Kumaraswami Sastri, J.
1. This is a suit by the plaintiff who is the widow and legal representative of one Goverdhanadoss against the defendant, her deceased husband's brother, for a declaration that the plaintiff's husband and the defendant ware members of a divided family, that the plaintiff's husband was entitled to a half share on all the properties devised under the will of his father and that the plaintiff is entitled to a half share in the properties, which were decreed to the plaintiff's husband and the defendant, in C.S. No. 163 of 1917 for partition and delivery to the plaintiff of her share and in the alternative for maintenance at Rs. 500 a month and arrears.
2. One Raghunathadoss, who was the father of the plaintiff's husband and the defendant, was carrying on a large business, as a jewel merchant. He died about the 20th of October 1903, leaving behind him, the plaintiff's husband and the defendant, his sons. Ha left a will, dated the 19th of October, 1903, which is probatad and which I shall refer to later on. The will directs the executors, after payment of certain legacies, to hand over the residue of the estate to the plaintiff's husband, when he attains the age of 23 and the defendant, when he attains 21. The executors obtained possession and were in management of the estate. The plaintiff's husband and the defendant filed O.S. No. 163 of 1917, against the executors for an account and for possession of the properties, bequeathed to them and a decree was passed in that suit in their, favour, in execution of which they got possession of the properties, movable and immovable. A few months after getting the decree in that suit, the plaintiff's husband died.
3. The plaintiff's case is that both by virtue of the will of Raghunathadoss and the decree in C.S. No. 163 of 1917, her husband and the defendant obtained the properties as tenants-in common and not as joint tenants and that she is entitled to one half share in the properties, which were recovered in execution and which formed part of the properties of the testator Raghunathadoss. She contends that by reason of the contentions, raised by her husband and the defendant that they took the properties as tenants-in-common, the defendant is estopped from setting up any title to the properties, by right of survivorship, even assuming that they were not tenants-in-common, under the terms of the will. The plaintiff states that on the date of her husband's death, which took place on the 28th June, 1920, she was a minor 16 years old, that she continued to live in her husband's house, for a short time and thereafter she went to live with her parents, that the defendant who was the de facto guardian and who was in possession of the properties of her husband, is bound to account to her for such properties and that the defendant in 1924, asserted his rights to all the properties by survivorship and declined to hand over her share to her. She states that the defendant in reply to a notice set up an arrangement, whereby she was only entitled to the interest on Government paper, of the face value of Rs. 10,000 of the 31/2 per cent, lean, which was set apart for her maintenance and had no further rights. She denies any such arrangement and states that even if the arrangement is valid, it is not binding on her.
4. The defendant filed a written statement wherein he denies that the plaintiff's husband and he were divided in interest and states that he, the plaintiff's husband and their father Raghunathadoss were members of a joint family, that under the terms of the will, the property was given to him and his brother, as members of a joint family and not as tenants-in common that the parties are not governed by the Mayukha but by the Mitakshara, us they migrated to Madras, several years ago and have adopted the law, as prevailing in Madras that in O.S. No. 163 of 1917, the plaintiff's husband did not sue as a tenant-in-common, or claim a devise as such, that the question as to whether he and his brother took as tenants-in common, or as joint tenants was not one of the main issues in the suit and was not necessary for the determination of that suit, that there can be no estoppel, that he never retained possession of the properties, on the ground they' were the separate properties of the plaintiff's husband, that till the death of the plaintiff's husband, they were members of a joint family enjoying the properties as members of such a family, that he never took possession of any of the properties, as the guardian of the plaintiff, but that he took the properties, as the surviving member of a joint family, that soon after the death of the plaintiff's husband, a settlement was arrived at, in respect of the maintenance of the plaintiff, in the presence of her father and other relations, interested in her welfare, whereby Government promissory notes of the face value of Rs. 10,000 were to be endorsed over in her favour and the same set apart, to secure her maintenance and she was to be paid, as and when necessary, the interest accruing on the promissory notes and she was also allowed to have her Stridhana jewels of the value of Rs. 6,000, that the agreement was acted upon by all the parties and by the plaintiff, after she attained majority, that she cannot now repudiate it, that the total income of the properties never exceeded Rs. 300 or 400 a month and that the claim of Rs. 500 a month for maintenance is excessive. He denies the correctness of the schedule to the plaint.
2. The defendant also filed a counter-claim stating that the plaintiff is in possession of family jewels, of the value of Rs. 4,435, which she was allowed to keep for her temporary use and that she has not returned them, in spite of demands.
3. The plaintiff filed an answer to the counter-claim denying that the defendant is entitled to any of the jewels claimed, on the ground that they were lent to her and stating that her husband gave her some jewels absolutely out of natural love and affection, and that she is not in possession of any family jewels. She states that the claim, if any, is barred by limitation.
4. The following preliminary issue was settled:
5. Is the nature of the estate taken by the plaintiff's husband and the defendant, under the will of Raghunathadoss res judicata, by reason of the decision in C.S. No. 163 of 1917
6. After hearing the arguments on this issue, I was of opinion that the matter is not res judicata and I intimated to the parties that I would give my reasons, after hearing the suit on its merits:
The following further issues were raised:
1. Did the defendant and the plaintiff's husband take the properties, under the will, as tenants-in common, or as joint tenants?
2.Is the defendant estopped from pleading that he took the properties m a joint tenant?
Particulars as to the reasons for estoppel will be given in 14 days.
3. Did the plaintiff's husband and the defendant become divided, by reason of the case sat up by the 2nd defendant in O.S. No. 163 of 1917, that the parties took as members of a divided family?
4. Did the plaintiff's husband and the defendant treat the properties, which they got, under the will, as joint family properties, so as to bring into operation the law of survivorship?
Defendant will give particulars of the treatment, which he skates constituted joint family property, but which is otherwise separate in 14 days.
5. Was there an agreement between the plaintiff's father and the defendant, as alleged in paragraph 17 of the written statement and had the plaintiff's father any authority to act for the plaintiff in respect thereof?
6. Assuming that he had authority and that there was an agreement, is it binding on the plaintiff?
7. Did the plaintiff ratify the arrangement and is she estopped from disputing its validity?
Defendant will give particulars as to ratification in 14 days.
8. Did the defendant lend the plaintiff any jewels, as alleged in the counter claim, or were the jewels, which the plaintiff admits, she has got, given by her husband, as alleged in her reply to the counter-claim and what is their value?
9. If it is held that the plaintiff is entitled to any maintenance, apart from the agreement, to what maintenance, arrears of maintenance and residence, is she entitled?
