1. This is an appeal from a preliminary decree in a suit for partition. Defendants 1 and 2 and 4 to 8 are the appellants. There is a cross objection on behalf of the plaintiff who is one of the respondents in the appeal. The other respondent is defendant 3. To appreciate the relationship amongst the parties a reference to the following pedigree is necessary.
2. Kali Prosanna Mukherjee died in 1888 (=1294). Of his sons, those who figure in this case are three: Tarapada the eldest ; Annada, the second ; and Jnan-endra, the third. Tarapada's four sons are Bibhuti, Gosta, Anil and Abani, and his daughter is Lilabati. His wife Sarojini alias Sarajubala died in 1927, while this suit was pending in the Court below. Annada died in 1903, leaving his widow Kironsashi who gave birth to a posthumous son Nirmal alias Khoka, who died in 1905. Jnanendra's first wife died in 1920, and by her he had a daughter Hemnalini alias Jhanu. Thereafter Jnanendra married his second wife Pannalata, and had, by her two sons, Ashu and Aswini. He executed a will on 21st July 1923 (=5th Sravan 1330) and died on 9th September 1923. He left three daughters: Jagat Mohini, who was married to Hari Bhusan Banerjee and has three sons, Nani Bhusan. Fani Bhusan and Indu Bhusan; Sarojbasini whose husband is one Ramdas Chakra-varti alias Dakshina, and Naridasi, Ramdas and Nani Bhusan are two amongst the principal witnesses in this case: the former being P. W. 19, and the latter D. W. 8.
3. Tarapada is the plaintiff in this suit. Ashu and Aswini, the two infant sons of Jnanendra represented by their mother Pannalata as their guardian, are defendants 1 and 2; Defendant 3 is Kironsashi. The five executors in Jnanendra's will are defendants 4 to 8, being, respectively, No. 4 Pannalata; No. 5, Nani Bhusan, who is one of the sons of Jagat Mohini ; No. 6, Radhanath, who is son of one Umesh who was a brother of Kali Pro-sanna ; No. 7, Kishori, who is a grandson of one Gobinda who was an uncle of Kali Pro3anna; and No 8, Bhakatabatar, who is the younger brother of tha father of defendant 3 Kironsashi. The suit was based upon very simple allegations. It was alleged that the plaintiff Tarapada and his brother Jnanendra lived as members of a Hindu joint family governed by the Dayabhaga law and jointly carried on an extensive business in medicine in Rangoon, and that with the proceeds of that business they jointly acquired moveable and immovable properties and owned and possessed the same in equal shares. It was alleged further that after Jnanendra's death his widow and the two infant sons continued to live as members of the joint family, but that some wicked persons had intervened and were inciting the widow to separate in mess from the plaintiff and were managing the Rangoon business against the plaintiff's wishes and had also taken no heed of repeated demands which the plaintiff had made for partition. A decree for partition was prayed for, with a separate allotment of plaintiff's eight annas share in all joint moveable and immovable properties which were described in four schedules appended to the plaint, namely Schedule Ka, immovable properties; Schedule Kha, business at Rangoon; Schedule Ga, business in money lending ; and Schedule Gha, moveables.
4. The defence of defendants 1 and 2, shortly put, was that the plaintiff and Jnanendra were not joint in estate ; that the Rangoon business belonged exclusively to Jnanendra who acquired it at its inception with his own money and subsequently improved it to a flourishing condition by his own exertions, funds and resources ; that all the properties given in the plaint (with the exception of two items of properties of Schedule Ka, which were said to belong to a third party and merely stood in the name of Jnanendra) had been acquired with the profits of that business ; that the plaintiff had no share in the properties; and that Jnanendra used, out of generosity, to maintain oat of his income his relations, including the plaintiff and his family, who were in want. Defendant 3 pleaded that she and her deceased husband Annoda were also joint with the plaintiff and Jnanendra and that the plaint properties including the Rangoon business were joint properties in which she as mother of her deceased son was entitled to a one third share. The Subordinate Judge has made a preliminary decree for partition, the main points in which are the following: In the properties of Schedules Ka, and Gha, plaintiff, defendants 1 and 2, defendant 3 are to have a one-third share each; and in Schedule Kha and Schedule Ga plaintiff to have a one-third share and defendants 1 and 2 a two-thirds share. And it was ordered that there would be a partition of the properties of Schedule Ka, and Gha, but
the Schedule Kha property will remain joint, and plaintiff will get one-third share in the profits only and not in the assets thereof.
5. It is the common case of all the parties that the properties, or at any rate the bulk of them, owe their origin to funds which were the proceeds of the Rangoon business. It is necessary therefore to give a concise account of the state of the family, such as the evidence discloses, up to the point of time when that business was started. The family belonged to Narainpur in the Subdivision of Basirhat (District 24-Parganas). Kali Prosanna Mukherjee was the eldest in a family of five brothers, namely, himself, Kali Mohan, Jagabandhu, Girish and Umesh. Of these Jagabandhu died first. Then died Kali Prosanna. Kali Prosanna had been a Naib under some Ghoses. According to Kali Prosanna's widow Bhabatarini, the family at the time of Kali Prosanna's death, which took place in 1888 (=1294), had practically no properties with the exception of Abad, which, according to her, yielded about 3 or 4 bishes of paddy per year. On behalf of the plaintiff, evidence has been given that Kali Prosanna and his brothers had an annual income of Rs. 700 or Rs. 800 which, within a year of Kali Prosanna's death, dwindled down to a half. Be that as it may, subsequent events show that on Kali Prosanna's death, practically speaking, . all nucleus from Kali Prosanna's ancestral properties were cut off and his widow and children were left to shift for themselves as best as they could.
6. The evidence adduced by the parties as regards this part of the case is of a very conflicting character and it is not possible, nor indeed necessary, to arrive at findings with any degree of certainty. Bhabatarini has deposed that a few months after Kali Prosanna's death, his brother Girish said that she and her children could not be maintained any more, and that the dole of rice that she used to get from the joint family was stopped and upon that she removed with her children to her father's place at Jhikra Chatkaberia. Tarapada had married a few months before his father's death and was the first to enter service. It is said that so long as the family remained at Narainpur he used to contribute a part of his earnings to the joint family there. He worked at first as a teacher in the Basirhat School, and then he served one Rai Bahadur Chaudhury and thereafter as a private tutor of boys, and thereafter in 1900 or so he came to work in the shop of one Bhuban Dutt, where, according to the defendants, he used to get a pay of Rs. 25, and according the plaintiff Rs. 5 or Rs. 10 more. An-nada and Jnanendra were, on Kali Prosanna's death, put into a school at Sanpuku-ria in Bhabatarini's father's village Jhin-kra Chatkaberia. Bhabatarini's brother died soon after and on that Jnanendra removed at first to Bhabatarini's sisters's house at Baraset, and after being there for about a year he went to put up with a relation of the family named Kanti Mookerjee at Bhawanipur. At Bhawanipur Jnanendra stayed for about seven years and read up to the Entrance Standard. In 1900 or so Jnanendra joined Bhuban Dutt's shop on a pay of Rs. 20. On Bhabatarini's brother's death, An-nada was given shelter in the house of one Mohim Chatterjee at Khardah and sometime after he joined the Government School at Taki where he read for two years or so.
