Balakrishna Menon, J.:— Both these appeals are against the preliminary decree in O.S No. 123 of 1974 of the Subordinate Judge's Court, Trichur. A.S No. 351 of 1979 is by the plaintiffs and A.S No. 66 of 1980 is by defendants 1 and 4. Both the appellants in A.S No. 66 of 1980 died during the pendency of the appeal and respondents 3 and 4 in the appeal are recorded and additional 3rd appellant is brought on record as their legal representatives.
2. The suit is for partition of the plaintiffs' half share in the plaint A, B and C schedule properties as belonging to a Hindu Mithakshara joint family of the descendants of late Sreemadom Krishna Iyer. Krishna Iyer had two sons Subramonia Iyer and the 1st defendant. Subramonia Iyer died in 1964. The 1st plaintiff is his son and the 2nd plaintiff is the son of the 1st plaintiff. Defendants 2 and 3 are the sons of the 1st defendant and the 4th defendant is his wife. There was no dispute that the A schedule items as originally shown in the plaint are joint family properties. There is however dispute in regard to another item 10 cents in extent in Sy. No. 1466 of Trichur Town brought in as an addition to item 1 in the A schedule as per amendment of plaint effected by order of the court below in I.A No. 1514 of 1976.
3. The defendants raised the contention that besides the A schedule properties one other item mentioned in the written statement of the 1st defendant and standing in the name of the 1st plaintiff also belongs to the joint family and is liable to be partitioned among the parties to the suit. There were also disputes in regard to the partibility of the B and C schedule properties. The court below found that the property mentioned in the written statement of the 1st defendant and standing in the name of the 1st plaintiff is also available for partition and passed a preliminary decree for partition of that property along with the plaint A schedule properties. Some of the items in the B schedule were found available for partition and in regard to the C schedule there was a direction for accounting by the 1st defendant subject to further scrutiny at the final decree stage.
4. The appellants in A.S No. 351 of 1979 challenge that part of the preliminary decree directing division also of the property mentioned in the 1st defendant's written statement and standing in the name of the 1st plaintiff. The property is a building and its site in T. Nagar, Madras purchased in the name of the 1st plaintiff for Rs. 35,000/- as per Ext. B11 sale certificate dated 4-5-1957 issued by the City Civil Court. Madras in execution of its decree in O.S No. 625 of 1954. The only point urged by Counsel for the appellants in A.S No. 351 of 1979 is relating to the correctness of the finding of the court below that the property acquired under Ext. B11 by the 1st plaintiff enures for the benefit of the joint family. There is evidence in the case to show that the joint family was possessed of properties yielding substantial income. Exts. A7, A7(b), A7(c) and Ext. B12 are some of the orders of assessment to agricultural income-tax on the family during the years 1123, 1124 etc. The A schedule immovable properties admittedly belonging to the joint family consist of 22 acres of land including cocoanut gardens. The evidence in the case would therefore clearly indicate that the joint family was possessed of considerable properties yielding substantial income. There is no dispute that Subramonia Iyer was the Kartha and manager of the family until his death in 1964, he was in possession of the joint family properties and had been deriving the income therefrom. The 1st plaintiff is only a junior member of the family. The defendants have no case that the 1st plaintiff had anything to do with the management of the joint family properties, or that he was possessed of joint family funds for the acquisition of property under Ext. B11. All that is stated in paragraph 5 of the written statement of the 1st defendant is that the family had considerable income and the omission to include the property acquired by the 1st plaintiff in the plaint is fraudulent. There is no case in the written statement that the acquisition was with the aid of joint family income. There is no evidence that the 1st plaintiff had any family nucleus in his hands, for the purpose of acquisition of property under Ext. B11. In paragraph 8 of the replication the plaintiffs have denied that the property acquired under Ext. B11 enures for the benefit of the joint family. It is their specific case that the acquisition was with funds borrowed by the 1st plaintiff from other persons. In support of the 1st plaintiff's case that he borrowed funds for the acquisition of Ext. B11 property he has produced Exts. A89, A90 and A91 pronotes executed by him and got returned after discharge. The court below was not willing to accept these discharged promissory-notes in proof of the 1st plaintiff's case that he had borrowed funds for the acquisition of Ext. B11 property. It was for want of proof of separate funds of the 1st plaintiff that the court below has come to the conclusion that the acquisition of property under Ext. B11 by the 1st plaintiff should enure for the benefit of the joint family.
