintenance of the bungalow were incurred by the Court of Wards from and out of the income of the estate and all entries relating thereto were entered in the estate accounts. (4) The zamin business used to be transacted in the bungalow when either Kamaraju Nayakkar or Kamalammal occupied the bungalow.
7. None of the facts either singly or cumulatively will go to establish that the suit property forms part of the impartible zamindari. There is no evidence in the case to show with what funds the site was purchased by Bangaraswami Nayakkar or by the Court of Wards and with what moneys the cost of the building was defrayed. The zamindari was admittedly yielding an income of one lakh of rupees and it cannot be said that either the purchase of the site could not have been made or the cost of the building could not have been incurred from the income. The onus of proving that the property was purchased or the building was built out of moneys forming part of the corpus of the estate is on the plaintiff and he has not discharged that onus nor has he established that the property was incorporated with the zamindari. It is admitted that till two years before the death of Kamaraju Nayakkar the Court of Wards was in the management of the estate and during the period of their management, no question of incorporation can arise. The fact that entries relating to the maintenance of the bungalow were made in the accounts of the estate cannot be of any avail because the Court of Wards was managing both the zamindari and the self-acquired property of the zamindar. It was suggested the site must have been purchased by Bangaraswami Nayakkar with the intention of having a town residence in Madura and the Court of Wards must have carried out that object. There is absolutely no evidence on record to show that the site was purchased with that intention, and even assuming that there was such an intention, it does not necessarily follow that the zamindar intended to put up a building and incorporate it with the zamindari. Again from the fact that the zamin business was transacted on occasions when the zamindars used to occupy the building, it cannot be inferred that they wanted to use the bungalow for the zamindari office and therefore they intended to incorporate it with the zamindari. We must therefore find that it has not been established by plaintiff 1 that the suit property formed or became part of the impartible zamindari of Bodinaiekanur.
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8. In the result, App. No. 302 of 1934 is dismissed with costs; App. No. 9 of 1935 is dismissed with costs of respondent 3.