7. He thereafter began to work as a Khata writer in a grocer's shop and then he took service under one Moti Babu and later on joined Bhuban Dutta's shop on a pay, which, according to one account, was Rs. 15 and was Rs. 40 according to another. The evidence is to the effect that Annada was already in service in Bhuban Dutta's shop when Jnanendra came from Bhawanipore and took up service there. The family during this period eked out a somewhat miserable existence. A number of money-order acknowledgments (Exs. 2 to 2p) have been produced on behalf of the plaintiff which show that small sums of money used often to be paid by him to Jnanen-dra in the latter's schoolboy days. These acknowledgments show remittances to the aggregate amount of Rs. 82 from August 1889 to March 1893. They do mot, however, give any adequate indication of the extent of the assistance that the plaintiff must have rendered to the family at this period.
8. Notwithstanding the conflict and confusion that there is in the evidence, we think it is fairly clear upon the evidence of Bhabatarini herself, who is certainly not a witness who can in any sense be regarded as favourably disposed towards the plaintiff, that during this period the plaintiff was the only earning member of the family and it was he who had to bear the brunt of its expenses, ordinary as well as extraordinary. He no doubt received some assistance from his good relations, in the matter of the maintenance and education of his brother; but such assistance was apparently all that he received from outside sources. Bha-batarini has said that so long as Jnanendra was at Bhawanipur the plaintiff used to send him Rs. 4 regularly every month. It is also clear upon her evidence that the plaintiff had to meet not only the ordinary expenses of the family consisting of his mother and his own wife and himself, but also the expenses which were incurred for the marriage of his sister Haridasi, who appears to have besn married about six years after Kali Prosanna's death. It is not necessary to go into greater details, but it would be sufficient to say that in 1901, the year in which the story of this case really opens, all the three brothers were employed in the shop of Bhuban Dutta, earning altogether Rs. 70 or Rs. 90 a month.
9. In 1901 the state of the family took a somewhat better turn. In April or May 1901 Jnanendra left for Rangoon on being appointed general manager of Bhuban Dutta's medicine business, there. He was to get the same pay, namely, Rs. 20 as before, but also a commission on profits in addition to his pay. What the rate of this commission was is a matter of dispute, some saying it was 4 annas in the rupee and others , only 1 anna in the rupee, the latter version being more probable. He got himself married shortly before he started. It has been proved by P. W. No. 19, Ram-das Chakravarti, who is one of the principal witnesses on behalf of the plaintiff, and who happens to be doubly connected with the plaintiff, both as the husband of plaintiff's sister Sarojbashini as already stated, and also as the brother of the plaintiff's wife, Sarojini alias Saraju-bala, now dead, and who has, as will appear later on, sought to support the plaintiff's case on all possible points and in all possible ways, that at the time when he left for Rangoon Jnanendra had no money in his hands. And there is other evidence to show that his passage money was paid by Bhuban Dutt, while a few extra rupees were given to him by his aunt, namely Bhabatarini's sister: vide evidence of Bhabatarini and of D. W. 4 Manmatha, the son of Bhabatarini's sister. The evidence is that Jnanendra's pay used to be drawn by Tarapada from Calcutta, and there is nothing to suggest that the commission which fell due to him at Bhuban Dutt's business at Rangoon was drawn by Jnanendra at any time or at intervals. Jnanendra therefore must have managed to defray his own expenses from some other source. That this was so is also the case of both the parties, notwithstanding that only so little has been disclosed as regards the character of Jnanendra's earnings about this period as could not possibly be avoided. Speaking of the period antecedent to the purchase of the Pharmacy at Rangoon, which took place in July 1905 (=1313), the plaintiff has said:
The Rangoon business was started in 1313 (=July 1906) with funds of Jnanendra and myself and both of us contributed our labours to it . . . . Before this business, we had a cocaine business in Rangoon. I used to send cocaine from Calcutta. This business fetched immense profits.
10. The existence of this business in cocaine which was carried on by Jnanendra and Tarapada about this period prior to the purchase of the Pharmacy is also spoken to by P. W. 19, Ramdas Chakravarti, who has deposed that he too had to take part in it under Jnanendra's instructions. And the fact that the two brothers did jointly carry on this business at the time is amply established by a letter of Jnanendra to Tarapada [Ex. 1 (e)] of which the portion containing the date has been torn off but which must have been a letter of a date prior to Annoda's death which took place in 1903, because the letter contains a reference to Annoda as then living.
11. There is no doubt, therefore, that during the first few years of Jnanendra's stay at Rangoon and till the Rangoon Pharmacy was purchased, Jnanendra was not only in service at Bhuban Datta's as their general manager, but also carried on jointly with Tarapada a very lucrative business in cocaine. So far as Tarapada is concerned, he worked as a sub-broker in the firm of Messrs. Schroder Smidt andCo. He says he worked there from 1901 to 1909, and though about the exact period that he worked the evidence is conflicting yet it is clear that he must have worked as such for several years, and, at all events, till 1906. Bhuban Dutt himself was the Banian of Messrs Schroder Smidt andCo., and one Narain Dutt was the broker under him; and Tarapada came in there as under-broker. Tara-pada's earnings as such under-broker, according to P. W. 12, Narain Chandra Dutt, was 'Rs. 50 or Rs. 60 at the start and rose up to Rs. 200, Rs. 250 or Rs. 300 at the end ' The evidence of P. W. 19, Ramdas Chakravarti, is that after leaving this job as under-broker to Messrs. Schroder Smidt andCo , Tarapada commenced a business in bones in partnership with certain other persons, namely a Zamindar of Sathkhira and two 'Christians,' that Tarapada contributed about Rs. 3,000 to the capital of this business but the business collapsed within a year, landing him in debts and liabilities. He has deopsed that the partners gave out that they would make Tarapada liable for Rs. 6,000 or Rupees 7,000, and that leaving aside the liability on account of the bone business Tarapada's financial position about 1315 B. S. (=1908-9) was this: that he had contracted debts to the tune of Rupees 1,200 or Rs. 1,300. As regards Annoda it would be sufficient to say that he carried on some sort of a business in clothes, with no regular shop for the purpose, but with a stock kept in the bouse itself. Annoda died on 10th October 1903. Jnanendra returned from Rangoon for the first time in 1903 after Annoda's death. Kironsashi in her evidence says:
He (meaning Jnanendra) was in Rangoon-when nay husband died. On hearing about the illness, as he was written to for medical treatment, he came. My husband's elder brother (meaning Tarapada) wrote the letter My husband died before he came. He came home and heard that my husband had died. My husband died immediately after the telegram was sent. My husband died three or four days before he came. It was necessary to send a telegram to Jnanendra for money was required.
