Kalagate, J.
(1) These three appeals arise out of the decision in Original Suit No. 79 of 1958, instituted by the plaintiffs in the Court of the Subordinate Judge of South Kanara, for partition and possession of their one-third share in the suit schedule property.
(2) Regular Appeal No. 209 of 1961 is by defendants 7 to 11, and it relates to items 2 and 3 of the plaint 'A' schedule, whereas Regular Appeal No. 217 of 1961 is by defendants 2 to 5, and it is confined to certain items of investment claimed by defendant 2 as his separate properties, and Regular Appeal No. 223/61 is by defendant 6, and his claim therein is the same as that claimed in R. A. 209/61.
(3) We shall first deal with Regular Appeal No. 209 of 1961 which, as stated already, relates to items 2 and 3 of the plaint 'A' schedule properties. Before I set out the plaintiffs' case in relation to those properties, it will be convenient if I state the relationship of the parties as stated in the plaint.
(4) Defendant 1 is the father of defendant 2, the deceased N. S. Narasanarao and defendant 7, Plaintiffs 1 to 5 are the sons of the deceased Narayana Rao, and plaintiff 6 is his wife. Defendants 3 to 5 are the sons of defendant 2, and defendant 6 is the husband of defendant 7.
(5) The plaintiff 's case in respect of items 2 and 3, that they originally belonged to defendant 6, who sold the same to the family of the plaintiffs and defendants 1 to 5, by a sale deed, dated 18th March 1935, for discharging the debts incurred by him. After their purchase, the family raise necessary amounts on the security of these and other family properties and discharged the said debts. Admittedly, they were in possession of the said properties and discharged the said debts. Admittedly, they were in possession of the said properties after their purchase, in exercise of their right of ownership. However, defendants 1 and 2, taking advantage of the mentally weak condition of the deceased N. S. Narayana Rao, got executed a registered deed on 6-2-1953, in respect of some of the properties covered by the sale deed of the year 1935. The said deed--a deed of settlement, as it is styled--is for no consideration. The only consideration set forth therein is one of love and affection.
(6) Further, it is their case that it was not competent for defendants 1 and 2 and the deceased Narayana Rao to make a gift of those family properties in favour of defendants 6 to 11 and therefore the said deed is invalid and confers no right on them. Thus the properties covered by the sale deed of the year 1935 being joint family properties, they are entitled to claim one-third share in the said properties.
(7) The claim of the plaintiffs was resisted by the defendants. Defendants 1 to 5 filed a joint written statement contending, inter alia, that items 2 and 3 of the plaint A' Schedule do not belong to the joint family. According to them, defendant 1 acted only as an accommodator to save the family of defendants 6 to 7 and their children from losing those properties for the payment of debts incurred by defendant 6. The properties were being brought to sale in execution proceedings and it is, in such circumstances, that defendant 1 undertook to discharge the debts due by defendant 6, and after discharge of the debts by sale of some of the properties, purchased under exhibit B-4, the remaining properties were settled for the benefit of defendants 6 to 7 and their children. Thus, in effect, they contended that the properties are not joint family properties in which the plaintiffs are entitled to claim any share, and that it was a sale out and out in favour of defendant 1, and the sale was not for the joint family of the plaintiffs and defendants 1 to 5.
(8) The contention of the defendants 7 to 11, i.e., the daughter of defendant 1 and her children, is substantially the same as that of defendants 1 to 5. They contend that defendant 6 was sold the properties to defendant 1, who as full owner thereof, was entitled to deal with them according to his own pleasure. The purchase is made without detriment to the joint family property of the plaintiffs and defendants 1 to 5. They further contend that, in any event, the deed of settlement effected by defendants 1 and 2 and the deceased Narayana Rao operates as a gift under Hindu Law, and the same being valid, the plaintiffs cannot challenge it. They, therefore, cannot claim any share in the said properties.
(9) The contentions of defendant 6 are the same as those of other defendants; but he has stated in detail the circumstances under which he was compelled to sell the properties to defendant 1. He states that it was never intended that the properties should be sold to the joint family of the plaintiffs and defendants 1 to 5.
