Ramaprasada Rao, J.
1. The second defendant is the appellant in this appeal. Kuppanna Gounder had three sons-C.K. Krishnan, the eldest, C.K. Shanmugham, the second and C.K. Kandavel, the third and the youngest. His wife is one Rukkammal. The second son, C.K. Shanmugham, filed the present action impleading his mother Rukkammal as the first defendant, his elder brother C.K. Krishnan as the second defendant and his younger brother C.K. Kandavel as the third defendant, for partition of the joint family properties into four shares and to allot one such share to the plaintiff. He also sought for an account as regards the income from items 3, 4 and 5 of the plaint schedule properties and for a direction as against the second defendant to pay the mesne profits from the date of the suit till delivery of possession. In the schedule to the plaint, he included seven items of properties, the first being the residential house bearing Door No. 21, Rangai Goundar Street, Coimbatore, the second, which was originally a house-site but now bearing Door No. 11/7 Ponnurangam Road, R. S. Puram, Coimbatore, the third, Palaniandavar Rice Mills situate in the family house No. 21, Rangai Goundar Street, the fourth and the fifth being Semiya Works, one run in the name of Ganesh Semiya Works, in the family house and the other, Jayanthi Semiya Works at No. 13/188, Thadagam Road, Coimbatore; the sixth item is an auto-rickshaw said to be in the possession of the second defendant and the last one is a bare item of cash of about Rs. 50,000 said to be with the second defendant, which is an accumulation of savings from the joint family income. The first defendant, the mother, filed her statement stating that the plaintiff omitted to bring into the action several other items of properties which are also to be divided amongst the sharers and she enumerated seven more items. The description of those items are as follows:
1. Rajendra Flour Mill with machineries in Uppara Street, Coimbatore.
(2). One auto-rickshaw MYD. 3172 standing in the name of the plaintiff, and a car MDU. 6969 standing in the name of the plaintiff, were disposed of recently. The auto-rickshaw was sold for Rs. 7,500 four months ago and the car was disposed of nine months ago for Rs. 11,500. The said cash of Rs. 19,000 is still with the plaintiff.
(3) Two chits each for Rs. 5,000 were taken in the name of the plaintiff and subscriptions were made from out of the income from the joint family property and the plaintiff bid at the auction four months age and received Rs. 7,500 to which the first defendant stood as surety. The plaintiff is having the said sum of Rs. 7,500.
(4) Rs. 1,000 worth shares (ten shares) in Ananda Kumar Mills, Saravanampatty standing in the name of the plaintiff for the last ten years.
(5) The life insurance policy taken in the name of the second defendant for Rs. 10,000 by the husband of the first defendant and the paid up amount of Rs. 2,500 was received by the second defendant. The premium was paid out of the income from the joint family property.
(6) The cash on hand with the plaintiff will be not less than Rs. 20,000 besides the cash referred to above.
(7) The cash with the second defendant will be more than Rs. 50,000.
2. The second defendant, who is the contesting defendant, would say that excepting for item 1, 2 and 3, the properties delineated by either the plaintiff or the first defendant are not joint family properties. In the main, his case is that though, at one time, Ganesh Semiya Works was carried on by him in the joint family house at No. 21, Rangai Goundar Street, he later on dissociated himself from the family under Exhibit B-1 dated 21st December, 1957 by executing a release deed in favour of the plaintiff, the first and the third defendants after receiving a cash consideration of Rs. 3,500 and that thereafter, he had nothing to do with the family. His case is that thereafter, he, with the assistance of the funds belonging to his wife, examined as D.W. 2, set up an independent Semiya Works in the name and style of Jayanthi Semiya Works at Thadagam road and the latter Semiya Works is the independent and separate property of his wife in which neither himself nor any other member of the joint family is, in any way, interested. In short, his case is that Ganesh Semiya Works was closed in or about 1957 when he left the family and his wife started Jayanthi Semiya Works in her own right and without reference to the family or the funds of the family and that, therefore, Jayanthi Semiya Works at Thadagam road is not partible property. He would, no doubt, admit that there was an auto-rickshaw which belonged to the family and which was in his custody, but he would say that it had been sold and the sale proceeds spent away for the purposes of the family and therefore, he denied the obligation to bring it into the hotchpot for the purpose of division amongst the members. He