1. The point in this appeal is the status of the four brothers, plaintiff, 5th defendant, 6th defendant and the deceased brother, Parthasarathy. The District Munsif held that there was no evidence of any division between them and that, therefore, the plaintiff had no right to bring this suit on the mortgage bond executed to the deceased Parthasarathy by Defendants 1 to 4. The District Judge differing from him held that there was no nucleus of family property, that the 5th defendant went away to Madras to earn a living by brokerage, etc., and that the 6th defendant commenced a contracting business while the deceased Parthasarathy and plaintiff remained in the family house and started a cloth shop, built up a business and acquired property, and that the plaintiff and Parthasarathy by combining money, brains and labour and living together and having everything in common 'became a joint family' It appears to me that this expression of the learned District Judge ' became a joint family' has given rise to this second appeal.
2. Assuming that the four brothers were joint in the first instance though with no nucleus of family property, that is to say, assuming, as has been held in O.S.A. No. 38 of 1924 that there is nothing in Hindu Law which says that possession of property is a necessary requisite for the constitution Of a joint family the allegation in the plaint is that defendants 5 and 6 became divided from the family 25 years ago and the plaintiff and Parthasaratby continued to live jointly. What the learned Judge means by using the expression became a joint family,' I think, is that though technically undivided in status, they began to combine their earnings, industry, etc., in the way set out by Bakewell J., in Madhavaiah Chetty v. Damodaram Chetty  M.W.N. 972. In that case there were four undivided brothers with no nucleus of family property, and the learned Judge, on a consideration of the authorities, held that if members of a Hindu family choose to live together, work jointly together, throw all their earnings into common stock and have one food, in such a ca3e the presumption is that they must have intended their property to be joint family property. That is, I think, exactly what happened here. The expression of the learned Judge might possibily be justified by saying that the conception of of a Hindu joint family was perfected by this acquisition or combination which resulted in joint family property. Bashyam Aiyangar, J., in Sudarsanam Maistri v. Narasimhulu Maistri  25 Mid. 149 says that the first requisite for a joint family is the family unit, and the second requisite is the possession by it of property.
3. In this view the appeal fails and must be dismissed with costs.