(10) As I stated before, Regular Appeal No. 217 of 1961 is confined to certain items of investment which defendant 2 claimed as his own. It appears that the plaintiffs made an application and served some interrogatories on the defendants in respect of certain investments, and defendant 2 filed an affidavit wherein he has claimed the seven items in dispute as his own personal investment. These, in short, are the pleadings of the parties.
(11) Issues Nos. 3, 4, 5 and 10 are the relevant issues which arise out of the pleadings as stated above. They are as follows:
(3) Did the family of plaintiffs and defendants 1 to 5 or the 1st defendant personally act as accommodators in respect of items II and III of the plaint A schedule properties?
(4) Do the said A schedule properties belong absolutely to the defendant 6 to 11 and are they therefore not partible?
(5) Is the deed dated 10-2-1953 executed in respect of the said properties valid and binding on the plaintiffs?
(10) Were the items II and III acquired with joint family funds?
(12) The learned Judge, on the evidence, found that items 2 and 3 of the plaint 'A' Schedule were not acquired with the aid of the joint family funds and that the joint family assets did not suffer any appreciable detriment. But he found that the said properties did not belong to defendants 6 to 11 as, according to him, defendant 1 treated them as joint family properties. Therefore defendants 6 to 11 cannot claim any right therein. He also held that the deed of settlement does not operate as a gift and that the same in invalid. He negatived defendant 2's claim that the seven items stated by him in his affidavit were his own personal properties and held that they were the investment of the joint family in which the plaintiffs had one-third share. As a result of these findings, he decreed the plaintiff's suit, and it is against the said decree that these three appeals have been preferred by the various defendants in so far as it affects them.
(13) Regular Appeal No. 209 of 1961 relates to items 2 and 3 of the plaint A schedule. These two items are claimed as joint family properties by the plaintiffs. They are part of the properties by the plaintiffs. They are party of the properties covered by the sale deed Ext. B-4, since defendant 1 has sold some of the properties covered by it.
It is the case of the plaintiffs that the properties purchased by defendant 1 under Ext. B-4 in the year 1935 from defendant 6 belong to the joint family; but they have led no evidence whatsoever; nobody has gone into the witness box on their behalf. The circumstances under which Ext. B-4 executed by defendant 6 on behalf of himself and his minor son have been mentioned by him in his written statement and in the sale deed itself. It is stated in Ext. B-4 how defendant 6 Shankaranarayananappayya had incurred debts. It is further stated that for some years past, the prices for the produce of grains had gone down and that as he did not get any money by way of loan at a reasonable rate of interest, the debts incurred by him had increased and that he was not in a position to discharge the same.
It is also stated that some of the properties had been brought to sale in execution proceedings started by one Mangesha Rao who had obtained a mortgage decree against him and the sale was fixed on 25th March 1935. Ext. B-4 has been executed on the 18th March 1935 i.e., seven days prior to the date fixed for the sale of the properties. Since he found himself unable to pay off the debts and since defendant 1, being his father-in-law, agreed to undertake the liability of the debts, he sold those properties to him for a sum of Rs. 10,999 which amount, as stated in the sale deed, covered the debts due by him. It is to be seen from this document that defendant 1 undertook to discharge the liability of defendant 6 in respect of the debts incurred by him. So the consideration for the sale deed must be held to be the undertaking of the liability by defendant 1 to discharge the debts of defendant 6.
