Somnath Iyer, J.:— This is a plaintiff's appeal from a decree of the District Judge, Bangalore, in a suit brought by him for a decree for propretor possession of two shops, two houses and a garden in the town of Tumkur. In that suit, he also claimed a sum of Rs. 9,920 as damages for use and occupation from defendants 1 to 6.

Defendant 4 was the elder brother of defendant-1. He died during the pendency of this appeal and his sons defendants 5 and 6 were brought on record as his legal representatives. Defendants 2 and 3 are the sons of defendant 1. All these are Hindus governed by the Mitakshara school of Hindu Law.

The suit properties are admittedly part of what was purchased under two sale deeds Exhibits P and TT on May 12, 1913, and March 18, 1915, respectively. Those sale deeds were executed in favour of defendant 4. Exhibit P was executed in favour of defendant 4 by one Abdul Azeez Saheb, who was a retired Assistant Commissioner; the consideration paid under that sale deed was a sum of Rs. 1,400 out of which a sum of Rs. 300 had been paid as earnest money before the document was registered. Exhibit TT was executed in favour of defendant 4 by one Keshavachar on March 18, 1915; the consideration paid under that document was a sum of Rs. 825, out of which a sum of Rs. 200 had been paid as earnest money before the date of execution of that document.

Defendant 4 executed a sale deed in favour of defendant 7 on May 1, 1948. That sale deed is marked Exhibit J. Under that document, he sold the property he purchased under Exhibits P and TT for a sum of Rs. 50,000. Defendant 7, in turn, sold those properties to the plaintiff under two sale deeds Exhibits G and H. Exhibit G is dated August 14, 1948, and Exhibit H bears the date February 1, 1949. The consideration for each of these sale deeds was Rs. 25,000.

Although there was some controversy in the Court below, that the property sold under Exhibit J by defendant 4 to defendant 7 did not include the property purchased by defendant 4 under the sale deed Exhibit TT, it is now no longer disputed that the property sold under Exhibit J by defendant 4 to defendant 7 included also the property purchased under Exhibit TT.

The suit, out of which this appeal arises, was filed on August 7, 1951. The institution of this suit was preceded by the institution of another suit in the Court of the Subordinate Judge of Tumkur in which the plaintiff prayed for a declaration that he was entitled to item 1 in the schedule annexed to the plaint in the suit out of which this appeal arises. He also asked for a decree for possession and also for certain other incidental reliefs. The plaint in that suit was returned for presentation to the proper Court on the ground that the Subordinate Judge had no pecuniary jurisdiction to try that suit.

The case for the plaintiff in the present suit was that the suit property was the self-acquisition of defendant 4 and that defendant 1, who was a tenant of item 1, had repudiated the title of the plaintiff to the suit properties and had also taken wrongful possession of the other four items.

Defendants 1 and 2 resisted the suit principally on the ground that the property purchased by defendant 4 under Exhibits P and TT were joint family properties belonging to a joint family consisting of the two brothers and their sons. It was, therefore, contended that defendant 4 was entitled only to a half-share in the suit properties, and that the plaintiff was not entitled to a decree even in regard to that half-share since he had not brought a suit for a partition of the family properties as he should have done.

The learned District Judge, upheld that contention and dismissed the plaintiffs suit for possession of the suit properties, although he made a declaration that the plaintiff was entitled to a half-share therein.

The plaintiff appeals.

Before adverting to the contentious raised on behalf of the parties, in this appeal, it would be necessary to refer briefly to the history of the family to which defendants 1 and 4 belonged.

There is undisputed evidence that the father of defendants 1 and 4 was one Sangappa, who was a cloth merchant in a place called Chickballapur. Defendant 4, who was the elder son was born in the year 1885 and defendant 1 was born in the year 1890. The father died about the year 1892 but the mother of defendants 1 and 4 lived until the year 1945.

After the death of the father in the year 1892, defendants 1 and 4 stayed on with their mother in Chickballapur for some-time and thereafter they went to a place called Thyamagondlu where they were staying with one of their uncles. According to the evidence, defendant 1 thereafter came to Tumkur, whereas defendant 4 went to Bangalore, to prosecute his studies. Defendant 1, after having prosecuted his studies quite unsuccessfully for sometime, in the course of which he was not able even to reach the High School, commenced a business which he has described in the course of his evidence as his private business, in the year 1906, and this, according to him, he did with the aid of a sum of Rs. 500 which he received from his mother for that purpose. While this business was commenced by defendant 1, in Tumkur, defendant 4 was prosecuting his studies in Bangalore. The evidence is that after he failed in the S.S.L.C Examination, in Bangalore, he left that place and went to Tumkur. There is no clear evidence in the case as to where defendant 4 was living in Tumkur after he left Bangalore in that way, although the effect of the evidence given by defendant 1 is that defendant 4 was staying with him at Tumkur.

On August 10, 1909, defendant 4 entered into two transactions. The first of them was an assignment of a mortgage with possession, in his favour, for a sum of Rs. 162-8-0 of a half portion in a jodi village called Harohalli. On the same date, he purchased the remaining half of that village for a sum of Rs. 600 from the owner of that half. Thereafter, on August 7, 1912, under a sale deed Exhibit DDD, he purchased a house which is described in the course of evidence as the Sira Toll Gate House, for a sum of Rs. 600. In that document, defendant 4 was described as a jodidar and a money-lender. It was nine months thereafterwards that the purchase under Exhibit P was made. That sale deed which is a sale deed of an old house together with some sheds, stables and a garden, was executed in his favour on May 12, 1913, by one Abdul Aeeez Saheb, a retired Assistant Commissioner. Nearly two years later, on March 18, 1915, Exhibit TT was executed in favour of defendant 4, by Keshavachar. This property sold under Exhibit TT was bounded on two sides by the property sold under Exhibit P.

As we have mentioned, the properties in dispute in this case formed part of the properties purchased under Exhibits P and TT.

The case of defendant 1 was that the acquisitions made under Exhibits P and TT were made out of joint family funds and therefore became joint family property belonging to defendants 1 and 4. In paragraph 1 of his written statement, defendant 1 said this:—

“The suit and other properties were acquired out of the joint funds of the family and its business as the accounts demonstrate.”

In paragraph 2 of his written statement, he stated:

“Defendants and defendant 1 are undivided brothers. They traded; toiled and did business together and acquired property jointly. They had adequate nucleus. They have treated the properties acquired in their names as joint family properties all through. They live together and have done business together in item No. 1 and elsewhere. It is the family that owns the entire plaint schedule property.”

It will, therefore, be seen that the plea of defendant 1 that the property was joint family property rested on at least three grounds. The first was that it was acquired with the assistance of an adequate nucleus of joint family property; the second was that the property was acquired out of the joint family funds belonging to a joint family business; and the third was that in any event, the property was treated as joint family property, both by defendants 1 and 4, and therefore, should be regarded as joint family property.

The learned District Judge did not believe the case of defendant 1 that there was any adequate joint family nucleus with the aid of which the suit property could have been purchased. But, he came to the conclusion that at the time of Exhibits P and TT, defendants 1 and 4 were members of a Hindu joint family, carrying on a joint family trade in cloth. His finding was that although there was no definite evidence pointing to the acquisition of the property purchased under Exhibits P and TT from out of any money paid by defendant 1, belonging to a joint family business, it was, in his opinion, very probable, having regard to the circumstances of the case, that it was out of the founds of the joint family business that the acquisition under Exhibits P and TT were made.

In support of the conclusion that he reached that defendants 1 and 4 were living together at all material times, the learned District Judge appears to have relied upon, although he does not expressly refer to that evidence in so many words, the testimony given by defendant 1 and D.Ws 2, 3 and 5. After discussing the evidence of D.Ws 2, 3 and 5, the Judgment proceeds as follows:—

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It is clear that no weight can be attached to the testimony of any of these three witnesses and that it is unsafe to hold, on the basis of their evidence, that defendants 1 and 4 lived together and had a common mess till the year 1946, as the learned District Judge has found. The finding of the learned District Judge in regard to this matter appears to our mind to be based on mere surmises and to some extent, upon a misreading of the evidence in the case.

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The learned District Judge did not discuss the credibility of the testimony given by D.Ws 2, 3, and 5. He did not even refer to their evidence and to the infirmities in their evidence pointed out by us.

The evidence of defendant 4 was that after he came to Tumkur, he was looking after the Harohalli village, half of which was purchased by him in the year 1909 and the other half of which was in his possession as mortgagee, as recited in Exhibit EEE. His evidence was that he used to sometimes stay in Tumkur and sometimes in that village.