5. We find it difficult to accept the reasoning and conclusion of the lower court that it is the burden of the junior member of the joint family to prove that the acquisition in his name was with his separate funds. The law is well settled that there is no presumption that an acquisition standing in the name of a junior member of a joint family belongs to the joint family unless it is shown that the family had sufficient nucleus with the aid of which the acquisition would have been made. It is further necessary to establish that the family nucleus was available to the junior member concerned with the aid of which he would have acquired the property. Counsel for the 1st defendant relies on the decision of the Supreme Court in Narayanaswami Iyer v. Ramakrishna Iyer AIR 1965 SC 289 in support of the proposition that the acquisition by a junior member shall be presumed to be on behalf of the joint family if it is shown that the family had sufficient nucleus. Counsel relies on the following passage at page 292:
“15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. Vide Amritalal v. Surath Lal AIR 1942 Cal 553 Appalaswami v. Suryanarayanamurthy, ILR (1948) Mad 440 : AIR 1947 PC 189”.
We do not however think that the decision of the Supreme Court lends support to the proposition as put forward by the learned Counsel for the 1st defendant. It is clear from the succeeding paragraphs in the judgment that the acquisitions in the names of the junior members concerned were with funds supplied by the Kartha of the family and the question for consideration was posed at paragraph 16 as follows:
“The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisition could have been made is therefore of great importance”.
(Emphasis supplied)
On the facts of the case it was found that the joint family nucleus was not sufficient for acquisition of the properties, and even though the funds for acquisition were supplied by the Kartha of the family, the acquisitions were held as not belonging to the joint family.
6. The stress is on the question as to whether the acquisitions has any nexus with the joint family nucleus. If the junior member acquiring the property has no family nucleus in his hands it is inconceivable how it can be said that the acquisition was with the aid of the family nucleus.
7. In Achuthan Nair v. Chinnammu Amma, AIR 1966 SC 411, it is stated at page 413:
“Under Hindu Law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law”.
(Emphasis supplied)
The initial presumption is that property standing in-the name of a junior member belongs to him. If however it is shown that joint family nucleus is available with him with the aid of which he could have acquired the property, the burden is on him to establish that the acquisition was with his separate funds.
8. The Supreme Court in Achuthan Nair's case AIR 1966 SC 411, referring to acquisitions by members of a marumakkathayam tarwad stated at page 413:
“But the said principle has not been accepted or applied to acquisition of properties in the name of a junior member of a tarwad (anandravan). It was held that there was no presumption either way; and that the question had to be decided on the facts of each case: (See Govinda v. Nani (1913) ILR 36 Mad 304 : Dharnu Shetty v. Dejamma, AIR 1918 Mad 1367. Ahmad v. Manha Mammad Kunhi, AIR 1926 Mad 643 and Thath Amma v. Thankappa, AIR 1947 Mad 137). But it is settled law that if a property is acquired in the name of the karanavan, there is a strong presumption that it is a tarwad property and that the presumption must hold good unless and until it is rebutted by acceptable evidence”.
Madhavan Nair J. in Echaran v. Devaki Amma 1968 Ker LT 568 and Viswanatha Iyer J. in Vannarath Parvathi Amma v. Vannarath Lakshmi Amma, AIR 1975 Ker 147, referring to the above passage in the decision of the Supreme Court stated that the presumption will arise only if it is shown that there was sufficient family nucleus with the aid of which the acquisition would have been made. Stress had always been on the availability of family nucleus with the aid of which the acquisition would have been made whether the acquisition is by the kartha or by a junior member of the joint family.