(14) Then it is necessary to refer to Ext. B-5, which is a hypothecation bond executed by defendant 1, in favour of Padmanabha Baliga of Buttwal. That deed is executed on the 5th June 1935, i.e., within less than three months from the date of the sale deed Ext. B-4. He has raised a sum of Rs. 12,500 from Padmanabha Baliga the mortgagee. In that document, a detailed statement has been made in respect of the property purchased by him (defendant 1) under Ext. B-4. It is stated that he having undertaken the liability to discharge the debts due by defendant 6, he had taken Rs. 3,200 as an on demand pronote executed by him on 28th March 1935. As I stated earlier, the sale of some of the properties belonging to defendant 6 had been fixed for 25th March 1935 and therefore in order to clear that debt. He incurred the debt under the promissory note. It is also mentioned therein that the mortgagee Padmanabha Baliga should discharge the principal debt due to Mangesha Rao, which was stated to be Rs. 7,355-14-9. Thus it could be seen that this amount plus the loan raised by him viz., Rs.3,200 under the promissory note, were to be utilised for the discharge of the debts incurred by defendant 6, the liability of which was undertaken by defendant 1. He has further stated that he had to receive Rs.1,868-8-5 which amount should be paid to the lawyer who would present the document for registration.
(14-A) One of the important recitals in this document is that the property i.e., serial No. 3 in Ext. B-5, was stated to be liable only for the debt referred to in the sale deed Ext. B-4 i.e., the liability undertaken by him in regard to the payment of debts due by defendant 6 to the extent of Rs. 10,000 and odd. Thus the debts were discharged as stated in Ext. B-5. It is also to be seen from this document that some of the properties belonging to the joint family were also mortgaged along with the properties covered by Ext. B-4. The implication of mortgaging the joint family properties along with the properties covered by Ext. B-4 will be considered later on at an appropriate place. Thus it is clear from this document Ext.B-5 that defendant 1 borrowed Rs. 12,500 from Padmanabha Baliga and discharged the liability undertaken by him under Ext. B-4.
(15) Then there are two other documents which are material; they are Exts. B-12 and B-14. ext. B-12 is dated 10th March 1942. It is a release deed executed by Padmanabha Baliga in favour of the first defendant, having acknowledged the receipt of Rs. 8,000. Ext. B-14 is dated 5th July 1943. It is a registered receipt executed by Krishna Baliga, son of Padmanabha Baliga (who, it appears, in the meantime, died) in favour of the 1st defendant. Therein he has acknowledged the receipt of Rs. 4,781-4-0. Thus the mortgage has acknowledged the receipt of the mortgage money due under Ext. B-5, and the mortgage is thus extinguished. The monies paid under these two documents were realised by defendant 1 by the sale of some of the properties covered by Ext. B-4.
(16) Exhibit B-7 is dated 6th May 1941 under which the 1st defendant has sold some of the properties covered by Ext. B-4 in favour of one Verappa Gowda for Rs. 3,500. Ext. B-8 is also dated 6th May 1941. This is a deed of assignment of the usufructuary mortgage for Rs. 1,100 in favour of the said Veerappa Gowda.
(17) Ext. B-9 is dated 11th February 1942. This is a sale deed executed by defendant 1 in favour of one Yamune alias Pamavathi Amma in respect of certain properties covered by Ext. B-4 for a sum of Rs. 1500.
(18) Ext. B-10 also is dated 11th February 1942. This is an arwar or a mortgage in respect of some properties covered by Ext. B-4 in favour of one Mahalakshmi Amma for Rs. 1,526-50.
(19) The last document is Ext. B-11, dated 9th Jan. 1942. This is a sale deed executed by the 1st defendant in favour of Sri Siddhi Vinayaka Maha Ganapathi Bhandaram for Rs. 2,425. These properties had been purchased by defendant 1 from defendant 6 under a separate document.
(20) Thus, it could be seen that defendant 1 had either by sale or mortgage of some of the properties covered by Ext. B-4 and some of the properties purchased by him separately from defendant 6, realised a sum of Rs. 10,093 under Exts, B-7 and B-11 and utilised the same for the discharge of the debt due to Padmanabha Baliga under Ext. B-5.
(21) It is significant, as I stated earlier, to note that it is stated in Ext. B-5 that the properties covered by Ext. B-4 were made liable only for the debts specified therein and to be discharged by defendant 1. These are the relevant documents which are material for our consideration to find whether the properties covered by Ext. B-4 are joint family properties.