expressly denied that he ever had, at or about the time when the suit has been instituted, or at any time before, a sum of Rs. 50,000 in cash or any other amount over and above that, as alleged by the first defendant which was traceable to the savings he effected from and out of the income of the family properties. He would also allege that after the plaintiff issued the suit notice, Exhibit A-1, there was a panchayat in which all the disputes between the members of the joint family were settled and the panchayatdars, having entered on the reference, did pass an award which was to the satisfaction of every one concerned. According to the second defendant, the award of the panchayatdars was reduced to writing and signed by the parties and was kept with one of the panchayatdars and that he and the third defendant paid the plaintiff a sum of Rs. 500 each for the purposes of purchasing the stamp papers and that the plaintiff indeed purchased such stamp papers also, but, for reasons better known to him, has come to Court ignoring the said panchayat. He would refer to the proceedings before the panchayatdars obviously for the reason that in such a panchayat no one queried the interest of the second defendant's wife in the Jayanthi Semiya Works at Thadagam road and that in that context, this item, now claimed by the plaintiff as joint family property, is a development made with an ulterior purpose. In the result, he would say that the only joint family business in which all the parties are interested is the third item of the plaint schedule and the parties could only seek for their legitimate shares in accordance with the personal law over items 1, 2 and 3, and that items 4, 5 and 6 are not partible properties and item 7 is not in existence. The third defendant agreed with his mother and did not file an independent written statement. The plaintiff, after having had the benefit of the statements of his mother and the second defendant, filed a reply statement, denying his liability to bring in those properties which his mother alleged to be joint family properties, but maintained that items 1 to 7 are to be partitioned in accordance with the just shares of the parties. On these relevant pleadings, the following issues and additional issues were framed:
(1) Whether the plaintiff and the defendants are members of a joint family ?
(2) Whether items 4 and 6 are joint family property ?
(3) Whether the item 5 is the joint family property ?
(4) Whether the suit is bad for partial partition ?
(5) Whether item No. 7 is existing ?
(6) Whether the second defendant is manager of the family and is liable for account ?
(7) Whether the second defendant is liable to pay mesne profits from the date of the suit till delivery of possession ?
(8) Whether the court-fee paid is correct ?
(9) Whether the second defendant is liable for costs ?
(10) Whether the second defendant is entitled to compensatory costs from the plaintiff and
(11) To what relief is the plaintiff entitled ?
Additional Issues framed:
(1) Whether the plaintiff is not accountable for the sale proceeds of the auto-rickshaw and car ?
(2) Whether the chit amount of Rs. 10,000 is not joint family property ?
(3) Whether the debts mentioned in para. 9 of the written statement of the second defendant are true ?
(4) Whether Rajendra Flour Mill is not the joint family property ?
(5) Whether the alleged panchayat is true and binding ?
3. The learned trial Judge, after considering the oral and documentary evidence, came to the conclusion that the plaintiff was entitled to a preliminary decree for partition of the suit items 1 to 5. into four equal shares and to an allotment of one such share to him and that the plaintiff was also entitled to a direction as against the second defendant for an accounting of the income from items 3 to 6 and that the plaintiff himself should render an account of the Rajendra Flour Mills which he found to be a joint family property. As regards the insurance policies, the shares, the chit amounts the car and the auto-rickshaw, mentioned by the first defendant as joint family properties, he would say that they were not available as on the date of the suit and so, he did not give a finding and left it at that. He also held that Jayanthi Semiya Works at Thadagam road should inter alia be treated as joint family property. In the result, the second defendant's claim that the Jayanthi Semiya Works was an independent property of his wife was negatived and he was also asked to account for the income from items 3 to 6. It is as against this part of the judgment of the Court below that the present appeal has been filed by the second defendant. It would be convenient for us to deal with the present action with reference to individual items claimed by one or the other of the members of the joint family instead of consolidating the entire evidence in relation to such properties.
