T. Ramaprasada Rao, J.
1. In Appeal No. 286 of 1970, the first defendant in O.S. No. 456 of 1967 on the file of the Court of the Subordinate Judge, Madurai, is the appellant; the second defendant is the appellant in Appeal No. 287 of 1970; and defendants 5 to 7 are the appellants in Appeal No. 272 of 1971. Parasumanna Lakshmanier the first defendant was adopted to one Parasumanna Chakrapani Iyer. The plaintiff and defendants 3 and 4 are his sons; the second defendant is his wife; and defendants 5 to 7 are his daughters. The plaintiff has instituted this suit for partition, including in the plaint, three schedules A, B and C.-A. schedule relating to immovable properties, B schedule to moveables and C schedule to outstandings. He claims an 1/4th share in all such properties delimited by him in the various schedules which according to him are joint family properties. It is common ground that the first defendant was adopted to Chakrapani Iyer. The plaintiff's case is that Chakrapani Iyer, was doing several kinds of business and in the course of such varied avocations acquired properties, both movable and immovable. The first defendant as the adopted son and as a member of the coparcenary consisting of Chakrapani Iyer and himself continued the ancestral business set up by Chakrapani Iyer, and in the exercise of the profession and calling, the plaintiff claimed that the first defendant (as father) purchased and acquired the schedule--mentioned properties. In that view himself and defendants 3 and 4, as the sons and undivided members of the joint family consisting of themselves and his father, are entitled to a partition and separate possession of 1/4th share in them. He has set out the manner in which Chakrapani Iyer, initiated his business and how it was continued by the first defendant and would add that the various immovable properties either standing in the name of the first defendant or in the name of one or the other members of the family including the mother, the second defendant, are all properties acquired from joint family nucleus and income and hence have to be treated and considered as joint family properties. He refers to a Panchayat held in or about the 3rd February, 1966, which Panchayat was occasioned by some internal disputes in the family and says that five Panchayatdars, under muchalika dated 3rd February, 1966, entered upon the reference and the members interested submitted a list of properties of the joint family and also the outstandings, but for reasons not very specifically stated, the arbitration fell through. The plaintiff would refer to two settlement deeds dated 2nd August, 1967 one in favour of defendants 5 and 7 and the other in favour of the sixth defendant whereby certain items set out in plaint A schedule were settled on the daughters which the plaintiff challenges as alienations which ought not to have been done by the father-manager after there was an unequivocal declaration by one at least of the members of the joint family to sever joint family status. According to him, the unambiguous reference to the Panchayatdars to adjust the differences which by then arose as between the members of the joint family by itself is a transaction indicative of the intention of one of the coparceners to separate from the joint family and the attempt of the father manager after such intention has been so declared to deal with the properties of the joint family by settling one or more of them in favour of the female members of the family is not permitted in law. He would claim that the 86 items of moveables such as the furniture, vessels and jewels mentioned in the B schedule do also constitute joint family assets and are liable to be partitioned amongst the sharers. He has set out in the Schedule C. 29 items of outstandings of which one is admitted by the third defendant to be due and payable by him. The rest of the items are claimed to be outstandings which are payable to the joint family as such and therefore constitute joint family assets which in their turn also have to be brought into the hotchpot for the purpose of division.
2. The first defendant's case is that he was no doubt adopted to Chakrapani Iyer, but Chakrapani Iyer, by himself did not have any business of his own nor was he in affluent circumstances so as to provide him with any joint family nucleus to enable him to trade with such capital provided for and to acquire properties therefrom. The first defendant's specific case is that he started business on his own in 1917 before the plaintiff and defendants 3 and 4 are born and that all the properties excepting item 1 of the A schedule to which we shall presently advert to are his own self-acquired properties in which neither the plaintiff nor defendants 3 and 4 have any interest by birth as coparceners of the family.
3. The second defendant in her separate written statement supports her husband and further contends that item 7 of the A Schedule belongs to her absolutely as she inherited the same from her mother who was carrying on a karupatrai business successfully and that it was with the funds so provided by her mother that she acquired item 7 of the plaint A schedule. She would also allege that she is possessed of jewels, vessels, furniture, cash and out-standings which belonged to her, the origin of which she would trace to the provision made by her mother Meenakshiammal from time to time from the business which she was independently carrying on.
4. The third defendant generally supports the plaintiff. As we said he admits that some amounts mentioned as item 9 in the C schedule as an outstanding to the family is payable by him which debt apparently he has incurred in the course of his working of his own business called Saraswathy Textiles. He would add that on a partition being directed, a provision has to be made for the marriage expenses of his daughters who are members of the family and he claims that he is entitled to an 1/4th share in the joint family assets.
