JUDGMENT
Madhavan Nair, J.
1. One Varadaraja Aiyar died on the 7th February, 1925, leaving movable and immovable properties worth about Rs. 20,000. The first defendant-appellant is his son, and the plaintiff is the son of the first defendant. Varadaraja Aiyar executed two wills, Ex. LX in 1912 and Ex. B in 1922. By the second will he revoked the first one. Under the first will his properties, described as his self-acquisitions and additions therefrom, were given to the first defendant. Under the second, a life interest in half the estate was given to the first defendant while the bulk of his estate was bequeathed to the plaintiff. The suit out of which this appeal arises was instituted by the plaintiff to declare that the plaintiff and the first defendant are entitled to a life interest in two equal shares over the suit properties with a remainder over to the plaintiff and his sons, to call upon the first defendant to render a full account of the entire estate left by the testator and in exclusive possession of the first defendant and pass a general administration decree against him. These declarations are asked for on the basis of the second will which dealt with the suit properties as the self-acquired properties of Varadaraja Aiyar. The plaintiff has also an alternative claim. He stated that if the will is not valid, he may be given his half share of the properties free from encumbrances and with mesne profits. The first defendant attacked the validity of the second will. He stated that the will is not valid, that the properties are joint family properties and not his self-acquisitions, that Varadaraja Aiyar had no right to make the will, that he is not liable to render accounts, that he has spent large sums on litigation and that he has no objection to a partition. The second defendant is the mother of the first defendant. She is a legatee under the will. The third defendant is the daughter of the first defendant. She is also a legatee, and defendants 4 and 6 are tenants in possession.
2. The main question for decision is whether the second will is valid, and this in its turn depends on the question whether the plaint properties are the self-acquisitions of the deceased Varadaraja Aiyar or are to be treated as joint family properties over which he had no disposing power. The case of the first defendant-appellant is that all the properties standing in the name of Varadaraja Aiyar were acquired by him with a nucleus of family funds, that his “earnings were freely thrown in the common stock and they all became by mingling with other joint family funds part and parcel of the joint family properties”; or in other words, that the suit properties were acquired by a blending of his own earnings and the amount which he got as ancestral property. The case of the plaintiff is that the properties are the self-acquisitions of Varadaraja Aiyar and that no portion which he got from his family was utilised by him in acquiring them. The question is which view is the right one.
3. The learned Subordinate Judge on a careful consideration of the circumstances came to the conclusion that it cannot be said that the properties acquired by Varadaraja Aiyar are joint family properties, that though there was a nucleus of ancestral property it was not proved that the properties which he acquired can be traced to the nucleus and that there is nothing in the evidence to show that Varadaraja Aiyar blended his private earnings with the ancestral property which came into his possession. In the circumstances he held that the suit properties were the self-acquired properties of Varadaraja Aiyar and on that basis gave the plaintiff the main declaration asked for by him. It is not necessary for the purposes of this appeal to refer in detail to the various other subsidiary reliefs as the findings on them were not seriously attacked before us. We may also state that the first defendant challenged the will on the ground that it was obtained by fraud and undue influence exercised by the plaintiff on Varadaraja Aiyar, but the Subordinate Judge held that this plea was not made out and it has not been pressed before us in appeal. Another plea raised by the first defendant, that the streedhanam funds of his mother were also used in the acquisition of the properties, was negatived by the Subordinate Judge as there was not any evidence to support the allegation that she had any streedhanam funds, and this also has not been pressed before us.
4. The main argument urged in appeal is that a nucleus of joint family property came into the hands of Varadaraja Aiyar, that he did not keep separate accounts of the income he derived from the family properties and his own private income, that once a nucleus has been proved, the presumption of law is that all the properties standing in the name of Varadaraja Aiyar are joint family properties, that if the plaintiff claimed these as separate properties the burden of proving the same was on him and that the lower Court went wrong in the circumstances disclosed in the case in thinking that the burden of proof lay on the defendant and not on the plaintiff. It may be stated here that the judgment makes it clear that in the opinion of the Subordinate Judge, in the circumstances of the case the initial burden of proving that the properties are [not] the self-acquired properties of Varadaraja Aiyar lay on the defendant. It is argued that there is no such foundation for any such presumption.
