JUDGMENT

(Delivered by Ramamurti, J.)

These three appeals arise out of three suits, which were disposed of by the learned Subordinate Judge, Pudukottai, by a common judgment. The substantial question involved in all the three suits is the same and as the three suits were inter-connected they were tried together by consent of parties.

It is first necessary to set out the following geneological tree to show the relationship between the parties:

The first suit O.S No. 6 of 1958 has been filed by the plaintiff therein (the appellant in these appeals), one Rathinam Pillai, for partition and separate possession of half share in the properties set out in the schedule appended to the plaint after taking into consideration, the properties mentioned in the C schedule which have been given to him. In this suit Chinniah Pillai's son (Swamikannu's brother) Rathinam Pillai is the plaintiff; Swamikannu's two sons and daughter are respectively defendants 1, 2 and 4, while Swamikannu's wife is the 3rd defendant. The case is that his father Chinniah Pillai was a native Christian, and that even though the father and the sons are all Christians, they followed the customary Hindu Law of succession and inheritance, with the incidents of the law of joint family and coparcenary property. The plaintiff's case is that his father, Chinniah Pillai, was carrying on a grocery shop and a money-lending business on a large scale at Ceylon for nearly 35 years before his death in 1929, that sometime prior to his death Chinniah Pillai came to Tirumayam his native place, and at that time, Swamikannu was in Colombo looking after the business, that after the death of Chinniah Pillai, the money-lending business and the grocery shop at Ceylon were managed by Swamikannu, the eldest member of the family, that with the aid of the business assets and the assets of the money-lending business, Swamikannu acquired several items of properties, that his two brothers, Singarayar and Nalliah were married out of the common funds of the family, that in 1907, Swamikannu obtained a release deed from the two brothers, Singarayar and Nalliah, that in 1942, Swamikannu obtained another release deed from the other brother, Doraisami, that thereafter, the plaintiff and Swamikannu alone continued to live together in the family house as members of a joint family, that Swamikannu was throughout very much attached and affectionate towards the plaintiff till Swamikannu died suddenly on 18th November 1956 at Madras and that all the properties, whether immoveable, moveable, cash and outstandings and shares in companies, whether in the name of the plaintiff or in the name of Swamikannu, are all joint family properties in which the plaintiff would be entitled to a half share.

The plaintiff's further case is that he was studying in the college till 1943 (the expenses of education being met by Swamikannu), that in 1943 a wholesale paddy and rice and grocery business and business in other items was started in the name and style of Swami Stores, with the aid of ancestral assets brought from Ceylon, that the business was carried on with the aid of ancestral nucleus and by the joint exertions of labour and skill of the plaintiff and Swamikannu, that in 1953 a money-lending business was started in Madras in the name of Swami Stores with the assets taken over from Swami Stores, Tirumayam, that in 1953 another business in cement tubes was started in Thambu Chetti Street, Madras, and that the plaintiff is entitled to a half share in all the business assets, as the investments therein and the money-lending business at Madras were all taken from the assets of Swami Stores, Tirumayam.

The plaintiff's further case is that in June 1954, Swamikannu with the consent of the plaintiff gave the grocery business at Tirumayam to the plaintiff on a valuation of Rs. 10,000, that the sum of Rs. 10,000 was debited against the plaintiff in the accounts, that the money-lending business at Tirumayam and in Madras were kept common. The plaintiff also alleged that shortly thereafter Swamikannu arranged to make separate allotment of properties in the name of the plaintiff and in the names of the members of Swamikannu's family, defendants 1 to 4, that by such piecemeal allotments, C schedule properties were allotted to the plaintiff, D schedule to the first defendant E schedule to the second defendant, F schedule to the third defendant, G schedule to the fourth defendant, and that such piecemeal allotments were made with the idea that they would be finally taken into account when a division by mete and bounds is effected between the plaintiff and Swamikannu and that at that final partition, the plaintiff would be allotted his legitimate half share in all the properties.