12. In 1905 Jnanendra again came back from Rangoon and while returning took his wife with him. In 1909 he came a third time and Bibhuti accompanied him to Rangoon on his return journey. Gostho went to Rangoon in 1918, Jnanendra came back from Rangoon for the last time in 1921. A few more facts require mention at this stage. In 1920 Jnanendra's first wife died. He, therefore, married Pannalata, defendant 4, and had by her two sons, Ashu and Aswini, defendants 1 and 2, as already stated. While Jnanendra and his wife and daughter used to put up at Rangoon Tarapada and his wife and children with the exception of Bibhuti and Gostha who went to Rangoon in 1909 and 1918 respectively, as already stated, together with Bhabatarini, Kironsashi, Haridasi and others used to stay at Baranagore. The evidence is to the effect that at Baranagore they lived at different houses from time to time on very small rents, and it was only after Jnanendra's final return from Rangoon that a decent house on a rent of Rs. 60 was rented at Baranagore and thereafter Jnanendra removed to another house for which he had to pay a rent of Rs. 100. There is ample evidence, mostly documentary, which proves that Bhabatarini was not pulling on well with Tarapada and his wife and that this was one of the factors which served to create an unpleasantness between the two brothers (vide Ex. B (5) of 1912, Ex. B (4) of 1915, Ex. 1Z (32) of 1917, Ex. 1Z (45) of 1919, Ex. B (10) of 1921 and Ex. W series.). Bhabatarini has also deposed that towards the last four years or so before Jnanendra's final return from Rangoon, she had to pay the rent of the house she was living in because Tarapada with his part of the family had removed to their native village at Narainpur. Whether this evidence is literally true or not, one need not inquire, but this much is clear; that the relations between the mother and the son were not at all pleasant at any time since Tarapada was financially broken down.
13. On 21st July 1923 (5th Sravan 1330) Jnanendra, while staying at Baranagore, executed a will. In this will he made certain gifts to charitable objects and for the benefit of an educational institution which he had established in memory of his father Kali Prosanna and also certain other bequests for the benefit of some of his relations, including a provision for Rs. 2,000 to be spent for the marriage of Tarapada's daughter Lilabati. As regards his moveable and immovable properties, he provided that his sons would be the proprietors subject to this ; that in the business at Rangoon Nani and Gostha and Gostha's two younger brothers, when competent, would work and for that Nani would get a 2 as share, and Gostha and such of his said brothers who would work in the business would get a 3 as share in the profits. Jnanendra died, as already stated, on 9th September 1923.
14. This suit was commenced on 25th February 1924. Written statement on behalf of the defendants 1 and 2 was filed on 26th July 1924. Defendant 3 filed her written statement on 6th April 1925, to the contents of which reference has already been made. In her evidence she stated that this written statement was prepared for her by her sister's husband one Nisha Nath Bhattacharjee who, besides herself, was the only witness (D. W. l) examined on her behalf. In the trial she herself gave her deposition on commission while putting up at the house of Tarapada. Probate of the will was applied for by some of the executors; and after some contest amongst some of the executors themselves and also some objection on the part of Tarapada with regard to some minor matters, eventually, on 30th July 1925, a grant was made in favour of all the five executors. During the pendency of the present suit, Gostho instituted a suit on 11th April 1927 for his share of the profits of the Rangoon Pharmacy on the basis of the will (vide plaint Ex. R) and eventually got a decree (Ex. RR) on 25th March 1928. Tarapada was not wholly unconcerned with this suit, as the letter Ex. AAA, dated 19th September 1927, which he wrote to one of the executors shows. In this letter he advised that executor to take up an attitude which might not appear to militate against his own con-tentions in the present suit.
15. We now come straight to the circumstances under which the business in Rangoon, which forms the subject matter of Schedule Kha to the plaint, was started. The business consists of two items, one going by the name of Imperial Pharmacy and situate at premises No 6, Moghul Street, and the other a branch Pharmacy started later on in premises No. 1-97 Dal Yuspi. It is really the acquisition and character of the former of the two items with which we are concerned in this case, because it is these that would govern the other items as well. The definite case which the plaintiff has made as regards this matter would be clear from his own deposition on the point. He says:
The Rangoon business was started in 1313 (July 1906) with the fund of Jnanendra and myself and both of us contributed our labours to it. Annoda was dead at the date of starting that business. It is not true that the said business was started by Jnanendra with his own funds. The said business was started by us with Rupees 1,800 and out of the said sum I contributed Rs. 1,000, and Jnanendra Rs. 800.
16. His case also is that after the Pharmacy was purchased with Rs. 1,8,00 raised in that way, he used to contribute his labours by purchasing and sending medicines from Calcutta and doing other necessary work in connection with it. His case further is that the business was expanded by Jnanendra by putting money into it now and then, and that the proceeds used to be appropriated partly by himself and partly by Jnanendra. He explains that the Pharmacy was started in the name of Jnanendra and he himself remained only in the background lest Bhuban Dutt, who was Banian to Messrs. Schroder Smidt and Co. and under whom he was under-broker, and who himself had a business in medicine in Rangoon in which Jnanendra worked as general manager, as previously stated, objected to his being concerned in a rival business-there. His case further is that Bibhuti as well as Gostha also took part in looking after the Pharmacy and managing its affairs. Analaysed, Tara-pada's ease therefore is that he claims to be a partner to the extent of an 8 as share in the business because: 1st., he contributed Rs. 1,000 out of the sum of Rs. 1,800 with which the Pharmacy was purchased; second, he used to contribute his labours by purchasing and sending medicine from Calcutta and doing all necessary work in connexion therewith, and in short was the representative of the business on its Calcutta side; and third, his sons Bibhuti and Gostha used to contribute their labours on the business. Upon the evidence on the record it is plain beyond doubt that the business that gradually grew out of the Pharmacy in Moghul Street so purchased, and in respect of which a branch was subsequently started in Dal Yuspi, became in fulness of time a very flourishing concern and yielded large profits. It is also evident that from time to time large sums of money had to be put into the business in order to meet its ever increasing demands. The Subordinate Judge has observed and the observation seems to us to be correct:
It is not disputed that the expansion and development of the business was due mainly, if not solely, to the exertions resources and credit of Jnanendra. A number of documents have been put in to show that Jnanendra had to borrow large sums from different quarters from time to time on his personal responsibility to meet the ever increasing demands of the Pharmacy. Tarapada does not claim that besides personal exertion and the aforesaid sum of Rs. 1,000 he had to make any other contribution in money worth the name for the building up of the business.
