K.S. Palaniswamy, J.
1. The plaintiff is the appellant and he is related to the defendants as shown below:
(died in 1931)
(died in 1944). Nainar.
Amirthammal (died after suit).
Meenakshi (1st Meenakshi (2nd
wife died in wife) Defen
1922). dant 2.
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Santhalingam Umayalammal Sankaralingam
(Plaintiff) (Defendant 4) (died unmar-
ried in 1952).
2. Chockalinga father of the plaintiff, died after the institution of the suit but before he filed his written statement. Kothandapani and Chockalinga inherited from their father, Srinivasa, two items of lands described in Schedule I to the plaint. Item 2 measuring 1 acre 27 cents is a punja which was sold away by Kothandapani under Exhibit A-12 on 11th August, 1941 ; Item No. 1 is a wet land measuring 40 cents. In the year 1905, Kothandapani entered service in the Southern Railway as a fitter at the Egmore Railway Station. To start with, his pay appears to have been Rs. 25 per month. Chockalinga entered services as a painter in the Southern Railway at Chingleput in about 1915. His starting pay appears to be about Rs. 15 per month. He got Railway quarters at Chingleput and both the brothers with their wives lived as members of an undivided family in that quarters. Kothandapani appears to have returned home every day after attending to his work at Egmore. The plaintiff was born in about 1917. When the brothers were living together, item 1 and 2 of Schedule II were purchased in the name of Kothandapani under Exhibit B-1 dated 5th December, 1914, for a sum of Rs. 262. Item 3 of the Schedule (which is now a house) was purchased as a site in the name of Kothandapani under Exhibit B-2 on 25th March, 1930, for Rs. 250 and the construction was put up subsequently. Plaint Schedule III consists of 7 items of lands. Of these, items 1 and 2 were purchased in the name of Chockalinga under Exhibit B-3 on 25th June, 1939, for Rs. 105. The remaining items in that schedule were purchased in the name of Chockalinga under Exhibit B-4 on 26th October, 1942, for Rs. 700. Kothandapani retired from service in the year 1934, and at that time he got provident fund of Rs. 1,800. Chockalinga, the first defendant, retired from service in August, 1942 and he received a sum of Rs. 1,500 as provident fund.
3. The plaintiff, who is employed as a fireman in the Southern Railway, instituted the suit alleging inter alia that the properties described in Schedule II were acquired in the name of Kothandapani with joint family funds as he happened to be the manager of the joint family at that time, that likewise, the properties described in Schedule III were obtained in the name of Chockalinga with joint family funds when he happened to be the manager of the joint family and that he was entitled to half share in all the plaint schedule properties. On the death of Chockalinga during the pendency of the suit, the plaintiff got the plaint amended and stated that be was entitled to 1/3 rd share in the half share that belonged to his father and that thereby he was entitled to 2/3rd share in all the plaint schedule properties.
4. The second defendant, widow of Chockalinga and the fourth defendant, daughter of Chockalinga, put up common defence contending inter alia that except item 1 of Schedule I no other property belonged to the joint family, that the acquisition made by Kothandapani in his name belonged to him exclusively, that on 12th July, 1944, Kothandapani bequeathed all his properties in favour of his brother, Chockalinga under a will in a sound and disposing state of mind, that the properties purchased in the name of Chockalinga and described in the plaint Schedule III belonged to him exclusively, that Chockalinga executed a registered settlement on 12th August, 1960, in favour of the second and fourth defendants over the items described in Schedule II and items 1 to 5 of Schedule III, that he had already alienated items 6 and 7 of Schedule III and that the plaintiff was not entitled to claim a share in Schedule II and III.
5. The third defendant, widow of Kothandapani, contended that she was entitled to maintenance and that provision should be made for maintenance in her favour.