5. The evidence in the case lies within a brief compass. We will first refer to the nucleus of ancestral property that came into the hands of Varadaraja Aiyar. Varadaraja Aiyar had an elder brother named Venkateswara Pattar. They were members of an undivided Hindu Brahmin family governed by the Mitakshara Law. Varadaraja Aiyar was born in 1843. He was in Government service for about 12 or 15 years. He himself stated in a deposition given by him in O.S. No. 64 of 1892, Ex. XII, that he was in the employ of the Government for about 14 years. He worked as an overseer from 1870 to 1880; see Service Register Ex. II. The evidence does not show when he left the Government service. He was drawing a salary of Rs. 60 per month. In 1875 Varadaraja Aiyar and his brother effected a partition. A sum of Rs. 400 due from one Vellaya Moothan, was given to Varadaraja Aiyar. He was allowed to appropriate a further sum of Rs. 300 belonging to the family which was in his hands. He was also paid some cash. On the whole the total amount that came into the hands of Varadaraja Aiyar under the partition was Rs. 2,630. A portion of the house had been set apart to the mother of the parties according to the partition deed and it recited that after her death Varadaraja Aiyar should be given a sum of Rs. 500 for his share of the house. This sum of Rs. 500 also came into the hands of Varadaraja Aiyar after the death of his mother but long after the acquisition of the suit properties. Thus it will be seen that at the material period the nucleus of ancestral property which Varadaraja Aiyar had in his hands was a bare sum of Rs. 2,630 and nothing more. It may be mentioned here that the original family house which went to the share of Varadaraja Aiyar’s elder brother Venkateswara Pattar who died issueless came into the possession of Varadaraja Aiyar as reversioner after the death of his widow.
6. We will now briefly refer to the properties which were acquired by Varadaraja Aiyar and how he acquired them. The partition, as already stated, was in 1875. On the 7th June, 1877, Varadaraja Aiyar advanced Rs. 2,000 to one Raman Nair under a simple mortgage bond Ex. IV. The bond was satisfied as may be seen from an endorsement on it. This bond was secured from Raman Nair’s nephew by the 1st defendant. He says the money got under the partition was invested by his father under Ex. IV. Beyond the fact that a sum of Rs. 2,000 was given to Raman Nair there is no evidence to show what became of the money. It is not clear from the evidence who made the endorsement or when it was made. There is no evidence to show whether any portion of this money was utilised by Varadaraja Aiyar in buying the properties which will be referred to presently. If Varadaraja Aiyar had no personal income or if the private properties were acquired more or less at the time when this money was got back, it may be said that the nucleus of ancestral property was used in the acquisition of some portion of the suit properties. As will be seen presently the suit properties were acquired from time to time during various years, and the connection between the nucleus of ancestral property and the new properties acquired has not been, nor can it be established by the evidence in the case. On the 11th June, 1879, Varadaraja Aiyar advanced Rs. 1,500 to one Puthiyedath Mena Narayana Nambudri; see Ex. V. On the 24th March, 1881, he increased this sum to Rs. 4,500. On the 17th November, 1881, he paid another Rs. 500. A sum of Rs. 2,570 more was paid in cash and the jenm properties belonging to Mena were sold to Varadaraja Aiyar under the jenm deed dated 1884, Ex. X. Thus between the years 1879 to 1884, Varadaraja Aiyar acquired jenm property worth Rs. 9,000. This is one of the properties dealt with under the will Next year, on the 30th October, 1885, Varadaraja Aiyar bought a house for Rs. 2,000. This was afterwards sold and with the sale proceeds a kanom property known as Pallateri Nilorn was acquired. In 1895, Varadaraja Aiyar purchased another kanom property known as Payyathankannu estate for Rs. 2,750. Out of this sum of Rs. 1,500 was advanced before 1885. Both these kanom properties were redeemed and the monies are now lying in Court. Before 1892 Varadaraja Aiyar owned a shop in the bazaar of Palghat, and he had advanced a sum of Rs. 4,000 to one Kandappa Tharakan. His own deposition already referred to shows that in 1892 he was worth about Rs. 20,000. The properties dealt with by Varadaraja Aiyar as his self-acquisitions in his will consisted of what has been enumerated above, these being : (1) the jenm property bought for Rs. 9,000 from Puthiyedath Mena, (2) Payyathankannu kanom property, (3) Pallateri kanom property, and (4) the house which he got on the death of his brother’s wife; and also some movables and cash. The question is whether the properties acquired by him can be treated as his self-acquisitions or whether they should be treated as family properties.