17. Upon this state of facts we have to examine the evidence in order to find out whether the three contentions referred to above which form the basis of the plaintiff's claim as regards the Rangoon business, or any of them, is true. To take first the story of the contribution of Rs. 1,000, P. W. 19 Ramdas Chakravarti says that there was a dispute between Jnanendra's cousin Heru alias Suren, and Bhuban Dutta's people at Rangoon and so it was decided to start a new shop there which would belong to both the brothers, and that there was a consultation in which Tarapada said that he would advance Rs. 1,000 for the purpose. This consultation according to Tarapada took place when Jnanendra came down to Calcutta for taking his wife to Rangoon and he has given the approximate date thereof as April or May 1906. Tarapada says that he had Rs. 1,000 with him in currency notes and that he sent this amount to Jnanendra at Rangoon through one Kali Prosanna Das, now dead, who was an employee of Messrs. Bhuban Dutt and who was being sent out by them to Rangoon to be the manager of their medicine business there in the place of Jnanendra. He admits that the fact that a rival business in medicine was being started was to be kept back from the knowledge of Bhuban Dutt as such a disclosure might lead to his dismissal from his post as under-broker under Narain Dutt, and that this was the reason why the business was allowed to be started in the sole name of Jnanendra. Yet his story is that he sent Rs. 1,000 through Kali Prosonna, who was none else than an employee of Messrs. Bhuban Dutt. It is also the case that no receipt was taken for the amount so entrusted to Kali Prosanna, but that may perhaps be explained by the fact that Kali Prosanna was an old class-mate of his.
18. The whole story has been challenged on behalf of the defence as a myth, even to the extent of denying the existence of such a man as Kali Prosanna Das and of his having even been in the employ of Messrs. Bhuban Dutt, and this challenge certainly finds some support from the answers given in cross-examination by two of the witnesses, namely P. W. 11 Bhuban Mohan Das, and P. W. 12 Narain Dutt, both of whom were prominently connected with the shop, and the former having been its manager. D. W. 2 Sudhansu Sekhor Boy has deposed that one Haridas Chandra became manager of Messrs. Bhuban Dutt's business at Rangoon when Jnanendra left and that he never saw anyone named Kali Prosanna Das as such manager. He is apparently a respectable witness, though not quite a disinterested one. Another witness, D. W. 9 Kunja Behari De, has definitely deposed that there was no Kali Prosanna Das in Baranagore, such as might have been utilized for the purpose alleged. A witness, P. W. 16. Saroda Prosad Banerjee, deposed that he saw the handing over of the money by Tarapada to Kali Prosanna Das in the shop of one Kishore Doctor and that Kishori Doctor as well as one Adhar Das were present at the time but are now dead. In cross-examination however he admitted that he has 'no positive recollection,' and also that he did not remember the name of the man to whom the money was paid. This witness does not mention that P W. 19, Ramdas Chakravarti, was present on the occasion, and yet the latter gave evidence to the effect that Jnanendra had written to him to see that Tarapada did send the money and that he was present when Tarapada handed over the money to Kali Prosanna. Some other witnesses have also been examined on behalf of the plaintiff to prove what may be regarded as a sort of admission on the part of Jnanendra. One of these, P. W. 4 Kali Charan Banerjee, says that it was he who gave information to Jnanendra about the Pharmacy, and on that Jnanendra wrote to Tarapada from Rangoon about the money, that Tarapada wrote in reply that he would be sending money soon and that in case there was delay the money might be collected through the help of the witness, and that as Tarapada sent Rs. 1,000 his help became unnecessary. It is somewhat difficult to fit this version in with that given by P. W. 19 Ramdas and of Tarapada himself. Another P. W. 2, Atul Krishna De, has deposed that Jnanendra had admitted before him that Tarapada had paid Rupees 1,000 towards the capital, but that no one was present when that admission was made. A third, P. W. 17, Nagendra Nath Chatterjee, says that Jnanendra had to borrow Rs. 2,000 from his (witness's father-in-law, for making the purchase with Rs. 1,800 and that Jnanendra told him that Tarapada would send him Rs. 1,000, but in case there was need and he be in difficulty, he (witness) would have to request his father-in-law to advance the money, and so at his request his father-in-law advanced the loan.
19. This is a version which finds no corroboration from any other witness, and is against the tenor of the evidence given by the other witnesses on the point. This story, again, is contrary to the plaintiff's case as argued before the Court, namely that Jnanendra had no means at all to raise any money beyond Rs. 800. In cross examination the witness said: 'I do not know if Tarapada actually sent the money aforesaid.' Then there is the fact that the story of this evidence of Rs. 1,000 was not given in the plaint, and was not disclosed until the plaintiff himself came into the witness box, while in the cross objection of the mother Bhabatarini it was definitely suggested-presumably at the instance of the plaintiff himself for he was present during her examination on commission and questions were being put to her under his instructions-that Tarapada had paid Rs. 2,000 towards the capital at the time when the business was started. On such state of facts and of the evidence it is not possible to hold that the story of contribution of Rs. 1,000 by Tarapada for purchase of the Pharmacy has been proved. A number of letters purporting to have been written by Jnanendra to Tarapada about this period (April to December 1906) have been produced on behalf of the plaintiff. The more important of them are Exs. 1 (a), 1 (b), 1 (c), 1 (d), 1 (f), 1 (g), 1 (i) and 1 (k). All these, with the exception of Ex. 1 (k), are clearly fabricated, written on paper which came into existence in or after 1920 and containing writing which is very dissimilar to that of Jnanendra.
