JUDGMENT

(Delivered by Govindarajachari J.)

This is an appeal against the judgment and decree of Kunhiraman J. dismissing C.S No. 46 of 1945 in which the appellants sued the first respondent, their uncle and the second respondent, their father, for a partition of certain properties claimed to be family properties and for the separation of their three-eigths share therein. The grandfather of the plaintiffs, Seeyali Achari, died on 27th August 1926 after having executed a will on 12th May 1926 whereby he distributed his property amongst his three sons (respondents 1 and 2 and one Arumugha) and four daughters. It is common ground that the property dealt with by Seeyali Achari's will was his self-acquired property. It is unnecessary to refer to the legacies given to the daughters. A house belonging to the testator in Kallukaran Street, Mylapore was bequeathed to Arumugha and his wife for their joint and several lives with reminder in favour of their issue, if any, natural or adopted. In the absence of such issue, the house was to pass to the issue of the other sons of Seeyali Achari, namely, respondents 1 and 2. Respondents 1 and 2 were given the house bearing door No. 26 Kapaleeswarar North Ward Street. They were directed to discharge the debt borrowed by the testator from the Mylapore Hindu Permanent Fund on the security of the said house and they were to divide the house in equal shares after the testator's death and “enjoy absolutely with rights to convey by gift, exchange and sale.” There was a further direction that “the said house shall be mortgaged in common” for raising a loan upto Rs. 1,000 for the expenses of the marriage of the second respondent if such loan should become necessary, and that such debt should be discharged by both the respondents. Respondents 1 and 2 were also given some moveables worth about Rs. 300 which they were to divide equally. The second respondent was about 13 years old at the time of his father's death. It is admitted that the respondents continued to live together till 6th November 1935 when they became divided and executed a deed of partition, whereby house No. 26 Kapaleeswarar North Ward Street was allotted to the first respondent and house No. 30 in the same street which had been purchased in the name of the first respondent sometime in 1930 was allotted to the share of the second respondent. Each house was valued at Rs. 10,000 but whether that represented the actual market value or not, it has not been suggested that the houses were not of almost equal value.

The partition deed refers to a division which took place between the brothers of “gold and silverware brass vessels and mavadai and maravadai samans which are being enjoyed by us by virtue of the will dated 12th May 1926 left by our father.” The clause containing the division of the houses runs as follows:

“We hereby divide the undermentioned house, site, etc., of the value of about Rs. 20,000 which are being enjoyed by us by virtue of the aforesaid will, dated 12th May 1926, as our self-acquisition and also as having been purchased in the name of K. Daraiswami Achari, out of us, this day as per the following particulars.”

This partition deed is attacked in the plaint as one fraudulently brought about by the first defendant “taking advantage of the want of sufficient worldly experience of the father of the plaintiffs who was a devoted brother willing to submit to any dispensation by the elder brother,” and a declaration is sought that the said partition is null and void and not binding on the plaintiffs. The allegation which we read as one of undue influence was hardly attempted to be substantiated either before the learned trial Judge or before us. There is, a further allegation in the plaint that the partition did not include all the items of joint family property and that the first respondent must have secreted joint family funds to the detriment of his brother and nephews.

The third plaintiff was not born at the time of the partition. It is not clear whether the second plaintiff was born; but it is unnecessary to say anything further about it as the first plaintiff who was admittedly born before the partition can have it set aside provided he establishes grounds sufficient in law for the purpose, and the existence or otherwise of the other plaintiffs would only be material in giving the necessary directions as to the partition or the further partition to be made in case the partition of 1935 is set aside or has to be supplemented.

It is first argued on behalf of the appellants relying on the line of cases starting with Nagalingam Pillai v. Ramachandra Tevar (1) and ending with Velayuthan Chettiar v. Commissioner of Income-tax, Madras (2) that the property bequeathed to the respondents by Seeyali Achari must be regarded as ancestral property in their hands, that consequently the respondents who continued to live together as members of a joint Hindu family even after the death of their father—their brother Arumugha having left the family even during the father's lifetime—could only deal with the property bequeathed to them as joint family property, that in fact they dealt with it as joint family property when they mortgaged it to the Mylapore Hindu Permanent Fund in 1929 and again in 1931 and that the partition entered into between the respondents in 1935 whereby they dealt with house No. 26 North Ward Street and house No. 30 North Ward Street as their self-acquisitions thus ignoring and even denying by implication the rights of the second respondent's sons, is vitiated by that very circumstance and cannot be regarded as binding on the plaintiffs or any of them. The learned trial Judge held after referring to the decision in Nagalingam Pillai v. Ramachandra Tevar that there are sufficient indications in Seeyali Achari's will to show that he intended that the respondents should take the property bequeathed to them as their self-acquired property.