7. Now, the position is this: It is clear that Varadaraja Aiyar had a nucleus of ancestral property of Rs. 2,630. He was in the employ of the Government for about 15 years drawing a salary of Rs. 60 a month. He acquired the properties already referred to in the course of a few years. There is no evidence that any portion of the ancestral money which he had with him went towards the purchase of any of these properties. Admittedly Varadaraja Aiyar did not keep any separate accounts of the income from the ancestral property or of his own private income. The appellant says that according to the decisions it must be held that the presumption is that Varadaraja Aiyar combined his private earnings and ‘ the ancestral property which he got and blended the income arising from both and that he purchased the properties with the same. If this position is true, the defendant can rely on this presumption and the burden of proving that the properties were acquired with the private earnings will be on the plaintiff. The Subordinate Judge held that there is no presumption in favour of blending of the two properties; that it should be held that the ancestral property was used for the maintenance of the family and for other family expenses and that the private earnings went towards the purchase of the property which must therefore be treated as self-acquisition of the testator.
8. First, we will deal with the presumption of law arising in the above circumstances. A large number of decisions of this Court as well as of other courts including a few of the Privy Council were brought to our notice in this connection. The decisions relied on in support of the lower Court’s position are these : In Narayana Rao v. Venkatakrishna Rao (1914) 27 M.L.J. 677, it was held by Wallis and Seshagiri Aiyar, JJ., as follows:
Under the Hindu Law mere living together of the members of a family will not make them joint owners of properties acquired by each individual member. There must have been a nucleus of ancestral property which was utilised for the purpose of making the subsequent acquisitions or the members must have thrown their joint earnings into hotchpot with the intention of giving up their individual rights in them.
9. Then the learned Judges quoted the following two observations of Chamier, J., in Ram Kishan Das v. Tunda Mal (1911) I.L.R. 33 All. 677:
(1) There is no presumption that property found in the possession of any one member is joint family property unless it is shown that the family as such possessed at least some property.
(2) It is only when a person alleging that the property is ancestral property proves that there was a nucleus of ancestral property by means of which other property might have been acquired, it is for the party alleging self-acquisition to prove that it was acquired without any aid from the family estate.
and stated that they agreed with these propositions. The learned Judges also referred to the decision in Dhurm Das Pandey v. Mussumat Shama Soondri Dibiah (1843) 3 M.I.A. 229. Both these decisions, Ram Kishan Das v. Tunda Mal (1911) I.L.R. 33 All. 677 and Dhurm Das Pandey v. Mussumat Shama Soondri Dibiah (1843) 3 M.I.A. 229 were relied upon by the appellant’s learned Counsel, and we will deal with them separately. For the present we will only observe that Narayana Rao v. Venkatakrishna Rao (1914) 27 M.L.J. 677 is authority for the position that it is only when a person alleging that the property is ancestral property proves that there was a nucleus by means of which other property may have been acquired, that the burden is shifted on to the party alleging self-acquisitions to prove that the property was acquired without any aid from the family estate. In Vadamalai Pillai v. Subramania Chettiar (1922) 16 L.W. 936 it was held by Spencer and Devadoss, JJ., that where a father who obtained, on partition with his brothers lands valued at Rs. 200 and burdened with debts to the extent of Rs. 500 subsequently acquired with his income as dubash property worth Rs. 40,000, the nucleus was not sufficient to impress the subsequently acquired property with the character of joint family property. It was pointed out that the nucleus required for impressing a joint family character on the acquisitions of a member of the joint family must be of such value as could have reasonably formed the basis of such subsequent acquisitions. In Kannammal v. Ramathilakamma A.I.R. 1927 Mad. 38, Krishnan and Venkatasubba Rao, JJ., observed.as follows:
While there is a presumption that a Hindu family is joint until the contrary is proved, there is no presumption that a Hindu family is possessed of property. The party alleging that the property held by any individual member of a joint family is joint family property must show that the family was possessed of some property with the aid of which the property in question could have been acquired. If this is shown, and only then the onus shifts to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.