9. Sir John Beaumont in Appalaswami v. Suryanarayanamurti AIR 1947 PC 189 stated at page 192:
“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 is 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”.
A presumption of the joint family character of the property acquired can arise only if availability of joint family nucleus in the hands of the person acquiring the property and its sufficiency to leave a surplus for acquisition of property is shown. Even if the acquiring member has separate funds the presumption will be drawn if it is shown that he had sufficient family nucleus in his hands with the aid of which the acquisition would have been made. The decision of the Privy Council referred to above was followed by the Supreme Court in Srinivas Krishnarao v. Narayan Devji Kango, AIR 1954 SC 379.
10. The Supreme Court in Baikuntha Nath Paramanik v. Sashi Bhusan Pramanik AIR 1972 SC 253 stated at page 2533:
“When a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the persons who were in the management of the family properties are family acquisitions”.
11. In the light of the above pronouncements of the Supreme Court and the Privy Council, we do not think it necessary to refer to the other decisions cited at the Bar in regard to the presumption with respect to the acquisitions by a junior member of a Hindu joint family. In the present case there is not even a plea much less evidence that the 1st plaintiff was possessed of joint family nucleus with the aid of which he could have made Ext. B11 acquisition.
12. No other point is urged in A.S No. 351 of 1979. We therefore hold that the property acquired under Ext. B11 and mentioned in paragraph 5 of the written statement of the 1st defendant belongs to the 1st plaintiff exclusively and it is not available for partition among the members of the joint family.
13. A.S No. 66 of 1980 was filed by defendants 1 and 4. Both the defendants died during the pendency of the appeal. Their daughter was brought on record as supplemental appellant and defendants 2 and 3 who are already parties to the appeal were recorded as their legal representatives. A stranger alienee of art item of property from the 1st defendant has come on record as the 5th respondent in the appeal. The 1st defendant had purchased 10 cents of land in Sy. No. 1466 of Trichur Village as per Ext. B45 dated 16-1-1106 for a consideration of Rs. 250/-. This item was not originally included in the plaint. The 1st defendant had sold this item to two strangers, Chandran and Radha, as per document No. 2938 of 1976 of the Sub Registry Office, Trichur on 20-8-1976. This item was included as an addition to item 1 of the A schedule to the plaint by amendment of plaint allowed as per orders of the lower court in I.A No. 1514 of 1976. The application for amendment was filed on 4-10-1976 after the property had been sold by the 1st defendant to Chandran and Radha. They assigned this property to one Sadanandan as per a registered sale deed No. 2266 of 1977 of the Sub Registry Office, Trichur and the 5th respondent got an assignment of the property from Sadanandan as per registered document No. 108 of 1982 of the same sub registry office. The 5th respondent claims title to the 10 cents of land in Sy. No. 1466 added in the plaint by amendment effected as per orders in I.A No. 1514 of 1976. The court below has found that this item acquired by the 1st defendant is also joint family property available for partition among its members. Ground No. 13 in A.S 66 of 1980 specifically challenges the finding of the lower court relating to the character of the property acquired by the 1st defendant under Ext. B45. At the hearing of the appeal counsel for the legal representatives of defendants 4 and 5 submitted that he is not pressing ground No. 13 in the memorandum of appeal. Counsel for the 5th respondent submits that it is unfair on the part of the legal heirs of the 1st defendant not to press ground No. 13 after the 1st defendant had assigned the property to strangers for valid consideration even before it was included in the present suit. The 5th respondent has produced the registration copies of the documents relating to this item and referred to above along with C.M.P No. 23498 of 1982 in A.S No. 66 of 1980. It is clear from Ext. B45 that the property was acquired by the 1st defendant, at a time when he was a junior member of the joint family. The parties have no case that the 1st defendant was possessed of any family nucleus with the aid of which he would have made the acquisition. The consideration paid was only Rs. 250/-. The 1st defendant was a practising lawyer and he had independent source of income. The court below was also wrong in granting a decree for partition of this item without the alienee being made a party to the suit. We therefore hold that the 10 cents of land in Sy. No. 1466 included as an addition to item 1 in the plaint A schedule does not belong to the joint family and it is not available for partition.