20. The Subordinate Judge has expressed the view that P. W. 19, Ramdas, was the writer of these letters. He has come to this finding upon a comparison of the writing on these letters with a specimen of the writing of that witness taken in Court, and also in view of the fact that as explanation for the inordinate delay that was made for their production in Court it was alleged that the letters remained with him as he was trying to arrange for an amicable settlement between the parties. It is not possible, nor indeed necessary, to pronounce such a definite opinion, but it is sufficient for us to find, as we do find most certainly, that they are not Jnanendra's letters. Ex. 1 (k) may be a genuine letter, but even in it two, words, 'I' and 'my,' seem to us to have been altered into 'us' and 'our' in order to make out that the business belonged to both the brothers. The letter no doubt contains a request to Tarapada to see if any money can be raised over the joint signatures of the two brothers; but such a request does not necessarily indicate that the brothers were partners. Another letter (Ex. 20) purporting to have been written by Jnanendra in 1906 and suggesting that he had some other partner, has been produced, but it is obviously fabricated, and not in Jnanendra's handwriting A careful scrutiny of these letters disclose an anachronism in their contents which itself is sufficient to discredit their genuineness.
21. The plaintiff's case was that Jnanendra was able to contribute only Rs. 800 and he himself contributed the remainder, namely Rs. 1,000. The documents which throw any light upon the purchase are Ex. A, Ex. JJ, Ex. LL (l) and Ex. LL (2). The first two documents show that the Pharmacy was purchased on 23rd July 1906 for Rupees 1,800 with a stipulation to pay the amount to the vendor by 10th August 1906 and that the amount was in point of fact paid up on 8th August 1906; the last two are extracts from the account-book of the Imperial Pharmacy for that period written by Jnanendra himself, and they show payment of the amount by a cheque on the Commercial Bank of Rangoon. A good deal of argument has been addressed to us on behalf of the plaintiff to establish the position that Jnanendra could not possibly have scraped together so much as Rs. 1,800 for the purpose, because his pay in respect of his service under Bhuban Dutt used to be drawn from Calcutta by Tarapada, and all that was left to him to avail of was the commission which might be due to him and from that too he must have drawn amounts from time to time to meet his own expenses. This argument is more or less in the nature of a speculation, because Jnanendra who is the only person who could have explained bow or from where the money came is not alive and none else can say what actually took place. That he could raise Rs. 800 from some source or other is the plaintiff's own case; and nothing that appears upon the record lends colour to the supposition that Rs. 800 and not Rs. 1,800 was available to him. Besides, whatever doubt may arise on the point is finally dispelled by the admission which the plaintiff has made in his own deposition, namely that Jnanendra had with him moneys which were the proceeds of the cocaine business. The plaintiff has said:
The Rangoon business in suit was extended with the money that Jnanendra had with him out of the cocaine business.
22. The Subordinate Judge has not accepted the story of contribution of Rs. 1,000 by Tarapada, and with his finding on this matter we entirely agree. There are some other facts which also tend to point to the business having been started with Jnanendra's own money. The signboard was in the name of Jnanendra alone, the license and registration of the business was in his sole name; and when a power of attorney was executed in the name of Nani Bhusan Banerji it was executed by Jnanendra and not by him jointly with Tarapada.
23. The Subordinate Judge also has found that the evidence taken as a whole lends support to the conclusion that the business was the self-acquired business of Jnanendra. It is quite true the two brothers formed members of a joint family at the time of the acquisition, and there is also evidence that there was some nucleus of joint family property. But it is not the plaintiff's case that any part of the nucleus went for the acquisition of the business and indeed such could not be his case, because, after all, the yield of the small quantity of land, roughly speaking 40 bighas according to the plaintiff, and 20 bighas according to the defendants, after meeting the requirements of the family would leave practically nothing from which any such acquisition could be made. The necessity of establishing the existence of a nucleus of joint family property before the property in possession of one member can be presumed to be joint family property has been recognized in numerous decisions, of the highest authority and the reason of the rule is this: that when there is ancestral property by means of which other property may have been acquired then it is for the party alleging self acquisition to prove that it was acquired without any aid from the family estate: see Ram Kishen Das v. Tunda Mal (1911) 33 All 677. In the present case the plaintiff's own case being not that the acquisition was made out of any nucleus of joint funds but on a partnership started on a joint contribution of specific amounts by each of the two partners no acquisition of rights as under the Hindu law itself arises. In such circumstances, as the Judicial Committee has pointed out in the case of Annamalai Chetty v. Subra-nabian Chetty AIR 1929 PC 1:
A member of a joint Hindu family can make separate acquisition of property, for his own benefit, and unless it can be shown that the business grew from joint family property or that the earnings were blended with joint family estate, they remain free and separate.
24. As regards the blending of the earnings of the business with the joint family estate, the Subordinate Judge originally observed that there is no evidence that the earnings were ever blended into the common stock of the family. It does no doubt appear that money used to be sent and that regularly and constantly, from Rangoon for meeting the requirements of the family, but that does not mean that the earnings were blended into the common stock. The other two items which also form the basis of the plaintiff's claim, namely that he worked for the business on the Calcutta side, and that his son Bibhuti and Gostho also worked in the business at Rangoon, were put forward by him as evidence of a partnership, under which he claimed an 8 annas share in the business. The defendants' case, on the other hand, was that whatever work Tarapada did in respect of the business was done by him merely on the request of Jnanendra such as a younger brother would not hesitate to make to his elder, and an elder brother would readily comply with, for his younger. If the elder brother had nothing else to do and was depending upon the former for the maintenance of himself and his family; that Bibhuti did nothing for the business and had no connection with it; and that Gostho worked for a time in it but on a pay. So far as this part of the case is concerned, the Subordinate Judge's findings are somewhat difficult to understand or to reconcile. It is not possible to make a summary of such findings without detriment to their logic. They are accordingly reproduced in their entirety:
The whole history of the family also goes to prove that Tarapada was not treated as an ordinary dependant of Jnan. It was Tarapada who was the mainstay of the family when it had to pass through bad times and when Jnan had to look upon him for his educational expenses (vide the M. O. acknowledgments, Exs. 2 to 2 p). P. W. No. 18, Shiba Prosad, says that Jnan had a high regard for Tarapada. That was nothing but a reflex of his sentiment for a loving and toiling brother. In the same strain Nani Bhusan (manager of the business) wrote to Tarapada in 1911 in a letter where the tribute due to the head of a Hindu family under proper notions had been paid. This is what is said by Nani, 'Uncle, if you do not stand against the storm, who will? (vide Ex. 3-B).' Thus it will appear that Tarapada was given a position in the business which was in consonance with the part he played in it and which he could well have expected to get from a brother to whose up-bringing he had to contribute his mite at an earlier period. If this be kept in view, the facts transpiring in the evidence will follow as a natural sequence. I have already referred to the remittances from Rangoon towards defrayal of the household expenditure at Baranagar. At Baranagar Tarapada used to make all disbursements necessary for the joint family, such as paying the doctor's bills, meeting the costs of all ceremonies (Anna-prasan, Upanayan and marriage) and paying the dues of grocers, goldsmiths and priests. Tarapada used to get from Rangoon not only the maintenance cost of his family but all the extraordinary expenditure such as the cost of Upanayan (sacread-thread ceremony) and marriage of his sons and the cost of pilgrimage for self, wife and some children. All this could not have been drawn from Rangoon if Tarapada was a mere hanger-on.