10. In Sankaranarayana v. Tangaratna A.I.R. 1930 Mad. 662, Anantakrishna Aiyar, J., discussed most of the relevant cases bearing on the question and pointed out as follows:
In some cases it is mentioned that mere possession of joint family property by a joint Hindu family would raise a presumption of law that all the property in the possession of a coparcener is joint family property. I should like to observe that the above position would be strictly correct only if the joint family property possessed by the joint Hindu family was such as would have enabled and led to the acquisition of the other property. If having regard to the nature of the income from the admitted joint family property or otherwise the same could not have possibly helped in or led to the acquisition of subsequent property, then there is no presumption that the subsequent property is joint family property.
11. In Satchidanandam v. Subbaraju (1930) M.W.N. 1016, the question of onus in cases like the present was thus dealt with by Sundaram Chetty, J.:
Where the question is, whether an item of property in the name and in the possession of a member of a joint family is his own self-acquisition or the family property, there is the initial burden of proof on the party setting up that it is family property, to show the existence of ancestral or joint family nucleus by means of which the property in question may have been acquired. Where the existence of ancestral or joint family nucleus is proved and it is such as would reasonably be taken to have contributed to the acquisition in question, or the acquisition is ordinarily traceable to such nucleus, to some extent at least, it would be presumed to be joint family property, unless it is affirmatively shown by the other side, that the source of the purchase money was altogether different, and quite independent of the family nucleus, or that such nucleus was incapable of contributing anything to the purchase.
12. In Ramiah v. Mahalakshmamma (1931) 35 L.W. 30, the following observations were made by Venkatasubba Rao and Pakenham Walsh, JJ.:
The plaintiff puts his case thus : Some properties fell to the share of Subbiah at the partition; it must be therefore assumed that he purchased the items in question from the income of these properties. In other words, the contention is, that when it is shown that a Hindu father was possessed of some ancestral property, all his subsequent acquisitions must be presumed to be joint family property. With this contention we cannot agree.
13. And the learned Judges referred to the cases we have already mentioned. Narayanaswami Mudaliar v. Ratnasabapathi Mudali (1937) 2 M.L.J. 906, Sundaram Pillai v. Somasundaram Chettiar (1937) 1 M.L.J. 364 and Venkataramayya v. Seshamma (1937) 45 L.W. 422 are recent pronouncements by this Court on this question. The facts of the first of these decisions are somewhat like those of the present case and the question of the burden of proof is discussed by Varadachariar and Horwill, JJ., at considerable length. In that case one S was making a very substantial income from his profession as a native medical practitioner. At the partition between S and his coparceners he obtained only certain immovable properties the annual income from which was below Rs. 200. He had a large family to maintain and the maintenance of the family alone must have cost a great deal, more than the income derived from the ancestral properties. His income from the profession must have contributed largely to the accumulation of wealth. S maintained no accounts. In these circumstances it was held (1) that the onus lay upon the person who pleaded that what was at any particular moment the separate property of a member of a joint Hindu family had at some later stage ceased to be so, to establish that it has been so dealt with as to have lost its separate character; (2) that plaintiffs could not succeed upon the mere circumstance that S kept no accounts and that it was not known how he dealt with the two sets of income; (3) that there was no reason to presume that S’s separate earnings were spent on the maintenance of the joint family and that the income from the joint family went in whole or in part into the investments. There is no presumption in favour of blending. The presumption, if any, can only be of fact to be drawn in the light of all the surrounding circumstances and in accordance with what is described in Section 114 of the Evidence Act as the common course of human conduct. In Sundaram Pillai v. Somasundaram Chettiar (1937) 1 M.L.J. 364, Varadachariar, J., followed his previous decision in Kuppuswami v. Ranganatha A.I.R. 1937 Mad. 835 and the proposition was repeated that it is only after it is shown that the family was possessed of some property with the aid of which the property in question could have been acquired, that the onus shifts to the party alleging self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. In Venkataramayya v. Seshamma (1937) 45 L.W. 422 the same principle was once again asserted. In Kanshi Ram v. Shankar Das A.I.R. 1928 Lah. 397, it was held that there is no presumption that the members of a joint Hindu family possess their self-acquisitions as joint coparcenary property and that all acquisitions by members of a joint Hindu family are prima facie partible and the burden of proof lies on those who assert to the contrary. In Suraj Kumar v. Jagannath A.I.R. 1935 All. 67, it was held that there is no presumption that a particular property is joint family property having been acquired with the aid of family funds. The question of presumption in cases like the present is thus dealt with:
Where it is proved or admitted that a joint family possessed such nucleus as could lead to the acquisition in question, it may be presumed that the later acquired property belongs to the joint family, having been acquired with the aid of the nucleus. Mere existence of a nucleus, however small or insignificant, is not enough. It should be shown to he of such a character as could reasonably be expected to lead to the acquisition of the property alleged to be a part of the joint family property.