5. The fourth defendant also supports the plaintiff.
6. Defendants 5 to 7 stand by the settlement deeds effected by their father in their favour and would say that the gifts in their favour bear an infinitesimally small proportion to the totality of the assets of the joint family and therefore such gifts have to be upheld even if the joint family father-manager did settle the properties after one of the coparceners had notified his intention to separate from the family. Even otherwise, the gifts have to be upheld as it is not unreasonable for a father to settle a small part of the joint family assets in favour of his married daughters.
7. In the application filed by the plaintiff he would say that Chakrapani Iyer, was not as poor as was depicted by the first defendant and that the account books which he was prepared to disclose during the trial would disclose that there was continuity in the business originally conducted by Chakrapani Iyer, and later undertaken by the first defendant and such nexus being established between the business originally started by Chakrapani Iyer, and later continued by the first defendant, the entire commercial activities have to be treated as a joint family activity and that the properties acquired by the first defendant in the course of the exercise of such an avocation or profession should be treated as such and partitioned amongst the sharers. Countering his mother's written statement, the plaintiff would say that she was always dependent upon the first defendant for her maintenance, that she had no independent means and that the story that Meenakshiammal, her mother, did have a karupatrai business and that she left substantial cash for her to own not only the property purchased by her as item 2 in the plaint A schedule but also the jewels and the outstandings standing in her name and claimed by her as own is false and those items have all to be treated as joint family properties and brought to the hotchpot for division. In the reply statement it is further said that the superstructure over item No. 7 also belonged to the joint family and the funds for the purchase of the site of item 7 in the name of the second defendant came only from the joint family properties or funds. The settlement deeds in favour of the sisters are once again attacked as gifts without authority. As regards the muchalika, the case of the first and second defendants in their written statements was that they were forced to sign the same and this statement is denied in the reply statement. In the result, the plaintiff reiterated what all he stated in the plaint and sought for the reliefs originally prayed for.
8. On the above material pleadings, the following issues were framed:
(1) Whether the properties detailed in the schedules to the plaint (other than A schedule items 1, 2 and 7) were acquired by the first defendant with the aid of ancestral joint family assets or have been treated as joint family properties and whether they are joint family properties of the plaintiff and defendants 1, 3 and 4?
(2) Whether the A schedule item 2 is joint family property in the hands of the first defendant?
(3) Whether item 7 of A schedule was purchased benami in the name of second defendant and hence available for partition?
(4) Whether the settlement deeds dated 2nd August, 1967 in favour of defendants 5 to 7 (if it is found that the properties dealt with under it are joint family properties) are valid and binding on the plaintiff and defendants 3 and 4?
(5) Whether the assignment deeds by the 1st defendant in favour of defendants 5 and 7(if the outstandings dealt with thereunder are joint family outstandings) are valid and binding on the plaintiff and defendants 3 and 4?
(6) Whether the 1st defendant out of his own self-acquired funds had put up superstructures on item 1 of A schedule?
(7) Whether the 1st defendant is estopped from claiming the properties as self-acquired properties?
(8) Whether the plaintiff and defendants 3 and 4 are liable to contribute according to their share in 'A' schedule item 1 in the amount, if any, spent by the first defendant over that property, and if so how much?
(9) Whether any outstandings are due to the joint family and if so, what are the outstandings liable for partition?
(10) Whether there are any movables and jewels belonging to the joint family and if so, what are the moveable and jewels available for partition?
(11) Whether the properties and outstandings in the name of the 2nd defendant and jewels in her possession are the joint family properties of the plaintiff and defendants 1, 3 and 4?
(12) Whether the first defendant is liable to render accounts for the management of the alleged family properties and assets as alleged in the plaint?
(13) Whether the first defendant is liable to account for the receipt of monies if any from the Saraswathi Textiles?
(14) Whether the monies advanced by the 1st defendant to Saraswathi Textiles are joint family funds and if so, whether the 1st defendant is liable to account for the same.
(15) Whether the 3rd defendant is liable to account for the assets of and for the income from the Saraswathi Textiles?
(16) Whether the plaintiff and defendants 3 and 4 have in their possession any properties, funds, jewels or other assets of the family?
(17) What are the properties liable for partition?
(18)To what reliefs are the parties entitled.
9. The learned Subordinate Judge found that items 1, 3 to 6 and 8 to 10 are joint family properties and that Chakrapani Iyer, was not poor and unprovided for, that he was doing varied business and that the first defendant continued the main business of Chakarapani Iyer, and earned considerable money by the exercise of such profession and as such the properties as above are all properties purchased by the first defendant with the help of such a joint family nucleus. He held that item No. 2 is joint family property and accepted the second defendant's case as regards item No. 7 and held that it is her own. He upheld the gifts in favour of defendants 5, 6 and 7. As regards schedule B he relied upon Exhibit A-103 produced by the plaintiff but very seriously contended by the appellants as an exhibit on which reliance could not be placed by a Court of law and accepted the case of the plaintiff that most of the items mentioned in schedule B are joint family assets. But while drafting the decree he stated thus:
That so far as B schedule moveable properties are concerned, the commissioner so appointed to find out with reference to the list of properties as given as available in room Nos. 2 and 3 in the list appended to Exhibit A-103 and find out among B schedule items 5 to 36 moveable properties, the moveable properties available with each party and allot one such share out of four shares to the plaintiff or its value after equalising the value of each share.