(22) Defendant 1 has been examined in this case as D. W. 1, and he has stated in his deposition that he took the sale deed on 18th March 1935 from the 6th defendant under Ext. B-4 for a sum of Rs. 10,999. These properties were put up for sale in execution of the decree obtained by Mangesha Rao. The sale in his favour was effected for discharging the debts and the sole consideration was the liability undertaken by him to discharge those debts. He has stated that no extra consideration was paid. He took the sale deed in his individual right and not on behalf of his (defendant's) joint family. Thereafter he says that the 6th defendant had 3 or 4 other arwar rights at the time of the sale, and he also transferred those rights to him.
Thus, according to him, he purchased the properties covered by Ext. B-4 and also the other properties relating to the arwar rights of defendant 6. He further states that in order to discharge those debts, he executed a mortgage in favour of Padmanabha Baliga for a sum of Rs.12,500 on 5th June 1935, under Ext. B-5. He states that he did not use any family funds or income for discharging the decree and other debts and that he discharged them by selling a portion of the properties purchased by him and also assigning the mortgagee rights under Exhibits B-7 to B-11. He then states that having realised the amount, he paid the same to Padmanabha Baliga and got two release deeds executed by him viz., Exts. B-12 and B-14. Thus he states that he discharged all the debts for which he was liable under Ext. B-4. He again makes it clear that he did not utilise any family funds or income for discharging any of the debts subjected under Ext. B-4.
(23) He further states that he maintained separate accounts relating to the properties purchased from his son-in-law, and Ext. B-17 is an extract of the said accounts. Thus it is clear from the evidence of the defendant 1 that no part of the family funds was utilised by him for the purchase of the property covered by Ext. B-4 or other properties of which he took assignment from defendant 6. It is also clear that since he had no money with him, he had to raise a loan of R s. 12,500 from Padmanabha Baliga by giving security of the properties purchased under Ext. B-4 and some of the properties belonging to their own family. That debt of Padmanabha Baliga was discharged by sale or assignment of some of the rights in the properties purchased by him from defendant 6.
(24) he has been cross-examined by the plaintiffs' learned counsel, and the evidence just referred to has not been challenged in his cross-examination. The cross-examination seems to have been directed to elicit that though the liability was discharged in the year 1952, he did not release the property in favour of defendant 6 or his wife or her children till 1953. He has stated in cross-examination that what is set out in Ext. B-6 i.e., the deed of settlement executed by him in the year 1953, is correct and true. He further stated that N. S. Narayana Rao, the deceased father of plaintiffs 1 to 5 and the husband of plaintiff 6 had no objection to release the properties and he took the assent of his two sons in order to avoid complications from the next generation. That was by way of usual precaution. As I stated before the plaintiffs have led no evidence to show that any part of the family funds was utilised by defendant 1 for the purpose of the properties covered by Ext. B-4 or other properties.
(25) From the evidence, the learned trial Judge has found that items 2 and 3 were not acquired with the aid of the joint family funds and, in our view, this finding of the learned judge accords with the evidence, both oral and documentary, referred to above. We, therefore, agree with that finding and hold that items 2 and 3 were not acquired by defendant 1 with the aid of the joint family funds.
(26) However, it was contended on behalf of the plaintiffs by their learned counsel Mr. Rama Kanth that defendant 1 has paid Rs. 191-3-8 to defendant 6 for the expenses towards stamp and registration fees etc. It is stated in Ext. B-4 that this amount was taken by defendant 6 on the previous day, and that is stated to be the debt due by him. We find from Ext. B-17, which is an extract of the accounts kept by defendant 1 in regard to those properties, that an amount of Rs. 180 has been debited to him on 18-3-1936 as could be gathered from the record at page 191. This only shows that defendant 6 was a debtor to the family, and that defendant 1 advanced the amount to him by way of credit, Defendant 1 has stated in his deposition that no part of the family funds was utilised towards purchase, and the veracity of this statement has not been challenged, as already observed, in his cross-examination by the plaintiffs. The contention that this amount must have been paid out of the joint family funds cannot therefore be accepted in view of the evidence given by defendant 1. Even otherwise, when the consideration for the sale deed is the discharge of the liability undertaken by defendant 6 to the extent of Rs. 10,999, this paltry sum of Rs. 191 cannot be considered to be a sufficient nucleus to impress the properties purchased under Ext. B-4 with the character of joint family properties.