14. The learned Counsel for the appellant relied mainly on the decisions in Anandrao v. Vasantrao (1907) 17 M.L.J. 184 (P.C.), Ram Kishan Das v. Tunda Mal (1911) I.L.R. 33 All. 677 and Rajangam Aiyar v. Rajangam Aiyar (1922) 44 M.L.J. 145 : L.R. 50 I.A. 134 : I.L.R. 46 Mad. 373 (P.C.) in support of his contention that when the existence of a nucleus of ancestral property is proved, all the subsequent acquisitions must be presumed to be joint family property and that the burden of proving that they were self-acquired and not acquired with the family funds lies on the person who makes such an assertion. On examination it will be found that these cases do not support him. In Anandrao v. Vasantrao (1907) 17 M.L.J. 184 (P.C.) the same case is reported as a footnote in I.L.R. 34 Mad. 362, the two salient features were that the family lived joint in one house and there was a nucleus of joint family property. The character of the Worli property (that is, the nucleus of the joint property) was undisputed in the Bombay Court. The following observations of the Privy Council with respect to this property explain the nature of the decision:
The effect of the appellants in the present appeal has been to disparage the importance of the Worli property in comparison with the existing estate. This argument, however, is deprived of much of its force by the fact that the comparison is with the enhanced value of the more recent acquisitions and their Lordships find sufficient evidence that the Worli property was of substantial value and when it was sold some of the proceeds were used in defraying the cost of rebuilding the new house in which the joint family lived. This being so, a nucleus exists and the family is joint. The onus is therefore on the party setting up a case of separate estate.
15. The meaning of their Lordships’ statement is clear. The ancestral nucleus was of such substantial value that it may well have contributed to the acquisition of the property in question. As their Lordships say, as just stated that some of the proceeds of its sale was used in defraying the cost of rebuilding the new building in which the joint family lived. In such circumstances, the burden of proving that the property is separate will be on the party setting it up according to the decisions noted above. It also appears in that case that the evidence of the tenor of family life proved the use of all the property as joint family property. Ram Kishan Das v. Tunda Mal (1911) I.L.R. 33 All. 677 as already mentioned, is referred to in Narayana Rao v. Venkatakrishna Rao (1914) 27 M.L.J. 677 and the two propositions laid down by Chamier, J., have been accepted by this Court. The second proposition amplifies the first and lays down the law which has been accepted by this Court not only in Narayana Rao v. Venkatakrishna Rao (1914) 27 M.L.J. 677 but also in the subsequent decisions. In Dhurm Das Pandey v. Mussumat Shama Soondri Dibiah (1843) 3 M.I.A. 229, the passage relied on is:
It is allowed that this was a family who lived in commensality, eating together and possessing joint property.
16. As pointed out in Narayana Rao v. Venkatakrishna Rao (1914) 27 M.L.J. 677:
The Judicial Committee laid down that under these circumstances the mere fact that purchases were made in the names of individual members of the family was not evidence of separate ownership.
