1. The aspect of the case presented to us on appellant's behalf is that dealt with by the District Judge in paragraph No. 4 of his judgment. He finds that the Manthangal lands were the self-acquisitions of Rajagopala Mudali (brother of the 1st defendant) and that the other suit lands were acquired by Rajagopala Mudali and the 1st defendant out of the profits of their contracts after their father's death without the aid of ancestral or joint family funds. This finding cannot be questioned in second appeal, but the appellant's Vakil argues that the District Judge is wrong in assuming that the lands thus acquired are not part of the joint family estate.
2. Bhashyam Ayyangar, J, in Sudarsanam Maistri v. Narasimhulu Maistri 11 M.L.J. 353 says: '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'. This proposition of law has been accepted in Gopalasami Chetti v. Arunachelam Chetti 27 M.K 32, Muniswami Chetty v. Maruthammal 7 Ind. Cas. 176 : 20 M.L.J. 687 : (1910) M.W.N. 233 and in Madhavaiya Chetty v. Damodaram Chetty 17 Ind. Cas. 347 : (1912) M.W.N. 972 and cannot now be questioned.
3. It is, of course, open to the respondents to show that the property was treated by the persons acquiring it as their separate property; and any indications either way would have to be considered. But this is a question of fact which has not been gone into by either of the lower Courts.
4. The presumption is in the opposite direction to that indicated by the learned District Judge.
5. We must call for a finding on the following issue:
Were the plaint properties treated as their separate property by the 1st defendant and Rajagopala Mudali or were they thrown into the family joint stock?
6. Additional evidence may be adduced: the finding should be submitted within two months and seven days will be allowed for filing objections.
7. In compliance with the order contained in the above judgment of the Court, the District Judge of North Arcot submitted a finding negative on the first part and affirmative on the second part of the issue.