The plaintiff's further complaint is that when Swamikannu died all on a sudden on account of heart attack on 18th November 1956, the relationship between the plaintiff on the one side, and defendants 1 to 4 was cordial for sometime, but that later on it became strained and serious misunderstandings arose between the parties. The plaintiff further stated that as in certain proceedings in High Court in O.P 211 of 1957 and with regard to certain deposits in the banks defendants 1 to 4 asserted rights on the footing that all those properties were the self-acqusitions of Swamikannu, and that the plaintiff was not entitled to any right or share therein, the plaintiff was obliged to file the present suit to establish his rights to a half share.

O.S 20 of 1958, the second suit, has been filed by Rathinam Pillai claiming a half share on the a amounts due under two promissory notes executed by defendants 1 to 3 in the said suit in favour of late Swamikannu, on the ground that the moneys advanced to defendants 1 to 3 represented moneys of the joint family. Defendants 4 to 7 in the said suit are Swamikannu's two sons, widow and daughter respectively. The third suit, O.S 34 of 1958 was filed by the two sons and the widow of Swamikannu. The first defendant therein is Rathinam Pillai; the second defendant is one Annamalai Cettiar, a debtor and the third defendant is the daughter of Swamikannu. Rathinam Pillai has obtained a decree against this Annamalai Chettiar in O.S 36 of 1955 on the basis of a promissory note which was executed in favour of Swamikannu, but subsequently assigned in favour of Rathinam Pillai. The case of the plaintiffs in O.S 34 of 1958 is that Swamikannu assigned the promissory note in question to Rathinam Pillai merely for purposes of collections as an agent, and that Rathinam Pillai should be directed to pay over the collections made by him and also be restrained by an injunction from making further collections. Rathinam Pillai's defence to this suit is that his brother, Swamikannu, gave away this item of asset assigning the promissory note in his favour as a piecemeal allotment, and that he is entitled to the benefit of the decree in O.S 36 of 1955.

The defence of the defendants in the two suts O.S 6 and 20 of 1958 (the members of the family of Swamikannu) is to the effect that the parties are governed only by the Christian Law of Succession, that there was no relationship of members of a joint family as between them as understood under Hindu Law and that after the introduction of the Pudukottai Christian Inter State Succession Regulation of 1938, there was no question of any election or choice, that the parties are governed only by the Christian Law of Succession, and that on Swamikannu's death, they alone became entitled to all his properties, and that the plaintiff, Rathinam Pillai, was not entitled to any right or share therein. The defendant also alternatively contended that the properties left behind by Swamikannu on his death are all his own separate self-acquisitions, that Chinniah Pillai did not leave any assets worth mentioning at the time of his death in 1929, that Swamikannu by his own efforts unaided by any ancestral nucleus acquired all the properties from time to time, and that as a matter of fact, when Chinniah Pillai died, the debts far exceeded the assets left behind him, and that there was no question of Swamikannu taking over the business of his father, and acquiring properties with the aid of the business assets. The defendants stated that Swamikannu out of purely brotherly love and affection, and out of generosity educated his younger brothers, gave them moneys for their expenses, that he had obtained release deeds from the three brothers in all of which they have clearly admitted that the properties acquired by Swamikannu were all his own separate self-acquired properties. The defendants further pleaded that Swamikannu was particularly attached and affectionate towards his youngest brother, Rathinam Pillai, that he educated him and gave him some training in the several businesses that, later on, he gave the Tirumayam Stores to the plaintiff at a valuation of Rs. 10,000, that out of generosity, the plaintiff was given some shares in Gitanjali Press, that purely out of love and affection and as a gift, he gave some properties mentioned in the C schedule to Rathinam Pillai, and that whatever was given either by Swamikannu or by members of his family were purely as gift and nothing more and was not given in recognition of any right of Rathinam Pillai.

As regards O.S 20 of 1958, they contended that Rathinam Pillai had no right to sue the debtors as moneys belonging to Swamikannu were advanced as loans and that the debtors have settled the matter with the defendants.

Rathinam Pillai's claim was negatived in all the three suits. The suit for partition, O.S 6 of 1958, was dismissed on the ground that the properties in which Rathinam Pillai claimed a share were not joint family properties, but the separate and self-acquired properties of Swamikannu. The learned Subordinate Judge also held that after the Pudukottai Christian Interstate Succession Regulation of 1938 came into force the heirs of Swamikannu i.e, his widow and children alone, would be entitled to Swamikannu's properties, and that Rathinam Pillai was not entitled to make any claim on the basis of either a joint family or a coparcener.