(27) The learned Judge, having found that items 2 and 3 were not acquired with the aid of the joint family funds, proceeded further to consider whether the properties still did not belong to the joint family. He states that since defendant 1 treated the properties covered by Ext. B-4 as joint family properties, in that he mortgaged those properties along with other properties, belonging to the joint family favour of Padmanabha Baliga under Exhibit B-5, this conduct, according to him, clearly indicates that he did not intend to treat them as his separate properties, and treated them on par with the properties belonging to his joint family, and, therefore, thought those two properties were acquired without the aid of the joint family funds, nonetheless they lost the character of being his separate properties and became joint family properties. This part of the finding of the learned Judge has been seriously challenged before us by the learned Advocate-General, who appears for the appellants. He contends that the learned trial Judge was in error in holding that merely because defendant 1 mortgaged some of the joint family properties along with the properties covered by ext. B-4, he, by his conduct, intended to abandon his right of ownership over them and treated them as properties belonging to the joint family. In our view, the contention of the learned Advocate-General is well-founded and must be accepted.
(28) It is to be seen that the effect of the learned Judge's finding is that defendant 1, in fact, blended those properties acquired by him with the joint family properties thus making them joint family properties. In order that there should be a blending, it is necessary that the person must unequivocally express his intention to abandon his ownership in the property, thus making it the joint family property. In Lakkireddy Chinna Venkata Reddi v. Lakkireddy Lakshmanna, : [1964]2SCR172 this is what their Lordships of the Supreme Court say in para 9 of their judgment.
'Law relating to blending of separate property with joint family property is well-settled. property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred......'
(29) The learned Advocate-General then relied upon some of the observations in Naina Pillai v. Daivanai Ammal, AIR 1936 Mad 177, wherein head-note (b) runs thus:
'By merely being dealt with as joint family property the self-acquired property of the person who deals with it as such does not necessarily lose its character of separate property. The person who alleges that the property is joint family property must show that the owner has voluntarily thrown the property into the joint stock with the intention of abandoning all separate claims on it.'
(30) Thus, reading these two decisions, it is obvious, that, merely because defendant 1 has dealt with the property acquired by him along with the joint family property would not justify an inference that he intended to abandon his right of ownership over it. Therefore, the finding of the learned trial Judge that by mortgaging the properties covered by Ext. B-4 along with joint family properties, defendant 1 intended to abandon his right of ownership over them, cannot be justified and must be set aside.
(31) However, it is contended on behalf of the plaintiffs by their learned counsel Sri Rama Kanth that it is not shown that the properties purchased under Ext. B-4 have been purchased by defendant 1 with out detriment to the paternal assets. He contended that the properties acquired under Ext. B-4 could not have been acquired but for the fact that he mortgaged the joint family properties along with the properties covered by Ext. B-4, raised funds and discharged the liability and, therefore, to the extent that the joint family properties have been mortgaged for acquiring the properties covered under Ext. B-4, it must be held that the acquisition made is by the detriment to the joint family properties.
(32) The doctrine of detriment is based on Hindu Law text, which is 'x x x (text not given-Ed)' which translated into English, would mean 'without detriment tot he father's estate.' Now can we say in the instant case, that the properties acquired under Ext. B-4 are acquired by the detriment to the paternal estate? It is quite clear from the evidence of defendant 1 that no part of the family funds was used in discharging the liability undertaken by him under Ext. B-4, and the veracity of that part of his evidence has not been challenged in cross-examination.
Further the joint family properties mortgaged are redeemed and continue to be the joint family properties. Can we then say that, by the mere fact the joint family properties have been mortgaged along with the properties purchased under Ext. B-4 for raising a loan, the properties covered by Ext. B-4 are acquired by the detriment to the joint family estate?