As regards the C schedule properties, the trial Court mechanically accepted the case of the plaintiff and held that the plaintiff was entitled to an 1/4th share in the existing outstanding items Nos. 1 to 27 of the C schedule from and out of the amounts recovered from any of the debts mentioned in G schedule by defendants 1 and 2; he also directed an account to be taken as against defendants 1 and 2 though the plaintiff sought for such account-taking as against defendants 1 and 2. It is as against this the appeals as set out already have been filed.
10. The first defendant's case still is that even though he was adopted to Chakrapani Iyer, he was not provided with funds by his adoptive father and that he eked out his livelihood on his own and that too from 1917, at a time when the plaintiff and defendants 3 and 4 were not even born and that therefore the properties set out in schedule A but standing in his name are to be excluded from the periphery of joint family assets. According to him Chakrapani Iyer, was not possessed of funds. This by itself is sought to be sustained by reference to Exhibits. B-20, A-93, B-26, B-21 and B-27. Under Exhibit B-20 which is a partition deed between Chakrapani Iyer and his brothers, Chakrapani Iyer, got only a sum of Rs. 20 towards his share. This was in the year 1896. Under Exhibit A-93 dated 10th October, 1896 Chakrapani Iyer purchased a property for a sum of Rs. 475. But on the very same day he mortgages the same property and finds a sum of Rs. 300 so as to partly satisfy the consideration for purchase of the property under Exhibit A 93. This is item 1 in the A schedule to the plaint. Under Exhibit B-26 of the year 1914 both Chakrapani Iyer, and the first defendant effected mortgages over another property of theirs which is no doubt discharged under Exhibit B-27. Mr. Baluswami, relying upon the above hypothesis wants us to accept his contention that Chakrapani Iyer, was a man of practically no means. It would be difficult to accept his contention. There is abundant evidence in the instant case to show that Chakrapani Iyer, did have assets of his own and he was having varied businesses such as money lending and alizarin dyeing business etc. Exhibit A-55 is a mortgage dated 16th May, 1911 executed by one Venkatachalapathi Iyer, in favour of Chakrapani Iyer, on account of the chit fund transaction which the said Venkatachalapathi Iyer, had with Chakrapani Iyer. Exhibit A-54 is yet another instance to show that Chakrapani Iyer was doing chit fund business. Exhibits A-100 and A-101 which are documents reflecting upon the financial capacity of Chakrapani Iyer are of the year long before even the first defendant was born. The plaintiff besides referring generally to the above - financial capacity of Chakrapani Iyer would also file unimpeachable documentary evidence to show that Chakrapani Iyer, did have a business and that was taken over by the first defendant later and the funds of the said business were augmented more by continuance rather than by the individual efforts of the first defendant. Reference may be made in this connection to Exhibits A-2 to A-52. These are account books covering a period commencing from 1927 and, ending with 1964. It is common ground that in these account books we find entries relating to the purchase, of items 2 to 6 and 8 to 10. The account books relate to the firm of Chakrapani Iyer and Sons. The first defendant's case is that he adopted this trading style out of deference to his adoptive father and that the appendage 'and sons' has no significance whatsoever. This is a contention which is very difficult for us to accept. If therefore all the purchases of items 2 to 6 and 8 to 10 are reflected in the normal way in the account books of Chakrapani Iyer and Sons, which in our view, is the business which Chakrapani Iyer, initially started and which was later continued by the first defendant, then it is easy for us to find as to whether the first defendant had at all any joint family nucleus to start with for him to augment the resources and secure accretions thereto by his own effort and by exploiting the ancestral trade. Exhibit A-2 is the ledger account for the years 1927 to 1929. The capital accounts as disclosed in the said exhibit is admittedly Rs. 5,928-4-0. Exhibits A-18, A-7, A-11, A-41, A-52 are all the relevant corresponding entries relating to the capital account of the interested members of the joint family business. After Chakrapani Iyer's death, it was the first defendant who continued this business. The sum of Rs. 6,000 in the year 1928-29 improved itself to a sum of Rs. 74,102 in 1964. The first defendant who sought to explain away these entries was unable to show clinchingly as to how this increase in the capital funds and the enormity in the business was solely attributable to his individual efforts without having any impact upon the ancestral trade by custom and its origin.