7. Preliminary issue. - Raghunathadosa, the father of the plaintiff's husband and the defendant, left a will of which probate was obtained, wherein he gives certain annuities to his daughters and directs his executors to hand over the residua to his sons, namely the plaintiff's husband and the defendant. The material portion of the will, as translated in the probate, runs as follows. After referring to his illness, the testator says:
Therefore, as long as I live, I am the owner (of my property). After me, my two sons (are owners) 1. Elder (son) Babu age 19; 2. Second (son) Chendulal age 8. These (sons) are minors. Therefore, I appoint four executors.... I appoint these four persons (executors). These four persons are to recover, after my death, whatever I own (in the shape of estate, jewellery and outstandings) and out of the jewels they may keep (intact) such as are fit to be preserved and keep a list in writing of the same. (They) are to sell off the rest and invest the sale-proceeds in Government bonds and to utilise the interest, for defraying the house-hold expenses and to go on devoting (or spending) the rest (of the interest) for (the use of or benefit of) my children, according to the custom of our caste and in such manner, as my sister Jamu Bai approves (or chooses or wishes or directs). (They are) to celebrate the marriage of my sons, in a respectable or decent (literally good) way. (Such money as remains on hand, after defraying those expanses) is to be laid by and to be handed over to both my sons, to the elder one when he attains the age of 23 and to the younger one, at 21 and take receipts from them (in respect of the same). The boys are to be given a respectable education and are to be looked after (generally)(literally are to be protected).
8. The executors obtained probate of the will and were in possession and management of the estate. The plaintiff's husband and the defendant, being dissatisfied with the management of the executors and alleging misappropriation, waste and breaches of trust, filed O.S. No. 163 of 1917, on the 24th of April, 1917, against three of the executors, who were then alive. The plaint in that suit, after setting out the will and alleging that the 1st plaintiff was born on the 16th of November, 1893 and the 2nd plaintiff on the 29th of May, 1896 and both were of full age and entitled to recover the estate under the terms of the bequest, gives the various acts of breaches of trust, misconducts and misappropriation. The plaintiffs prayed for an enquiry, as to the assets left by the deceased testator, and the amounts recovered by the defendants or might have been recovered by them, but for their wilful default and neglect, for an account of the monies, which the defendants used for their own trade, for profits on compound interest at half yearly rests on such sums, for handing over to the plaintiffs the properties belonging to the estate, of which the defendants were in possession for an injunction and for other reliefs.
9. The defendants in that suit filed written statements, denying all acts of misconduct and stating that they acted, in conformity with the provisions of the will.
10. The plaint was amended and in answer to the amended plaint, a plea of limitation was raised and that formed the subject-matter of the fourth issue in that suit.
11. I held that the suit was not barred by limitation.
12. The plea of limitation was raised on two grounds. As regards the properties, which were admitted to be in the possession of the executors, it was contended that on the true construction of the will, the legacies become payable immediately on the death of the father and that the suit was barred by limitation, as it was brought more than 12 years after the said date. As regards the properties which did not come into the hands of the executors, it was contended that as the plaintiffs were members of a joint family and as the legacies were impressed with the character of joint family property and as the 1st plaintiff attained majority, more than three years before the date of the suit, and was competent to give a valid discharge, any claim for damages, for neglect of duty or breaches of trust was barred by limitation. As regards the properties, which remained in the hands of the executors and actually held by them, I held that the suit cannot be barred by limitation, that if they were trustees Section 10 of the Limitation Act would apply and that if the suit was one for legacy, it became payable only when the 1st plaintiff attained the age of 23 and the 2nd plaintiff the age of 21 and that they had 12 years from that date to sue. It is not material, for the purpose of this case, to refer to this aspect of the case any further. As regards the claim, in respect of the properties, which did not come into the hands of the executors, and in respect of which the claim was based on breaches of trust and neglect of duty to get in assets or devastavit, alleged to have been committed by them, the question was incidentally raised, as to whether the suit was barred, on the ground that the plaintiffs were members of an undivided family and the will gave the properties to them jointly. I may state, in this connection, that there was nothing in the pleadings, which raised this question specifically. In the course of the arguments before me, this point was raised and I had to decide it. The following is my judgment on that question:
Mr. Baja Aiyar (who appeared for the plaintiffs in that suit argued that even as regards those claims, (i.e.,) claims in respect of breaches of trust, damages for neglect of duty (etc.), they are covered by Section 10 of the Limitation Act and referred to the passage in Gursetjee Pestonjee Bottlhualla v. Dadabhai Eduljee (1896) 19 Mad. 425 referred to by me above and several English decisions, prior to the passing of the Trustees Act. I do not think there is much use in discussing the question, at any length, as I am (sitting as a single Judge) concluded by the decision of Wallis, C.J., and Old-field J., in Tholasingam Chetty v. Vedachella Aiyah (1917) 41 Mad. 319, where it was held that Section 10 of the Limitation Act does not apply to suits against trustees, for failure to reduce the trust properties into possession.
So far as the second plaintiff is concerned, the suit is brought within three years of his attaining majority and is prima facie not barred. It is argued, however, that the plaintiffs are members of a joint family, that the legacies to them stand impressed with the character of a joint family property and that as the 1st plaintiff attained majority, more than three years before the date of the suit, and was competent to give a valid discharge, the suit is barred against the second plaintiff also. So far as Madras is concerned, it must now be taken as settled, that a father can bequeath property to his sons in towns, which would carry with it all the incidents of a joint family property. I need only refer to Nagalingam Pillay v. Ramachandra Tevar (1901) 24 Mad. 429, Ethirajulu Naidu v. Mukunthu Naidu (1905) 28 Mad. 363 and to the recent decision of Abdur Rahim, and Oldfield, JJ., in Indoji Jithaji v. Kothapalle Rama Charlu (1920) 10 L.W. 498. It is, no doubt, true that a contrary view was taken in Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy (1886) 10 Bom. 528 and Kishori Duhain v. Mundra Duhain (1911) 33 All. 665; but I am bound by the current authority in this Court. As observed in the 24 Mad, case, the question 'whether, in any given case, property was intended to pass to the son as ancestral, or self-acquired property is a question of intention, turning on the construction of the instrument of gift.' Turning to the present will, I do not think that the intention of the testator was to pass the property, as an ancestral property. He distinctly states that the executors were to give it to each of the plaintiffs, when they attain a particular age and to get receipts from each of them, so that he clearly did not intend one son to bind the other by any a quittance. If he wanted the property to pass as joint family property, he would have directed the executors to hand over the estate, as soon as his eldest son attained majority, or an age, when the testator thought it safe to hand over the property to him. Though no doubt it is, under the law as administered in this Presidency, open to a father to bequeath property as joint family property, I think Courts ought not easily to impress a legacy with that character. It is again difficult, to see how the 1st plaintiff could in the face of the express terms of the will, have required the executors to deliver to him the share of the 2nd plaintiff during his minority and give a valid discharge to the executors, as regards the second plaintiff's share. Section 7 of the Limitation Act requires that there should be a person, who can give a valid discharge, without the concurrence of the minor. As pointed out by their Lordships of the Privy Council in Nobin Chandra Rama v. Chandra Madhab Bama A.I.R. 1916 P.C. 148 and by Bhashyam Ayyangar, J., in Ahinsa Bibi v. Abdul Kader Saheb (1902) 25 Mad. 26, the section will have no application otherwise. The executors could not, under the terms of the will, have handed over the share of the 2nd plaintiff to the 1st plaintiff. It has been held in Tirupatirayudu Naidu Garu v. Lakshminarasamma (1912) 38 Mad. 71, where there is a minor beneficiary that the executors had no power to deliver the property to the minor's guardian, a fortiori, where the will specifically directs that the legacy should be delivered to a minor, when ha attains a certain age and an acquittance should be obtained from him. As regards suits of account, the effect of 8. 7 has been discussed by Sir Bhashyam Ayyangar in Ahinsa Bibi v. Abdul Kader Saheb (1902) 25 Mad. 26; while it was held that, even though there were adult partners, a suit for an account of a dissolved partnership was not barred, as one of the persons entitled to an account was a minor. I do not think that the suit as regards the 2nd plaintiff is barred.