In O.S 20 of 1958, the learned Judge held that the amounts which were sought to be recovered from the debtors formed part of the State of Swamikannu, that the plaintiff was not entitled to file a suit in respect of the same, had that the settlement which was entered into between the debtors and Swamikannu's widow and children operated as a discharge of the amounts claimed. In this view that suit was dismissed.

O.S 34 of 1958, the suit filed by the widow and sons of Swamikannu, was decreed on the finding that the promissory note which formed the subject matter of the Suit O.S 36 of 1955 was assigned to Rathinam Pillai merely as an agent for collection, and that the decree obtained in O.S 36 of 1955 must enure only for the benefit of Swamikannu's widow and sons.

Rathinam Pillai has preferred appeal, App. No. 55 of 1960 from the judgment and decree in O.S 6 of 1958. He has also preferred the appeals, Apps. 353 and 354 of 1960 against the judgment and decree in O.S 20 of 1958 and 34 of 1958 respectively.

From the foregoing narration of facts, it will be clear that the main appeal is App. 55 of 1960, arising out of the suit for partition filed by Rathnam Pillai, O.S No. 6 of 1958. In fact Counsel on both sides agreed that the decision in this appeal will practically govern and conclude the decision in the other two appeals.

On a careful consideration of the entire oral and documentary evidence, in the light of the elaborate and detailed arguments advanced before us by Counsel on both sides, we have no hesitation in coming to the conclusion that the view taken by the trial Judge is perfectly correct and sound, and is amply supported by the evidence on record. The documentary evidence in this case is over-whelmingly against the plaintiff and in favour of the defendants. Further, the plaintiff's own conduct from the time he became a major till the death of Swamikannu in 1956, clearly tends to the same conclusion.

Before we proceed farther, we think that it is but fair that we must advert to one important aspect of the case. Swamikannu has throughout acted in a very generous manner and that even though both factually and legally all the properties constituted his own self-acquired separate properties, Swamikannu had out of love and affection and purely out of generosity had given substantial properties to the plaintiff. Learned Counsel accepted the position that the properties which were given to Rathinam Pillai will be of the value of Rs. 40,000 in the year 1956. We are clearly of the opinion that the present suit is a purely speculative and a frivolous one filed by the plaintiff solely out of greed, and as a blackmail, exploiting the helplessness of the widow and the sons of Swamikannu, of whom one is yet a minor. In filing this speculative suit, the plaintiff has taken advantage of the fact that he is in possession of the account books, records and correspondence of which he has produced a portion only, and suppressed the rest, which, if produced would expose the falsity of this claim.

In analysis of the evidence in this case, it will be convenient to divide it into two periods (a) the period upto the death of Chinniah Pillai; and (b) from the death of Chinniah Pillai in 1929 till the death of Swamikannu in 1956.

Learned Counsel for the appellant conceded and accepted the position that under Hindu Law if a member of a joint family, be he, the father, or the managing member of the family, carries on any business, the presumption is that it is his own separate business, and that when any member claims the business as joint family business, the burden is upon him to establish it. Vide Chattanatha Karalayar v. Ramachandra Iyer and another(1). Learned Counsel, while accepting this legal position, contended that the plaintiff has rebutted the presumption and has established that the business is the joint family business on the ground that the plaintiff had proved that Swamikannu, when he carried on the business in question carried on the same with the assistance of ancestral nucleus, that is, the assets of the grocery business and the money lending business which Chinniah Pillai was carrying on in Ceylon. The question, therefore, naturally arises as to the character and the magnitude of the two businesses and whether Swamikannu really got into possession of any assets which could be regarded as nucleus in the legal sense of the term, with the aid of which, it could be claimed, that Swamikannu carried on the subsequent business and made acquisitions therefrom. It must be mentioned at the outset that the evidence relating to the business activities of Chinniah Pillai upto the time he lived in Ceylon is very very meagre, and practically worthless, and does not support the plaintiff's case. On the other hand, such available evidence as has been adduced by both sides shows that the business which Chinniah Pillai carried on was a very small business, and that at the time of his death the liabilities far exceeded the assets, and that whatever Swamikannu did at that time in relation thereto was merely a process of winding up and that there was no question of Swamikannu utilising any of the assets in the business which he carried on. In fact, there is absoluetly no evidence connecting the assets of the business left behind by Chinniah Pillai, with the businesses which Swamikannu carried on after Chinniah Pillai's death.