11. Under Exhibit A-7 it is seen that at or about the time when Chakrapani Iyer, died, there was considerable stock in trade as well. Exhibit A-7 being the business ledger of the firm of Chakrapani Iyer and Sons also discloses the varied types of customers and the volume of business which Chakrapani Iyer had when he was alive. Such stock in trade and such customers were taken over by the first defendant. The learned Subordinate Judge also rightly points out that the first defendant exploited such custom and such credit which Chakrapani Iyer, was enjoying during his life time and continued the business of Chakrapani Iyer and Sons thereafter. It would be therefore idle for the first defendant to say that he started the business on his own in 1917, that the trading style of Chakrapani Iyer and Sons has no special signification of its own and that the later accretions and acquisitions made by him do not have any reference to the ancestral trade or the Joint family. One other special circumstance which was brought to our notice by he Learned Counsel for the respondent-plaintiff is Exhibit A-70. That was a communication made by the first defendant to the Director of Controlled Commodities, Madras, in 1951. Therein he says that he was carrying on business for nearly 24 years and that he was a dyer by profession and that profession was his ancestral profession etc. It would be difficult to accept the first defendant's present attitude and case if what he stated in Exhibit A-70 is correct. He could have stated in Exhibit A-70 that he was the author of his own business and that he was so doing it on his own and there was neither necessity nor occasion for him to state in a public communication like Exhibit A-70 that it was his ancestral business. The first defendant's conduct in the course of his dealings and continuity of the ancestral business do also lend support to the story of the plaintiff that the family was an undivided one and the assets are joint family properties and that such assets are from the joint family business of Chakrapani Iyer and Sons. The first defendant was an Income-tax assessee. The assessment orders have been marked as Exhibits A-74 to A-89. In all the Income-tax returns the first defendant has described himself as a Hindu undivided family and not as an individual. The learned Judge would consider this aspect in support of his conclusion that the first defendant blended his properties with the joint family property. In our view, no question of blending of self-acquisitions with joint family properties will arise in the instant-case as in the course of the continuous conduct, adaptation of the trading style, by communication to public offices and finally in the Income-tax returns the first defendant specifically gives himself out to the public that the business activity by him is a joint family venture and hat the was conducting it probably as father-manager of the family. It is unnecessary for us to go into the question whether the first defendant blended his self-acquired properties with the joint family properties, for in our view, at no time the first defendant did have any property of his own which can be characterised in law as self-acquisitions for him to lay his hands upon to the exclusion of his sons who claim those assets as joint family assets, as persons having right by birth in them. Having regard to the nature of the documentary and oral evidence let in and which was considered in detail, in our view very diligently, by the learned Subordinate Judge, we have no hesitation to hold that the assets in question excepting such of those items which we shall presently consider and set out in the A schedule are to be deemed and held to be joint family properties.
12. We shall now take up item 1. There is no dispute about the nature and character of this property. This was purchased by Chakrapani Iyer under Exhibit A-93. But what is sought to be made out by the first defendant is that he has considerably improved the property at a cost of Rs. 10,000 and that in the ultimate distribution of the assets of the joint family a provision has to be made whereby he should be reimbursed to the tune of Rs. 10,000 which amount is said to have been spent by him towards the improvement of item. Apart from lack of proof on the part of the first defendant to establish that he did spend a sum of Rs. 10,000 towards such improvement it is difficult to accept the case of the first defendant that the spent his own money for improving; the admitted joint family property (item 1 of the A schedule). We have, prefaced our judgment by saying that what all was earned by the first defendant was in the exercise of his avocation and exploitation of the business run under the name and style of Chakrapani Iyer and Sons which we have characterised as joint family asset and business. It therefore follows that if he did spend any amount at all so as to improve item No. 1, then it would be from the joint family income or nucleus but not otherwise. We therefore agree with the learned Subordinate Judge that the first defendant is not entitled to claim any portion of the amount said to have been spent by him for the improvement of item No. 1.
13. Regarding item No. 2 this was a property which stood in the name of Nagalammal, wife of Chakrapani Iyer. Exhibits B-34 and B-35 are tax receipts issued in her name in the years 1935-36. As early as 1959, the first defendant claimed that as son of the mother he was entitled to the property and he was exercising such rights over it as an independent and separate owner thereof. But it is seen that Nagalammal had no independent source by which she could have purchased this property. But it is contended that in Exhibit A-104 which is a settlement deed executed by the first defendant in fevour of one of his daughters of one of the suit items of properties, he stated that he provided funds to Nagalammal for the purchase of this property. Mr. Baluswami refers to this and wants us to infer that the said funds provided for by the first defendant being the nucleus from which Nagalammal purchased this property it should be held to be beyond the pale of joint family properties. But in the view that we have already expressed that the family of Chakrapani Iyer which consisted of himself, the first defendant and Nagalammal was by itself a joint family and all the funds held, distributed and spent by either Chakrapani Iyer or by the first defendant should in the circumstances be held to be joint family properties. Merely because the tax was paid in the name of Nagalammal who is none else than the wife of the ancestor, it cannot unless there is proof aliunde that she had independent means and source of purchase, be concluded that item 2 is not partible property. We agree with the trial Court that item 2 along with the other properties which we shall presently consider do form part of the joint family assets.