4. There is no dispute before us that items 1 to 3 in the plaint schedule are joint family properties. At one time, the second defendant took up the plea that as he left the family by executing a release deed under Exhibit B-1, he would not, in any way, be liable as a member of the joint family or as its manager. But, necessarily, this stand was slippery for the appellant, since under Exhibits B-2, B-3 and B-4, he has once again joined the family as is seen from the re-purchase of the share from the other members of the family pursuant to an agreement of reconveyance obtained by him under Exhibit B-2 which was a document contemporaneous with Exhibit B-1, the instrument of release executed by him on 21st December, 1957. Whatever might be the position which flowed from the alleged release of his rights, executed by and under Exhibit B-1, it is now common ground that the second defendant is a member of the family and is entitled to his one-fourth share in all the properties which belonged to the joint family and which are to be badged as joint family properties.
5. The question, therefore, is, what are the joint family properties available for division. We have already stated that as at present, there is no controversy amongst the parties regarding items 1 to 3 of the plaint schedule properties. The lower Court has found, and in our view rightly too, that the Rajendra Flour Mills which is now conducted by the plaintiff, has also to be brought into the hotch-pot and the plaintiff made liable to account for the income therefrom as it is not in dispute that the said flour Mills sprung from the nucleus of the joint family and was run by the plaintiff in his name, but, for the benefit of the family, and this finding of the Court below is not challenged before us. This is, therefore, one other item of joint family property which is admittedly partible.
6. The main controversy, however, revolves on the question whether Jayanthi Semiya Works at Thadagam road, which is admittedly in the name of the second defendant's wife, is the property of the joint family or not. A note of caution is always struck when Courts are obliged to deal with properties standing in the names of female members of a joint family. The presumption which usually arises when such a property stands in the name of a male member of the family, is not so easily available in cases where the properties stand in the name of a female member. In the joint family, if there is sufficient nucleus belonging to the said family and if the said apparatus of a nucleus is in a position to yield surplus income which would enable the members of the joint family to purchase properties m the name of one or the other of the members of the family, then the presumption is raised that such properties, though prima facie in the name of one of the members of the family, are virtually to be held to be the properties of the family, and not of the member concerned. No doubt, if, in a given case, a challenge is made that the particular person in whose name the property stands is its owner, then the onus is heavily on him to establish : hat he has purchased the property from and out of his own acquisitions and without resort to, or without deriving any assistance from, the joint family nucleus or its income. But, on the other hand, if the property stands in the name of a female, no such prima facie presumption arises. If the challenge, however, by a member of the family is that the property standing in the name of a female member such as a member's wife or a sister of the family etc., should enure to the benefit of the family in general, then he has to necessarily bring home such hypothesis and data to the knowledge of the Court in an action initiated by him and establish, at least reasonably, that his contention is plausible and maintainable. If, on such data made available to the Court, the ostensible title of the female holder is likely to be tilted then the female, member, in whose name the property stands, is obliged to give contrary evidence to set at naught that inference which might be drawn by the Courts on the hypothesis produced by the challenging member of the family. The above proposition is stated by a Division Bench of this Court in Nagayaswami Naidu v. Kochadai Naidu : AIR1969Mad329 , in a slightly different way thus:
There is an essential distinction as to the scope of the presumption in the case of acquisitions in the names of male members of a joint family and the female members of a joint family. In the case of male members of a joint family, there is presumption that if the joint family had sufficient ancestral nucleus, the properties standing or acquired in the name of junior members are joint family properties unless the presumption is rebutted by showing that the properties are the separate properties of the particular member or members in whose names the properties stand or were acquired. There is no such presumption in the case of properties standing in the name of female members. In the latter case, it is for the party who claims properties as joint family properties to specifically plead the particulars and details, in the pleadings and establish the same by adducing necessary evidence. If there is no pleading and, if, on the side of the plaintiff, there is no evidence, there is no need for detailed scrutiny of the case of female members or persons claiming through them as to the resources of the female members and as to how they acquired the properties in question. If the plaintiff on whom the burden lies adduces no evidence, no further question arises and the female member in whose name the property stands, must be held to be the beneficial owner of the property in question.
The learned Judges of the Division Bench made it clear that there should be a pleading and the challenging party, or the plaintiff in the concerned action, should also produce some evidence for the Court to scrutinise the title of the family member so as to ascertain whether the real title in the property is in such a female member or she is only a benamidar for the family.