No doubt in some of the letters written by him to Jnan, Tarapada was sometimes found as petitioning Jnan for doles. These cannot be construed as negativing the position of a partner in the business. It is not an uncommon thing in a Hindu joint family that members who earn less are more tolerant and deferential to members who earn more and upon whom the prestige and good name of the family depends. Tarapada was fully conscious of what was due to Jnan as the architect of the family fortune, and if from that consciousness he sometimes took up the roll of a persuader it cannot detract from the position he could otherwise claim. It will be next seen that Jnan allowed the earnings of Tarapada's son Bibhuti to be mixed up with his funds (vide Ex. 1 coupled with Exs. 2-q to 2-z 4). An entry in the ledger of the Rangoon business (Ex. 14) shows that Jnan allowed Bi-bhuti's money to de added to the funds of the business. Gostho (another son of Tarapada) used for a time to work in the Pharmacy. The plaintiff's case is that Gosta did not get any pay from there. The pay-books or acquittance-roll of the Pharmacy which could have furnished the best evidence in the matter has been withheld. There is however an isolated entry in a ledger (Ex. P) to show that there was a pay fixed for Gostha. No weight can be attached to this entry. It might have been interpolated for the purpose of this case. P. W. 10, Ram Kanta Pal, says that he made the entry under the orders of Nani. It is admitted on behalf of the defence that all the account books of the business are in existence, still excepting some stray books selected at random, they have been held back. When the Jabeda account corresponding to the above entry (Ex. P) is not forthcoming it cannot be said that Gostha was a paid servant. The last will of Jnan also goes to confirm the above supposition. There Jnan made provision of three annas of the profits of the business for the three sons of Tarapada excepting Bibhuti. It need not be mentioned here that the will was prepared shortly before the death of Jnan when he was admittedly under the influence of the relations of his second wife (vide D. W. No. 2 Sudhanshusekhar Boy). Even in that environment Jnan could not altogether overlook the claims of Tarapada's branch. Such a share as the above in a flourishing business could not have been given to the plaintiff's sons if the plaintiff was no better than a dependent. The blending of income belonging to Tarapada's branch with his own income shows that Jnan always treated Tarapada as his partner.
25. On these findings the learned Judge proceeds to consider what share Tarapada can have in the business and observed:
I have already said that Tarapada has failed to prove any contribution in money and that he contributed his labour and exertion. Jnanendra not only supplied the capital but contributed his labour. So he should get two shares and Tarapada one share. This is in consonance with justice and equity and is not opposed to the provisions of Section 253, Contract Act. It is rather supported by authorities': vide Lalchand Shaw v. Swarninamoyee (1909) 3 IC 102 and Mayne's Hindu Law and Usage, Section 288.
26. The learned Judge therefore has made a decree in plaintiff's favour not upon the basis of a partnership which was the plaintiff's case but upon principles of Hindu law and on general principles of equity for the application of either of which very different considerations would arise. So far as Hindu law is concerned, as pointed out by Mr. Mayne in the paragraph itself to which the learned Judge has referred, the doctrine of a double share is applicable where at the foundation there was an acquisition out of joint funds, but the means of acquisition drawn from the joint funds was of little consideration while the personal exertions are considerable. The doctrine has no application where there has been no common funds which ever went to start or implement the business; Section 253, Contract Act, has for its foundation a contractual relation of partnership. These principles are entirely inapplicable to the present case unless one can find that the business was started out of common funds. It may be conceded that the learned Judge's finding that Tarapada was the Karta of the family managing its affairs and making the necessary disbursements of its ordinary as well as extraordinary expenditure, and that he was looked upon as its head and respected by Jnanendra and all others, is correct, and it is more than clear from the mass of correspondence' that is on the record that, notwithstanding that Jnanendra was not pleased with Tarapada for his conduct towards his mother Bhabatarini and protested against it, and notwithstanding also that Jnanendra from time to time objected to such expenditure as he was not willing to bear, he always showed to Tarapada that degree of respect to which the latter was legitimately entitled by reason of the relationship in which he stood.
27. On the other hand Tarapada had his love and affection for Jnanendra who was his younger brother and was toiling in a distant country and was the mainstay of the family. These however are matters which are neither here nor there. The real question is: Do the circumstances disclose that Tarapada was treated as a, partner in the business, or are not the circumstances equally consistent with or referable to the fact that he was the eldest member of the family, who was doing nothing at the time in the shape of an occupation as a means of earning; and it was for that reason that he was asked to help the business by doing such work for it as an elder brother or any other member of the family would readily do in respect of a business really belonging not to him but to another member of the family on whose earnings the family entirely depended. The error on the part of the learned Judge in our opinion consists in his not having kept this viewpoint clear in his mind. The large mass of correspondence, to some of which only the learned Judge has referred, shows unmistakably that Tarapada's help was requisitioned in various matters in connexion with the despatch of goods, settling of disputed claims, finding out ways and means for the promotion of' business and various things of that sort. The more important of the letters on which special stress has been laid on behalf of Tarapada are Ex, 1 (o), d/-1907; Ex. 1 (x), a/-1908; Ex. lz (6), d/- 1910; Ex. lz (7), a/- 1911; Ex. B, Ex. B (3), Ex. B (5) and Ex. lz (15), d/- 1912; Ex. lz (26), d/-1914; Ex. lz (32), d/-19l7; Ex. lz (45), d/-1919; Ex. lz (50); Ex. lz (57) and Ex. B (6), d/-1920; Exs. B (l), B (2), B (7), B (10) and Ex. lz (70), d/-1921, and Ex. 3(8), d/. 1922.