13. It will be seen from my judgment in that case that the question as to the nature of the, estate, taken by the plaintiffs in that suit, whether they took it as tenants-in-common, or as joint tenants, was not raised in the pleadings; nor was there a specific issue, on the construction of the will, but it was taken in the course of the argument, to support one aspect of the general plea of limitation. It is, no doubt, true that in the course of the argument, the position taken up by the executors was that the plaintiffs in that suit took the estate as joint tenants, while the present defendant raised the opposite contention that ho and the plaintiff's husband took the estate as tenants-in-common, the legacy to each being distinct and separate, payable at different times, though his present contention is that they took the estate as joint tenants. Moreover, I held that, even if the plaintiffs in that suit were members of an undivided family, and took as joint tenants, the suit was not barred, for other reasons.
14. A point was taken that as the present defendant and the plaintiff's husband were co-plaintiff a, in O.S. No. 163 of 1917, there can be no res judicata, as between them; but I think the same principles of res judicata, as between co-defendants would apply to eo-plaintiffs. I need only refer to Rukhmini v. Dhondo Mahadu (1912) 36 Bom. 207 and Mookkan v. Naga Pillai (1917) M.W.N. 14 and think that if a finding as between co-plaintiffs is necessary, before the Court can give any relief against the defendants, there is no reason why that finding should not be res judicata, as between co-plaintiffs. I find it, however, difficult to see how the question as to the nature of the estate, which the plaintiffs took in that case, which was not raised in the pleadings, but was only used as an argument, on one of the branches of the case, as to limitation, and which was not essential to give plaintiffs any relief would be res judicata. I think the main tests to be applied are whether there was active controversy between the plaintiffs and whether that adjudication was necessary, to enable the Court, to grant any relief against the defendants. Having regard to the pleadings in that suit, it is clear that the plaintiffs did not care, if they got the property as joint tenants or tenants in common, because no question of survivorship would arise, until one of them died. Both of them attained the age, when under the terms of the will, possession had to be given to them. There was, therefore, no active controversy between the plaintiffs. All that appears is that, during the course of the argument, the second plaintiff in that suit, by his vakil, met the plea of limitation, by arguing that the plaintiffs took the estate, as tenants in common and not as joint tenants. The other plaintiff adopted that argument and I held that, for the purpose of deciding the question of limitation, the will, on its face, suggested that the property was given to them as tenants in-common. Active co-operation there was between the plaintiffs; but that does not make it an active contest on any issues between them because the interests of the present parties are now adverse and the plaintiff claims through one of the parties to the previous litigation.
15. It is argued by Mr. Srinivasa Aiyangar, for the plaintiff, that active controversy can only mean controversy, which the nature of the case admits and need not appear expressly on the pleadings and that where the plaintiff raises a contention which, but for the admission or consent of the co-plaintiff would be a matter in controversy, explanation iii to Section 11 would apply. It is contended that as there was a controversy between one of the plaintiffs in that suit and the defendant and as the other plaintiff accepted the contention of the co-plaintiff, ho cannot subsequently be heard to contend that in another suit he can raise the question anew, because if he had raised the contention in the previous suit there would have been an adjudication. Reliance is placed on Krishnan Numbiar v. Kannan (1898) 21 Mad. 8. In that case, the plaintiff purchased some land from the 2nd defendant, as the karnavan of a tarwad, to which the 2nd defendant and the other defendants belonged. The land was in the possession of third parties. The vendor and the purchaser jointly sued for possession, but they failed to prove that the vendor had any title to the land. The plaintiff instituted the suit against the vendor, to recover the purchase money with interest and the defendants wanted to show that they had title. It was held that the matter was res judicata. The learned Judges Benson and Boddam JJ., observed:
In that litigation, the present plaintiff and the second defendant (as representing the tarwad) were joint plaintiffs and it was then found, as between each of them and the persons in possession of the property, that the 2nd defendant and his tarwad had no title to the property. The title to the property is therefore res judicata, as between the persons in possession and the 2nd defendant and his tarwad. It is idle to contend that, in these circumstances, any useful purpose was or could be served, by admitting evidence as to the tarwad's alleged title.
16. No authorities were referred to and the case was not followed in Mookan v. Naga Pilial (1917) M.W.N. 14 and was dissented from, in Hub Ali v. Hammun (1911) 8 A.L.J. 807.
17. I think the authorities are clear that in order to constitute res judicata between co-plaintiffs, there should be active controversy between them and a point in dispute must have been essential, for the purpose of giving a decree against the defendant. In Rakhmini v. Dhondo (1912) 36 Bom. 207, the widow and the son of a deceased person sued a stranger to recover some jewels and a decree was passed in favour of the mother, on the ground that she was the absolute owner of the jewels. Later on, the son filed a suit against the mother, to establish his title to recover the jewels. The plea of res judicata was raised and it was held that there was no res judicata, as there was no final adjudication between the plaintiffs in that suit and it was of no consequence to them in that suit, as to who succeeded. Chandavarkar, J., after referring to Ramchandra Narayan v. Narayan Mahadev (1887) 11 Bom. 216 observed as follows:
As was held in that case, a finding in a suit as between co-defendants becomes res judicata in a subsequent suit, only when it was essential for the purpose of giving relief to the plaintiff in the previous suit. So also as between co-plaintiffs, a finding, to become res judiaata, must have been essential, for the purpose of giving relief against the defendant. Now here, in the previous suit, it was a matter of no consequence whatever to the defendant therein, for the purpose of the relief to be given against him, whether Rakhmini Bai succeeded or whether Dhondo succeeded. Therefore, the plea of res judicata raised in this second appeal, must be disallowed.
18. In Pratap Udainath Sahi Deo v. Ganesh Narain Sahi A.I.R. 1921 Pat. 218, Sir Dawson Miller, C.J., and Jwala Prasad, J., in dealing with the question of res judicata, as between co-plaintiffs, observed as follows:
There was no dispute between the plaintiff in that suit, as to the Maharaja's right to resume or the fact that the tenure had to come to an end, on the death of Lachminath. The principle laid down in Cottingham v. Shrewsbury Earl (1843) 67 E.R. 530 can therefore have no application. There was no conflict of interest between the co-plaintiffs and the decision cannot, in my opinion, be held binding, as res judicata, on their successors; (see Ramchandra Narayan v. Narayan Mahadev (1887) 11 Bom. 216.