7. It is in the light of such a proposition of law, we have to look into the data made available to the Court by the plaintiff in the action. In paragraph 5 of the plaint, the plaintiff specifically alleges that after differences and disputes arose between the second defendant on the one hand and the other members of the family on the other, the second defendant has been acting against the interests of the plaintiff and the other members and has shifted the Ganesh Semiya Works from the premises as Jayanthi Semiya Works in Thadagam road. He has purported to amalgamate both the business and is attempting to get the necessary licences in the name of his wife, to make it appear that the businesses were his wife's own, since the Semiya Works business has become more prosperous and yielding greater profits than the rice-mill trade. After setting out in the pleadings his specific case regarding Jayanthi Semiya Works, he would state in his evidence that Ganesh Semiya Works was closed in 1957 and that Jayanthi Semiya Works was started in the name of the second defendant's wife and there is considerable nexus between these two businesses, which will lead to the inference that the latter Semiya Works, though ostensibly in the name of the second defendant's wife, should enure to the benefit of the family. As against this specific case pleaded by the challenging member of the family. the second defendant's wife has come forward with the story that she started Jayanthi Semiya Works with the assistance of a fund of Rs. 3,500 said to have been given to her under an unregistered document stated to have been executed by her father on 21st October, 1966. She claims that her father made a gift of this sum of Rs. 3,500 to her and she accepted the same and that it was with this capital or nucleus that she started Jayanthi Semiya Works. It is brought out in evidence that she started the business in her own name and she would state, as D.W. 2, that Exhibits B-54, B-55, B-56, B-57, B-58 and B-59 are all public documents such as rental receipts etc. or licences issued by the Municipality in the matter of the starting of the business, or the licence from the Electricity Department for issuing current to the Semiya Works and Municipal licences to carry on the business etc. On the foot of such evidence let in by the second defendant to counter-act the allegation made by the plaintiff that Jayanthi Semiya Works at Thadagam road is joint family property, the second defendant desired to sustain his case that the Jayanthi Semiya Works is the exclusive property of his wife.
8. That Ganesh Semiya Works was closed in or about 1957 and that it was in the management of the second defendant when it was being worked, is not in dispute. The second defendant, as D.W. 1, would admit that the machines used and utilised by the family for running Ganesh Semiya Works in the family house at No. 21, Rangai Gounder Street are the family properties. After having said that, he would plead ignorance as to what happened to the machinery thereafter. At a later stage in cross-examination, he had to admit that the machinery connected with Ganesh Semiya Works were given for repairs and he would say that he was not aware as to what happened to those machinery which he gave for repairs. Obviously, this prevaricating evidence of the second defendant leads to the inference that the machinery which were in his custody at a time when he was managing the joint family properties must be still with him as he has not satisfactorily accounted for such machinery admittedly given by him to a repairer. Now, the question is whether Jayanthi Semiya Works could be deemed to be impressed with the badge of joint family property. The plaintiff and the defendants other than the second defendant allege that Jayanthi Semiya Works is merely a reflection of Ganesh Semiya Works. That this is possible is seen from Exhibit A-17. This is a proceeding issued by the City Rationing Officer in charge, Coimbatore. That was at a time when the disputes started between the members of the family and the present action also had been initiated by the plaintiff. In this proceeding, dated 22nd April, 1968, the City Rationing Officer has stated that the second defendant transferred the properties of Ganesh Semiya Works to his wife's concern, by making an application requesting to club both the permits (permits for the issue of maida) in the name of Jayanthi Semiya Works absorbing the permit issued to Ganesh Semiya Works. He adds as follows : 'I would like to make clear the position that was prevailing at the time where the individual standing permits of Ganesh Semiya Works and Jayanthi Semiya Works were clubbed into one and a consolidated permit was issued.' The conduct of the second defendant in having sought for the consolidation of the permits for the issue of maida at a time when Jayanthi Semiya Works was set up at Thadagam road and when Ganesh Semiya Works was closed at Rangai Gounder Street, is a particular and telling situation, which supports the claim of the plaintiff and the members of the family other than the second defendant. When