14. Counsel for the appellants in A.S No. 66/1980 has pressed a point relating to the accountability of late Subramonia Iyer in regard to a sum of Rs. 5,000/- covered by a mortgage Ext. B14 dated 28-8-1928 obtained on behalf of the joint family. It would appear that the joint family had advanced a loan of Rs. 5000/- to one Venkiteswara Iyer, on the security of a property belonging to him as per the mortgage deed Ext. B14. A suit O.S No. 27 of 1936 on the file of the Sub Court, Kozhikode was filed for recovery of the mortgage amount by sale of the property. Subramonia Iyer obtained a decree for sale and in execution the property was sold and purchased by the decree-holder himself. He did not however take delivery of the property and an application for delivery was dismissed as time-barred. According to the defendants the 1st plaintiff representing the branch of Subramonia Iyer is liable to account for the loss suffered by the family for his failure to take steps at the appropriate time to get delivery of the property. The court below has found that the 1st defendant was actively assisting Subramonia Iyer in conducting the suit O.S 27/1936 and is equally guilty of negligence in not having taken steps at the appropriate time to take delivery of the property through court. The evidence in the case clearly shows that the 1st defendant was also closely associated with the conduct of the suit O.S 27/1936. The 1st defendant being a lawyer ought to have taken better care to see that the family does not lose the property. He was equally guilty of negligence if negligence can be attributable as the reason for the loss of the property. We therefore find no merit in the contention of the defendants that the plaintiffs are liable to account for the loss of property on account of the negligence of late Subramonia Iyer.
15. Counsel for the appellants in A.S 66 of 1980 challenges the finding of the court below that the 1st plaintiff is not liable to account for a sum of Rs. 36005/- said to have been realised by late Subramonia Iyer by sale of three items of properties belonging to the, joint family. Ext. B22 dated 8-11-1960 is said to be a statement in the handwriting of late Subramonia Iyer acknowledging his liability to account for a sum of Rs. 36,005/- obtained by sale of property belonging, to the joint family. There is an endorsement on Ext. B22 to indicate that a sum of Rs. 2800/- had been paid to the 1st defendant towards his shares. The court below has rejected the 1st defendant's claim for accounting as barred by limitation. There is also the finding that there had been similar transactions and the accounts between Subramonia Iyer and the 1st defendant had been settled at the conclusion of each such transaction. There is no evidence of a settlement of accounts between the parties in regard to the sale of the three items referred to in Ext. B22. Subramonia Iyer was admittedly the Kartha and manager of the joint family. If he had received any amount by sale of joint family properties, he is liable to account for the same to the other members of the family. It cannot be said that the liability of the kartha for accounting accrued on the date of sale. The liability to account arises when the properties of the joint family are to be partitioned among its members. If the Kartha, by sale has converted joint family property into money and is found to have appropriated the consideration received, he is bound to account for same when a partition of the family properties is to be effected among its members. The question as to whether any amount had been received by Subramonia Iyer by sale of joint family property and if there is any subsisting liability on that account will have to be decided at the stage of the final decree. The finding of the court below in regard to the liability for accounting for the consideration received by sale of properties by Subramonia Iyer is vacated and the matter is left for decision at the final decree stage.
Both the appeals are allowed to the extent indicated, above and the preliminary decree passed by the court below is modified accordingly. The parties will suffer their respective costs in both the appeals.
Counsel for the respondents in A.S No. 351 of 1979 pray for leave to appeal to the Supreme Court. We do not think that the case involves any substantial question of law of general importance that needs to be decided by the Supreme Court. The prayer for leave to appeal is accordingly rejected.
Appeals allowed.