6. The trial Court held that inasmuch as item 2 of Schedule I, had been sold away even during the lifetime of Kothandapani, it was not available for partition, that the properties described in Schedule II were purchased by Kothandapani for his own benefit and were his self acquired properties and had been validly bequeathed in favour of his brother, Chockalinga, under the will, Exhibit B-8 on 12th July, 1944, that Chockalinga acquired the properties described in Schedule III with his own funds and that those properties were his self acquired properties. In that view, the trial Court passed a preliminary decree for partition of plaintiff's 2/3rd share in item 1 of Schedule I alone and awarded a consolidated sum of Rs. 500 as maintenance in favour of the third defendant with a charge over the properties described in Schedule II to the plaint. Aggrieved by this decision, the plaintiff preferred an appeal to the District Judge, Cbingleput, who concurred with the trial Court holding that the properties described in Schedule II were the self-acquired properties of 'Kothandapani and that those described in Schedule III were the self acquired properties of Chockalinga. But inasmuch as Items 6 and 7 of Schedule III were not included in the settlement executed by Chockalinga, the appellate Judge thought that they were available for partition and passed a modified preliminary decree granting 2/3rd share to the plaintiff in those items also. There is an obvious error in this conclusion. If the finding of the appellate Judge that the properties in Schedule III are the self acquired properties of Chockalinga is correct, the plaintiff cannot get 2/3rd share. Aggrieved by the decision of the appellate Judge, the plaintiff has come up with this second appeal.
7. The finding of the trial Court is that the income from Schedule I properties was such that no surplus would have been left for the family to put by for acquiring the properties mentioned in Schedules II and III. That finding was confirmed by the lower appellate Court. No attempt was made on behalf of the plaintiff to disturb that finding. The case of the plaintiff is that Kothandapani and Chockalinga lived although as members of an undivided family having common mess and that the two brothers earned by their labour, pooled their resources and obtained Schedules II and III properties for the benefit of the joint family consisting of themselves and their descendants and that, therefore, he (the plaintiff) as a member of the family became entitled to a share by birth. On the question as to the character of joint acquisitions made by the members of a joint family without the help of ancestral nucleus, the position is clear. It is well settled that if members of a joint family, who are joint in status and who either carry on business or by their joint efforts, earn and acquire property with such income, even without the aid of any ancestral nucleus, the presumption is that the property so acquired by them is joint family property in which the sons of the acquirers would get right by birth. But this presumption can be rebutted if it is proved that the acquirers intended to own the property as co-owners between themselves, in which case the property would be joint property as distinguished from joint family property. The presumption is in favour of regarding the property as joint family property--vide Mayne's Hindu Law, 11th Edition, page 345, Section 281 ; and Mulla, 12th Edition, pages 333 and 334 and Raghavachari on Hindu Law, pages 266 and 267, 5th Edition. A Bench of this Court held in Sudarsanam Maistry v. Narasimhalu Maistry I.L.R.(1902)Mad. 149 : 11 M.L.J. 353, that if a property is acquired by all the members of the undivided family by their joint labour, it would, in the absence of any indication of intention to the contrary, be owned by them as joint family property and that in that case their male issues, who, by their birth become members of such undivided family, necessarily acquired a right by birth in such property. Though that was a case relating to acquisition of property by brothers who carried on business, the same principle would be applicable to a case of acquisition by members employed in service and pooling their earnings together for making the acquisition.
8. The same principle was followed by another Bench in Rajagopala v. Seshayya : AIR1935Mad368 . In Munisami Cketti v. Marutkammal I.L.R.(1911) Mad. 211 : 20 M.L.J. 687 the principle enunciated in Sudarsanam Maistry v. Narasimhalu Maistry I.L.R.(1902) Mad. 149 : 11 M.L.J. 353, has been affirmed as the correct exposition of law. The decision in Krishnan v. Rangachari I.L.R. (1965)Mad. 350 : (1965) 78 L.W. 1, may also be referred to in this connection.
9. Keeping in view the foregoing principles, the evidence in this case should be examined. At the outset, I wish to observe that both the Courts below have not kept the correct principle in view in appreciating the pleadings and the evidence in this case.
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10. In the result, the appeal is allowed, and there will be a preliminary decree for partition of item 1 of Schedule I and all the items in Schedules Hand III and for allotment of 2/3rd share to the plaintiff in those properties. The third defendant having died during the pendency of the appeal before the lower appellate Court, the provision for her maintenance made by the trial Court shall stand deleted. Defendants 2 and 4 are each entitled to 1/6th share in item 1 of Schedule I and in all the items of Schedule II and III. The parties will bear their respective costs throughout. Leave granted.