19. A similar view was taken in Hub Ali v. Mammun (1911) 8 A.L.J. 807 where it was held, that to constitute res judicata there should be a difference between the co-plaintiffs, and some controversy between them.
20. So far as co-defendants are concerned, the requisites, necessary to support the plea of res judicata, have been considered in numerous oases and the principles are quite clear. In Shankaramahalingam Chetti v. Muthulakshmi (1918) 33 M.L.J. 740 Seshagiri Aiyar, J., refers to all the cases on the point and observe as follows:
The principle, underlying the bar of res judicata as between co-defendants, has been the subject of discussion in three recent cases, Venkatasuryanarayana v. Sivasankara Narayan (1918) 33 M.L.J. 740; Fakir Ghand Lallubhai v. Nagichand Kalidoss (1916) 40 Bom. 210 and Jadav Chandra Sarkar v. Kailash Chandra Singh 21 C.W.N. 693; The first requisite is that there should be active controversy, as against each other between the parties, arrayed on the same side; per Muthusami Aiyar, J. in Venkayya v. Narasamma (1888) 11 Mad. 204 and Tanjore Ramchendra Rau v. Vellayanadanl Ponnusami (1891) 14 Mad. 258. Secondly, the adjudication inter se between the co-defendants should be necessary to give the proper relief to the plaintiff : See per West, J., in Ramchandra Narayan v. Narayan Mahadev (1887) 11 Bom. 216 and Wigram V.C. in Chottingham v. Earl of Shrewsbury (1843) 3 Hare 627 and Jeasel, M.R. in Kevan v. Crawford (1877) 6 Ch. D. 29.
21. In the earlier case, the Vice Chancellor says:
But if the relief given to the plaintiff does not require or involve the decision of any case between co-defendants, the co-defendants will not be bound, as between each other, by any proceedings which may be necessary only to the decree the plaintiff obtains.
22. There are numerous other decisions laying down the same requisites; but I think it is unnecessary to refer to them.
23. Applying these tests to the present case, I do not think that any of the requisites, which are necessary to constitute res judicata, as between co-defendants, exists, so as to make the question, as to the nature of the estate taken under the will, res judicata and I find the preliminary issue against the plaintiff.
24. The next issue is whether the plaintiff's husband and the defendant took the properties, under the will of their father, as tenants-in-common, or as joint tenants. In the previous litigation, the parties accepted the translation attached to the probate of the will, as correct. Nobody impugned its correctness, There was no evidence let in on this point. The main reason, which influenced me, in holding that they took the estate as tenants-in-common, was that under the will, there were two separate deliveries of properties contemplated and that two separate receipts were to be taken from the two sons of the testator. If there had to be two separate deliveries of properties and two separate receipts taken, it seemed to me, in the absence of any evidence, to be clear that a tenancy-in common was contemplated by the testator, because when the property was given to the elder son and receipt taken from him it prima facie would be of his share in the residue, and similarly, when the property was handed over to the second son, at a different period and a receipt taken from him, it would also involve the same consequence. In the present suit, however, the translation, annexed to the probate, is challenged by the defendant as incorrect and evidence on the point has been adduced.
25. The case for the defendant is that, according to a proper translation of the will it was not necessary that there should be two deliveries at different times, or that two receipts should be taken, but that what was contemplated was a single handing over, when the legatees attained the age of 23 and 21 and the taking of a single receipt. It is pointed out that as there was a difference of about 2 years in the ages of the plaintiff's husband and the defendant, the testator in the will, said that the first son should get 'the property' at 23 and the second son should get the property at the so that there may be a simultaneous delivery of property; otherwise, there was no reason, why the elder eon should get it, when he is 23 and the younger son when he is 21. It is also contended that the Gujarati word in the will is 'receipt ' and not ' receipts ' and that therefore only one receipt as contemplated, the word' receipts ' in the translation annexed to the probate being incorrect. On this point, evidence was adduced and the defendant examined Mr. Nanabhai Devai, a vakil of this Court, who was appointed commissioner to translate a number of Gujarati documents and Mr. Batheena, the Gujwati Interpreter of this Court. Mr. Nanabhai Devai, who is a Gujarati gentleman and whose mother-tongue is Gujarati has made a translation of the will and it has been filed. The evidence of Mr. Nanabhai Devai supports his translation of the will and he states that from a reading of the will, only a single handing over was meant. He says that as there was a difference of two years between the ages of the elder and the younger sons, which continued throughout only one delivery was contemplated, when the testator used the words 'to the elder one, when he attains the age of 23 and to the younger one at 21'. Mr. Batheena, the Gujarati interpreter, has given his translation of the will and it has also been filed. He seems to be of opinion that the will can be translated, both as is done in the probate and as is translated by Mr. Nanabhai Devai.
