Lord Atkin.:-
This is an appeal from a judgment of the High Court of Madras affirming a judgment of the Temporary Subordinate Judge of Cuddapah who affirmed a judgment of the District Munsif of Proddatur. The suit is brought by the plaintiff, a member of a joint undivided Hindu family, for partition. The defendants, so far as is relevant to the present issues, are his two brothers and the appellant Jogi Reddi. The question at issue is whether certain properties are, as the plaintiff affirms, joint family properties, or, as the appellant affirms, the separate property of the appellant.
Chinnabbi Reddi the plaintiff, Munir Reddi, and Chinnabali Reddi were brothers forming a joint Hindu family. They owned some 17 acres of land of poor quality and were poor folk. They had a sister, Sanjamma, who married Chinnaya, a Christian. The appellant, Jogi Reddi, is the only son of the marriage. Chinnaya was in better circumstances than his wife's family. He owned 24 acres of land apparently of good quality; part of it being represented by an undivided half-interest in land of which the other half-interest was owned, by his brother. After his marriage, Chinnaya came to live in his wife's village. He died in 1887, when Jogi Reddi, the appellant was about 4 years old, leaving the appellant the heir to his property. After his death, the mother and child went to live with the child's uncles. From that time onwards the uncles treated the minor's property in the same way as their own family property; they cultivated it and treated the produce as joint property. With their resources so reinforced they rose to comparative affluence. In 1901, Jogi Reddi attained his majority. The position remained unchanged; the family fortunes increased; individual members adventured in road repairs, indigo, nut crushing, the proceeds going to a common fund. In 1906 the outstanding half-interest in Chinnaya's ancestral property was bought for Rs. 760 from his brother's son. It was as the appellant affirms, bought for him out of his share of the proceeds of his land. It was certainly taken in his name. The purchase price was paid for out of the common fund; there appears to have been no other fund out of which it could be paid. In 1916 Chinnabbi Reddi became dissatisfied with the administration of the family affairs and claimed partition. In July 1916, an agreement was come to between the parties and reduced into writing, whereby a partition was arranged. In that division, the lands claimed by Jogi Reddi as his own were excluded from division, and a grant of further lands was also made to him exclusively. The agreement was, unfortunately, not registered, and is, therefore, under the terms of the Registration Act, not available as evidence of the transaction. It has properly been rejected by all the Courts. The argument has been addressed to the Board that it is admissible as collateral evidence of the conduct of the parties. In the view their Lordships take of the case, they have found it unnecessary to express an opinion upon this point, and for the purposes of their decision have ignored the document.
What then are the rights of the plaintiff in respect of the property which Jogi Reddi as a minor inherited from his father? The subsequent acquisition of the undivided half can be dealt with separately.
In the first place, it is to be observed that the onus is upon the plaintiff to establish that the property is partible and that he has an interest. In the second place, it is agreed that the property in question is not, and never was, in the full sense, family property. It was originally the separate property of the Christian brother-in-law and afterwards of the Christian nephew of the plaintiff. Neither of them ever was or could become a member of a joint Hindu family. The rights of the Hindu family over the property must depend on some cession by the owner. Formal grant there was none, and the case turns, as the Courts below held, upon the contractual relations of the parties, to be inferred from all the circumstances. The peculiar circumstances have naturally caused some difficulty in formulating the plaintiff's case. The plaintiff in his plaint claims the property as part of the family property, undistinguishable from the original family ancestral property. The learned District Munsif points out that it may not be quite legal and correct to describe the suit as a suit for partition of family properties.
"In one sense," he says, "it is such a suit and in another sense it partakes of the character of a suit for dissolution of partnership."
He proceeds to point out that Jogi Reddi could not have acquired the ordinary joint interest in the joint family property carrying with it the right of survivorship. He concludes, therefore, that he and the members of the joint family constituted a sort of partnership though not as joint owners, but as tenants-in-common. But obviously, this situation conflicts with the position of the brothers as members of the Hindu family. The learned Munsif solves the difficulty by concluding that
"while Jogi Reddi was a tenant-in-common with the family as a separate entity, his rights being regulated by express or implied contract, so far as the brothers were concerned, they were certainly joint tenants."