14. As regards items 3 to 6 and 8 to 10, there is no difficulty. The reasoning which we have given in relation to item 1 and the discussion which prompted us to hold that the first defendant continued the business of Chakrapani Iyer and acquired funds for and on behalf of himself and his sons as members of the joint family compels us to hold and agree with the finding of the trial Court that the properties though standing in the name of the first defendant, to wit, items 3 to 6 and 8 to 10 are to be held and treated as joint family properties which are partible amongst the plaintiff, the first defendant and defendants 3 and 4.
15. In so far as item No. 7 is concerned it is a house property in Madurai town. The site was purchased in the name of the second defendant. The plaintiff's case is that this was so purchased from and out of the funds of the joint family. The second defendant's case is that her mother Meenakshiammal was continuing the karapatrai business and that she had sufficient funds of her own from which in turn she provided her with funds and it is by such a provision that a site was originally purchased by her. In so far as the superstructure is concerned, the second defendant's case is that it was her mother Meenakshiammal who provided her with sufficient funds with which alone she was able to put up the superstructure. The Learned Counsel for the respondent says that the reasoning which weighed with the learned Judge in treating item 2 as joint family property should have similarly prompted the learned Judge to hold that item 7 is also one such. This would have been possible if the plaintiff by clinching or acceptable material negatived the suggestion made by the second defendant that it was Meenakshiammal, her mother who provided her with funds for both the purchase of the site and for the putting up of the structure thereon which is itemisedas No. 7 in schedule A. In fact Exhibits A-2 to A-9 disclose that Meenakshiammal did have transaction with Chakrapani Iyer and Sons and that she was having independent business of her own ; this is not denied by either the plaintiff or any other interested party. It would be therefore difficult for us to set at naught the real title to the property in the second defendant on the basis of such vague and uncertain contentions merely because the second defendant happens to be the wife of the first defendant. We therefore agree with the trial Judge that both the land, the superstructure now comprised as item No. 7 in schedule A should be deemed and accepted to be the independent property of the second defendant. We may also add that the plaintiff himself did not file any cross-objections over this.
16. We now come to items 2 and 3 which were gifted by the father after the so-called reference to arbitration by the members of the joint family which according to the plaintiff, the first defendant had no capacity or power to do so. It is by now well-established that the father-manager or for that matter a manager of a joint family, has the power to make gifts of the joint family properties provided it is not disproportionate to the value of the totality of the assets and such dispositions, settlements or gifts are for the benefit of the kith and kin of the family. Unless a design, fraud or motive is attributed to such a disposition on the part of the father-manager such gifts are normally accepted and upheld by Courts. What is urged by Mr. Baluswami is that the learned Judge has set aside these gifts in favour of the daughters, defendants 5 to 7, on the ground that such alienations were made after the so-called reference to arbitration for adjudication of disputes which by then arose between the members of the family. It is also equally settled now by a decision of the Supreme Court in Puttarangamma v. Ranganna : 3SCR119 that:
It is not necessary that there should be an agreement between all the Coparceners for the disruption of the joint status. It is also immaterial in such a case whether the other coparceners give their assent to the separation or not. It is necessary that the member of the joint Hindu family seeking to separate himself must make known his intention to the other members of the family from whom he seeks to separate. The process of communication may vary in the circumstances of each particular case.
If in a given situation when disputes have arisen between the members of a coparcenary or a Hindu joint family, any one of the members gives a notice or sends a communication to the others of his intention to separate himself from the family that could be express notice of his intention to do so. Impliedly also this object could be achieved. One illustration for such implied exploitation of the intention of a coparcener or member of a joint family to disrupt the joint family status is by a reference of the dispute amongst the members including himself to adjudication by panchayatdars or arbitrators. It is but natural to accept that if members of a joint family or co-parcenary submit their disputes to arbitrators for a decision and in it is included the determination process by which the partibles are to be separated and the member given possession of such partitioned properties, then undoubtedly it is one of the implied methods by which the members have expressed their intention unequivocally to sever the joint family, status.
