JUDGMENT
Vaidya, J.
1. [His Lordship after referring to the facts of the case proceeded.] The learned counsel for the appellants was not able to point out a single reason as to why the plaintiff’s witnesses Balkrishna and Narayan, should not be believed.
2. He could not explain as to why Bhaskar, during his lifetime, never treated either Janardan or his widow or children as anybody but members of his own family.
3. The Hindu law on the point was settled long ago in Suraj Narain v. Ratan Lal (1917) L.R. 44 I.A. 201 : s.c. 19 Bom. L.R. 737. P.C.. Lord Buckmaster L. C. precisely observed (p. 205):
In the Hindu joint family the law is that while it is possible that a member of the joint family should make separate acquisition, and keep moneys and property so acquired as his separate property, yet the question whether he has done so is to be judged from all the circumstances of the ease.
4. The position was reiterated by him in Rajani Kanta Pal v. Jaga Mohan Pal (1923) L.R. 5.0 I.A. 173 : s.c. 25 Bom. L.R. 683 P.C., which, though a case under the Dayabhaga, does not make any difference, so far as the proposition, is concerned. It was observed (p. 178):
.. .The real question for determination is what is the true conclusion to be drawn when people united, as the present parties were, by bonds of close relationship and living as a joint family, draw for the joint family expenses out of a fund enriched by other contributions? They think that the result is accurately stated by the Subordinate Judge in the following words: ‘If the members of a joint Hindu family confuse the incomes of their joint properties with their separate properties, their intention presumably is that the properties acquired with such mixed-up funds are for the benefit of the joint family. It should be noticed that not only these acquisitions and improvements made in this case with the amalgamated and confused funds, but the incomes arising from such acquisitions and improvements were again partly spent also for joint family expenses and purposes, and the balances were again mixed up and confused from year to year to acquire properties and make improvements.’
5. The position was also made clear by Chandavarkar and Knight JJ. in Laldas Narandas v. Motibai , which is the case relied upon by the learned Civil Judge, The head note of that case reads as follows:
Where a father and his sons acquire their property by their joint labours and arc besides joint in food and worship, they must be regarded as having constituted a joint Hindu family even though there may have been no nucleus of property which has come down to the father from his father or grand-father or great grand-father. For the formation of a coparcenary in Hindu law such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son or other relation requisite for a coparcenary system and those persons by living, messing, and worshipping together, and throwing all the property acquired jointly into one common stock, manifest their intention, to deal with one another and with outsiders as members of a coparcenary system under the Hindu law.
5. In M. Girimallappa v. R. Yellappagouda [1959] A.I.R. S.C. 906 where the manager of a joint Hindu family acquired certain properties in his own names and there was sufficient nucleus of joint family property, out of which those properties might have been acquired; and apart from those properties, the manager had no other source of income, the presumption was held to arise that the newly acquired properties were the properties of the joint family; and unless that presumption was rebutted, it must prevail.
6. In Parbati Kuer v. Sarangdhar , even an insurance policy taken out in the name of an individual, from the funds of the joint family, was held to belong to the joint family, because there was nothing in the facts of that case to indicate that any of the brothers intended to treat the policy as a separate asset.
7. In Venkata Reddi v. Lakshmana , it was said (p. 1604):
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, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation.
8. In Goli Eswariah v. Gift Tax Commr., A.P. , in the context of the provisions of the Gift Tax Act, the Supreme Court observed:
The separate property of a Hindu coparcener ceases to be so and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property to the common stock is a unilateral act. No longer he declares his intention to treat his self acquired property as that of the joint family the property assumes the character of joint family property. The doctrine is peculiar to Mitakshara School of Hindu law.
9. In K.V. Narayanan v. K.V. Ranganandhan , it is again said (p. 250):
…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 intention of abandoning his separate claim therein but the question whether a coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights. Such an intention cannot be inferred merely from the physical mixing of the property with his joint family or from the fact that other members of the family are allowed to use the property jointly with himself or that the income of the separate property is utilised out of generosity or kindness to support persons whom the holder is not bound to support or from the failure to maintain separate accounts for an act of generosity or kindness cannot ordinarily be regarded as an admission of a legal obligation.
10. Applying the above principles to the facts of the present case, there can be no doubt whatsoever that Bhaskar never intended any of the properties acquired by him as the elder brother in his name to be treated as his separate property. He and Janardan belonged to a generation, which believed in fraternity as an ideal set up in Hindu culture from the time of Ramayana. Even the defendant No. 1 had to admit that Janardan did whatever Bhaskar asked him to do.
11. During the lifetime of Janardan, no dispute ever arose between Janardan and Bhaskar; and Bhaskar treated Janardan as a joint owner of all his properties, as stated by Balkrishna and Narayan, the plaintiff’s witnesses, whom we have no reason whatsoever to disbelieve, Bhaskar got married the daughters of Janardan. Bhaskar declared that he was the head of the family, of which Janardan’s wife and children were also members.
12. The evidence clearly establishes that Anant, the deceased brother, was responsible for starting first the pan-bidi shop, which proved to be the nuclues of the family fortune, after Bhaskar left his service and started his career as a trader. The business prospered, not only on account of the enterprise of Bhaskar, but also due to the faithful, honest and obedient services that must have been rendered by Janardan along with Bhaskar. They lived in the same house; and all the members of both families messed together till February 1966.
13. In these circumstances, the only inference which can be drawn is that the plaintiff proved that the suit business and all the properties were joint family properties, in which he was entitled to l/8th share, which share is not challenged before us. The First Appeal is, therefore, liable to be dismissed.
14. [The rest of the judgment is not material for the purposes of the report.]