The correctness of this conclusion is questioned on behalf of the appellants, and it is argued that not only is there no indication in the will that the respondents should take the property bequeathed to them as their self-acquired property, but that such indications as there are would support the normal presumption that it should be ancestral property in their hands. As pointed out in Velayuthan Chetti v. Commissioner of Income-tax, Madras the view taken in Nagalingam Pillai v. Ramachandra Tevar has been so long and so consistently followed by this High Court that notwithstanding the wide divergence of opinion between the several High Courts on this matter, as noticed in Lal Ram Singh v. Deputy Commissioner of Partabgargh (3) it must be taken that a gift or bequest by a Hindu father of his self-acquired property in favour of his sons would impress it with the character of ancestral property in the absence of words indicating a contrary intention.

The directions in the will that the first and second respondents shall discharge the debt borrowed by the testator from the Mylapore Hindu Permanent Fund on the security of the house bearing door No. 26 Kapaleeswarar North Ward Street and that they both shall, after the testator's lifetime divide the said house in equal shares, do not, in our opinion, indicate any intention on the testator's part that the house should be taken by the legatees as their self-acquired property. Even in the absence of an express direction to that effect the legatees will have to discharge the debt secured on the property bequeathed and that obligation would arise whether the legatees take the property as their self-acquired property or as ancestral property in their hands. No importance again can be attached to the provision that the respondents shall divide the house in equal shares, because even if the property is taken by the respondents as ancestral property it is open to them to divide it at any time between themselves and in such division each can take only a half share. There is here no deviation from what would have happened if the sons got the property by inheritance from their father. It would also be noticed that in the leading case of Nagalingam Pillai v. Ramachandra Tevar the will contained a similar provision that the landed estates of the testator shall be divided in equal shares among his three sons then alive and the sons who may be born to him thereafter. But this was not regarded as indicating an intention that the sons should take the property as self-acquired property, though coupled with the other clauses in the will the provision was read as indicating an intention that they should take the property in severalty.

Reliance is placed on behalf of the appellant on the clause that the said house No. 26 Kapaleeswarar North Ward Street shall be mortgaged in common subject to a limit of Rs. 1,000 for the expenses of the second respondent's marriage and that the debt shall be discharged by both the respondents. This very clause is relied on by the first respondent in support of his contention and it is stated that there would have been no need for a clause like this if the sons took the property in the same way in which they would have taken it by inheritance. This clause again is, in our opinion, of too doubtful a value to be relied upon in support of an intention one way or the other. We also think that the provision that the property bequeathed to Arumugha, the other son should be taken by the issue of the first and second respondents if Arumugha and his wife Dhanabagya should die issueless, is also of no help in deciding the point at issue. The principal reliance on behalf of the respondent is, however, on the provision that the respondent shall enjoy the house bequeathed to them “absolutely with rights to convey by gift, exchange and sale,” and the decision in Jugmohan Das Mangaldas v. Sri Mangaldas Nathubhoy and a passage occurring in Lal Ram Singh v. Deputy Commissioner of Partabgargh are cited in support.

The decision in Jugmohan Das Mangaldas v. Sri Mangaldas Nathubhoy is not of much assistance as it turned principally upon the clause wherein the testator stated distinctly that he himself is the owner of the property at the time and then expressed his intention as to the future by declaring that his son is the owner after his death. The following passage in Lal Ram Singh v. Deputy Commissioner of Partabgargh however contains a distinct expression of opinion by the Privy Council in support of the first respondent's contention:

“If the criterion were to be the intention of the father when he makes the gift, there is nothing to indicate that Hanwant Singh desired to make the estate ancestral property in the hands of Lachman. His expression of opinion or desire, whichever it may be, that the property should still be governed by the Act of 1869 would indicate the contrary view; because under the Act each holder of the estate has a power to give it or will it away.”

Their Lordships of the Privy Council do not, of course, decide upon the correctness or otherwise of the views which have been held by the several High Courts in this matter, but the above passage in the judgment of the Judicial Committee is, even as an observation, entitled to great weight. Construing a similar clause it was held in Visweswara Rao v. Varahanarasimham by Pandrang Row, J. sitting singly that these are the usual words employed in order to indicate that the entire ownership is to pass and that they do not show any intention on the part of the testator as to whether the legatee is to take the properties as self-acquired properties or as joint family properties. In the course of his judgment the learned Judge refers to Lal Ram Singh v. Deputy Commissioner of Partabgargh but we doubt whether his attention was pointedly drawn to the passage which we have just quoted from that judgment, and in any event we consider that the observation of the Privy Council is sufficiently clear that the words in question indicate an intention on the part of the testator that the property should be taken by the legatees otherwise than an ancestral property.