28. It is not necessary to deal with each of these letters individually. Most of them, in our opinion, are perfectly inconsequential showing only requests made or advice given such as one brother would do to another, regard being had to their respective positions and the relations in which they stood to each other and to the family as a whole. In Ex. B (3), in which speaking of a suit relating to the Rangoon business Tarapada used the word 'us' in the plural in connexion with the suit, but it is obvious that from this an inference does not necessarily arise that there was a partnership between the brothers in connexion with the business against which the claim in the suit was made. People are in the habit in ordinary parlance of identifying themselves in that way in a cause in which they have no pecuniary or proprietary interest. The letter Ex. B-5, of which the true import does not appear in the translation, is really against the plaintiffs' contention. The damaging passages in Ex. lz (26), Ex. lz (50), Ex. lz (57) and Ex. lz (70) are clear fabrications. And amongst the other letters many are either begging letters or are utterly inconsistent with any supposition that there was any claim of Tarapada on the business or in its profits (e.g., Ex. B, B (1), B (2), B (3), B (6), B (7) B (8), B (9) and B (11). The Subordinate Judge apparently felt pressed by the letters that are on the record which were written by Tarapada to Jnanendra in which to quote his own words: 'Tarapada was sometimes found as petitioning Jnanendra for doles.' He nevertheless held that these letters could not be construed as negativing his position of a partner in the business, because as he says:
It is not an uncommon thing in a Hindu joint family that members who earn less are more tolerant and deferential to members who earn more and upon whom the prestige and good name of the family depends. Tarapada was fully conscious of what was due to Jnanendra as the architect of the family fortune, and if from the consciousness he sometimes took up the role of a persuader it cannot detract from the position he could otherwise claim
29. In our judgment the learned Judge was wrong in his appreciation of the evidence afforded by the letters and in drawing his conclusion from their contents. In our judgment, Tarapada's letters purport to proceed from a person who could have no pretensions to a claim on the ground of partnership, but who certainly had every claim upon the natural love and affection and esteem of his younger brother who would under ordinary circumstances have duty to look to the wants of the elder brother and of the family of which that brother was the head. It is an admitted fact that no account has ever been taken of the business during the long period it has-continued since 1906 down to this day. D. W. 13, Gostbo, who has had ample opportunities of looking into the accounts of the Rangoon business is unable to say if there is any expenditure entered in the said accounts in the name of Tarapada. It is not alleged that moneys that used to be sent from the business to Calcutta were ever entered in Tarapada's name and P. W. 10 Eamkanta Pal has positively proved the contrary. Consequently, if any accounting is to be ever made it would not be possible to make out what money, if any, Tarapada may have drawn out of it.
30. The feeble attempt which was made through P. W. 10 Ramkanta Pal to establish that accounts of the business written by the said witness were sent by Noni Gopal to Tarapada (that witness has said that they were so sent once or twice) has failed altogether, Noni himself having repudiated that he ever did such a thing, Tarapada, while he did not allege that he ever paid any money out of his own pocket for the purchases that he had to make in Calcutta for the Rangoon business, deposed that the Rangoon firm used to send him moneys to make the purchase with. This however has been disproved by other evidence, notably the evidence of D. W. 3, Ashutosh Chakravarti, who has been the ledger-keeper of Messrs. Butto Kristo Pal, the largest amongst the dealers in medicine in Calcutta, and who has said that in the books of that firm the accounts stood in the name of J. N. Mukerji and the consignments used to be sent by that firm through the Bank and payments used to be received by them through the Bank. Tarapada also has admitted that all the Calcutta firms had their accounts in the name of the Rangoon firm. Tarapada undoubtedly did a lot of work for the business at the Calcutta end, but, as has been already observed, there is nothing to indicate that he did it as a partner or a person having a pecuniary or proprietary interest in the business.
31. The learned Judge seems to have felt pressed by the fact that the Rangoon firm used constantly and regularly to send moneys to Tarapada for the purposes of the joint family. But one earning member maintaining a whole family regularly all his life is almost a normal feature of joint families in Indian society. The character and attendant circumstances of such payments as were made in this case destroy all the theories of such payments having been made as on account of a partnership. The remittances were more or less of fixed amounts, e.g. Rs. 50 a month, about the period 1906 to 1909 or 1910, Rs. 100 per month during the period 1915 to 1917, but where extra necessity arose extra amounts were sent (vide D. W. 3 Noni Bhusan and D. W. 5 Radhakanta). The remittances used to be made to Tarapada so long as he had to make disbursements for the family at Baranagore, but only when Jnanendra or his wife were not there. Large sums were drawn by Jnanendra himself from Rangoon between 1920 and 1922 under telegraphic instructions through the Bank, Ex. NN series) and no objection appears to have been raised thereto P. W. 19 Ramdas, who has endeavoured his very best to prove every inch of the plaintiff's case, gave a story that Tarapada, with a view to give his wholehearted attention to the Rangoon business, had to give up his under-brokership with Messrs. Schroder Smidt and Co; and that after Tarapada's bone business collapsed be had to draw money from the Rangoon Pharmacy to keep himself up. As regards the latter assertion, Tarapada himself has not attempted to put it forward in his evidence, and there is no other corroborative evidence, either oral or documentary; and as regards the former statement, Tarapada gave a different version saying that he gave up the appointment at Schroder Smidt and Co. as Jnanendra advised him to do so because he had diabetes. Upon the evidence of Noni (D. W. 8) it has been proved, and there is no evidence the other way, that Bibhuti, who was taken by Jnanendra to Rangoon in 1909 and had within a short time become somewhat wayward (vide Ex. 1 of which the date cannot be had but which in all probability was a letter of this period), was put into a school to which he remained attached till 1912 or 1913, but in 1913 he joined the training class of the Telegraph Department and then took to service in which he is now drawing quite a decent pay. The finding that 'Jnanendra allowed the earnings of Tarapada's son Bibhuti to be mixed up with his funds', and which is said to be based upon Ex. 1 and Ex. 2-Q to 2-Z (4), is in our opinion entirely unjustified. Ex. 1 only shows that Bibhuti was putting up with Jnanendra and was under his guardianship. Ex. 2-Q to 2-Z (4) are certain telegraphic money-order acknowledgments of 1922-23, when Jnanendra was in Calcutta, of remittances made by Bibhuti of such amounts as Rs. 50, Rs. 60, Rs. 75, Rs. 100, and there is nothing to suggest that the moneys were sent for anything else than for the purposes of the family.
