1. The second appeal arises from a suit for partition. The first defendant is the appellant, whose daughter-in-law claimed a sixth share in the joint family properties. The first defendant had two wives. By the first of them, he had a son, the second defendant, and a daughter. The third defendant is the second wife, by when he had a son, who died leaving his widow, the plaintiff. Right from March, 1930, the first defendant and his two brothers and father, who were each entitled to a fourth share, sold the family properties, the proceeds of which they shared between themselves. The plaintiff claimed that the suit properties were acquired by the first defendant out of the nucleus, consisting of the sale proceeds allotted to his share. The suit was resisted on the ground that there was no such nucleus, that the properties were the self-acquisitions of the appellant and the plaintiff was not entitled to a share. Both the Courts below have held that except items 41 and 42 of the plaint-schedule, the rest of them were joint family properties in which the plaintiff was entitled to a sixth share. They have found that the nucleus, after discharging the liability, would be about Rs. 25,000 in 1930, which was adequate for the purchase the suit properties over the period from 1934 to 1958. As a matter of fact, the lower appellate Court has found that within 15 months after the family properties had been sold and proceeds divided among the appellants, his two brothers and father of the appellant advanced by way of mortgages loans about Rs. 4,500. The appellant, while denying the nucleus, claimed that some of the properties had been pruchased out of moneys gifted to him by his mother-in-law, at the time of his second marriage; but specifically, both the Courts below have found against such a claim; that the nucleus was invested in money-lending by the appellant, and the income out of the nucleus should have according to the Courts below, been the source of purchase money for acquisition of the suit properties. They have also found that the appellant had not shown that he was in possession of any other means. He, no doubt, claimed to have carried on some trade, but the Courts below have not given any importance to this. They have accordingly concurred in decreeing the suit for a sixth share for the plaintiff, except in the two items we have already mentioned.
2. The second appeal by the first defendant comes before us because of the value of the one-sixth share in dispute. The appellant's Counsel, Mr. Gopalaswamy lyengar, contends that the Courts below had not, in arriving at their respective findings kept in view the correct law, namely, that not only should there be nucleus, but there should be adequate income therefrom, in order that with the aid of it the properties in dispute could have been purchased for the joint family, As for the proposition of law, there is no difficulty, Srinivas Krishnarao. Kanungo v. Narayan Devji Kanungo and Ors. 1954 S.C.J. 408 : : 1SCR1 held that the proof of the existence of a joint family did not lead to the presumption that property held by any member of the family was joint, but where it was established that the family possessed some family properties, which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden would then shift to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. It Was also pointed out in that case that the question would eventually depend upon the facts in each case. The same thing was reiterated in Mudigowda Gowdappa Sankh v. Ramachandra Ravgoda Sankha : 3SCR245 . A Division Bench of this Court in C.V. Vythianatha Iyer v. VC.V. Varadaraja Iyer I.L.R. : AIR1938Mad841 laid down:
Under the Hindu law, it is only when a person alleging that the property is ancestral property proves that there was a nucleus by means of which other property could have been acquired that, the burden is shifted to the party alleging self-acquisitions to prove that the property was acquired without any aid from the family estate. In other Words, the mere existence of nucleus, however small or insignificant, is not enough. It should be shown to be of such a character as could reasonably be expected to lead to the acquisition of the property alleged to be part of the joint family property.
3. Having regard to the findings of both the Courts below in this case, we are satisfied that the income from the nucleus left with the appellant in 1930, which he used in his money lending business, charging a high rate of interest varying from 12 per cent, to 24 per cent, was adequate with which the properties should have been purchased for the family over the years. The nucleus; as found by the Courts below in 1930 in the hands of the appellant, was somewhere about Rs. 2,500 leaving aside them of Rs. 3,500 allotted to the share of the second defendant at the earlier partition. The appellant started purchasing property from April, 1934. The purchase in that year was of a house site for the sum of Rs. 80. In June 1936, he purchased lands for Rs. 300. There were also two other purchases in the year for Rs. 1,400 in all. We find from the sale deeds that very little cash was paid at the time of the execution of the sale deeds. In the following year also, there were purchases for a small sums varying from Rs. 70 to Rs. 200. That was the position also in the next two years. In 1948, there were two purchases, one for Rs. 50 and the other for Rs. 4,000. From 1949 to 1958, there were further purchases. The sum of Rs. 3,500 which had been allotted to the share of the second defendant at a time he was a minor, had been invested in mortgages, which too would appear to have contributed to the purchase of these properties in. later years. In the circumstances, we cannot say that the Courts below were unreasonable in coming to the conclusion that the income from the nucleus as it was in the hands of the appellant from 1930 was possibly sufficient to enable him to purchase the suit properties.
On that view, the second appeal fails and is dismissed with the costs of the plaintiff respondent.