But, there is a statement made by defendant 1 in a suit which was filed against him and defendant 4 in the Court of the Munsiff of Chickballapur, that defendants 1 and 4 were living separately. That statement is contained in the written statement Exhibit GG produced by defendant 1 in that suit. That was a suit brought by one Halagappa against defendants 1 and 4 for the recovery of a sum of Rs. 732-14-6, stated to be due to him on accounts in connection with the transactions carried on by defendant 1 as the ‘Yajaman’ of the family consisting of himself and defendant 4. The plaint in that suit, which was instituted on July 26, 1926, is marked Exhibit FF. In the written statement Exhibit GG, produced by defendant 1, he stated as follows:

“The defendants are residing separately.”

That statement was produced on December 15, 1926. In that suit, defendant 1 examined himself and his deposition in that suit has been marked Exhibit JJ. Defendant 1, during the course of his cross examination, was confronted with the statement made by him in the course of his evidence in that suit to the following effect:—

“We brothers are divided. We are divided for the last 35 years. There is no partition deed and 2nd defendant is in Tumkur ever since I went to live there.”

“We are not living together in Tumkur. We never lived together at any time in Tumkur.

It is clear from these two statements that what Defendant 1 stated on those two occasions was that he and his brother Defendant 4 never lived together at any time in Tumkur, and that they were Jiving separately. Defendant 2 in that suit is Defendant 4 here.

It was explained on behalf of defendant 1 in the Court below, and that explanation was accepted by the learned District Judge as satisfactory, that the statements contained in Exhibit GG and in defendant 1's deposition Exhibit JJ(2), were made for the purpose of defeating the claims of a firm of Bankers in Bombay who had sued defendant 1 for the recovery of money due from him. That suit appears to have been instituted in a Bombay Court, towards the end of the year 1921, and a decree appears to have been obtained against defendant 1 for a sum of Rs. 21,803-2-3, as can be seen from Exhibit XLVII, a letter addressed to defendant 1 by the solicitors of that firm of Bankers on December 3, 1921. The explanation offered by defendant 1 was that the statements in the Chickballapur suit and another statement which was made in another suit which was instituted against defendants 1 and 4 in the Court of the Munsiff of Tumkur in the year 1921, and to which a more detailed reference will be made in another connection were all mere blinds contrived by defendants 1 and 4 to deceive the Bombay bankers and to conceal the title of Defendant 1 to the suit properties.

For the reasons which we will presently set out, while discussing the explanation offered with respect to the statements made in the Tumkur suit, we are of the view that the truth of the story that the statements were made for the purpose of defeating the claim of the Bombay Bankers has not been established.

If that be the position, the statements contained in the written statement filed in the Chickballapur suit and in the course of the deposition given by defendant 1 in that suit which were to the effect that defendants 1 and 4 were living separately and never lived together, materially contradict the evidence given by defendant 1 in this suit that, at the time of the acquisition of the suit property, the two brothers lived together and as members of a Hindu joint family.

Now, there are two more pieces of evidence on which the Plaintiff has relied in order to establish his allegation that the two brothers were living separately. Exhibit MM is a declaration made on October 29, 1944, by defendant 1, in order to obtain a Ration card during the period when there were the food control regulations in force. In that declaration, defendant 1 has stated that he was living at that time in a house bearing Municipal Door No. 14, Mandipet. It should be mentioned here that items 1 to 4 in the schedule to the plaint in this suit are referred to in the evidence as the Mandipet bungalow. In that declaration defendant 1 mentioned only the names of himself, his wife and his children as the persons living in that house. A similar declaration was made by defendant 4 which is Exhibit NN dated October 29, 1944. In that statement, defendant 4 stated that he was living in Door No. 13.A, Mandipet and that the inmates of that portion of his house were himself, his wives and his children.

These pieces of evidence, in our opinion, make it clear that the story of defendant 1 that ever since defendant 4 came to Tumkur, after discontinuance of his studies in Bangalore, he lived with defendant 1 as a member of a Hindu joint family, consisting of himself and defendant 1 until the year 1946, when misunderstandings commenced between them, is unworthy of belief.

The learned District Judge, in recording a finding to the contrary, appears to have been principally influenced by a presumption which he thought was available in favour of the joint residence of defendants 1 and 4, by reason of the fact that since they were brothers, they must have constituted a Hindu joint family and that they must have continued to remain joint until it was definitely proved that they had become divided from one another.

It is clear that this presumption was fully displaced in this case by the evidence to which we have referred.

But, the more material question with which we are concerned in this case is whether the properties that were acquired under Exhibits P and TT were the joint family properties of the two brothers or whether they were the separate properties of defendant 4.

Although it was pleaded in the written statement produced by defendant 1 that the acquisition was made with the aid of an ancestral nucleus, that case was abandoned in the lower Court. That there was any such nucleus with the aid of which the acquisition could have been made is not what was argued before us by Mr. Venkatesha Iyer, the learned Advocate for defendant 1. The evidence in regard to the nucleus is that given by defendant 1 himself which was to the effect that nucleus consisted of a house and a shop in Chickballapur town. This he said in the course of his cross-examination, although in his examination-in-chief he stated there were two houses and a shop in Chickballapur town. Now, it is by no means clear whether this house and shop in Chickballapur town were really the ancestral property of defendants 1 and 4. Defendant 1 admitted in his cross-examination that the properties stood in the name of his mother and although it is Mr. Venkatesha Iyer's contention before us that the properties began to stand in the name of the mother after the demise of her husband, that was not what defendant 1 stated in his evidence. But, assuming that the shop and the house in Chickballapur town were the ancestral property of the two brothers, it is clear from the evidence of D.W 5 Kidiyappa that those two properties were such as could have fetched only a meagre rent of Rs. 5 to 6 a month each. It is also in evidence that the mother of defendants 1 and 4 was living in Chickballapur, and presumably, in the house in that place. She died only in the year 1945.

Now, it is settled law that the proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property was joint to establish the fact. But, where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. This view expressed by their Lordships of the Privy Council in Appalaswami v. Suryanarayanamurti(1) was referred to with approval by their Lordships of the Supreme Court in Srinivas Krishnarao Kango v. Narayan Devji Kango(2).

It is therefore obvious that even if when the purchases were made under Exhibits P and TT, the brothers were members of a joint Hindu family, the existence of possession of joint family property or possession by them of joint family funds, of such nature and value as could have formed the nucleus enabling the acquisition of the properties under Exhibits P and TT, so as to shift the burden of proving that the properties were the selfacquired properties of defendant 4, has not been eastablished in this case.

Nor did Mr. Venkatesha Iyer contend, as we have already mentioned, that any such nucleus of ancestral property existed at that time.

It is, however, urged that although there was no ancestral nucleus enabling the acquisition in question, the purchases made under Exhibits P and TT must nevertheless be regarded as purchases made for the family since they were made with the funds of the joint family business.

The finding of the learned District Judge was that there was a joint family business in existence on the dates of Exhibits P and TT and that business was a business in cloth carried on by defendants 1 and 4. Defendant 1's evidence was that in the year 1906, he started a business in glasswares, patent medicines and stationery. His evidence was that subsequently he was also trading in woollen materials and cloth. In the course of his evidence, defendant 1 sometimes referred to that business as his business and some times as the business belonging to himself and defendant 4.

This is what he said:—

“I started my private business in a room of one Appajappa at Tumkur Six months later, I shifted to Chickpet and rented Kondappa's shop. Then I began to trade in glasswares, patent medicines and stationery. I was doing cloth business when schedule property was purchased. Then, the 4th defendant was with me. Both used to trade in the Javali shop. He had no business of his own.”

It is manifest from the evidence given by defendant 1 that the business which he started in the year 1906 was his own private business.

But, the argument addressed before us was that, when Exhibits P and TT were executed, that business had become a joint family business. Defendant 1 did not explain in his evidence as to how a business which was his separate business when it was started in the year 1906, became a joint family business in 1913 when Exhibit P was executed or how it had become a joint family business in the year 1909 when half of Jodi Harohalli was purchased, since it is the case of defendant 1 that even the purchase of that property was made with the money of the joint family business. Whether in the year 1909 or 1913, the separate business had been abandoned and had been substituted by a joint family business or it had become, by reason of some fact which has not been placed before us, transformed into a joint family business has not been explained by defendant 1 in his evidence. Nor was Mr. Venkatesha Iyer able to explain to us how the business which was started as a separate business by defendant 1 in the year 1906 became a joint family business at or about the time when the properties were purchased by defendant 4 under Exhibit P and Exhibit TT. That matter has been left in a state of obscurity.

But, it appears from the evidence of defendant 1 that the business which was being carried on in the year 1913 when Exhibit P was executed was the business which he started in the year 1906. He stated in his evidence that business was first carried on in a room belonging to one Appajappa and then was shifted to a building belonging to one Kondappa in Chickpet and then was again removed to the suit property. It is obvious that it was item 1 in the suit schedule to which it was so removed.