such pleadings and reasonable evidence were made available to the Court prompting it to infer that Jayanthi Semiya Works should be brought into the hotch-pot as a joint family property, the onus has tilted on the shoulders of the second defendant's wife to establish that it was her property. The nature of the evidence let in by the second defendant's wife has already been touched upon by us. The father of the second defendant's wife has not been examined. As to why he was kept out from the box is not clear. His evidence was absolutely necessary to prove that he had the capacity to gift Rs. 3,500 to his daughter. Again, there is no proof that the second defendant's wife ever purchased machinery from any particular body or company or had it forged or fabricated through a known factory. In order to establish that it was she who has responsible for setting up the machinery at Thadagam road, reliance is placed on Exhibit B-6o by the ostensible owner. Exhibit B-60 is an order by the second defendant's wife to a company, by name Jothi Dayal Industries, Ramnagar, Coimbatore, asking them to fabricate one Semiya machine from the materials supplied by her and from the materials such as M. S. Plates, shafts, bolts etc., to be supplied by Jothi Dayal Industries. This order form itself presupposes that D.W. 2 was to supply materials herself for the fabrication of the machinery. But, whether Jothi Dayal Industries undertook the job and ever fabricated the machinery is in doubt for the reason that Exhibit B-6o was not furthered by other acceptable evidence in that direction. We are therefore left with this, that there was the machinery of Ganesh Semiya Works which was in the control of the second defendant. The second defendant does not explain as to how the machinery has gone out of the family. His explanation is that he gave it to a repairer and he is not aware as to what happened to it. This is not at all believable. Immediately thereafter, we find a similar Semiya Works, but in the name of Jayanthi Semiya Works, in the name of his wife which he started at Thadagam road. His wife is unable to explain as to where from she purchased the machinery or secured the necessary capital for running the firm. All there surrounding circumstances go against the self-serving statement of the second defendant and his wife that Jayanthi Semiya Works at Thadagam road is the absolute property of the second defendant's wife. The result, therefore, is that, we accept the finding of the Court below that Jayanthi Semiya Works should be treated as joint family property and is partible amongst its sharers.
9. We may, before passing to the other items, refer to the hesitant argument of the learned Counsel for the appellant that Ganesh Semiya Works also is a self-acquired property of the second defendant. Reliance is placed upon certain entries made in the account books kept by the second defendant while he was in charge of the Ganesh Semiya Works. We have looked into the accounts and found that all such entries relied upon by the second defendant are interpolations and made obviously with the object of projecting an independent title in himself. After scrutiny of the said accounts, Mr. Ramalingam, counsel for the appellant, himself could not further his contention that Ganesh Semiya Works is the absolute property of the second defendant. As the parties are now agreed that Ganesh Semiya Works was closed in or about 1957 and thereafter it did not function, the further discussion on this question does not arise.
10. The sixth item is an auto-rickshaw which was admittedly in the name of the second defendant. The learned Judge found that it was in the custody of the second defendant when the Commissioner went into the family house for the purpose of taking an inventory. It was in those circumstances, the trial Court found that it is joint family property. The case of the second defendant who was examined as D.W.1 is that he sold the auto-rickshaw for Rs. 3,500 apparently after the institution of the suit. It therefore follows that he has to account for it to the other members of the family. Even otherwise, the appellant has no case to answer on this aspect, because he has taken the stand that he purchased the auto-rickshaw from the income of the business, Ganesh Semiya Works which, at one time, he claimed as his own. In view of our finding, and as it is not even challenged before us that Ganesh Semiya Works should be deemed to be joint family property, the second defendant is accountable for the corpus which resulted from the sale of the auto-rickshaw which is item No. 6 in the plaint schedule.
11. As regards item 7, the plaintiff himself did not. let in any acceptable evidence that a large sum of Rs. 50,000 was remaining as surplus in the hands of the second defendant by way of savings from the income of the joint family properties. The finding of the Court below is that in the absence of any evidence of the existence of such an asset, no one could be made responsible for it. Item No. 7, therefore, does not belong to the family and no one is responsible for accounting for the said sum.