32. We are unable to see how these documents show that Jnanendra allowed these moneys to be blended into the funds of or utilized for the purposes of Pharmacy. Bhabatarini has said that so long as Jnanendra was alive Bibhuti used to make over his pay to him coupling the statement with the significant words, 'to whom else shall he make over.' These words imply what is only true, namely that in an ordinary joint family a dutiful young member of it would behave in that way towards one who is practically the only earning member and on whose earnings mainly the family ultimately depends for its existence and support. Such conduct on the part of Bibhuti in making over his pay to Jnanendra or of Jnanendra in receiving it would not necessarily indicate that Bibhuti's moneys were appropriated by Jnanendra for the purposes of the business or spent for any other purpose than what they were meant for, namely for the purpose of the family. In this connexion reliance has been placed on behalf of the plaintiff upon certain entries (Ex. 14) in the accounts of 1921 which show that on 2nd July of that year, Rs. 65 was deposited by Bibhuti and out of that amount Rs. 40 was withdrawn by him on 16th January following. This evidence is too poor to lead to any inference as to the blending of Bibhuti's earnings into the funds of the Pharmacy. Bibhuti, it should be stated here, has not been examined as a witness on behalf of the plaintiff as he undoubtedly should have been if the plaintiff desired to establish either that he worked in the business or contributed any money towards it. Gostho went to Rangoon in 1918, after the business had already run a course of 12 years. The defendants desired to make out that when Gostho began to work in the Pharmacy he was given a pay. The Subordinate Judge was not prepared to accept this story which was sought to be supported by the evidence of D. W. 2 Sudhansumohan, and also by an entry (Ex. P.) in the accounts, because the said witness Sudhansumohan is a relation of Pannalata and because the entry was a stray entry which could easily be fabricated. The story may or may not be true and probably is an exaggeration just as much as the other story which the defendants put forward, namely that Bibhuti's and Gostho's meals at Jnanendra's place were charged for. Gostho has been examined as a witness on behalf of the plaintiff. He was a very unwilling witness, as he must toe because by the suit which he instituted and the decree that he obtained he has already taken the benefit which the will confers on him. He has said that he got no pay as it was 'our' business. Very likely it is true that he drew no pay and this is probably why Jnanendra made the provision in the will in his favour. (P. W. 10) Ramkanta Pal has said that Gostho's name is entered on the right side of the ledger. What he exactly means by it is not clear. But whatever it may mean, if it be a fact as it may be, that for 3 or 4 years he worked in the business without any pay but having his food only (vide D. W. 2 Sudhansumohan), that would make not the business 'our' business, far less would his father get a share in it therefor.
33. Another incident, a very important one if it was true, has been sought to be proved. It was alleged that at the time of the marriage of Jnanendra's daughter Jhanu, Jnanendra wanted to spend Rs. 8,000 or Rs. 10,000; but Tarapada objected to so much money being drawn out of the joint funds, that is to say, the funds of the Pharmacy and that upon that a serious situation arose because Tarapada threatened that if Jnanendra did not desist, Tarapada in his turn, would draw such excess amount as might be in the bill. Tarapada himself has said nothing about it in his evidence. But four of his witnesses namely P. W. 4 Kali Oharan Banerji, No. 7 Bhupendra Chatterji, P. W. 8, Upen Mukerji, and P. W. 19 Ramdas Chakra-varti, have tried to prove this incident. The account given of the incident by these witnesses is unconvincing in the extreme, and to establish it a postcard Ex. 20(a) has been produced, in which a few lines inserted by way of a post-cript appear. The postcript is not in Jnanendra's writing and is an obvious fabrication. In our opinion, the story is not true. Our finding, for the reasons given above is that Tarapada was not a partner in the Rangoon business and is not entitled to any share in it. It would be convenient at this stage to advert to the case of defendant 3 as regards the Pharmacy. Her case, in her own words, is the following:
My husband's younger brother (meaning Jnanendra) went to Rangoon after my husband's death. He went to Rangoon and did business there at the time. He used to do business in medicine. He used to do business only when ha went to Rangoon first. He was in Rangoon when nay husband died. On hearing about the illness as he was written to for medical treatment he came. My husband's elder brother wrote the letter. My husband died before he came. Ha came home and heard that my husband had died. My husband died immediately after the telegram was sent. My husband died 3 or 4 days before he came. It was necessary to send a telegram to Jnanendra Babu for money was required * * * * * * After my husband's death my husband's younger brother took away the capital of my husband's business and the sale proceeds of the furniture to Rangoon and applied the same to the business (volunteers) whatever little ornaments I had Jnanendra Nath sold and took the proceeds thereof to Rangoon.
34. Now, this story of Jnanendra having taken away the sale proceeds of the cloth, furniture and ornaments for applying the same to the Pharmacy does not find a place in the written statement of defendant 3 in which a simple base was set up that Annada and after him his infant son. Khoka were members of a joint family and so the latter had a l/3rd share in the business being a business of the joint family. It should be noted at the outset that Annada died in 1903 and so the incident if true, must have taken place about the end of that year. The Pharmacy, it should be remembered, was purchased in August 1906 that is to say, nearly three years later. Tarapada does not support this story. D. W. 1 Nishanath Bhattacharjya is the only witness put forward who endeavoured to make out that there was a nucleus available from the Narainpur properties a fact which we have held was not possible. And the said witness further deposed that on Annada's death, his moveables, gold watch and ring and shawl were sold and the proceeds were invested in the Rangoon business. Bhabatarini has deposed that Annada's cloth business was . in debts when Annada died and that Tarapada and Jnanendra sold the cloths to pay off his debts. D. W. 5 Radhakanta, who is a cousin of the plaintiff, and is one of the executors to the will and against whom nothing appears from which any leaning on his part in favour of any of the parties may be inferred, has deposed that Annada's cloths were sold off to pay off his debts. The evidence that has thus been adduced to prove that there was a nucleus available from the Narainpur properties from which the Pharmacy was or could be acquired or that Annada's or Kironsoshi's assets formed a part of the capital of the Rangoon business, has not been believed by the Subordinate Judge and it will suffice for us to say that we are in entire agreement with him in this respect. There remain now the other properties in suit to be considered. (The judgment then proceeded to consider whether the properties mentioned in Schedule Ka-2, 3, 4, 5, 6 and 7 and Schedule Ga and Schedule Gha were joint or not and concluded.) In our judgment, therefore, the appeal should be allowed, and the decree of the Court below being set aside a preliminary decree for partition should be made in respect of the following properties only, namely items 3 and 4, Schedule Ka, items 6 and 7, Schedule Ka, and the moveable properties of Schedule Gha, with the exception of the first 11 items; on the footing that in items 3 and 4, Schedule Ka-the plaintiff, defendants 1 and 2 and defendant 3 will each have a l/3rd share, and in items 6 and 7, Schedule Ka and the moveables of Schedule Gha, with the exception of the first 11 items -the plaintiff and defendants 1 and 2 will each have a half share.
35. There will be no order for costs of the Court below, or in other words the order as to costs made by the Court below will stand. As regards this appeal the appellants will get their costs from the plaintiff-respondent, hearing fee being assessed at 20 gold mohurs. The cross-objection is dismissed.