The finding of the District Judge, as we understand it, is also that the cloth trade which, in his opinion, contributed to the acquisition of the suit properties, was the same as the trade which defendant 1 began in the year 1906. He does not appear to have been of the view that some other joint family business was started at any time subsequent to the year 1906.

Mr. Rajah Iyer, the learned Advocate for the plaintiff, pointed out to us that it was clear from Exhibits XV and XX and from the evidence of D.Ws 3 and 6 that the business carried on by defendant 1 was carried on in the name and style of Kanniah Setty and Sons. It has to be pointed out that Kanniah Setty is defendant 1. It has also been pointed out to us that in the Cash Books Exhibits XX and XXI, produced by defendant 1, it is only the name of defendant 1 that is entered as the person who was carrying on that business and that the name of defendant 4 did not appear in any of those account books.

We do not consider that anything turns upon the fact that the business was styled in that way since the business was started in the year 1906 by defendant 1 alone and there being nothing unnatural in the parties electing to continue the business under the same name and style, particularly, if it had earned a goodwill by them.

But, what has to be considered, in order to decide whether the business that was in existence at the time of the acquisition of the properties in question was a family business or continued to be a separate business of defendant 1, is whether is any evidence in this case to show that the business which had been commenced by defendant 1 was subsequently carried on as joint family business, by proof that the profits of that business were treated as earnings of the joint family business either by being brought into one account or by being divided among the members of the family. It is not the case of defendant 1 that the business grew from joint family property, and that being so, the question to be considered is whether, in the manner in which we have mentioned, the earnings from that business were treated as joint family property.

It is a sound proposition of law which has been considered to be well established that there is no presumption that a business commenced or carried on by a member of a Hindu joint family is a joint family business and that such a presumption would be unavailable even if that member was the manager of that joint family. This was what their Lordships of the Supreme Court pointed out in chattanatha Karayalar v. Ramachandra Iyer. As pointed out by their Lordships of the Privy Council in Bhuru Mal v. Jagannath, a member of a joint undivided 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. On page 16 of the report, Sir George Rankin said this:—

“Whether or not it can be said that if a joint family is possessed of some joint property, there is a presumption that any property in the hands of an individual member is not his separate individual property but joint property, no such presumption can be applied to a business. Lord Buckmaster delivering the judgment of the Board in Annamalai v. Subramanian(3) put the law thus:

“A member of a joint undivided 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”.

Now, in this case, it was incumbent upon defendant 1, especially in view of the fact that the business at the inception was a separate business, to establish that the profits of the business were treated as joint family property either by being brought into one account or by being divided between himself and defendant 4.

Defendant 1 produced no such evidence. On the contrary, he withheld from the Court the day books such the ledgers pertaining to that business and as to what exactly happened to the profits of the business and how they were treated and whether they were treated as the family income or were ever distributed among defendants 1 and 4, there is no evidence whatsoever. The story that defendant 1 told in the course of his cross-examination was that his account books were all taken away by defendant 4 in the year 1947 or 1948. There is evidence in this case that the differences between defendant 1 and defendant 4 started in the year 1946. Defendant 1 has also admitted that after the differences so arose, he made a complaint against defendant 4 in connection with a revolver licence but that he took no steps whatsoever for recovering from defendant 4 she account books which defendant 4 had taken away with him. It is, however, of the greatest significance that in paragraph 1 of his written statement, defendant, 1 asserted that the accounts of the joint family business would demonstrate the fact that the suit properties were joint family properties. That statement makes it clear that defendant 1 must have been in possession of the account books of the business when he produced his written statement in the case. We, therefore, find it difficult to believe the story told by defendant 1 that sometime in the year 1947 or 1948, defendant 4 had taken possession of the account books pertaining to the business. This explanation for the non-production of the account books of that business is, therefore, unconvincing.

There is something more to be said about this. During the cross-examination of defendant 4, he was confronted with some entries made by him in books which, according to defendant I, were the account books of that business. Exhibits XX and XXI are the cash books pertaining to that shop. Exhibit XIX is described as a katuha book or a rough day book relating to the period between June 4, 1911 and July 4, 1912. Exhibit XX is a similar cash book for the period between October 1, 1934 and May 8, 1940. Exhibit XXI is another cash book relating to the period between August 8, 1927 and June 12, 1931. The fact that defendant 1 was able to produce those books—and it is clear that the attempt of defendant 1 was only to produce those books which contained some entries in the writing of defendant 4—makes it abundantly clear that the story told by defendant 1 that the account books of the shop had all been abstracted by defendant 4 is incredible.

Now, there is evidence in the case, which is not disputed, that between the years 1916 and 1921, for a period of five years, defendant 4 was away from Tumkur. In the year 1916 defendant 4 was deputed by the Government of Mysore to Japan for the purpose of purchasing some machinery for the manufacture of pencils. He appears to have stayed in Japan for a period of eighteen months and after returning from that country, he was appointed as the Superintendent of the Home and Cottage Industries, under the Government of Mysore, for a period of two years. That he was holding that office in the year 1918, is clear from Exhibit EEE where he is described as holding that office. After he ceased to hold that office, he appears to have been in the service of the State of Travancore where he appears to have stayed for a period of eighteen months. Thus, it is clear that during a period of five years, defendant 4 was away from Tumkur. If that was so and the business which was started by defendant 1 had by then become joint family business, it was for defendant 1 to explain how the profits earned by that business during this period of five years were dealt with and whether defendant 4 ever got any portion of those profits towards his share. Defendant 1 has produced no evidence in regard to that matter.

It will be remembered that when defendant 1 gave evidence in the Chickballapur suit in the year 1929, he said that he had nothing to do with the transactions of defendant 4 and that he and defendant 4 were living separately for a period of twenty to twenty-five years, which means that from the year 1904, they had no business association with one another. It has already been pointed out that defendant 1 tried to explain this statement made by him on the ground that it was made for the purpose of defrauding a creditor. That explanation, as we have mentioned, is, in our opinion, unacceptable. That being so, if really defendants 1 and 4 were carrying on a joint family business, which, if the story of defendant 1 is true, must hate continued till the year 1946, it is inconceivable that defendant 1 would have given evidence as he did in that suit.

The conclusion that defendants 1 and 4 were not carrying on any joint family business at any time is also strongly reinforced by the way in which their income was assessed to income-tax. On May 8, 1930, defendant 1 admittedly made an application Exhibit BB to the Income-tax Officer, Tumkur, for the refund of a portion of the tax which had been paid by him. That application is in Kannada and, as we understand it, his complaint was that his income and the income of defendant 4 had been jointly assessed. He also stated in that application that he had appealed to the Deputy Commissioner for the separation of the accounts and that the Deputy Commissioner had ordered such Reparation. So, it was that he claimed a refund of the excess tax that had been collected from him. That application, presented by defendant 1, it seems to us, entirely negatives the contention urged on behalf of defendant 1 that any joint family business was carried on by defendants 1 and 4, till the year 1946.

But, the learned District Judge came to the conclusion that at the time of the acquisition of the suit property, defendants 1 and 4 were carrying on a joint family trade in cloth and that conclusion reached by him rested on the following grounds:—

(a) that defendants 1 and 4 belonged to a family which was trading in cloth;

(b) that the plaintiff himself admitted in his evidence that defendant 4 was trading in cloth; and

(c) that defendant 4 made some entries in some books of account which were the account books of the shop.

He also depended in support of that conclusion on two letters stated to have been written by defendant 4 to defendant 1 in the year 1927 and 1932.

It is true, as can be seen from Exhibits DDD and QQ and EEE, that the father of defendant 4 Sangappa was himself a cloth merchant. But, Mr. Venkatesha Iyer, the learned Advocate for the first defendant had to concede that the mere fact that Sangappa, the father of defendant 4, was carrying on a cloth trade does not by itself lead to the inference that the separate business carried on by defendant 1 should be presumed to have been a joint family business. In regard to the plaintiff's admission, made when he was in the box, that defendant 4 was also trading in cloth, it must be pointed out that the plaintiff did not admit that defendants 1 and 4 were carrying on a joint family trade in cloth.

Then, what remains to be considered are the entries made by defendant 4 in the books of account which, it is stated, are the account books relating to the business started by defendant 1.

Out of these account books. Exhibits XIX, XX and XXI, as we have already mentioned, are the only books which appear to have been kept in the regular course of business. They are bound books, the pages of which, in Exs. XX and XXI, are numbered and we have no doubt that they are the books maintained for the business, whether the business was the separate business of defendant 1 or the joint family business of defendants 1 and 4, as defendant 1 contends.

Now, the explanation given by defendant 4 when he was cross-examined about the entries he had made in those account books was that during the absence of defendant 1 and when he had leisure, he used to sit in the shop of defendant 1 and that he made those entries when he was so sitting there.