Even if we were to take a different view it would not take the appellants' case much further. Assuming that the property was ancestral property in the hands of the respondents as between them and their respective sons, it may still be held by them in severalty. Even if they did not hold it in severalty and held it on the other hand as joint family property, the plaintiffs can have no grievance if the entire joint family property was divided into two equal shares in 1935. The partition included the house which was purchased in 1930 and shows a prima facie equal division between the brothers. Moveable properties are also stated to have been equally divided. The mere fact that the respondents chose to describe the properties as their self-acquired properties did not prejudicially affect the plaintiffs' rights in any way because it is certainly open to them to claim that they are entitled along with their father, the second respondent, to the properties taken by him at the partition.

It was next argued on behalf of the appellants that the first respondent must have suppressed considerable assets belonging to the joint family at the time of the partition. This argument rests on very slender foundation. All that is proved is that some time in 1936 he purchased for Rs. 4,000 the house bearing door Nos. 22 and 23 in Cutcheri Road, Mylapore. The sale deed has not been exhibited. It is not known whether the entire amount was paid at the time of the sale or which portion of it was so paid. There is no proof that the sale deed was preceded by an agreement to sell the property to the first respondent or that such an agreement was entered into before the partition. It is elicited from the first respondent that he demolished the building which he purchased and that it was thoroughly rebuilt at a cost of Rs. 4,000. It is not known when this rebuilding took place. The casual reference in the plaint that this reconstruction was immediately carried out cannot avail the plaintiffs in the face of the general denial of the plaint allegations in the written statement and in the absence of any evidence to support this averment in the plaint. It is suggested on behalf of the appellants that Seeyali Achari was carrying on what the learned Advocate for the appellant describes as a trade on a large scale and that when this trade descended on Seeyali Achari's death to his sons it became joint family trade in their hands in the course of which, it is argued, the first respondent must have come into possession of funds where with he bought the Cutcheri Road house. This argument fails at every step. In the first place, it is clear from the evidence of D.Ws 2 and 3 that Seeyali Achari was doing nothing more than plying his craft as goldsmith possibly employing a few workmen on monthly wages. It is not the appellants' case that Seeyali Achari treated it as something in which his sons had any interest. Assuming that the first respondent continued to engage himself as a goldsmith after his father's death and engaged a few more workmen than his father did, it cannot possibly be described as joint family trade in the absence of any acceptable evidence to show that the second respondent was actively participating in it and that when the first respondent took the assistance of his brother, the second respondent—assuming that he hid so—he intended to treat the trade as something belonging to both of them. As pointed out by the Privy Council in Bhuru Mal v. Jagannath , the considerations which apply to a trade or business carried on by a member of a joint family are essentially different from those that would apply to a property in the hands of such a member and the question whether a business carried on by a coparcener was begun or carried on with the assistance of joint family property is a question of fact upon which the burden of proof lies upon those who claim a share in the business as constituting joint family property.

We have been taken through the evidence of the first respondent, and while we are not satisfied that his evidence is frank or straight, we must still hold that the plaintiffs have far from succeeded in establishing that their father and the first respondent were joint participants in a trade or business, the benefits of which they are entitled to. The first respondent admits having kept accounts in the course of his occupation as goldsmith, but he claims that they throw no light on the transactions entered into by him. It is pointed out that he did not disclose those documents in his affidavit, but this is perhaps because he did not consider them relevant to the points at issue in the suit. If the plaintiffs desired to rely upon the first respondent's accounts in support of their case, they could have summoned for them. This they did not do. The result is that there is no evidence from which it could be said that such money as was spent in the purchase of the Cutcheri Road house in 1936 or in its reconstruction thereafter came out of any joint family trade. It is for the plaintiffs affirmatively to prove that there were joint family assets which were suppressed in 1935, and we cannot accept the argument on behalf of the appellant that the onus lies on the first respondent to prove that the partition entered into in 1935 was fair. It is noteworthy that the second defendant who could certainly speak to the joint family trade if there was one or as to how he agreed to a partition of the houses alone if there were large assets remaining in the joint family trade has not been examined on behalf of the plaintiffs, though there is every reason to believe that he is supporting his sons in the present litigation. The first respondent was not even directly asked as to where he got the money from for the purchase of the Cutchery road house. In the circumstances we have no hesitation in coming to the conclusion that the plaintiffs have totally failed to substantiate their case in every way. The appeal fails and is accordingly dismissed with costs of the first respondent.

N.R.R