We have already stated that the mortgage Ext. B-5 was discharged and the property belonging to the joint family remained safe in the joint family, and the reason why the joint family properties were also included in the mortgage, as stated by defendant 1, is that the mortgagee Baliga insisted that the other properties of the family also should be included in the mortgage and that is why they came to be included. But it is quite clear that the properties covered by Ext. B-4 were liable only for the debts to be discharged thereunder; that is, the joint family estate was in no way liable for the discharge of the liability undertaken by defendant 1. It is true that the joint family properties were subjected to the mortgage. But merely because they were mortgaged along with the properties covered by Ext. B-4 it could not be said that there is any detriment to the paternal property.
(33) It has been held by the High Court of Madras in : AIR1955Mad705 , Sivaramakrishnan v Kaveri Ammal, that--
'Where ancestral property is sold by a coparcener and the sale proceeds are utilised for the acquisition of other property, either with or without self-acquired funds, the property so acquired would partake of the character of ancestral property in which sons subsequently born or adopted would acquire coparcenery rights because such property has been acquired 'by detriment to the paternal estate', the detriment being that the original property, which would have come to him but for the alienation, is not available at the subsequent date.'
Thus, according to their Lordships, if, the property is lost to the family and is not available to the person at a subsequent date and if by such sale the other properties are acquired along with the aid of self-acquired funds, then the property acquired under such a document is joint family property and must be held to have been acquired by the detriment to the joint family.
(34) Their Lordships further observe that:
'Apart from cases of such detriment, where from the income of ancestral property a sole coparcener makes purchases the only legal basis for imputing joint family character to the subsequent acquisitions is the theory of accretion which would be dependent upon the intention of the acquirer. In such cases, the mere utilisation of any portion of the income from ancestral property would not 'ipso jure' render the acquisition part of the ancestral property in which a son subsequently born or adopted would acquire a right by birth.'
Thus the conclusion which their Lordships arrived at in that case is, as stated by them in para 30 of their judgment,
'We have only to add that the conclusion which we have reached above is that the mortgages effected by defendant 1 on item 1 of a Schedule in 1906 and 1908, which mortgages were repaid before 1910, and the utilisation of these monies for starting a business or a toddy shop do not render that business or joint family business so as to make the properties purchased with its aid joint family properties in which the son can claim a share in the partition.'
And in support of that conclusion, they referred to the decision in Bachcho Kunwar v. Dharam Das, (1906) ILR 28 All 347.
In that decision, the question that arose for consideration was whether the temporary use of the joint family funds made by a member of the family, would not cause a real detriment to the ancestral property. This is what their Lordships stated:
'But then it is further contended that the property was acquired from joint ancestral funds. The contention is that, inasmuch as Paras Das made use of the moneys in the family till for the expenses of the litigation with Dip Chand, the property the possession of which he recovered by virtue of the compromise became impressed with the character of and must be treated as joint family property, notwithstanding the fact that the moneys so used were fully repaid in the course of a year. On behalf of the appellant it is said that the money was merely borrowed by Paras Das, and that this is shown by the accounts kept by him in regard to the property. The family was a banking firm and had a large amount of money at its disposal, and it cannot be said that the temporary use made by Paras Das of the money applied in the expenses of the litigation caused any real detriment to the ancestral property.'
The detriment caused to the ancestral property must be a real detriment. This is what the Supreme Court has stated in Piyare Lal Adishwar Lal v. Commissioner of Income-tax, Delhi, : (1966)IILLJ759SC . It was argued in that case on behalf of the respondent that because Sheel Chandra had lodged joint family property by way of security, his earnings as Treasurer became a part of the income of the Hindu undivided family for the reason that the acquisition was not without risk to the family estate; and in support of that contention, reliance was placed on certain decision stated in para 15 of their judgment.
Their Lordships pointed out in what context the Privy Council used the word 'risk' or 'detriment to the family property' in 48 Ind App 162=(AIR 1921 PC 35) and then stated that all those cases were jointly family funds had been expended to fit a member of the joint family for the particular profession or avocation the income of which was the subject matter of dispute. However their Lordships pointed out that the respondents were not able to refer to any decision in which it was held that the mere fact of giving joint family property in security for the good conduct of a member of the family employed in a post of trust was sufficient to make the emoluments of the post joint family property because of any detriment to family property or risk of loss and that it had not been shown in that case that there was any detriment to the family property within the meaning of the terms as used in the decided cases.