This explanation, to our mind, appears to be not unacceptable for the reason that defendant 1 himself admitted in his cross-examination that defendant 4 used to trade in that shop during his absence. This is what he stated:—

“During my absence, 4th defendant used to trade in the shop.”

This is the answer which he gave although in his examination-in-chief he tried to make it appear, although not very definitely, that the trade which was being carried on in that shop was the trade of defendants 1 and 4. It is therefore probable that the entries such as those which are admitted by him to be in his handwriting in Exhibits XIX, XX and XXI must have been made by him while he was sitting in that shop, looking after the business of his brother during his absence.

But the learned District Judge, in the course of his judgment, referred to a large number of entries contained in Exhibit XIII which, in his opinion, was a complete answer to the contention of defendant 4 that there was no joint family business, belonging to himself and defendant 1.

The argument presented on behalf of defendant 1 was that these entries contained in Exhibit XIII establish the fact that the business carried on in the shop was a joint family business and that the income from the suit house, Sira Toll Gate house and the Harohalli Village were all credited to the shop account and the expenses incurred in regard to those three properties as also the payments of the insurance premia for the policies taken out by defendant 4 were all paid out of the monies belonging to that business.

The learned District Judge appears to have thought that those entries established that fact.

But, it seems to us that inference cannot be fairly drawn from the mere fact that those bundles of papers which have been stitched together contain entries of that description. What is most remarkable in this case is that defendant 1 did not produce the day books and the ledgers pertaining to the periods during which defendant 4 made entries in Exhibit XIII. Exhibit XIII, as we have already pointed out, is some kind of a mangled assortment of loose papers on which defendant 4 made some entries, relating almost entirely to his own transactions.

Mr. Venkatesha Iyer, the learned Advocate for defendant 1, himself did not contend that Exhibit XIII can properly be described as an account book of the shop in the sense in which one understands that expression. It is we think, indisputable, and it is not denied on behalf of defendant 1, that the business must have maintained regular day books and ledgers and if any receipts from the suit properties or the Harohalli Village or the Sira Toll Gate house had been credited to the shop accounts and if any monies belonging, to the shop had been utilised for expenses incurred in regard to those properties, one should have expected defendant 1 to produce the day books and the ledgers that were being-regularly maintained in the shop to evidence those receipts and payments. If the funds of the shop had been utilised in that way, and the income from the properties had been credited to the shop account, then, it could have formed a foundation for resting a theory that the income from the business was treated as family income and that there was the blending of the income from the business with the income from the suit properties and the other properties that were purchased in the name of defendant 4. From the non production of those books of account, maintained in the shop, the inference to be drawn is that there were no entries in those books of account corresponding to the entries in Exhibit XIII and that the amounts referred to in Exhibit XIII were neither credited to the shop account and treated as part of its funds nor were utilised for the expenses which defendant 4 incurred in connection with his own properties or for the payment of the insurance premia payable by him.

We are, therefore, of opinion that from the mere fact that defendant 4 made entries in Exhibits XIII and XIV and the other account books to which we have already referred, it would be unsafe to draw any inference that the business which was being conducted at the time of the acquisition of the suit properties or during the period to which Exhibits XIII and XIV relate was a joint family business.

Exhibits II and III are the other two documents on which the District Judge depends. Exhibit II is a letter written by defendant 4 to defendant 1 on September 13, 1927. In that letter, defendant 4 complains to defendant 1 that the customers of the shop were going away, disappointed, on account of the absence of sufficient stock-in-trade in the shop and asks defendant 1 to send goods very early. He also asks him to return to Tumkur immediately and states that it would be of no use if defendant 1 was not in Tumkur during the business season. Exhibit III is again a letter addressed by defendant 4 to defendant 1. In that letter, defendant 4 suggests to defendant 1 the various varieties of clothing material that defendant 1 had to bring. In this letter again, defendant 4 insists upon defendant 1 returning to Tumkur immediately. These letters were addressed by defendant 4 from Tumkur, to defendant 1 who, it appears, was away from that place, presumably, for the purpose of replenshing the stock in the shop.

It is urged on behalf of defendant 1 that these two letters demonstrate the great interest that defendant 4 was taking in the business, which he would not have done, had not the business been a joint family business.

We feel somewhat surprised that these two letters were not put to defendant 4 when he gave evidence, with the result that defendant 4 had no opportunity to explain the circumstances in which he wrote those two letters. There can be no doubt, and it is not disputed on behalf of defendant 4, that Exhibits II and III were the letters written by defendant 4 to defendant 1. But having regard to the fact that defendant 1 admitted that defendant 4 was carrying on the trade in the shop during the absence of defendant 1, it is quite probable that Exhibits II and III were the letters written by defendant 4 to defendant 1 during one of those periods when defendant 1 was absent from Tumkur. All that Exhibits II and III indicate is that, during the absence of defendant 1, defendant 4 was looking after the trade and was also giving suggestions to defendant 1 as to the particular varieties of the cloth, which he had to bring for the business. It is, we think, impossible, on the slender foundation of Exhibits II and III, to hold that Exhibits II and III were addressed by defendant's on behalf of a joint family to which the business belonged, particularly, for the reason that defendant 1 was unable to produce any other similar letters written by defendant 4 to defendant 1 at any other time. In our opinion, the materials on which the District Judge depended did not justify his conclusions.

While there is no evidence in the case that the profits of the business were brought into one account and distributed between defendants 1 and 4 as joint family profits, there is evidence in this case that defendants 1 and 4 were having at least from the year 1918 separate accounts in the various banks in which they were having transactions. It is again surprising that there is no evidence on the question as to whether there was a bank account in connection with the business and if so where. On the contrary, what is in evidence is that defendant 4 was having a separate account in the Head Office of the Bank of Mysore in Bangalore, as can be seen from Exhibit A, and that defendant 1 was having a similar separate account in the Bank of Mysore, as can be been from Exhibit B. It is also in evidence that defendant 1 was having another account in the Tumkur branch of the Bank of Mysore, as can be seen from Exhibit C, and that he was also having a third account with the Canara Industrial & Banking Syndicate, Ltd., as can be seen from Exhibit E. Exhibit A shews that defendant 4 was having a separate account with the Head Office of the Bank of Mysore, between the years 1918 and 1952. The account of defendant 1 with the Head Office of the Bank of Mysore began in the year 1941 and continued till the year 1952, but, it is seen from Exhibit C that his account in the Tumkur branch of the Bank of Mysore started before July 12, 1918, on which date, as Exhibit C shows, he was on the debit side to the extent of Rs. 200.

Exhibit A shows that defendant 4 and defendant 1 used to pay large sums of monies to each other. Defendant 1 also admits that he was drawing cheques on defendant 4 and that defendant 4 was drawing cheques on defendant 1.

The fact that the brothers were having separate accounts in that way, over a long tract of nearly eighteen years before disputes commenced between them, appears to our mind to be entirely inconsistent with the hypothesis that they were having a joint family business.

Mr. Venkatesha Iyer has suggested to us that although these accounts purport to be separate accounts, we should hold that, in reality, they were merely separate accounts maintained for a common purpose. In support of this suggestion, Mr. Venkatesha Iyer relied upon the fact that defendant 1 credited to the account of defendant 4, as can be seen from Exhibit A, large sums of monies, sometimes as large an amount as Rs. 2,330, in the years 1924 and 1926. Mr. Venkatesha Iyer has, therefore, urged that it was very probable that the monies belonging to the family were sometimes put into the account of defendant 1 and sometimes into the account of defendant 4, but, nevertheless, utilised for the purpose of the family.

It has to be pointed out that this was not the evidence given by defendant 1. Even when it was suggested to defendant 1 that he was having separate accounts and defendant 4 was having separate accounts, and that they were drawing cheques on one another, defendant 1 did not explain that those separate accounts were really accounts of the joint family opened only for its purposes.

We have perused Exhibits A., B and C, and from the entries contained in those extracts of accounts, we have no hesitation in coming to the conclusion that those accounts were really separate accounts and were not accounts maintained on behalf of the family for a common purpose.

Mr. Venkatesha Iyer lastly relied on an entry in a note book marked as Exhibit XXIV in support of his contention that there was a joint family business in existence. That entry is marked. Exhibit XXIV (c), which shows that on May 8, 1913, a sum of Rs. 1,000 was received by defendant 1, as a result of the encashment of a hundi which had been drawn by a Tumkur merchant on his head office at Madias. Exhibit XXIV is a small book in which the entries, among which Exhibit XXIV (c) is to be found are all written in Tamil. Although Mr. Rajah Iyer, the learned Advocate for the plaintiff at one stage urged before us that Exhibit XXIV (c) did not establish the receipt of a sum of Rs. 1,000 by defendant 1 in that way, he had to admit that on a fair construction of that entry, it becomes clear that a sum of Rs. 1,000 was received by defendant 1 on May 8, 1913, as a result of the encashment of the hundi.