Learned Counsel for the appellant relied upon the following features in support of his case: (i) When Chinniah Pillai died Swamikannu remained in Colombo and carried on business from 1929 to 1945; (ii) Accounts of Swamikannu have not been produced, the same having been suppressed by the widow; (iii) The release deeds taken by Swamikannu from the brothers offered intrinsic evidence that the father Chinniah Pillai had left business assets which had come into the hands of Swamikannu and that the burden is upon the widow to prove the extent of the assets; (iv) The oral evidence of the two brothers P.Ws 2 and 3, Singarayar and Doraiswami, should be accepted as these are the only two people who can give evidence regarding the extent of the businesses of their father, Chinniah Pillai; (v)(a) Exs. B.29 and B.30 the proceedings in the Colombo Court showing that Chinniah Pillai and Swamikannu were carrying on business at Colombo; (b) conduct of Swamikannu purchasing properties in the name of the plaintiff and endorsing the promissory note in his favour; (c) several letters which passed between Swamikannu and the plaintiff tending to show that Swamikannu regarded the plaintiff as a member of a joint family having a share in the properties.

We have carefully examined the arguments of learned Counsel in respect of the above said features on which he placed reliance but we are unable to accept his contentions.

(His Lordship then discussed the evidence in the case and proceeded)

We accept the reasoning of the learned Subordinate Judge in paragraph 82 of the judgment and hold that Swamikannu having earned large fortunes by his individual efforts and business enterprise made some provision for the plaintiff out of attachment and affection and for no other reason.

In the estate duty proceedings as observed earlier, the plaintiff himself assisted the first defendant, while preparing a return and stated that all the properties were the separate properties of Swamikannu. We concur with the criticism of the learned Subordinate Judge, that it was only in the latter stages that the plaintiff conceived the fraudulent idea of making this claim and that with that end in view manoeuvred to have the secret recital in Ex. A.94 that the plaintiff was claiming a share in the estate. Plaintiff is guilty of fraudulent conduct in this matter is clear from the fact that he never agitated this claim before the estate duty authorities or before any tax authorities. It is unnecessary to make any further reference to the other oral or documentary evidence in this case.

As regards the two other appeals learned Counsel did not contest the findings of the learned Subordinate Judge. The discussion of the evidence with regard to the other two cases are contained mainly in paragraphs 29, 30 and 44 of the judgment of the trial Court and we are satisfied that the findings are correct, and no exception can be taken against the same. In fact, as observed earlier learned Counsel for the appellant did not canvass the correctness of these findings and he focussed his attention only upon the main appeal, App 55 of 1960.

Before we sum up we would like to make a reference to the leading decisions touching upon the perspective of approach, the burden of proof and the quantum of evidence to be adduced whenever any claim is made that any item of property is joint family property. The Hindu Law upon this aspect of the case is now well settled and does not admit of any controversy or doubt. Mere proof of the existence of joint family or the joint family owning some joint family property does not give rise to any presumption. It must be established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the disbursements towards discharge of debts etc., should be taken into account and a comprehensive view should be taken as to whether in the particular set up of the family, the joint family property could be regarded as a nucleus sufficient and adequate in character so as to impress the acquisitions with the character of the joint family property. Mere existence of nucleus however small or insignificant is not enough. Vide Vythinatha v. Varadaraja Venkataramayya v. Seshamma(2) Appalaswami v. Suryanarayanamurti(3) and Venkatasami v. Radhakrishna(4). Where the income from the ancestral property was not sufficient even for the maintenance of the members of the family, or where the outgoings and disbursements exceeded the value of the nucleus, the plaintiff cannot be said to have discharged the initial burden which lay on him. In such cases it ought not to be presumed that the separate earnings of the member were spent on maintenance and other purposes binding upon the family for it is quite natural for a member of the joint family to keep his self-acquired property separate from the joint family property, at the same time utilising the joint family property and its income for purposes binding upon the family such as maintenance of the members of the family and discharging of debts. Further when the facts and the circumstances in which the properties were acquired are known, no question of applying any presumption would arise. The law relating to the second phase of the burden of proof is stated thus in Ramakrishna Mardi v. Vishnumoorthi Mardi(5):