26. If the original will is capable of the two interpretations put on it, namely, (1) that there should be two separate deliveries and two separate receipts taken, and (2) that there should be a single delivery to both of them, on one and the same occasion and only one receipt taken, one has to sea the surrounding circumstances and the other terms of the will, to come to a conclusion as to the nature of the estate taken, as the will does not say anything as to what the nature of the estate is to be, It is not disputed that Raghunathdoss, the father and his two sons were living as members of one family. Baghunathadoss being the father and managing member, and the sons being minors under his protection. The will begins by saying that the testator was the owner of the property, as long as he lived and after him his two sons, (the word 'owners' being supplemented by the interpreter). He gives the names of his two sons and says that as they are minors, he appoints four executors. He mentions the duties, which the executors are to perform and so far as the clause of disposition is concerned, all he says is that the executors are to hand over to his sons the property, when the elder attains the age of 23 and the younger when he attains the age of 21 and to take receipts from them. There does not seem to be any reason to suppose, from the terms of the will, that the testator intended his sons to be separate, as from the date of his death and they were to have separate interests in the property and there are no express words in the will, from which such an intention necessarily follows. I think the result of the authorities, in Madras, is that where there is a grant to two persons, who form members of a joint family, the ordinary presumption is that the grant is to them as co-parceners. I need only refer to Nagalingam Pillai v. Ramchandra Tevar (1901) 24 Mad. 429, Ethirajulu Naidu v. Mukunthu Naidu (1905) 28 Mad. 363, Venkataramiah Pantulu v. Subramaniam Pillai (1915) 16 M.L.T. 489, Indoji Jithaji v. Kothepalli Rama Charlu (1920) 10 L.W. 498 and Raja Rajeswara Dorai v. Sundara Pandiaswami Thevar (1915) 27 M.L.J. 694. It is, no doubt, true that the view taken in Bombay and Allahabad is that, where property is given to two persons, without stating what interest they are to take, they should take it as tenants in common. The question was recently raised before the Privy Council in Lal Rain Singh v. Deputy Commissioner of Partabgarh A.I.R. 1923 P.C. 160; but their Lordships while pointing out the conflict of authority did not decide the question. They observe as follows:
It appears that there has been great diversity of opinion in the High Courts in India, as to the effect in a Mitakshara family, of a bequest made by a father of property, which, in the father's hands, was self-acquired, to his son. In Calcutta, in 1863, the point first arose in the case of Muddun Gopal Thakoor v. Ram Buhsh Pandey 6 W.R. 71 when it was held that such property would be ancestral and this has been followed in the later case of, Hazari Mall Babu v. Abainath Adhurjya 17 C.W.N. 280 decided in 1912. In Madras, upon the whole, the view seems to be that the father can determine, whether the property which ha has so bequeathed, shall be ancestral or self-acquired, on the principle of cujus est dare ejus est disponere; but that unless he expresses his wish that it should be deemed self-acquired, it is ancestral : See Tara Chand v. Reeb Ram 3 M.H.C. 50 and compare it with Nagalingam Pillai v. Ramachandra Tevar (1901) 24 Mad. 429 and other capes. In Bombay on the other hand, the principle of intention seems to have been accepted, if it makes the property ancestral; but if there be no ex' pression of intention, it is deemed self-acquired. See Jugmohandas v. Sir Mangaldas Nathubhoy (1886) 10 Bom. 528 and Nanabhai Ganpairav Dhairyavan v. Achratbai (1888) 12 Bom. 122. In Allahabad, the decision was that such property is self-acquired : See Parsotam Rao Tantia v. Janki Bai (1907) 29 All. 354 decided in 1907. Finally, in Oudh, in the case of Rameshar v. Mt. Ruhmin (1911) 14 O.C. 244, decided in 1909, after a review of all the cases, it was held that : Where self-acquired property is bequeathed to sons, in the absence of language clearly indicating the testator's intention that the property should be held by the sons, subject to the incident of survivorship, it should be presumed that each son takes an interest, which passes to his heirs at his death. * * * But their Lordships deem it unnecessary to pronounce upon these points. It may be that some day this Board will have to decide between the conflicting decisions of the Indian High Courts, and it may be that when this time comes, this Board will prefer to go back to the original text of the Mitakshara and put its own construction upon that text. It is not necessary to do so in this case.
27. In this view of the authorities, I think that, sitting as a single Judge, I should follow the Madras decisions, which, as pointed out by their Lordships of the Privy Council, uphold the view that unless the father, in disposing of the properties expresses that they should be deemed self-acquired in the hands of the sons, the properties should be treated as ancestral.
28. As regards the contention of Mr. Raja Aiyar, for the defendant, that the will of Raghunathadoss is merely a document, appointing a guardian of his minor sons, and is not a bequest to them. I think the terms of the will, which gives annuities to the daughters and the residue to his sons, is clearly testamentary, in its character. Reference has been made to Poorandra Nath Sen v. Hemangini Dasi (1909) 36 Cal. 75, Ramasami Chetty v. Subba Chetty (1900) 23 Mad. 134, Somasundara Mudaly v. Duraiswami Mudaliar (1904) 27 Mad. 134, and Bhima Das v. Behari Deo (1904) 27 Mad. 30, I do not think these cases have any application, having regard to the terms of the will in question. The words 'after me my two sons are owners' amount to a bequest. In Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy A.I.R. 1922 P.C. 162, Lalit Mohan Sing Roy v. Chukhan Lal Roy (1897) 24 Cal. 834 and Chunilal v. Bai Muli (1900) 24 Bom. 420, the words 'shall be the owner, etc' were construed as constituting a bequest.
29. I hold, on the first issue, that the plaintiff's husband and defendant took the properties as joint tenants.
29. 2nd Issue : It is difficult to sea how there can be any estoppel in this case. It is agreed by Mr. Srinivasa Aiyangar, for the plaintiff, that estoppel arises, because of the conduct of the present defendant, in O.S. No. 163 of 1917. It is alleged that ha put forward the contention) that, under the will of his father, he and his deceased brother took the estate of their father as tenants-in-common and obtained judgment on that footing, that the plaintiff's husband believed in and acted upon the truth of the statement made by the defendant and obtained a decree, along with the defendant in the previous suit, that but for such conduct and misrepresentation, on the part of the defendant, the plaintiff's husband would have obtained an express declaration from the Court, as to his rights, under his father's will and obtained a separate decree in his favour, or the plaintiff's husband would, before his death have brought about an express deed of partition between himself and the defendant, that the defendant, having obtained possession of the properties of his deceased father, as a legatee under his father's will, is now estopped from saying that he acquired it under any other title, that the defendant having elected to take the properties of his father's will he is estopped from disputing the validity of the will, or any of its provisions as against the plaintiff's husband and that he is also estopped from saying that he pleaded tenancy-in-common, with a view to evade the provisions of the Limitation Act and to commit a fraud upon the Court.
30. There is no evidence, which would support the question of estoppel, on any question of fact. As I shall show later on after the decree in C.S. No. 163 of 1917, and even though the case of tenancy-in-common was set up, the defendant and the plaintiff's husband acted and continued to act, as if they were members of a joint family. They carried on business jointly, treated the funds in common, borrowed in common and made no difference, as regards the properties, which they took under the will. It is difficult to sea how, in the absence of any evidence to prove that the plaintiff's husband acted on the faith of any representation made by the defendant, any question of estoppel would arise. In Umrao Singh v. Laohman Singh (1911) 33 All. 344, it was held by their Lordships of the Privy Council that a person is not precluded from setting up an inconsistent case in a subsequent litigation : (seethe observations at p. 355), I do not think it can be said that the contention put forward in the previous suit, in support of a legal argument, can by itself become a foundation for any estoppel.
31. I find the second issue against the plaintiff.
32. 3rd Issue. - It is difficult to see how the plea set up, as to the nature of the estate taken by the parties, under the will of Raghunathadoss, in the previous suit, can of itself effect a partition. There was no unambiguous intention expressed anywhere in the previous proceedings, by the plaintiff's husband or by the defendant, that they intended to sever any antecedent status and to become thenceforward members of a divided family. Their conduct, which I shall refer to later on, negatives any such intention.