Mr. Venkatesha Iyer, therefore, urged that since Exhibit P under which defendant 4 made the first purchase of a portion of the suit properties was executed on May 12, 1913, and since Exhibit XXIV (c) establishes that four days before the date of that purchase, he was in possession of a sum of Rs. 1,000, the evidence of defendant 1 which was to the effect that it was this sum of Rs. 1,000 that was paid by him to defendant 4 that was paid for the purchase of the property acquired under Exhibit P, stood strongly corroborated.

We have to mention here that defendant 1 no doubt stated in his examination-in-chief, although that was not what he stated in his written statement, that a sum of Rs. 1,000 which he got as shown by Exhibit XXIV(c) and a sum of Rs. 400 belonging to the business were both paid into the hands of defendant 4 for purchasing the property under Exhibit P; but, in his cross-examination, defendant 1 admitted that there was nothing in writing to show that those sums of money were really paid to defendant 4. What one should have expected defendant 1 to do was to produce the day book relating to the business and point out an entry therein evidencing the payment of these two sums of money to defendant 4. It was not enough for him merely to establish that he had received, four days before the date of Exhibit P, a sum of Rs. 1,000 and ask us to hold, without any further evidence, that sum of money must have been paid to defendant 4 and was utilised for the purpose of purchasing the property under Exhibit P.

It is by no means clear as to what defendant 1 did with the sum of Rs. 1,000 he got from Madras. How that money was utilised and whether it was applied for the purpose of the business or whether it was applied for the acquisition of Exhibit P, is a matter which is surrounded again by obscurity. In regard to the balance of Rs. 400 which was necessary for the acquisition under Exhibit P, defendant 1 again admitted that there was nothing in Exhibit XXIV or anywhere else evidencing the payment of that amount to defendant 4.

Defendant 1 proceeded to state in his evidence that even the sum of Rs. 825 which represented the consideration for the purchase under Exhibit TT was paid from the funds of the shop and he had to admit that he had no book of account or other evidence in support of that story. On the other hand, he admitted that in the accounts which he had produced before Court, there was no entry evidencing the payment of that sum of money to defendant 4.

It is clear that the learned District Judge himself attached no importance or value to the entry Exhibit XXIV(c). He never even referred to that entry in the Course of his judgment.

In our opinion, the connection between the sum of Rs. 1,000 referred to in Exhibit XXIV(c) and the acquisition under Exhibit P has not been established in this case and that being so, that entry Exhibit XXIV(c) does not to any extent establish the case set up by defendant 1 that there was a joint family business belonging to defendants 1 and 4 or that any part of the funds belonging to that business had been utilised or applied for the acquisition of the property under Exhibits P and TT.

The conclusion to the contrary reached by the learned District Judge, it has to be pointed out, rests merely on surmises and conjectures. In paragraph 24 of his judgment, while referring to the source of the funds from which the purchase under Exhibits P and TT were made, the learned District Judge observed thus:—

“It has to be conceded that except the oral evidence of the 1st defendant, there is neither any other disinterested oral or documentary evidence in this behalf, but the circumstances and the probabilities in the case are, in my opinion, in favour of the contention urged on the side of the 1st defendant that the money for the purchase of this property came from the ‘javali’ shop. Plaintiff has admitted that the 1st defendant was a good trader dealing in stock and shares and woollen goods. The 4th defendant has stated that the 1st defendant was dealing in woollen goods, that he developed the trade, and that he was importing goods from England also. From this, it is clear that the 1st defendant was carrying on the family trade on a very large scale: Whether they were making any profit or not is immaterial for the purpose of this casa. The 1st defendant must have been handling too much of money whether it belonged to him or to others during the course of the trade.

What the learned District Judge proceeded to state in the course of his Judgment was that those monies which defendant 1 used to have with him while conducting the business were the monies which must have been utilised for purchasing the properties under Exhibits P and TT.

The learned District Judge, in our opinion, entirely overlooked the wellknown rule of Hindu law that, in the absence of sufficient ancestral nucleus or of joint family property, with the aid of which the acquisitions under Exhibits P and TT could or might have been made, it was for defendant 1 to affirmatively establish that the properties so purchased were not the self acquisitions of defendant 4 but were the joint family properties.

The conclusion reached by the learned District Judge partly rests also on what he regarded as the unsatisfactory way in which defendant 4 gave evidence as to the source from which he got the money for the purchases he made under Exhibits P and TT. The evidence given by defendant 1 was that he made those purchases with the income that he was getting from the Harohalli Village, half of which he had purchased in the year 1909, and of the remaining half of which he was the mortgagee with possession under a deed of assignment executed in his favour on August 10, 1909. The evidence of defendant 1 was that those acquisitions were also made with the funds of the joint family business and that story, as we have already pointed out, has not been established.

But, it has to be pointed out that defendant 1 himself admitted in his cross-examination that the purchase of a moiety of the Harohalli Village was made with the aid of a sum of Rs. 500 which the mother of defendants 1 and 4 gave to defendant 4. His evidence was that his maternal-uncle Huchappa arranged for that purchase. Defendant 4 stated in his cross-examination that the Harohalli purchase was made by Huchappa who later on gifted the property so purchased to defendant 4.

Mr. Venkatesha Iyer has urged before us that the purchase of the Harohalli Village made by defendant 4, since it has been made with the money paid to defendant 4 by his mother, must be regarded as a purchase for the joint family. It was suggested for the first time in this Court that the sum of Rs. 500 which his mother paid to defendant 4 represented the joint family funds.

We consider this suggestion as entirely groundless. Defendant 1 did not, at any stage, suggest that the money which defendant 1 got from his mother and with which he started his business or the money which defendant 4 got from his mother with which he purchased the Harohalli Village came from the funds of the joint family. There is no evidence that the joint family was in possession of funds, large enough to enable the mother to pay those sums of money from the joint family funds.

The position, therefore, is whether the purchase of the Harohalli Village was made in the manner stated by defendant 4 or in the manner stated by defendant 1, defendant 1 became the owner of that village and if he became the owner of that village, it is clear that nearly 3 years before he made the purchase under Exhibit P, defendant 4 was the owner of a Jodi Village which must have been yielding him some income. That the Harohalli Village belonged to defendant 4 and was not the joint family property is clear from the declaration Exhibit NN which was made in the year 1944 by defendant 4, for the purpose of obtaining a ration card. In that declaration, he stated that he was in possession of that village aud on a fair construction of that document, it should be held that he was referring to that village as his separate property.

Mr. Venkatesha Iyer brought to our notice that in the cross-examination of defendant 4, he shifted his position and stated that he purchased the schedule property out of the income of the jodi village, his other lands, his industry and other sources and that he also stated that he was exercising the profession of a school master and also other miscellaneous professions, and that the income which he was deriving from those sources was the money which he paid towards the purchase under Exhibit P. Mr. Venkatesha Iyer has brought to our notice that defendant 4 wound up that part of the evidence by stating that, at that distance of time, he could not remember ‘wherefrom all’ he got the money for the purchase of the schedule property.

We do not find any discrepancy between the evidence given by defendant 4 in his examination-in-chief and that given by him in the cross-examination. In his cross-examination, defendant 4 besides referring to the Jodi Village also referred to several other sources from which, according to him, he was able to get the money for the purchase under Exhibit P. Nor can Mr. Venkatesha Iyer derive any assistance from the fact that defendant 4 could not, when he was giving evidence remember the details of the sources from which he got the money for the purchase.

We do not consider it improbable that defendant 4 was able to make the purchase under Exhibit P with his own monies, especially, when it is found that, as disclosed by Exhibit DDD, he was exercising the profession of a money lender even in the year 1912 and that he was in possession of the entire village of Harohalli even in the year 1909.

The learned District Judge, however, referred to a statement made by defendant 4 in his cross-examination to support the inference that defendant 1 must have paid the money for the acquisition under Exhibit P. In his cross-examination, defendant 4 was asked whether it was not true that the amount with which the purchase under Exhibit P was made was paid by defendant 1. Defendant 4 denied that it was so paid but he added:

“Even if I have taken from him, I have paid it back. I do not remember from whom I took that amount.”

We are of the opinion that the answer given by defendant 4 does not, to any extent, amount to an admission, as the learned District Judge appears to have regarded it, that defendant 4 obtained the money for the purchase under Exhibit P from defendant 1. It has to be remembered that Exhibit P and Exhibit TT purport to be purchases made by defendant 4. They are executed in his name and the consideration for those purchases, as the documents recite, was paid by defendant 4. That being the position; and especially in view of the fact that it is not shown that on the dates of those purchases, defendants 1 and 4 owned any joint family property, and in the absence of evidence affirmatively establishing that the purchases were made with the aid of joint family funds, the mere fact that defendant 4 was unable to explain satisfactorily and in detail how he came to be in possession of the funds with which he made those purchases cannot be a ground or reason for our coming to the conclusion that the purchases were not his self-acquisitions. In our opinion, there is no evidence justifying the view that defendant 4 made the purchases under Exhibit P and TT with any joint family funds.

