1. The question in this case is whether the property disposed of by the Will of one B. Madurai Chetty, is property over which he had a power of testamentary disposition or whether it was joint family property. The testator had been engaged in a business in piece-goods in which his immediate family ancestor had been engaged for some years. His father, Lakshmiah Chetty, and his uncle, B. Munuswami Chetty, carried on business together as hawkers of piece-goods for some time and after Lakshmiah's death in 1876 or in 1877, B. Munuswami Chetty and the testator carried on the same hawker business. In 1885, the testator, B. Munuswami Chetty, and the 1st witness for the plaintiff, C. Munuswami Chetty, opened a piece-goods business with one Ramaswami Chetty, the testator's brother, a child about 9 or 10 years old. The 1st witness for the plaintiff stated that the testator and his relations brought in a capital of about Rs. 2,000 for the business but no accounts have been produced. That business was carried on for 12 years and in 1897, the 1st witness for the plaintiff separated from the business and the testator, B. Munuswami Chetty and one Narayanaswami Chetty, the 1st witness for the defence, who was the son of B. Munuswami Chetty, carried on the piece-goods business up to the year 1903. In that year, these three persons executed a Muchilika appointing arbitrators for the partition of their properties which was carried out by means of a partition-deed, Exhibit D, dated 4th July 1903.
2. With regard to the allegation of the 1st witness for the plaintiff that a capital of Rs. 2,000 was brought into the business in 1885, no accounts have been produced and his evidence is highly partisan and I am not inclined to put much faith in that statement. Obviously, the previous business that had been carried on by Lakshmiah and his brother was a small hawker business and it is quite possible that it was carried on with borrowed capital. With regard to any capital that might have been required for the business which was started in 1885, no accounts have been produced and the statement of the first witness for the plaintiffs that the testator and B. Munuswami Chetty carried large capital of Rs. 60,000 into the new business must also be regarded with considerable doubt. I think it, therefore, safer to assume that when business was commenced in 1897, it was with little or no capital. There is no reliable evidence to prove what the new capital of the business consisted of. The accounts of the business from 1897 to 1903 have not been put in but Narayanaswami, the first witness for the defence, has given a general description of the accounts that were kept. He said: 'There are not several accounts of drawings in the firm books. There is one account of household expenses. There is no capital account. There is nothing to show division of profits. We did not divide profits. What was taken was for household expenses and that was not divided. No individual accounts were kept for what was expended.' He then says that immovable properties were largely purchased out of the profits of the business in the names of Munuswami and Madurai, the testator. It is admitted that all but two out of 13 properties are in the names of Munuswami, representing one branch of the family, and Madurai the other.
3. Then, with regard to the family life of the parties, the same witness says: 'I have lived there (i.e., the house which stands in the name of Muthialammal, his grandmother) ever since I can remember. It is one of the family properties included in the division (in Exhibit B). We all lived there before any business was started as owners. There was a passage between two houses. After I came of age, the next house was bought. There was one cooking, one food.'
4. Then, it appears that in 1903, some discussions arose in the family. After some shuffling, which was apparent throughout the whole course of the witness's evidence, Narayanaswami said that the important cause of dissension was that he took Rs. 1,75,000 and debited it in the accounts and refused to part with it.' I determined to divide and did this for the purpose. I got my dues.'
5. Under these circumstances, the parties entered into Exhibit B, dividing the property of which they were possessed. The whole frame of this document has exactly the features of a division of family property. Every phrase used in it deals with the family. It contains provisions which would be natural in a division of family properties but which would be unnatural in a division of partnership properties--such as provisions for charity and for maintenance of family members. The only thing which was pointed out by the learned Vakil for the defendant, is that the shares would not be natural in a division of family properties and that all the members of the family were not included. I think this is sufficiently explained by circumstances under which the division was arrived at. Narayanaswami Chetti had seized a considerable sum and was claiming an equal share with the other two, his father, B. Munuswami and his cousin, the testator, and the only alternative to giving him an equal share was to go to law and waste a considerable portion of the family property. It seems to me that the whole arrangement was one dictated by this man and that, under those circumstances, the division is perfectly natural. The revolting member of the family is kept out by giving him the one-third share which he asks, and the other two branches of the family each take half of the remaining assets. Thus, each branch of the family obtains a third.
6. The legal point has been raised whether, if it is not proved that there is any nucleus of family property, the property in the hands of the family may be considered to be joint family property with the ordinary rights of the members of the family to a share on partition. I think that in this Court the point is clearly dealt with by the dicta of Mr. Justice Bhashyam Iyengar in Sudarsanam Maistri v. Narasimhulu Maistri 11 M.L.J. 335; Gopalsami Chetti v. Arunachellam Chetti 27 M.k 32 which have been approved by Mr. Justice Wallis in Muniswami Chetty v. Maruthammal (1910) M.W.N. 233. And there is also an express decision on the point by Mr. Justice Beaman in Karsandas Dharamsey v. Gangabai 10 Bom. L.R. 184. I think that from these cases it is perfectly clear that if the members of a Hindu family choose to live together, work jointly together, throw all their earnings into a common stock and have one food, in such a case the presumption is that they must have intended their property to be joint family property. I think the evidence in this case shows conclusively that the property was intended to be held as joint family property. That being so, the ordinary consequences attach to it and the right of all the members to partition necessarily follows.
7. I give an oral judgment holding that the property is joint family property with the incidents of partition and did not pass under the Will of B. Madurai Chetty. The 2nd defendant is a minor and cannot give a discharge for the property and the person entitled to possession, as the eldest male member of the family, is the plaintiff. There will be a decree that the 1st defendant do deliver possession of the plaint property to the plaintiff. Taxed costs of all parties will be paid out of the estate by the 1st defendant, who will be allowed to retain his costs, charges and expenses incurred as executor of the Will.