Thus it would be apparent from this decision as well as from the decisions of the High Courts of Allahabad and Madras that neither the mortgage nor the use of the joint family property as security would make the acquisition a joint family property. In the instant case, defendant 1, mortgaged the joint family property along with other property covered by Ext. B-4, and that too because the mortgagee insisted on the inclusion of the joint family property in the mortgage, but none of the joint family properties were liable for the discharge of the debts covered by Ext. B-4 and they continue to be the joint family property after the discharge of the mortgage Ext. B-5. Thus it is clear that items 2 and 3 of the plaint A schedule are acquired without any detriment to the paternal estate and therefore they are the separate properties of defendant 1. However, it was contended on behalf of the plaintiffs by Mr. Rama Kanth that defendant 1 was the manager of the joint family and that he acquired those properties when he was in possession of the joint family income sufficient and that he acquired those properties when he was in possession of the joint family income sufficient to make the acquisition, the onus lies on defendant 1 to show that he had separate funds of his own with the aid of which he acquired the properties covered by Ext. B-4, and in support of that contention, he relied upon the decision in K. V. Narayanasami Iyer v. K. V. Ramakrishna Iyer, : [1964]7SCR490 , wherein head-note (a) runs as follows:
'Wherein 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.'
But before the principle enunciated by the Supreme Court is applied, it must be shown that the joint family had sufficient nucleus for acquiring the property, Mr. Karanth contends that the joint family had sufficient nucleus to make the acquisition of the properties covered by Ext. B-4. He then refers to the evidence of defendant 1 wherein he has stated that 'the income of the family properties in 1935 was about 300 muras or rice and 16 candies of areca.' This, according to the learned counsel, constitutes sufficient nucleus. We do not think so. In our view, it is, in the first instance, for the plaintiffs to establish that the family had sufficient nucleus with the aid of which the subsequent acquisition could have been made. Though defendant 1 states the income of the family, he also states in the earlier part of his evidence that, in the year 1935, when the property covered by Ext. B-4 was acquired, the cost of commodities was very low, and there is no evidence whatsoever in this case to establish what was the income which the joint family derived from those 300 muras of rice and 16 candies of areca in that year.
No attempt has been made on behalf of the plaintiffs to adduce any evidence to show what was the income of the joint family, what was its expenditure and what was the surplus which remained with the joint family and whether that would be sufficient nucleus with the aid of which the acquisition could be made and, therefore, unless that is established, the principle enunciated in : [1964]7SCR490 cannot be invoked by Mr. Karanth in support of his contentions. Thus, in our view, the property purchased by defendant 1 under Exhibit B-4 is his self-acquisition and what he did not blend that property with the joint family property and make the same joint family estate. If it is not a joint family property, as we hold it is not, then the plaintiffs have no right to claim a share in it. Defendant 1 being the sole owner thereof, he is entitled to deal with it in any way he liked, and the plaintiffs having no right in it, their claim for a partition of that property as joint family property, must fail.
(35) The trial Court has also negatived the contention of the defendants that Ext. B-6 operates as a gift; on the ground that the properties covered by Ext. B-4 are joint family properties and that though the father and sons were competent to make the gift, they have not shown that the property gifted is a reasonable portion of the joint family property and, therefore, it held that the gift is invalid. However in view of our finding that the property acquired under Ext. B-4 is the self-acquired property of defendant 1, we do not think it necessary to consider the question whether Ext. B-6 operates as a valid gift under Hindu law.
(36) Consequently, we reverse the finding of the trial Judge, allow this appeal and dismiss the plaintiffs' claim in regard to items 2 and 3 of the plaint 'A' schedule.
(37) The appellants will get their costs of this Court as well as of the trial Court from the plaintiffs only.
Regular Appeal No. 223 of 1961.