It is in evidence that the building purchased under Exhibit P was an old structure, over the improvement of which some money was spent after the purchase. As to when exactly it was done, is not clear from the evidence. Defendant 4, in his evidence, stated that those improvements were made one or two years after the purchase but modified that statement in cross-examination when he stated that he improved the structure after his retirement which must have happened about the year 1921 and that he did so with the moneys with which he had been provided by the Government of Mysore during his visit to Japan. It is seen from Exhibit XLI that while at Japan, he received in March, 1927, a remittance of Rs. 8,000 in that way for purchasing machinery for the manufacture of pencils and it is in evidence that he purchased none. He admitted he maintained no accounts in regard to the improvements but it does not appear to us improbable that he improved the house in that way in the absence of evidence that those improvements were made with family funds. Defendant 1 in his evidence, did not say so. He did not even refer to those improvements.

That being the position, and since it appears from Exhibit IX, which is a printed sale notice published in the year 1945, on behalf of Defendants 1 and 4, that the Chickballapur house and shop, even if they could be regarded as their ancestral property, was throughout in fact, defendant 1 cannot successfully contend that the purchases under Exhibits P and TT were family acquisitions.

That that is the view that we should take in this case is also clear from the conduct of defendants 1 and 4. It is seen from the evidence in the case that these two brothers were purchasing properties in their own names and were treating the properties so purchased by them as their own separate properties.

Now, Exhibit DDD is a sale deed under which defendant 4 purchased the Sira Toll gate house on August 7, 1912, for a sum of Rs. 600. Although it does not appear from the evidence that defendant 4 gave evidence about the document, it is not disputed before us that defendant 4 did make that purchase. But, what is of significance is that it was not the case of defendant 1 that purchase made under Exhibit DDD was a purchase made for the family with the aid of family funds. The consideration paid for that purchase is a sum of Rs. 600 and it is not asserted at any stage that sum of money came from the funds of the family.

It is also admitted by defendant 1 that he owns lands in at least six villages. He admitted in his evidence that he has purchased a land in Kethamaranahalli under Exhibit RR for a sum of Rs. 600 on November 22, 1944, and that when that land was acquired under the provisions of the Land Acquisition Act, he claimed that the entire compensation for that property has to be paid to him and received it. Exhibit SS is the statement which he presented on November 5, 1947, and in that statement, it is stated that out of the compensation payable to him in that way, a sum of Rs. 10,000 has to be paid to the Palai Central Bank to whom the documents of title had been given by defendant 4, presumably in respect of some loan which he must have contracted in that Bank.

Exhibit FFF which is an Index of Lands maintained by the Revenue Department of the Government shows that defendant 1, owned a land in a village called Beeramakal and defendant 1, admitted that he was paying kandaya for that land. Defendant 1, also admitted that he purchased a land in a Court sale and that the Khata is in his name although he gave a kind of an unintelligible explanation that defendant 4 fraudulently managed to bring about that court sale. That he owns lands in four more villages, namely, the villages of Oopparahalli, Hiregondanahalli, Tumkur and Kantihalli was also stated by him in his evidence. Exhibits 54 to 64 are the documents which he produced in Support of his statement that he owns lands in those villages.

There is also evidence that in the year 1930, defendant 4 started a card board factory. Exhibit XVI is a note book pertaining to that factory which was produced by defendant 1 when he produced the other books which he represented were the accounts of the joint family business. Exhibit XVI contains entries relating to the years 1930 and 1931, and it is not the case of defendant 1 that card board factory was a joint family business. Defendant 1 also admitted that defendant 4 owned 75 shares of the Bank of Mysore and that defendant 1 himself also owned some shares of that Bank, of which he sold ten shares to defendant 4. Exhibit DDD again shows that even in the year 1912, defendant 4 was doing business as a money leader and defendant 1 never claimed that money lending business as joint family business. There is no evidence that defendants 1 and 4 were making joint purchases of were borrowing monies jointly and if this be the course of conduct over a long period of years to which the above transactions relate, it is, we think difficult for defendant 1 to contend that the two purchases made at some intermediate stages under Exhibits P and TT alone were the joint family properties of defendants 1 and 4.

We must now refer to two occasions on which defendant 1 admitted that the suit properties belonged exclusively to defendant 4. This he did in the years 1922 and 1930. On August 14, 1920, four persons belonging to the town of Tumkur, brought a suit against defendants 1 and 4 in the Court of the Munsiff of Tumkur. This suit was O.S 345/20-21. The plaint in that suit is Exhibit W. In the plaint, those four persons claimed a declaration that a piece of land to the east of the property purchased under Exhibit P belonged to a Makkan and that defendants 1 and 4 had trespassed on that land and had destroyed a shed which had been constructed on that land. Exhibit DD was the written statement produced by defendants 1 and 4 in that suit, on June 22, 1922. The learned District Judge pointed out in the course of his judgment that Exhibit DD was not signed by defendant 1 and appears to have felt a doubt whether it could properly be regarded as a written statement produced by defendant 1. But the learned District Judge entirely overlooked the admission made by defendant 1, that Exhibit DD was also his written statement. In paragraphs 2 and 6 of that written statement, defendants 1 and 4 both stated that the site in dispute in that suit which was claimed by the plaintiffs in that suit as also the building which was contiguous to that property, belonged entirely to defendant 4 and that defendant 1 had no interest therein. It was therefore stated in that written statement that the name of defendant 1 should be struck off the record. In para 2 of that written statement, this is what they stated:

“It is false that the land under dispute belongs to Makkan. Defendant (1) of these defendants purchased from Abdul Azeez Saheb the house by the side of the aforesaid site, and he has been in enjoyment of the same ever since sale.”

Again, in para 6, they proceeded to state as follows:—

“The 1st defendant has purchased the house by the side of the land under dispute and has been in possession and enjoyment thereof. Therefore, the 2nd defendant's name has to be struck off from the position of defendant.”

In Exhibit U, defendant 1 stated:—

“This defendant has no right whatever to the building in dispute in the above number. As it belongs to this defendant's elder brother the 1st defendant, he will carry on the litigation. Hence, this defendant's name may be struck off from the place of the defendant.”

It is not disputed and it is clear from the boundaries of the property which was the subject matter of that suit as set out in Exhibit Z that the property was bounded on the west by the property purchased under Exhibit P and Exhibit TT.

This statement that defendant 1's name should be removed from the record was reiterated in the application filed by defendant 1, on November 3, 1924. This application is marked Exhibit U. Although in Exhibit U, it is not very clearly stated that the entire property purchased under Exhibit P belonged only to defendant 4, defendant 1 nevertheless stated that the property in dispute which was to the east of the property purchased under Exhibit P belonged to defendant 4 and that he himself had no interest in it. However that may be, it is clear that Exhibit DD at any rate contains a complete disclaimer on the part of defendant 1 of all interest in the property purchased under Exhibit P. If, as early as in the year 1922, defendant 1 disclaimed all interest in the suit properties, that, would obviously be a circumstance negativing his present contention that the suit properties were the joint family properties of himself and defendant 4.

It was, however, explained in the Court below and the learned District Judge accepted that explanation that the statements in Exhibit DD and U in which defendant 1 disclaimed all interest or title in or to the suit properties were made for the purpose of defeating the claims of the Bombay creditor who had instituted a suit against defendant 1 sometime before December, 1921, in the Bombay Court. The explanation given by defendant 1 was that apprehending that the suit properties might be proceeded against in execution of any decree that might be made in that suit, defendants 1 and 4 resorted to the stratagem of making it appear that the suit properties were the exclusive properties of defendant 4. In other words, the disclaimer in Exhibits DD and U was only a make-believe and those statements were made only for the purpose of concealing the title of defendant 1 to the suit properties.

It is in evidence and Exhibit XLVII establishes that the suit against defendant 1 in the Court of Bombay was filed sometime before December 3, 1921. Exhibit XLVII is a letter written by the solicitors of the Bombay creditor in which it was pointed out that a decree had been made against defendant 1 for a sum of Rs. 21,803-2-3 and that defendant 1 should pay up that amount. That letter bears the date December 3, 1921.