17. In the instant case, Exhibit A-103 is pressed into service as an exhibit under which there was such an implied expression of the determination of the members of the family of the first defendant to sever the joint family status. We divide Exhibit A-103 into two compartments. The first one is the first page and the subsequent one is a wad of paper attached to it which does not contain the signature of any one of the parties interested but is said to have been signed by them. We shall refer to the wad of paper which is the second compartment in Exhibit A-103 some time later. The first page in Exhibit A-103 however gives us the impression that the parties did express their unequivocal intention to refer their disputes to arbitration and effect a partition in the family, The first compartment of Exhibit A-103 is dated 3rd February, 1966. Based on this the respondents' contention is that the appellant had no authority to execute Exhibits A-104 and 105 in the year 1967, which is long after the date when parties referred the disputes to arbitration under Exhibit A-103. He would also say that the gifts are disproportionate and unreasonable. We are unable to agree with the Learned Counsel for the respondents that the gifts are so unreasonable and disproportionate to the value of the totality of the estate. On a rough evaluation, the total value of the estate would be more than 3 lakhs. A provision of Rs. 10,000 each to three daughters in such a rich and afflauent family by the father manager could not be said to be either unreasonable or disproportionate to the value of the assets of the joint family but the question is whether he had the authority to so settle the property after the execution of Exhibit A-103. In our view he cannot. When once one of the members of the joint family, may be the son, unequivocally informs his father of his unambiguous desire to sever his connection with the joint family and so disrupts the joint family status then the manager, though he is the father, would be treading on slippery or dangerous ground if he were to assume the garb of managership and deal with the joint family assets in his own right and particularly alienate them or gift them away to others including the kith and kin of the family. Undoubtedly he could have done so prior to the disruption of the status of the family as a joint family. But no sooner such an intention has become open and public, the conduct of the first defendant in having executed the gifts long after the submission of the disputes under the first compartment of Exhibit A-103 to the arbitrators is certainly an act without authority and it would not bind the other members of the family including the plaintiff. We are unable to agree with Mr. Baluswami Learned Counsel for the appellant, that the gift made in 1967 was only by way of effectuating a promise already made by the father to the daughters at or about the time of their marriage. It would not have been difficult for the first defendant to have gifted this property or made any other provision long prior to the springing up of the disputes as between the members inter se but such a gift having been done after the execution of the muchalika under Exhibit A-103, we are unable to uphold these gifts; but in the adjustment of equities we intend making a reservation in the end in so far as this aspect is concerned.
18. Having thus dealt with the A schedule property the surviving discussion will centre round schedules B and G. We may at the outset point out that the treatment of this aspect by the learned Judge did not appear to be quite satisfactory. We have therefore heard counsel on this aspect fully so as to ascertain whether from the materials on record the movable properties set out in schedules B and C are, firstly, available at all, and secondly, if they are so available, who are entitled to share in them.
19. The Learned Counsel for the plaintiff respondent mainly relied upon Exhibit A-103 in order to sustain the case of the plaintiff that the movables set out in schedules B and G are available still with the accountable party and that they are to be brought into the common hotchpot for division amongst the sharers. We have already referred to the first compartment of Exhibit A-103. This single sheet paper which is part of Exhibit A-103 is signed by the parties. But the rest of it is fully written out by some one who has not been examined and has not been signed or attested by the interested parties. P.W.2, one Subbarama Iyer, states that he arranged for a panchayat, that he was one amongst the panchayatdars and that the first compartment of Exhibit A-103 was executed by all the parties before us and he adds that the constituted panchayatdars prepared a list of the joint family properties and that the first and the second defendants and others were examined and they prepared the list. He admits that the lists were not written properly and that some items were left out. When he refers to the signature of the parties and his own signature in Exhibit A-103, obviously it refers to the first compartment thereof.
20. This is also what he says in chief examination. In cross-examination he would say that it was the first and the second defendants who told them about the particulars of the properties and he was not certain as to whether the plaintiff or the first, second or the third defendant mentioned the particulars in the second compartment of Exhibit A-103. He again admits that what all was said was written and that he did not verify the movables with the plaintiff or the third defendant. The plaintiff himself who was examined as P.W.1 would say that he mentioned in the B schedule what has been stated in Exhibit A-103. We asked the Learned Counsel for the plaintiff respondent to refer to some acceptable hypothesis on the basis of which a Court of law could come to the conclusion that on the date when the partition suit was filed the family was possessed of such movables. Though an attempt was made no such materials have been placed before us. As we began, the plaintiff relies solely and wholly on Exhibit A-103 and in particular to the second compartment thereof.