(38) Defendant 6 has presented this appeal. The contentions urged by him in this appeal are the same as those urged in Regular Appeal No. 209 of 1961, and Mr. Karanth, learned counsel appearing for the appellant, states that he supports the arguments of the learned Advocate General in Regular Appeal No. 209 of 1961. Since we have allowed R. A. 209/61, we have to allow this appeal also.
(39) Consequently, we allow this appeal, but make no order as to costs.
Regular Appeal No. 217 of 1961.
(40) As I have stated, before, this appeal relates to seven items of investment which have been claimed by defendant 2 as his own separate property. It appears that the plaintiffs presented R.I.A. NO. 49/59 to the Court on the 6th January 1959 and, by that application, the following interrogatories were submitted to be answered by the defendants. They are:
'(1) What are the amounts standing to the credit of, or in the names of the defendants 1 to 5, either as fixed deposits, savings Bank account or any other form of investments in the Banks giving particulars thereof.
(2) What are the investments of the defendants, other than in Banks giving particulars thereof.
(3) What are the investments of the defendants in Government Securities, National Savings or Past Office Savings Bank, giving particulars thereof.'
Defendant 2 thereafter filed an affidavit on the 7th August 1959 wherein he has given the particulars of the deposits standing in his name. In his affidavit, he has given seven items; some of them are fixed deposits and Savings Bank Accounts, current accounts and Post Office National Savings Certificates. The amount under these items comes to Rs. 11,036-32. The trial Court, on a consideration of the evidence, came to the conclusion that the amount under these seven items belonged to the joint family of plaintiffs and defendants 1 to 5 and that they are liable for partition. It also held that a sum of Rs. 3,000, which defendant 2 has withdrawn after 11th August 1958, also belonged to the joint family, and the plaintiffs were awarded their share in that item also. Thus the plaintiffs were awarded one-third share in the total sum of Rs.14,036-32. The correctness of this finding of the learned Judge has been challenged in this appeal by defendants 2 to 5.
(41) The only evidence in support of the claim made by defendant 2 is that of himself and his father, defendant 1. He has produced accounts of the respective banks, which only show that defendant 2 has deposited those amounts in the respective banks either in current or savings bank accounts. Defendant 2, in his evidence, states that he gave up his studies in the year 1937 and joined his father to assist him in the management of the family affairs. As to these amounts, he states that he was lending paddy on Holi and was trading in areca, and this business he is carrying on from 1939 onwards, and the various amounts claimed by him are the profits out of this trading and lending of paddy business.
(42) His father, defendant 1, states in his evidence that the 2nd defendant has been purchasing areca from third persons and selling it and also giving paddy to them and that he was having profit within Rs. 1,000. He started business in the year 1937. But no evidence has been led to show from whom defendant 2 was purchasing areca and to whom he was selling. Defendant 2 states that he has not maintained any accounts either of the sale effected on his own account or on behalf of the defendants. Though he has stated that he has not maintained accounts, yet at a later stage in his deposition, he admits that 'I had maintained accounts but I destroyed them during the days of control.' We are not impressed by his evidence which is by no means sufficient to hold that he must be having a separate trade on his own account and earning profits and that the seven items claimed by him are the result of his earnings. Defendant 2 admits in his re-examination that he sold the areca of the joint family according to the directions of his father. But there are no accounts to show the receipts by the sale of areca belonging to the joint family or the areca purchased by him. We also gather from his evidence that though there are three other items standing in his name, he has admitted that they belong to the joint family. Thus the claim of defendant 2 that the seven items of investments are his own is not substantiated by the evidence on record.
(43) In the result, we agree with the finding of the trial Court that the seven items claimed by the defendant 2 as his own, belonged to the joined family and that the plaintiffs are entitled to one-third share in them. Consequently, the appeal fails.
(44) Since the plaintiffs have succeeded in this appeal, they are entitled to the cost of this appeal as well as the cost of the trial Court tot he extent of Rs.14,036-32 p. from the appellants.
(45) Subject to the directions given in these appeals as to costs, the other parties will bear their respective costs in this Court as well as in the trial Court.
(46) Ordered accordingly.