Mr. Venkatesha Iyer has urged before us that it was thereafter and within six months from that date that the written statement Exhibit DD was produced before the Tumkur Munsifi's Court in which defendant 1 said that the suit properties were the separate properties of defendant 4. He has also pointed out to us that defendant 1, in his evidence, stated that it was at the instance of defendant 4 and in order to overthrow the claims of the Bombay creditor under any decree which he might obtain against defendant 1 that he consented to produce the written statement Exhibit DD. This is what defendant 1 stated in his evidence:—

“Exhibit DD is a copy of my statement filed in that claim. I disclaimed all interest in the subject matter of that suit. Exhibit U is an application I filed in that suit. There also, I have disclaimed all interest in the property and asked for dismissal of suit as against me. 4th defendant told me that there was a decree for Rs. 22,000 against me obtained by King & Co., that I was a boy, that I should say that I had no interest in the property and that otherwise I will be rained.”

But, on the date of the production of that written statement, defendant 1 was nearly thirty-two years of age. There is no evidence in the case that the business of defendant 1 was in such straightened circumstances or that he had become so insolvent that defendant 1 had no other alternative but to resort to this artifice and thus defeat the claims of the Bombay creditor. Indeed, the subsequent events demonstrate that far from defendants 1 and 4 entertaining any idea of defeating the Bombay creditor, they were, on the contrary, making attempts to settle his claim and it is also admitted that the claim of the Bombay creditor was so settled. On December 22, 1922, the Bombay creditor filed a suit against defendant 1 in the Court of the District Judge of Bangalore, claiming a sum of Rs. 10,653-13-7, which was the amount which, according to him, was due after deducting the realisations from the sales of goods belonging to defendant 1, and for the supply of which defendant 1 placed an order with that Bombay creditor. That suit was contested by defendant 1, and ultimately, on April 3, 1925, a decree was made against defendant 1 for the sum of Rs. 9,493-14-6. Exhibit XII is the Judgment in that case.

Exhibits IV and V are the letters which, according to defendant 1 were written by defendant 4 to him during the progress of that suit in Bangalore. In those letters, defendant 4 tells defendant 1 that be should not have unnecessary apprehensions and that it would be possible to settle the claims of the Bombay creditor. He asks defendant 1 to arrange to collect a sum of Rs. 8,000 with which defendant 4 proposed to settle the claim.

Mr. Venkatesha Iyer urged before us, at one stage, that the interest evinced by defendant 4 in the matter of the settlement of that claim itself indicated that defendant 4 was himself liable along with defendant 1 to pay the amount due to the Bombay creditor.

It is, we think, impossible to accept that contention for the reason that all that those two letters indicate is that defendant 4 was taking a brotherly interest in defendant 1 for the purpose of settling that claim.

It was, however, urged that there was no occasion or need for defendant 1, to refer in the makkan suit to the title of defendant 4 to any property other than the small bit of land to which that suit related, and that it would have been enough for defendant 1, to state that he had no interest in that land. The argument presented therefore was that the superfluousness of the disclaimer of title by defendant 1 to the entire property purchased under Exhibit P, in which he persisted by making the further application Exhibit U, was itself an indication of the attempt made by defendants 1 and 4 to create evidence that property was the separate property of defendant 4 as a shield against the decree of the Bombay Creditor.

We consider the contention to be insubstantial.

In the plaint Exhibit Z, the plaintiffs in the Makkan suit, in effect, alleged that the purchase under Exhibit P had been made both by defendants 1 and 4, and that after that purchase, both defendants 1 and 4 were tenants of the land belonging to the Makkan. That being so, we see nothing strange in the repudiation by defendants 1 and 4 of the truth of that statement or in defendant 1 urging by means of an interlocutory application for the removal of his name from the record.

Defendant 4 was the purchaser under Exhibit P, and in the municipal registers, his name was recorded as the owner of the property purchased under it. He paid the municipal assessment throughout. Creation of further evidence of his exclusive ownership in so far as it was necessary to deceive a creditor was plainly redundant.

In that view of the matter, it seems to us that the explanation given for the disclaimer on the part of defendant 1 of all interest in the suit properties is entirely baseless. We should mention here that was the explanation which was also offered to explain away the statements made by defendant 1 in his written statement exhibit GG, in the Chickballapur suit which he produced in the year 1926, and in the course of his evidence, as recorded in exhibit JJ-2. In our opinion, when defendant 1 stated in exhibit DD that the suit property belonged entirely to defendant 4, and that he had no interest therein, he was stating nothing but the mere truth.

The next document which, according to the plaintiff destroys the theory that the suit properties are the joint family properties is exhibit N. Exhibit N is a registered lease deed executed on September 1, 1930, in favour of defendant 4 by defendant 1. The property leased under that document is item No. 1 in the schedule attached to the plaint. That property is referred to in that document as a property belonging to defendant 4. Defendant 1 agreed to pay under that document a sum of Rs. 150 by way of rent and also to pay higher rent of Rs. 15 per month in the event of his committing default in the payment of that rent. He also agreed to pay another Rs. 25 in the event of the building being electrified.

Defendant 1, however, in the course of his evidence stated that exhibit N did not record any real transaction of lease but that he executed Exhibit N at the instance of defendant 4 for the purpose of creating evidence in support of a claim for the payment of higher compensation in the event of the suit properties being acquired.

The argument presented before us is that there was a proposal to acquire the suit properties and that acquisition was impending on the date of exhibit N. In support of that explanation, Mr. Venkatesha Iyer drew our attention to the evidence given by defendant 4 that, in the year 1930, His Highness the Maharaja of Mysore had laid the foundation stone for the construction of the District Board Building on some other site, and that the proposed construction was subsequently dropped. He also pointed out to us that defendant 4 has admitted in his cross-examination that there was a proposal to acquire the schedule property for the District Board Building.

It seems to us that this admission made by defendant 4 can be of little assistance to defendant 4 in this case since it is not established that there was any proposal to acquire any portion of the suit properties before the date of exhibit N. If, in the year 1930, the proposal was to construct a building on some other site and His Highness the Maharaja of Mysore had laid the foundation stone on that site the idea of putting up the construction on the schedule properties must have been conceived after the abandonment of the construction of the building on that other site or prior to the date on which the foundation stone was laid by His Highness the Maharaja of Mysore. In any event, there is no material on which we can come to the conclusion that at or about the time of exhibit N, the schedule properties were intended to be acquired.

Even otherwise, we find it difficult to believe that for bolstering up of a future claim for enhanced compensation, defendant 1, who, if his case is true, had a half share in the schedule properties, would have agreed to masquerade as a mere lessee thereof. It appears to us extremely improbable that defendant 1 who by then was a successful merchant with sufficient experience of the world would have consented to make that dangerous admission, if it was not true that defendant 4 was the sole owner of the suit properties. The story told by defendant 1, that he obliged defendant 4 in that way at such great peril to himself seems to us incredible.

Mr. Venkatesha Iyer next urged that there was intrinsic evidence in Exhibit N, which established the unreal character of that transaction. He has pointed out to us that the rent fixed was Rs. 150 and that it was extremely excessive. He argued that under exhibit Z, a much bigger portion of the suit properties had been leased to the Adikarnataka hostel in the year 1926 for a comparatively small rent of Rs. 80. He further contended that the penal clauses contained in exhibit N demonstrated the artificiality of the transaction.

It appears to us that none of these contentions have any substance. The Adikarnataka hostel lease was in the year 1926 and the building leased to that hostel was in the back portion of the property purchased under exhibit P. The property leased to defendant 1 was the front portion which was preeminently suited for business purposes. Likewise, the penal clauses contained in exhibit N, do not by themselves, indicate that the transaction recorded in exhibit N was not a real transaction.

Mr. Venkatesha Iyer has urged before us, that there was no evidence that defendant 4 ever collected any rent due from defendant 1 and that the omission on the part of defendant 4 to produce any accounts recording the collection of rents from defendant 1 established the nominality of the lease deed.

But, there is nothing to show that defendant 4 was maintaining any accounts in regard to the collection of rents made by him. On the contrary, it is defendant 1 who should have produced his accounts which admittedly he was maintaining from which he could have established, if his case was true, that no rent was paid by him to defendant 4. The omission on the part of defendant 1 to produce his day books even for the period subsequent to the date of exhibit N is sufficient to negative the contention urged on his behalf that he paid no rent whatsoever to defendant 4.

Mr. Venkatesha Iyer next urged that we must accept the evidence given by defendant 1 that he asked defendant 4 for the return of exhibit N and that defendant 4 told him that he had destroyed the document.

But, it must be pointed out that this evidence is entirely unworthy of belief for the reason that it was not put to defendant 4 when he was giving evidence that he was asked for the return of exhibit N and chat he said that it was destroyed.

In our opinion, exhibit N records a real transaction of lease between defendant 4 and defendant 1. This transaction which is quite inconsistent with the case of defendant 1 that the schedule properties were the joint family properties of defendants 1 and 4, on the contrary, establishes the case for the plaintiff that the schedule properties were the self acquisitions of defendant 4.