The learned Subordinate Judge seems, however, to have treated the property as having become in the full sense family property. A convert, he says,
" though not bound by the Hindu Law may by his course of conduct show by what law he intends to be governed regarding his rights and interests and his powers over property. In the present case I have no doubt that defendant 3 (the appellant) lived with his maternal uncles as a member of a Hindu family."
The learned Judges of the High Court, rejecting the suggestion of partnership, think that the combination of the family cannot be said to have gone beyond the mere stage of co-ownership; but they accept the finding of the lower Courts which they state to be that all the properties were treated as the common property of the whole family, which necessarily implied an agreement between the members that they were all to share the properties alike. This seems to ignore the difficulties pointed out by the learned Munsif as to the difference between the family relations as to the original family properties and the properties which descended from Chinuaya.
Their Lordships would further observe that all the Courts below seem to have thrown the onus upon the appellant of proving that the properties he claimed were his own, instead of placing it as it should be upon the plaintiff. It therefore appears to their Lordships that there is no question of fact so found that can be binding upon appellate Court on a second appeal; and that it is necessary for them to consider what is the true position. They have come to the conclusion that the plaintiff has failed to make out that he is entitled to a share in the property, which the appellant inherited from his father. Admittedly, if the plaintiff acquired any interest in such property he did so by reason of some implied contract. For the first twelve or thirteen years of the association of uncles and nephew from which the contract is sought to be implied, the nephew was not of disposing capacity, and their Lordships see no reason for assuming that after he reached his majority, all other circumstances, remaining the same, the necessary inference is that he made a gift to his uncles. The difficulties so clearly pointed out by the learned Munsif, of the difference between the tenure of the family ancestral property with the right of survivorship and the interest in Jogi Reddi's property with no right of survivorship, make the alleged gift the less likely. Their Lordships are not prepared to accept the view adopted apparently by the learned Munsif alone, in the Courts below, of a tenancy-in-common between the uncles as a family on the one side and the nephew on the other. The facts that the property was jointly cultivated and the proceeds of the produce pooled appear to be entirely consistent with the land itself remaining as it certainly did during the minority of Jogi Reddi his separate property. In the circumstances the purchase of the second half-interest in the name of Jogi Reddi appears to bear out the notion of the original half-interest being his; though if the property had otherwise been proved already to have become family property, no particular importance would be attached to a purchase in this form. This is not the case of an original member of a Hindu family becoming a convert, but electing to retain his interest in the family property on the old footing. Here a definite cession to a Hindu family of property which originally did not belong to the family by a non-member of the family who was a Christian has to be proved. And in their Lordships' opinion the plaintiff has not discharged the onus of proof.
This disposes of the plaintiff's claim to share in the property which descended to Jogi Reddi from his father. As has been intimated above, their Lordships are of opinion that the undivided half-share purchased from Jogi Reddi's cousin and taken into his own name is not shown to be property of the joint family. The learned District Munsif took the view that as the source from which the consideration proceeded was joint income, the purchase must also be imprinted with that character. The argument undoubtedly deserves consideration, but the circumstance mentioned is not conclusive; and the facts that during Jogi Reddi's minority the rest of the family had undoubtedly received proportionately greater advantage from the minor's separate property, and the evidence that they desired to recognize this by acquiring the second half for Jogi Reddi himself appear to displace any such presumption as is relied on by the learned Munsif.
As to the balance of the immovable property and as to the moveables, it is admitted that as the karar is unenforceable the plaintiff is entitled to a fourth share. This is consistent with the view, which their Lordships conceive to be correct, that the produce of the properties and services of the members of the family and Jogi Reddi was treated by all the parties as joint. Their Lordships were not asked to adjust any distribution that has already been decreed in this respect. Their Lordships are of opinion that the original decree should be varied on the footing that the properties included in list 1 of defendant 3's written statement filed on 29th August 1915, should be excluded from the properties in which the plaintiff is entitled to one-fourth share; and that the plaintiff is entitled excluding Jogi Reddi, to one-third of the ancestral property of the three brothers; and that the suit should be remitted to the High Court to give effect to their Lordships' judgment; and they will humbly advise His Majesty accordingly. The appellant should receive his cost from the plaintiff here and in the Courts below.
Decree varied.