33. 4th Issue : This issue relates to the way in which the plaintiff's husband and the defendant treated the properties, which they got under the will. On this part of the case, the evidence, I think, is clear that, after getting the decree in C.S. No. 163 of 1917, the plaintiff's husband and the defendant treated the properties as joint properties. It appears from the proceedings, in O.S. No. 206 of 1918, which was filed by the sister of the defendant, against the defendant and the plaintiffs husband, that all the parties proceeded on the footing that they were members of an undivided family. In the plaint, Exhibit 25, the defendants are described as members of a joint undivided Hindu family and in the written statement, Exhibit 26, the defendants admit this fact. A consent decree was passed and it has been filed, as Exhibit 27. The accounts produced by the National Bank of India and the Bank of Madras show that a joint account was opened in the names of the plaintiff's husband and the defendant. Exhibit 13 shows that the plaintiff's husband got a sum of Rs. 500 from Mr. Singarachariar, as remuneration for collecting a debt and he opened an account in the National Bank, Exhibit 15, Defendant says that cheques were drawn and the moneys used for family expenses and out of that, a carriage was purchased from Lucas and Company, which both the brothers were using. A sum of Rs. 5,000 was jointly borrowed by them, from Mangumal Jessa Singh (see account books Exhibits 9, 10 and 11). Out of this, a sum of Rs. 3,325 was remitted to the account of Goverdhandoss and the balance was carried to a joint account, newly opened by two brothers and the account goes on. The amount borrowed from Mangumal Jessa Singh is re-paid, out of the monies got from the National Bank, by the pledge of Government Promissory Notes. Exhibit 15, an extract from the National Bank accounts, shows that a balance of Rs. 40-14-0 which was to the credit of the plaintiff's husband in his account, was carried forward to the new account Exhibit 19, opened on the 25th of May, 1917, in the names of both the brothers Exhibit 9, the cash book, shows that the debt borrowed from Mangumal Jessa Singh was renewed on the 10th and 14th May, 1917. Exhibit 15, the extract, shows that a sum of Rs. 3,325 was paid into the National Bank, out of monies borrowed from Mangumal Jessa Singh; Exhibit 9 also shows this. Monies were borrowed by both the brothers from the National Bank and Mangumal Jessa Singh was re-paid. It appears from Exhibit 20 that both the brothers got credit from the National Bank to a joint limit of Rs. 20,000, for over-drafts. Exhibits 19, the Press Book, shows that the drawings and the payments were in their joint names. The cash books and ledger filed show clearly that there was only one joint account kept by the brothers, in respect of the family expenses and income. There is nothing to show that the brothers were even contemplating separation of interest. The evidence of the defendant is that monies were borrowed jointly, by pledge of their personal jewels, from Lakhur Krishnayya Vasa Baliah and Sukulal; and the oash book, Exhibit 9, contains details of such pledges, and the raising of monies. These debts were discharged by cheques on the National Bank, which were met out of the over-draft, obtained on Government promissory notes, which both the brothers got under the decree, in O.S. No. 163 of 1917. Exhibit 20 is the letter from the Bank showing that a joint account was opened, and Exhibit 21 series are letters from the Bank in respect of the account. The ledger Exhibit 11 and the Cash book, Exhibit 9 support the evidence of the defendant. Two accounts were opened in the Imperial Bank. There was a loan account as appears from Exhibit 22 series, under which the two brothers raised Rs. 15,000, on the 15th of March, 1918, on the security of Government promissory notes. Exhibit 19 is the Pass Book. There was also an account opened in 1917 and the letter to the Bank shows that the money was payable to either or survivor. The letters from the Bank are marked as Exhibit 22 series. It also appears that the expenses of the brothers were treated as common expanses, there being nothing to show for whose benefit they were incurred, e. g., medical expenses, expenses for plaintiff's Seemantham, expenses for the plaintiff's child, household expenses, are all entered in one account, without any indication, that they were to be attributable to each of the brothers, according as the expenses were incurred, for the one or the other. So far as the income from the properties is concerned, there is no distinction made. All the rents are brought into a common account and the expenses are met, as I said before in common. Taxes are paid jointly; and so far as the dealings with the Banks and the account books go, there is no indication that the brothers ever intended to live, as members of a divided family and separate in status. On the contrary, all the indications point to their living as members of a joint family. We find joint loans from strangers, joint dealings with the Banks and joint pledges of Government promissory notes, which they got under the decree. We also find that the brothers carried on a joint jewel business and utilised the jewels, which they got under the decree, for such business. There was joint lending and borrowing of money, by the brothers. Under these circumstances, I think that even if the brothers took the legacies, which they got under the will, as tenants-in-common, they by their conduct throw them into a common stock and treated the properties as joint properties. In Rajani Kanta Pal v. Jaga Mohan Pal A.I.R. 1923 P.C. 57, their Lordships of the Privy Council deal with the case of mingling of properties and hold that self-acquired property may be impressed with the character of joint property, by its being dealt with, as joint family property.
34. The next three issues, namely, Issues 6 and 7 and issue 9 relate to the alternative case, as to the agreement for maintenance. It is admitted by the defendant that, at the date of the death of the plaintiff's husband, the plaintiff was a minor, aged about 17 years. The case for the plaintiff is that she was, at the date of her husband's death, which took place on the 20th of June, 1920, a minor about 16 years of age, that she continued to live in her husband's house, for a few months after her husband's death and thereafter went to live with her parents in Benares. I am unable to accept the evidence of the defendant and his witnesses that there was any concluded and binding arrangement, as regards the maintenance of the plaintiff as deposed to by them. The plaintiff, being admittedly a minor, it has first of all to be shown that any arrangement for maintenance, which was entered into, was a fair, reasonable and proper one, which would protect her interest. According to the defendant, all she was entitled to was the interest at 31/2 per cent, on Government paper, of the face value of Rs. 10,000. This will yield Rs. 350 a year, or Rs. 29 and odd a month, out of which, income-tax would be deducted, and after payment of income-tax the net income will only be about Rs. 25 a month. This, according to the defendant was to be in full settlement of all her claims including the claim for residence. Having regard to the value of the estate, which the defendant admittedly was in possession of at the time, I think this amount is so absurdly low, that it is difficult to believe that any prudent parent would have agreed to accept that sum for her maintenance. The claim in O.S. No. 163 of 1917 was for about Rs. 7,00,000 and according to the decree, the defendant and his brother got immovable properties : (1) a house, No. 72, Mint Street, Madras, (2) a house, No. 72, Iswaradass Lalla Street, Triplicane, and (3) house and stables, 7 and 9,Venkatachala Naik Street, Triplicane. The monthly rents were at least Bs 200 on an average.