12. We come to the next series of items which the first defendant, as the mother of the family, has categorised in her written statement as properties belonging to the joint family. Many of the items so detailed by the mother are said to be in the hands of the plaintiff. It is in this context, Mr. Ramanathan says that as the suit for partition was laid by him enumerating certain items as joint family properties, the description of some more items by another member of the joint family and the allegation that they should also be equally brought into the hotchpot for the purpose of division cannot be granted in this action. This overlooks the fundamental principle that no coparcener or member of the joint family is entitled to any special interest in the coparcenary or joint family property, nor is he entitled to exclusive possession of any part of the property. The oft-quoted description as to the nature of such joint family property, made by the Privy Council in Kalama Natchiar v. Rajah of Sivaganga (1861) 9 M.I.A. 539 can be quoted with advantage : ' There is community of interest and unity of possession between all the , members of the family over such joint family or coparcenary property.' In Mulla's Principles of Hindu Law (4th Edition), at page 266, the following passage occurs : 'The essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshra law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth....It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is 'undivided coparcenary interest'....The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property.' In State Bank of India v. Ghamandi Ram : 3SCR681 , the Supreme Court had occasion to summarise the position, which is again extracted by the learned author thus : ' The coparcenary property is held in collective ownership by all the coparceners in a quasi corporate capacity. The incidents of coparcenary are : first, the lineal male descendants of a person upto the third generation, acquire on birth ownership in the ancestral property of such person : secondly, that such descendants can at any time work out their rights by asking for partition ; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest : fourthly, that as a result of such co-ownership the possession and enjoyment of the property is common....'. It is therefore clear that if, in the ultimate analysis, in a suit for partition, it is found, either at the instance of the plaintiff who comes to Court or at the instance of other members of the coparcenary or joint family, there are joint family properties other than those delineated in the plaint schedule, then such properties also ought to be impressed with the character of joint family property under the well-known principle that joint family property is held in collective ownership by all the members in a quasi-corporate capacity. Till a partition takes place, each member can proclaim such rights of ownership over the entire property and till such a division by metes and bounds takes place in a manner known to law, such possession and enjoyment of one shall be deemed to be for the benefit of the rest of the members as well.
13. If this principle, therefore, has to be applied, then it follows that notwithstanding the non-dislosure, by the plaintiff, in the plaint, of the items of properties set forth by the mother who is a member of the family, in her written statement, and such a state of affairs and possession of joint family properties has come to light in the written statement of one of the parties to the action, even then, on the principle of community of interest and unity of possession, those properties also have to be brought into the hotch-pot so as to enable the members of the family to obtain their legitimate and just shares in them also.
14. In the light of the above accepted principles, it follows that all the items disclosed by the first defendant in her written statement have to be brought into the hotch-pot excepting the last two items, as we shall presently demonstrate, those items of property also ought to be badged with the impress of joint family property.
15. In so far as the Rajendra Flour Mills and the machineries appurtenant thereto in Uppara Street, Coimbatore, which is in the name of the plaintiff, is concerned, the lower Court itself has come to the conclusion that the plaintiff has to bring this item of property into the hotch-pot for division. There being no cross-appeal against it, we accept this finding. Nextly, the first defendant refers to two sub-items of properties under Clause (2) of para. 4 of her statement, the first one, an auto-rickshaw MYD.3172 and the other, a car, MDU 6969. The learned Judge accepts that these are joint family properties. But, he further considered the story of the plaintiff which was to the effect that those two automobiles were sold away for Rs. 7,500 and Rs. 11,500 respectively and the sale proceeds were given away by the plaintiff to the second defendant who was the family manager. The plaintiff, examined as P. W. 1 would assert so. But, he has not produced a tittle of evidence to show that he has so given away the money to the second defendant. A member of the joint family cannot esape the liability to bring the partible property to the hotch-pot by a mere self-serving assertion either in the pleading or a development of such assertion in the witness-box. In the absence of any evidence that the plaintiff might have given away the said sum to the second defendant, whom he characterises