It was next contended by Mr. Venkatesha Iyer that even if we come to the conclusion that the suit properties were the separate properties of defendant 4 when he purchased them under exhibits P and TT, there was evidence in the case that defendant 4 treated the suit properties as joint family properties. In other words, the argument was that there was such blending of the suit properties as to give them the characteristics of joint family property.

In support of that contention, Mr. Venkatesha Iyer relied only upon the fact that defendant 1 was in possession of item 1 of the suit schedule properties all along without paying any rent to defendant 4. Exhibit N in our opinion is a complete answer to this argument.

Mr. Venkatesha Iyer next contended that defendant 4 himself admitted in his cross-examination that defendant 1 was collecting the rents of the suit properties.

But, defendant 4 gave evidence that during his absence for a period of five years in japan, Bangalore, and Travancore, he had executed a power of attorney in favour of defendant 1 in order to enable him to collect the rents from his properties. Defendant 1, in his evidence, did not deny the truth of that allegation made by defendant 4.

Likewise, defendant 1 himself did not produce any account of his to show that he was collecting rents in any capacity other than that of an agent under a power of attorney executed by him.

Mr. Venkatesha Iyer next contended that exhibit XIII shows that the income from the Harohalli village, the suit house and the Sira Toll Gate house were all brought into the joint family account and that even the expenses of the registration of exhibit Z which is a lease deed executed by the Adikarnataka Hostel in favour of defendant 4 were paid out of the shop accounts.

We have already pointed out that it is impossible to believe that exhibits XIII and XIV are the accounts of the shop of defendant 1. Further, exhibits XIII and XIV do not reveal that the rents of the suit properties and other properties of defendant 4 were systematically and continuously brought into the shop account. On an analysis of the entries contained in exhibits XIII and XIV, it is to be found that whereas a sum of Rs. 1,054-0-4 was the aggregate of the receipts from the suit house, the Sira Toll Gate house and the Harohalli Village, a sum of Rs. 933-11-8 was the amount spent towards the payment of the insurance permia payable on the policies of defendant 4 and other expenses which were incurred for the suit property or the Sira Toll Gate house or the Harohalli village. Exhibit XIV also shows that whereas a sum of Rs. 95-14-0 was the realisation, from the properties of defendant 4, a sum Rs. 58-5-0 was spent out of that amount for his own purposes.

Exhibits XIII and XIV do not, in our opinion, establish any conduct on the part of defendant 4 amounting to an intentional abandonment of his special rights in his separate properties including the suit properties. It is a firmly established principle that the separate property of a Hindu ceases to be his property and acquires the characteristics of his joint family or ancestral property, not by any physical mixing with his joint family or ancestral property but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. The evidence of such intention is not forthcoming in this case.

On the contrary, the evidence establishes that defendant 4 all along regarded his properties as his own and had no intention of abandoning any of his rights therein.

In regard to the suit properties, exhibits Q-17 and KK series establish that in the Municipal Registers, the name of defendant 4 was entered as their owner. Exhibit Q to Q-16 show that from the year 1926, the Municipal assessment was paid by defendant 4. Indeed, defendant 1 admits that he was so paying kandayam out of the rent which he was collecting. Exhibit Z is the lease executed in the year 1926 by the Government of Mysore in favour of defendant 4, when it was leased by him for the purpose of the Adikarnataka Hostel. Exhibit Z series are the lease deeds executed by the other tenants between the years 1919 and the year 1948, and barring exhibit Z-4, all the other lease deeds are registered lease deeds. It is not disputed before us that those lease deeds were executed in favour of defendant 4. Defendant 1 admits that there is no lease deed executed in his name in respect of the suit property at any time.

Defendant 4, in the written statement, which he produced in the Tumkur suit in the year 1922, asserted that the suit properties belonged to him and that defendant 1 had no right therein.

It is therefore perfectly manifest that defendant 4 never did anything from which it could be inferred that at any stage the suit property was regarded either by himself or by any others or by defendant 1 as the joint family properties but not his self-acquisition.

But, Mr. Venkatesha Iyer has argued before us that Exhibit XXXVIII read with Exhibit XLVI demonstrated an intention on the part of defendant 4 to regard the properties purchased in his own name as properties belonging to the joint Hindu family.

Exhibit XLVI is an agreement of sale executed on August 23, 1945, in favour of defendant 1. It related to a house in Cottonpet, in Bangalore City. Defendant 4 admits that the advance paid on the date of that agreement was paid by defendant 1 and that he paid that advance by means of a cheque drawn by defendant 1 in favour of the vendor. But, exhibit XXXVIII shows that on October 24, 1945, the sale deed was actually executed in favour of defendant 4. The evidence of D.W 4 Shivananjappa, the vendor of the property was, that, on the date of the execution of that sale deed, the consideration for that sale was paid both by defendant 1 and by defendant 4.

Mr. Venkatesha Iyer, therefore, contended that by reason of the fact that the agreement of sale was in favour of defendant 1 who paid the advance on the date of its execution and also on the basis of the evidence given by D.W 5, we should hold that this Cottonpet house was acquired for the purpose of the family and that the house was not the separate property of defendant 4.

Mr. Narayana Rao, the learned Advocate for plaintiff, has, however, contended that defendant 1 himself did not state in the course of his evidence that the Cottoupet house was joint family property and that exhibit A, the bank account of defendant, established that a sum of Rs. 400 which was paid to D.W 4 on the date of Exhibit XLVI was paid by defendant himself through a cheque which was encashed on October 17, 1945, and that the endorsement made by the Sub-Registrar at the time of registration negatived the evidence given by D.W 4 that both defendants 1 and 4 paid the balance of consideration on the date of the Execution of the sale deed.

It has been mentioned to us that, as a result of the decree made by the District Judge, a suit has now been instituted by the plain tiff for a partition of all the family properties in which he has asked for the allotment of the suit properties to his share and that the Cottonpet house is also the subject-matter of the partition suit.

That being the position, we do not consider it necessary to express any definite opinion, in this appeal, on the question as to whether the acquisition of the Cottonpet house was an acquisition for the family or whether the purchase made by defendant 4 had become his self-acquisition. But, in so far as the argument of Mr. Venkatesha Iyer that the purchase under exhibit XXXVIII amounted to some conduct on the part of defendant 4 as would justify the inference that defendant 4 intended to treat all purchases made in his name as purchases for the family, it would be sufficient to point out that the evidence relating to the acquisition of the Cottonpet house does not justify that inference and this, in our opinion, is the proper conclusion to be drawn from the other materials on record to which we have already referred.

Mr. Rajah Iyer, at one stage, urged that the plaintiff was entitled to the protection afforded by section 41 of the Transfer of Property Act. But, he did not press that contention seriously and we do not, therefore, deal with that contention.

The learned District Judge recorded a finding that the purchase made under exhibit J and exhibits G and H were champertous.

But, Mr. Venkatesha Iyer did not, very properly, try to justify that finding.

In the result, we must hold that the suit properties were the self-acquisitions of defendant 4 and that the plaintiff, by reason of the purchase made by him under exhibits G and H, became the owner thereof.

There is one more matter which remains to be considered. The plaintiff, in his suit, claimed, as we have mentioned, a sum of Rs. 9,920 by way of damages for use and occupation. He claimed a sum of Rs. 9,920 from defendants 1 to 3 and a sum of Rs. 1,950 from defendants 4 to 6. He alleged in his plaint that defendant 1 although a tenant of item 1, had refused to pay rent to the plaintiff and that he and the other defendants had taken wrongful possession of the other items of the properties.

There is no evidence that defendants 1 to 6 wrongfully trespassed upon the suit properties or that defendant 1 is in wrongful possession of any of the suit properties other than item 1 of which he was a lessee under defendant 4. It is therefore clear that none of the defendants is liable to pay any damages for use and occupation to the plaintiff in respect of items 2 to 5 of the suit schedule properties. But, defendant 1 was a lessee of item 1, and it is undisputed that he has not paid any rent to the plaintiff after the plaintiff purchased the property under exhibits G and H. In our opinion, defendant 1 is liable to pay damages for use and occupation calculated at the rate of Rs. 150 per month from August 14, 1948, which is the date of Exhibit G, till the date of the institution of the suit.

In regard to the mesne profits payable by defendant 1 for the period subsequent to the date of the institution of the suit, there will be an enquiry, as prayed for by him, under the provisions of Order XX Rule 12 of the Code of Civil Procedure.

This appeal is allowed. In modification of the decree made by the Court below, we make a decree declaring the plaintiff to be the owner of the suit properties and direct that they shall be delivered to his possession. There will also be a decree for payment of damages for use and occupation by defendant 1 to the plaintiff, and for the ascertainment of mesne profits for the period subsequent to the suit, as directed above.

Defendant 1 must pay the proportionate costs of the plaintiff, both in this court as well as in the Court below. The other parties will bear their own costs in both the courts. The directions of the court below in regard to costs are vacated.