21. The next question which immediately arises for consideration is whether the second compartment of Exhibit A-103 is a document on which a civil Court can place any reliance. It is admitted that these wads of paper are not even signed by any one. The panchayatdar who was examined candidly says that the particulars therein are to the dictates of one or the other of the parties. Even P. W. 2 has not attested the second compartment of Exhibit A-103. As the plaintiff produced it as a composite document this was admitted by the lower Court and the rubber stamp usually affixed to such documents when it is produced in Court shows that it has been proved by the plaintiff. When the learned Subordinate Judge said that it has been proved by the plaintiff, obviously he meant that it had been identified by the plaintiff. Beyond identifying the second compartment of Exhibit A-103 and besides making assertions thereon without following it up by placing acceptable materials before the Court, for it to act thereon, neither the plaintiff nor his witnesses made any sincere attempt to prove and establish that the contents of the second compartment of Exhibit A-103 are true and acceptable. As we said, the Learned Counsel for the plaintiff-respondent is unable to place before us any such materials nor has he been in a position to impress on us that the unsigned wads of paper which is an appendix to the first compartment of Exhibit A-103 is evidence within the meaning of the Indian Evidence Act. If therefore the reasonable conclusion which we have to draw in the peculiar circumstances of the case is that excepting for the bare ipse dixit and the assertions made by the plaintiff as a co-litigant, there has not been any documentary or oral evidence let in by the interested sharers of the joint family to prove that such a quantum of the movables were available for partition amongst them as on the date of the institution of the motion and that such movables were with one or the other of the contesting or accountable parties and that therefore the litigation has to be processed through to its logical end by calling upon or obligate the persons in such possession of the movables to account for them and after such accounting the movables so brought into the hotchpot be divided amongst the sharers in accordance with their legitimate shares, we are obliged to find that the existence of the 'B' schedule property has not been established. In a case where a person who claims to be a member of a Hindu undivided family seeks for partition of movables but did not take the precaution of securing the appointment of an ex parte commissioner at or about the time when the suit was laid so as to get all such materials as is required for the ascertainment and reckoning of such movables in the possession of one or the other of the co-sharers, then it would be difficult for a Court to fairly assess and estimate such movables on the pleadings unsupported by corroborative evidence or acceptable materials. It is in this position that the present litigation stands in so far as the claim for the movables is concerned. Excepting for Exhibit A-103, the plaintiff has no other material on which he could argue or sustain his case about his right to claim a partition of the alleged movables belonging to the family. We are not inclined to disturb the finding of the Court below as regards the right of the family members to keep the jewels which the trial Court found to be in their possession and which are said to be their own properties. As we said, we do not accept the second compartment of Exhibit A-103. If this portion of the sole evidence on which the claim for movables rests is thus brushed aside we are unable to find a case for partition of such non-existing or unproved movables.
22. The learned Judge in so far as schedule B is concerned gave a very curious direction. He would rely upon the writing in the second compartment of Exhibit A-103. This by itself is a wrong step' He would refer to the so-called interim list appended in Exhibit A 103 which states that certain jewels are available in rooms 2 and 3. In the end therefore he directed that among the B schedule properties such of those movables, jewels as are mentioned in rooms 2 and 3 and that are mentioned in items 5 to 86 and the other items of movables mentioned in other items 5 to 86 are available for partition. The direction begs the question. The question is whether there are such movables which are available for partition and the learned Judge does not advert to this aspect. In our view, there is no evidence to assume that any of the movables set out in schedule B are available for partition. The direction in this behalf made by the learned Subordinate Judge is therefore set aside.
23. As regards C schedule, we have referred to the fact that the third defendant has admitted that he has to account for item 3 in schedule G which gives a list of outstandings payable to the family and which will become an asset of the joint family for being partitioned amongst the sharers. Excepting for the admission of the third defendant, here again we find that there is no proof of the existence of such debts. The plaintiff, in paragraph 15 of the plaint says that in schedule G the outstandings due to the joint family inclusive of the cash are set out in so far as they are known to the plaintiff. In paragraph 19 of the written statement of the first defendant he would deny the existence of many of the items of outstandings mentioned in schedule C and would claim that the major portion of the items set out therein are, all amounts which are due to him and that very many of them were discharged long ago and he gives details about the same. In the replication there is no particular treatment of this averment of the first defendant. When the first defendant was in the witness box, he was not even cross-examined with reference to Exhibit A 103 which is the sheet-anchor of the plaintiff's case. The Learned Counsel for the respondent says that the first defendant was cross-examined on the C schedule items thus:
The C schedule items were taken with my money. I have no right in my wife's outstandings. Meenakshi left 75 sovereigns and Rs. 8,000 cash at the time of her death. She had to collect some outstandings also.