as the manager of the joint family, we are unable to hold that the plaintiff is not accountable for the sale proceeds of these two sub-items of properties enumerated by the mother. We may at once state that it is not in dispute that these two items of properties were acquired by the plaintiff from and out of the joint family nucleus. What prompted, however, the learned Judge to agree with the case of the plaintiff is that during the panchayat held prior to the suit, these items were not brought to the notice of the panchayatdars. If really the panchayat ended in satisfying and_ whetting the appetites of all the parties concerned, there was no occasion at all for the parties to have come to Court and fight this litigation in such a lengthy and elaborate fashion. The so-called panchayat was obviously inchoate in scope and in aspect and possibly, that was the reason why the parties gave up the resultant decision arrived at by the panchayatdars. Exhibit B-6, which is a record of such panchayat proceedings has to be lightly brushed aside as one which cannot be considered to be a conclusion arrived at after taking into consideration the entire properties of the joint family and after considering every meticulous point that deserved such consideration at the hands of the panchayatdars. We do not agree with the conclusion of the trial Judge that Exhibit B-6 should be taken to be a final agreement arrived at between the parties after a full discussion. If the conclusion of the learned Judge is correct, then Exhibit B-6 should have been held to be a document which would not enable the plaintiff to come to Court at all. But, the learned Judge, for some purposes, ignored Exhibit B-6 and for other purposes took into consideration the recitals in Exhibit B-6 to arrive at the conclusion that Exhibit B-6 was acceptable. In our view, no such partial acceptance and partial disregard of an instrument, is possible. We are of the view that Exhibit B-6, in the peculiar circumstances of the case, cannot be deemed to be a document which could be relied upon for the adjustment, of the rights and obligations of the parties before us. If, therefore, Exhibit B-6 has to be left out of consideration, it follows that the plaintiff is accountable for the sums of Rs. 7,500 and Rs. 11,500 being the sale proceeds of the auto-rickshaw and the car as they are to be treated as joint family properties.
16. The next item of joint family property referred to by the first defendant in her written statement is an amount realised by the plaintiff as a subscriber to certain chits. According to her, two chits were taken in the name of the plaintiff and the subscriptions were made from and out of the income of the joint family properties and the plaintiff bid at the auction four months prior to the suit and received Rs. 7,500 and that, therefore, the plaintiff has to account for the said sum of Rs. 7,500 There is no dispute that the contributions towards the chits were made from and out of the joint family income. It therefore follows that the sum of Rs. 7,500 being the amount which the plaintiff received as subscriber to those two chit funds, has to be brought into the common pool for the purposes of division. The learned Judge, once again, relied upon Exhibit B-6 and the bare ipse dixit of the plaintiff in order to accept his case that it is not joint family property. We have already touched upon the nature of Exhibit B-6. We are not accepting it. Having regard to the undisputed position in the instant case that the plaintiff made use of the joint family income to contribute towards the chits, he is accountable to the family to the extent of Rs. 7,50O which amount he has admittedly received from the stake-holder.
17. The next item set forth by. the mother in her written statement has reference to ten shares which the plaintiff held in Ananda Kumar Mills, Saravanampatty, worth about Rs. 1,000, for the past ten years. Here again, there is no dispute that the shares were purchased from and out of the joint family income. For the same reasoning as above, the plaintiff has to account for the value of such shares by bringing it into the partible list of properties.
18. The first defendant also refers to a life insurance policy which was taken in the name of the second defendant for Rs. 10,000 which the second defendant paid up and received a sum of Rs. 2,500 therefor. According to the first defendant, as the premium amounts were paid from and out of the joint family income, the amount received as the value of the paid-up policy of the second defendant from the insurance company has to be necessarily brought into the hotch-pot for division. There can be possibly no reasonable objection to this, as the premium amounts were, admittedly, paid from the income of the joint family and the second defendant has to account for the said sum of Rs. 2,500. The last two items set out by the mother in her written statement refer to two items of cash said to be with the plaintiff and the second defendant respectively. She alleges that the plaintiff has a sum not less than Rs. 20,000 and the second defendant would be having more than Rs. 50,000. Excepting for a bare allegation in the pleading, this was not furthered by any acceptable evidence in the course of the trial. The learned Judge, therefore, rightly, disallowed the claim of the first defendant that these two unproved assets of the joint family cannot be considered to be assets far being divided amongst the sharers of the family.