“The learned Subordinate Judge was of the view that when once the ancestral nucleus is admitted the onus lies on the manager of the joint Hindu family to prove that the properties acquired were his self-acquisitions. This is stating the proposition of law in very wide terms. The existence of a nucleus is not the sole criterion to impress the subsequent acquisitions with family character. What has to be shown is that the family had as a result of the nucleus sufficient surplus income from which the subsequent acquisitions could be made. This is the second phase in the onus of proof which lies on the person who sets up the family character of the properties. In these circumstances, after perusing the evidence of P.W 1 and D.Ws 1 and 2, we do not think that 100 mudis of rice would leave an appreciable surplus so as to form a basis for the acquisition of properties.”

We are also of the opinion that the plaintiff cannot build any argument in his favour relying upon the acts of bounty of Swamikannu.

“It would not be reasonable or conducive to the peace and welfare of families to construe acts done out of kindness and affection to the disadvantage of the doer of them.”

Vide Lala Moddun Gopal Lal v. Khikkinda Koer. It is sufficient to extract the last headnote in Appalasami v. Suryanarayanamoorti.

“It is dangerous to construe act of generosity or kindness as admissions of legal obligation. Hence the fact that at the instance of mediators assisting in the partition one of the members of the joint family agreed to apply some of his self-acquired property for the benefit of the members of the family cannot be taken as establishing that the member intended to bring into partition his entire self-acquired interest.”

To sum up, therefore, the position is as follows: There is absolutely no evidence regarding the character and the extent of the businesses carried on by Chinniah Pillai in Colombo. There is equally no evidence that Swamikannu got into possession of any productive ancestral nucleus of the father with the aid of which it could be said that Swamikannu made the acquisitions. Such evidence as there is shows that the debt and liabilities left behind by the father far exceeded the assets. The plaintiff has not adduced any evidence to rebut the presumption under Hindu Law that the businesses carried on by Swamikannu were his own separate businesses. The only evidence adduced by the plaintiff is that of his two brothers P.Ws 2 and 3, whose testimony is obviously interested being employees under the plaintiff. Further the recitals in the release deeds executed by them in favour of Swamikannu show that these two witnesses are thoroughly unreliable witnesses and have no scruples for giving perjured evidence of the worst character. The recitals further prove the most important fact that the brothers were having and carrying on separate business of their own. The plaintiff's own conduct, right from the time he left the college, furnishes very valuable evidence and it is wholly inconsistent and destructive of the present claim made by him. He has not put forward this claim (based upon the Ceylon business as ancestral nucleus) in his notice which preceded the suit. The two documents Exs. B.3 and B.27 and the entries in the account books of Swamikannu lead to the only inference that the plaintiff's case is wholly false and unfounded. The Swami Stores which is the sheet anchor of the plaintiff's claim has been clearly proved to be the separate business of Swamikannu. A scrutiny of the plaintiff's evidence shows that he has no regard for truth and there is no limit for his giving perjured evidence in Court. We have, therefore no hesitation in confirming the judgments and decrees of the Court below in all the three cases. In the view we have taken, it is unnecessary to consider the effect and operation of the Pudukottai Christians Inter-state Succession Regulation.

It is unfortunate that the plaintiff who could never have entertained any honest belief in the truth of the case, and who must have fully realised that his claim was baseless should have been ill-advised to plunge into the wasteful litigation. The admissions in his evidence show that he is a mere tool in the hands of interested and mischievous parties, with the result that he has squandered away a substantial portion of Swamikannu's bounties in this frivolous litigation. The answers given by the plaintiff at page 141 of the combined documents, in the cross-examination, show that admittedly the plaintiff does not know the facts personally, and that he has been instigated and set up by his father-in-law and others, who are court-birds. We do not see any reason whatsoever as to why the usual order of costs following the event should not be passed.

We, therefore, dismiss all the appeals with separate costs in all the three appeals.

V.C.S