17. Evidently the joint property must have been substantial in value. Neither Ram Kishan Das v. Tunda Mal (1911) I.L.R. 33 All. 677 nor Dhurm Das Pandey v. Mussumat Shama Soondri Dibiah (1843) 3 M.I.A. 229, in the opinion of the learned Judges, ran counter to the proposition which they laid down in that case, namely, that it is only when there is ancestral property by means of which other property may have been acquired that the burden is shifted on the party alleging self-acquisition to prove that the property was acquired without any aid from the family estate. The observations of their Lordships of the Privy Council in Rajangam Aiyar v. Rajangam Aiyar (1922) 44 M.L.J. 745 : L.R. 50 I.A. 134 : I.L.R. 46 Mad. 373 at 381 (P.C.) that:
The learned Judges of the High Court were, however, perfectly right in the view that the onus was on the defendant to establish that the properties he claimed as the self-acquired properties of his father, Krishna Aiyar, bore that character.
must be understood in the light of the special facts of the case. Having regard to the principles laid down in the above decisions the mere proof by the defendant that his father had with him ancestral property of Rs. 2,630 will not by itself shift the burden on to the plaintiff of proving that the subsequently acquired properties were acquired with his private earnings. The defendant to shift the burden on the plaintiff will have also to prove that the ancestral property was such that by its means his grandfather may have acquired the subsequently acquired properties. In the light of the decisions, the presumption is against blending. As pointed out in Akkanna v. Venkiah (1901) 12 M.L.J. 5 : I.L.R. 25 Mad. 351 with respect to an income derived by a Hindu widow from her husband’s estate, the reasonable presumption to make in respect of any person having income at his or her disposal is that he or she had the income at his or her absolute disposal unless there is evidence to the contrary.
18. The question in the present case therefore is, has the defendant succeeded in showing whether this sum of Rs. 2,630 could have contributed towards the purchase of the suit properties. The Subordinate Judge is emphatically of the opinion that the circumstances of the case show that after meeting all the expenses of the family, ordinary and extraordinary, nothing would have been left in the hands of Varadaraja Aiyar to purchase the suit properties, and we agree with him in that view. The joint family of which Varadaraja Aiyar was the head consisted of himself, his*wife and his two children. His elder son died early. The second child Ammu was born in 1870 and was married in 1886 (see P.W. 3). The marriage expenses including the streedhanam and the making of jewels would undoubtedly have cost him some money. Varadaraja Aiyar had also to perform the upanayanam of the first defendant and also his marriage. It is easy to conceive that large amounts must have been spent by him for the ordinary expenses of the family and also for the extraordinary expenses in connection with the marriage, upanayanam, etc. It appears from the evidence that Varadaraja Aiyar has spent a large amount for the education of the first defendant who appeared thrice for the Matriculation Examination and failed, and he had to maintain him also. Assuming that the sum of Rs. 2,630 would yield an interest of Rs. 260 a year, the learned Judge has shown in paragraphs 36 and 37 of his judgment that there would hardly be any sum left in the hands of Varadaraja Aiyar to buy the suit properties. After all, he had only a sum of Rs. 2,630 and he had to meet the ordinary as well as the extraordinary expenses of the household from 1871 up to the date of the execution of the will. It is a pertinent question to ask, why should we assume that this amount was not spent away in meeting these expenses and it was reserved for the acquisition of family properties while the monthly pay which he was getting was utilised by him for the ordinary and extraordinary expenses of the family? The presumption, as we have already stated, is against blending and it is only natural for a person to keep his self-acquired property separate from the joint family property meeting the expenses of the joint family from the joint family property. The learned Judge says:
If a calculation should be made of the amounts spent by him for ordinary as well as the extraordinary expenses incurred from 1874 up to the date of the execution of the will it would be seen that these amounts far exceed this sum of Rs. 2,630 and a further sum of Rs. 500 which Varadaraja Aiyar got from his brother after the death of his mother and the income that could be derived from this sum of Rs. 3,130 annually.
19. We accept this opinion having regard to the circumstances of this case. In both the wills it is stated that the properties are the self-acquired properties of Varadaraja Aiyar. The first defendant was his only son and was living with him at the time of the first will. He was then evidently very fond of him as he left the main bulk of the property to him. His subsequent conduct and his marriage with a Nair lady must evidently have prejudiced him in his eyes and this obviously led to the revocation of the first will and the execution of the second one. The quarrels in the family to which a mass of evidence relates has very little bearing on the question we have to decide and it is not necessary to refer to that evidence. On the whole, having regard to the presumptions of law and the evidence in the case, we cannot say that the learned Judge’s conclusion that the suit properties have not been proved to be joint family properties and that they must be held to be the self-acquired properties of Varadaraja Aiyar is not borne out by the evidence.
20. The other findings of the learned Judge have not been seriously disputed before us. In the result the appeal fails and is dismissed with costs.