19. As regards the debts, we agree with the learned judge that it is unnecessary for us, at this stage, to go into the existence, genuineness or otherwise of such debts pleaded by the second defendant If they are genuine and if the joint family is liable to bear such debts, then a provision shall be made in the final decree proceedings. We think that the learned Judge was right in holding that the question of truth or otherwise of such debts cannot be gone into at this stage
20. The only surviving question, therefore, is whether one or the other of the parties is liable to account. In a broad sense, the plaintiff has to account for the income from Rajendra Flour Mills and also bring into the hotch-pot the entire corpus of that asset for being assessed and divided amongst the sharers; he has to bring to the pool the sums of Rs. 7,500 and Rs. 11,500 being the sale proceeds of the auto-rickshaw M Y D 3172 and the Fiat Car M D U 6969 ; he has also to bring into the hotch-pot the sum of Rs. 7,500 which he has received in connection with the two chits already referred to ; he has also to bring into the common pool the ten shares held by him in the Ananda Kumar Mills, Saravanampatty. The second defendant similarly has to bring the sale proceeds of the auto-rickshaw mentioned as item 6 in the plaint schedule which has been proved to be Rs. 3,500 and also the sum of Rs. 2,500 being the paid up value of the insurance policy taken by him, the premia for which were paid from the joint family income.
21. The Commissioner's report, Exhibit C-i, belies the stand taken by the plaintiff that the second defendant, even after the institution of the suit, continued as manager of the family to be in charge of the rice mill. When the Commissioner went to take an inventory, it was the third defendant who opened the mill and showed it to him. Again, it was the plaintiff who produced the account books relating to the rice-mill when he was called upon to do so by the second defendant. The circumstances, under which the plaintiff came into possession of the account books, have not been explained, but nothing turns on it. But, having regard to the fact that the second defendant, on the date of the suit, was not in possession and control of the rice mill, which is admittedly a joint family property, he cannot be made liable as was done by the Court below. We, therefore, set aside that portion of the direction of the Court below which enjoins the second defendant to render an account in relation to the third item of the property-In so far as the first and second items are concerned, they are residential premises in which is situate the rice mill also. As, in our view, the second defendant was not in control or possession of any particular part or portion of items 1 to 3, to the prejudice of the other members of the family, it would be extremely unjust to direct the second defendant to account for the income from item 1 to 3. This portion of the judgment and decree of the Court below is also therefore set aside. In so far as items 1 to 3 are concerned, we have exonerated the second defendant from accounting as, in the light of the disclosures, made on the record before us, we are unable to pin-point as to who is the person who is responsible to account for the income from such properties to the other members of the family. Whilst, therefore, setting aside the direction, as against the second defendant, to render an account, we feel that it would be equitable to make an observation at this stage that if, in the final decree proceedings, it is found that anyone of the members or sharers was or is in possession and control of any portion of the joint family propertis (items 1 to 3) to the prejudice of the others then he shall be made accountable for such income derived by him as a result of such occupation or control to the prejudice of the others.
22. We do not, however, consider that the second defendant is liable to account for the mesne profits. There is no acceptable material before us to hold that he was in possession of items 1 and 2 at or about the time when the suit was filed and that such possession was to the prejudice of the other members of the family. The learned Judge gave a decree for mesne profits against the second defendant and made him so liable from the date of the suit. But, what was the property he had in his mind, the mesne profits of which the second defendant has to account for, is not clear. It has not been brought out by the learned Counsel for the respondents before us that the said clause in the decree should stand because of a particular set of facts disclosed in the record. A joint family member would become accountable to the rest of the members only if it is established that he was in custody, possession and control of the assets of the joint family or the immovable properties of the joint family to the prejudice and exclusion of others. There has not been such clinching evidence in the instant case. We are therefore unable to agree that the second defendant is liable to account for mense profits as stated by by the learned Judge. The second defendant, however, is undoubtedly, liable to account for the income from the fifth item of the plaint schedule properties, namely, the Jayanthi Semiya Works, which we have held to be joint family property and we direct the second defendant to so account for the corpus and the income of Jayanthi Semiya Works from the date of the suit. The plaintiff, in turn, has, no doubt, to account for the corpus and the income from the Rajendra Flour Mills.
23. We, therefore, hold that the properties which we have added on in this judgment as joint family properties, along with the properties already declared by the trial Court as such, shall constitute the partible joint family properties, in which the plaintiff would be entitled to a fourth share. There will be a preliminary decree for partition of the above joint family properties into four shares and to allot one such share to the plaintiff and the incidental directions already given as against the plaintiff and the second defendant shall follow suit. As the appellant has succeeded only in part, we direct that the parties shall bear their own costs in this appeal.