35. The defendant admits, in his examination-in-chief, that he got Government promissory notes, of the face value of Rs. 84,300, in execution of the decree and in addition, got jewels of the value of nearly Rs. 20,000. It also appears, from his evidence, that he obtained Rs. 15,000 before execution and Rs. 21,000 after an execution application was filed, from the defendants in the previous suits, from the 7th of August, 1920, to the 1st of November, 1921. He admits he never told plaintiff, or her relations, of these sums recovered. He admits that he was paying income tax, on an income of Rs. 5,000, a year. He says that he is now getting Rg. 150 a month, from the Triplicane properties and that for the same properties he was once getting Rs. 200, from a theatrical companies. As regards the property in Mint Street, he says that he was getting Rs. 120, during war time : that subsequently he was getting Rs. 79 and that it is now vacant. He speaks of the vacancies of the houses, but this is only the usual incident of house property. As the maintenance was, according to the defendant, settled about 10 days after the death of the plaintiffs' husband, in June 1920, in determining the maintenance for the plaintiff, one has to take the state of affairs, as they then existed. Even taking the defendant's own statement as correct, his that out of the Government promissory the notes for Rs. 84,300, about Rs. 36,500 worth of notes were sold. I find it impossible to believe that Rs. 25 a month was a fair and reasonable maintenance, for the plaintiff, whose husband was entitled to a half share in the movable and immovable properties, the Government promissory notes and the amounts realised in execution of the decree. I should think it is so unfair and unreasonable that the onus lies very heavily on the defendant to show, that the arrangement is binding on the plaintiff, who was then a minor. The defendant admits in his cross-examination that when the plaintiff's father and others met on the 16th of July, no accounts were looked into, nor was there any discussion as to the nature, extent and income of the properties. It should be remembered that the plaintiff's father, her brother and uncle were not residents of Madras, but were residing at Benares hundreds of miles away and it cannot be said that they had any intimate acquaintance with the properties of the defendant's family.
36. The evidence of the defendant is that his brother died on the 20th of June, 1920 that 3 or 4 days after the death of his brother, Magatwala Goverdhandosa, plaintiff's father, Bhagavandoss Gopaldoss, plaintiff's maternal uncle and the plaintiff's mother came down to Madras, that after the ten days' ceremonies were over, the plaintiff's father and her maternal uncle and her mother suggested that provision should be made for the plaintiff's maintenance, that Dewan Bahadur Govindoss Chathurbujdass, who was related to the plaintiff, was also consulted, that on the 16th of July, 1920, Mr. Govindoss, plaintiff's father and her uncle came to his house, also Mr. Govindoss' wife, that a sum of Rs. 5,000 was demanded for the plaintiff's maintenance and he was asked to prepare a list of the plaintiff's Seemantham and dowry jewels and hand them over to her, that he the defendant, consented to endorse Government Promissory Notes for Rs. 5,000 in favour of the plaintiff, for her maintenance, but that they said that the paper, which would fetch only 31/2 per cent, would not yield a sufficient amount for her maintenance and suggested that Rs. 10,000 worth of Government Promissory Notes, should be endorsed in her name, that after some discussion, he accepted this proposal and that a list of jewels was made by Bhagawandoss Gopaldoss, the maternal uncle of the plaintiff, with their approximate value. He says that the Government Promissory Notes were not endorsed over, on that date, as he had only papers of the value of Rs. 9,500 with him and the other papers were for large sums, that on the 9th of August, 1920, he purchased Government papers for Rs. 500 and endorsed the papers on the 12th of August, 1920 in favour of the plaintiff, that by that time the plaintiff's father had left for Benares that after endorsement, he sent the Government Papers to Benares, through Govindoss Gopaldoss, for the information of the plaintiff's father and that those papers were returned to him. As regards the jewels, he states that they were given to her and that in addition to her dowry jewels, she had jewels worth Rs. 1,000 presented to her, at the time of Seemantham, The defendant states that the Government Promissory Notes are now in his possession, having been returned to him, by Bhagawandoss Gopaldoss, when he returned from Benares, that the interest on the promissory notes is collected, by the plaintiff writing a letter to the Public Debt Office and sending these notes with the letter and that after the interest warrants are received, the defendant collects the interest and credits it in the ledger. He states that the arrangement was that the papers should remain with him, that the interest collected should be deposited with him and that he was to pay her monies whenever she wanted. He says that on two occasions she has drawn interest, once in 1921 and again in 1923. He speaks to the letters Exhibits 34, 34(a) and 35, which, he says, the plaintiff wrote to him. Ha states that subsequently, Dwarakadoss the plaintiff's brother, on, e behalf of the plaintiff, wanted the Government promissory notes to be handed over to him, but that, he, the defendant refused to do so and that there were disputes.
37. There is nothing in writing to show that there was any agreement, as regards the maintenance and it is significant that although a list of jewels (Exhibit 28) was made and signed by the plaintiff's father, there is no reasonable explanation given, ad as to why, if there was a concluded agreement, as regards the maintenance to be awarded to her, it was not embodied in writing and the signature of the plaintiff's father taken. Nor is there any evidence, beyond the statement of the defendant, that the Government promissory notes, after being endorsed by the defendant, were sent to the plaintiff's father, for his information and were returned by the father. The defendant admits that although he was writing letters to the plaintiff and her father, there is not a single letter, which shows that these Government Promissory Notes were sent to Benares and were returned. Though the defendant has made an entry in his account-book, on the 14th of August, to the offset that the Government Promissory Notes were delivered into the hands of Bhagwandoss Gopaldoss, for the plaintiff's maintenance for life, the defendant in his cross-examination, says that that was not the arrangement, but that the Government Promissory Notes were sent to the plaintiff's father, for reference and that the promissory notes were to be returned to him and were to be in his possession. The entry Exhibit 10(a) in his account runs as follows:
Interest only should be recovered and after recovering interest, it should be credited in the accounts of brother's wife. If she demands interest, it should be paid' and the defendant says that this was the arrangement. He however, admits that this entry was not made, on the 16th of July, when he says that the arrangement was made, but was made afterwards, Dwarkadoss, who was examined for the plaintiff, denies that there was any such arrangement and the plaintiff also, who was examined, denies that she ever consented to any such arrangement. The defendant, although he took out subpoena to examine Mr. Govindoss and although it is admitted that his vakil wrote to Mr. Govindoss to be present at the hearing to give evidence, has not chosen to call him. As regards the receipt of interest on two occasions from the Bank, the plaintiff states that she was asked to sign two papers by the defendant and that she did so, but that she did not know their contents. They are in English and the body is in the writing of defendant's Gumasta. Defendant says he does not remember, if he was present, when plaintiff signed them, or whether they were explained to her. I do not think, I can, on the evidence of the defendant and his Gumasta, who has been examined as regards her signing the letters, to the Public Debt Office, hold that she knew of any arrangement, as regards her maintenance and accepted the arrangement, as binding on her and that when she put her signatures to the letters addressed to the Public Debt Office, she knew she was acting, with full knowledge of the arrangement, made for her maintenance. In Exhibit 34, dated the 30th of June, 1922, which the defendant says was written to him, by the plaintiff from Benares, she asks the defendant to write properly, as to whether the money paid to her was for interest on the bonds, or was his own. In Exhibit 34(a), she complains about her ill-health and bad treatment in her parents' house and she asks 'how much my interest money amounts to, up to the 9th of September, 1922?' In another letter, dated the 16th