When we called upon the Learned Counsel for the plaintiff-respondent to point out any other statement in the testimony of either the plaintiff or any other sharer which would touch upon the existence or otherwise of the outstandings set out in schedule C, he was unable to do so. The net result of all this is that the plaintiff on whom the burden is heavy to establish that the outstandings detailed by him in schedule C are out standings of the family and that they were available to the family on the date of the institution of the action, has miserably failed to speak about it and much less to establish the same. The learned Judge vaguely concludes that some of the outstandings mentioned in schedule G standing to the credit of the second defendant are to be treated as outstandings to the family and holds as follows:
A number of outstandings are shown in C schedule which includes outstandings under items 1 to 27 said to be owned by the family. Among these some items are in the name of the second defendant. I have already held that the outstandings in the name of the second defendant came out of the joint family funds. Therefore that should be taken into consideration for partition. So far as items 28 and 29 which are stated to be cash accounts are concerned they must be separately found out by the commissioner in the final decree. Items 1 to 27 of G schedule in the hands of defendants 1 and 2 the monies standing with the defendants 1 and 2 at the time of the suit are available for partition.
What is the basis for the conclusion of the learned Judge to hold that the G schedule properties have been proved to be in existence and as assets of the joint family has not been made out. We asked in vain the Learned Counsel for the plaintiff to sustain such a situation. The result is that the outstandings mentioned in G schedule also have to be taken as items which have not been proved to be in existence and therefore not being available on the date of the suit for partition and which could in the ultimate analysis be divided amongst the sharers entitled to the same. We have already prefaced by saying that the above conclusion would not apply to that item of outstandings which has already been admitted by the third defendant as one which he has to account for.
24. The only question that remains for consideration is whether the decree for accounting granted by the Court below as against the first and the second defendants is correct. No authority has been placed before us to sustain the conclusion of the learned Judge that the father-manager of an undivided joint family is to account for the prior dealings of his in the family. This would be a strange position. The father as manager of a Hindu joint family has a peculiar status equivalent to that of a patria potestas of the family and the proposition that the members of such a coparcenary when they sue for partition cannot ask for an account from their father-manager is well settled as he enjoys a superior position in the family. His absolute and exclusive control over the family income and expenses is of the peculiar characteristics which are attached to such managership as father in the joint family. The head of the family cannot in general be called upon to defend the propriety of his past transactions in relation to the family. In so far as his liability to accounting is concrned in Raghvachariar's Hindu Law, 6th Edition, the learned author quoted the ratio in Narayanaswami Iyer v. Ramakrishna Iyer : 7SCR490 , thus:
In the absence of proof of direct misappropriation or fraudulent and improper conversion of joint family monies to the personal use of the manager he is liable to account only for what he received and not for what he ought to, or might have received if the said monies had been profitably dealt with.
No case of misappropriation or fraud has been pleaded or proved by the plaintiff as against his father. The normal conclusion therefore is that the first defendant as father-manager was prudently dealing with the properties of the family. If that is the basis and the fair conclusion, that ought to be arrived in the instant case, then the question of accounting for the past mesne profits of the A schedule properties will not therefore arise. We have already expressed the view that there is no proof that the moyables set out in schedule B and G have been proved to be available for division amongst the members. On the principle that a father-manager unless his actions were challenged on the ground of fraud etc is not accountable for his past transactions, the direction as to accounting given by the Court below is modified to the effect that the first defendant shall account for the mesne profits of the joint family properties held to be so in our judgment as above from the date of institution of the action till the properties are divided by metes and bounds and handed over to the respective parties
25. The plaintiff did not ask for an account as against the second defendant, but the learned judge gave such a direction No authority has been shown before us to hold the mother, wife of the manager of the joint family to render an account of the income or mesne profits of the joint family properties. We set aside this part of the judgment of the Court below which directs an accounts as against the second defendant.
96. While concluding the Appeal No. 286 of 1970 we are bound to observe that it would be unfair to disturb the possession of the properties with defendants 5, 6 and 7, who are the daughters and female members of the family and sisters of the plaintiff. Having regard to the affluence of the family, but as such gifts cannot technically stand as they were made at a time when the notice of intention to sever the joint status was given by the plaintiff, though not expressly but by necessary implication, we direct that these properties which are the subject-matter of Exhibits A-104 and 105 be allotted to the share of the first defendant in the final decree so that the gifts may be sustained as the gifts voluntarily made by him from and out of the share to which he is entitled to in the joint family. As regards Appeal No. 287 of 1970 preferred by the mother, we have already held that she is not responsible for accounting and that is the main grievance of the appellant in that appeal, and to this extent this appeal is allowed. As regards the appeal preferred by the defendants 5 to 7 who are the daughters, we are unable to assist the appellants since in law they are not entitled to gain title over the properties gifted to them on the bare footing of the settlement deed's executed by their father under Exhibits A-104 and 105 but in view of the direction which we have made in the matter of the adjustment of the equities, no further reiteration of the same need be made in this appeal.
27. In the result, therefore Appeal No. 286 of 1970 is allowed in part. So also, Appeal No. 287 of 1970 is allowed. Appeal No. 272 of 1971 is dismissed.
There will be no order as to costs in any of these appeals.