of October, 1923, the plaintiff wants the defendant to deliver the interest on the bonds, to her uncle. Defendant examined his relation, to support the evidence, as to what took place on the 16th of July. I do not think I can accept the evidence of the defendant and his witnesses on this point. As regards the letters, which the plaintiff wrote and which I have referred to, and the letters written to the Public Debt Office, I do not think the evidence is sufficient to show that the plaintiff, with full knowledge of all the facts and her rights, accepted a pittance of Rs. 27 or 28 a month, in full settlement of all her claims. She was living for sometime with the defendant under his protection, and afterwards left for Benares to her parents' house. Her letters show that she was ill, both in body and mind and that the treatment accorded to her, in her parents' house was not all that can be desired. She talks of her being insulted by people, probably because she was considered unlucky as a young widow and she prayed for death. There can be little doubt, that the defendant gave her monies and that interest was drawn on the Government Promissory Notes, which he endorsed in her favour and kept with him. The absence of any writing on the 16th of July, shows, to my mind, that there was no agreement on that day. What was done was that a list of the movable properties and jewels belonging to the plaintiff was made, probably because it was thought that they might otherwise disappear and the defendant took the precaution of getting the signature of the plaintiffs father to the list. Possibly, there may have bean soma talk about the maintenance, but it is unlikely that anything came out of it; if so, there would have bean some writing to evidence the more important transaction. The probabilities are that the defendant, sometime after the death of her brother, of his own motion, thought it was necessary to make provision for the plaintiff's maintenance, and in August set apart Government Promissory Notes, of the face value of Rs. 10,000 in her favour, endorsing them in her name and keeping them himself. If there was a concluded agreement, on the 16th July, it is difficult to sea, why the Government promissory notes were not endorsed over on that date, in the presence of plaintiff's father and other relations. Defendant admits, ha had Government promissory notes for rs. 9,500 and it would have bean easy for him to purchase notes for Rs. 500. It is absurd to suppose that he was not able to purchase notes of the face value of Rs. 500, on THE 16th July. There was no necessity for him to wait till August, especially as plaintiff's father and other relations returned to Benares, long before that data. This would not make it a binding arrangement, as the plaintiff was then a minor. So far as the plaintiff's parents, her brother and her uncle were concerned, they left Madras for Benares, very soon afterwards, the plaintiff being left in Madras, and there was really nobody to take care of the plaintiff's interests. If the case for the plaintiff is true, the plaintiff would have been still a minor, when she wrote those letters to the Public Debt Office and got interest; and even assuming that she was, according to the case for the defendant, 17 at the time of her husband's death, she would have just emerged out of minority. Under these circumstances, I do not think I can, on the evidence hold that there was a concluded arragement, as regards the plaintiff's maintenance or that the arrangement was a fair and bona fide one, made in her interests, she being then a minor. I am also unable to hold that there was any ratification by her, much lass any ratification, with full knowledge of her rights and of the nature and extant of the properties involved.
38. It is urged, on behalf of the defendant, that the plaintiff has got her Stridhanam jewels and that it ought to be taken into account, in estimating the plaintiff's maintenance. I do not think the fact that she has got jewels of her own, out of which she could derive no income could reduce the quantum of maintenance, which would otherwise be fixed having regard to the extant of her husband's property. She belongs to a community, which is not bound to discard jewels on widowhood, and there is no obligation on her to sail her jewels. I have already found that the plaintiff's husband and the defendant ware members of a joint family and it follows that the plaintiffs' claim for partition and delivery to her of her husband's share fails, As regards the claim for maintenance, I am of opinion that Rs. 100 a month, will be a fair sum to allow for maintenance, having regard to the nature and extant of the properties, which were left by her husband.
39. The plaintiff, in her plaint claims the articles, set out in Schedule B, as the properties belonging to her, of the value of Rs. 2000. Her case is that these properties belong to her and are now in the possession of the defendant. The defendant, in his written statement, admits thai items 5, 6 and 7 are in his possession, item 5 beinga Kathribavali, item 6 Karnapetta and item 7 Chandrahara Tikkada : but he says that they are not in the form of jewels but that they are only loose stones. His case is that the plaintiff, when in Madras, unsafe these jewels, for the purpose of making a Mohappu for Odyanam and entrusted only loose stones with him, but that she afterwards wrote to him that she did not want that new jewel to be made. The plaintiff denies this and it is improbable that she would have herself done the unsatting from the sookets of those jewels and handed only the loose stones to the defendant. It is more probable that when she wanted to make new jewels, she handed over these jewels to the defendant and asked him to do the needful, as the defendant was himself a jewel merchant and had goldsmiths working under him. I do not think that the under items claimed by the plaintiff in Schedule B, to the plaint, have been proved. As regards items 5, 6 and 7, in Schedule to the plaint, I direct the defendant to return the jewels, or pay their value, Rs. 1,500, to the plaintiff. This disposes of all the claims by the plaintiff.
40. As regards the defendant's counterclaim, his casa is that ha lent to the plaintiff the jewels mentioned in his counter claim. He says that in 1921, when the plaintiff went to Benares, she took the jewels, mentioned in the counter-claim for her temporary use at Benares, and promised to return them afterwards. He admits that no list was made at that time to which her signature was taken. He states that he wrote a letter to the plaintiff's father, stating that he had sent the jewels are that the father acknowledged receipt of the same subsequently. But the letter, which the defendant wrote to the plaintiff's father, makes no allusion to any jewels having been lent to the plaintiff, for her use as is now alleged. There is nothing in writing to show that any loan was made to the plaintiff of any jewels and it is hardly likely that the defendant would have lent any jewels to the plaintiff. She had already her Palla jewels and Stridhana jewels. It is significant that no claim for the return of these jewels was made till after the plaintiff's demand for partition. I do not believe that in 1922, when the plaintiff was going away to her parents' house, the defendant would have given any jewels to the plaintiff, for her temporary use; 'as a matter of courtesy.' There seems to have been some jewel transaction, between the plaintiff's father and the defendant; but it is difficult to see how the plaintiff would be bound to return any jewels, unless the defendant proves the case set up by him, in his counter-claim, that the plaintiff requested him to lend the jewels, for her temporary use and that he made the loan, as a matter of courtesy. I find this issue against the defendant.
39. There will be a decree for the plaintiff, directing that the defendant do pay the plaintiff maintenance at Rs. 100 a month in full settlement of her claim for maintenance and residence, commencing from the 10th of March, 1924, the date when she gave notice. As regards the arrears of maintenance, I award Rs. 50 a month, from the 1st of July, 1920, to the 10th of March, 1924, The defendant will be entitled to have credit for the sum paid by him towards the plaintiff's maintenance. The maintenance will be a charge on house and ground No. 171, Mint Street and on house and ground No. 29, Easwaradoss Lala Street, Triplicane. As regards costs, as the plaintiff has failed in her; claim for partition and the defendant has failed in his defence that there was a concluded arrangement, as regards maintenance, I direst the defendant to pay the plaintiff one half of her taxed costs of the suit.
40. The Government Promissory notes, of the face value of Rs. 10,000 at 31/2 per cent, now in Court, will be re endorsed by plaintiff in defendant's name.
41. The counter-claim of the defendant will be dismissed with costs. The plaintiff's costs of the interlocutory applications will be added to plaintiff's costs of the suit.