JUDGMENT
Krishnan, J.
1. This is an appeal by the 1st defendant against the decree passed by Masilamani Pillai, J., sitting on the original side in a suit brought by the plaintiff for the recovery of house No. 201, Mint Street, for declaring certain mortgages on the house invalid and for properties described in Schedules B, C and D.
2. The main contention in the case is as regards the title to the house. The house was purchased in 1897, the sale-deed being in the name of the plaintiff’s mother. It may be stated at once that the plaintiff and the 1st defendant are members of the dancing-girl caste and they are a family of dancing-girls. In 1897, when the house was purchased, plaintiff’s mother was living with her mother Rukmani Ammal and with the 1st defendant, her sister. The 1st defendant was then a young girl about ten years old. It is the 1st defendant’s case that the house, though purchased in the name of plaintiff’s mother Jeevarathnammal, was really joint family property of herself, her mother and her sister. The learned Judge who tried the case has decided that the house belonged exclusively to Jeevarathnammal and on her death it passed to her heir, the plaintiff, and he has given a decree for that house to the plaintiff.
3. So far as the purchase-money of Rs. 4,300 that went towards the purchase of this house is concerned, there is no very clear evidence as to whom it belonged. It was suggested by the 1st defendant that the money was realized by the sale of jewels belonging to herself, her sister and her mother. But that case has not been accepted by the learned Judge and it seems to me for a very good reason, for the 1st defendant was too young to know how exactly the money was found. In fact, she admits except that she found some of the jewels missing after the purchase of the house, she had no reason for saying that any money was obtained by the sale of the jewels and that the house was purchased with that money. There is also evidence in the case which shows that at the time of the purchase, the mother, Rukmani Ammal was not earning anything by her profession. The 1st defendant was altogether too young to earn anything at the time. So the only earning member at the time of the purchase the plaintiff’s mother; Jeevarathnammal There is no very clear evidence that at the time of the purchase her mother had any jewels at all, so that the possibility of jewels having been sold for the purchase of the house has also not been established. We have then a case where three dancing-girls are living together, only one of them earning and purchasing a house in the name of that earning member.
4. Now, it is suggested that in such a case there is a presumption that the purchase was for the benefit of the whole family. I am unable to draw such a presumption in this case without proof of further facts. There is nothing to show that there were any joint funds in the hands of Rukmani Ammal or Jeevarathnammal which could have been utilized for the purchase of the house. In the absence of such evidence such a presumption could not be drawn in favour of the 1st defendant’s contention.
5. The fact that the property was purchased in the name of Jeevarathnammal is an outstanding fact which we have to bear in mind, which would show it was hers, unless we have evidence to establish that the person in whose name the purchase was made was not the person who found the money; that must be established by evidence. Furthermore, the conduct of Jeevarathnammal so long as she was alive is entirely consistent with the fact that she was the sole owner of the property and that her mother had nothing to do with it, nor her sister. When mortgaging the property, she executed the mortgage deed herself in her own name and in that mortgage-deed we find that her mother, Rukmini Animal, had attested the deed. I am inclined to agree with the learned Judge that the mother is not likely to have attested the deed without knowing its contents. Her attestation is thus evidence that she consented to it. The document certainly is drawn up on the footing that Jeevarathnammal alone was the sole owner of the property. We have also the Collector’s certificate transferred in Jeevarathnammal’s name. Jeevarathnammal died in 1907, ton years after the purchase. Until she died no attempt was made either by her mother or by her sister to show that either of them had any interest in the property.
6. After Jeevarathnammal’s death, no doubt, we find certain transactions by the 1st defendant as guardian of the minor plaintiff in which assertions were made that the property was joint property, but such assertions cannot have much evidentiary value, for the plaintiff was a minor dependent on her guardian for her rights as against the claims set up by her grandmother and mother’s sister. As soon as she came of age, she seems to have realized that the property was hers. Soon afterwards there was ill-feeling between the 1st defendant and the plaintiff, and the present suit is the result; so that it cannot be said that anything that the plaintiff did is sufficient to warrant us in drawing the inference that in plaintiff’s contemplation the house was in any way the property of anybody but of herself. Unfortunately the persons who had anything to do with the transaction are dead. The 1st defendant was a mere girl at the time. She is not in a position to say what took place then. In the absence of evidence, it seems to be impossible for the appellate Court to differ from the opinion of the learned trial Judge that the house was really purchased with the money of Jeevarathnammal, that it belonged to her exclusively and that it passed to her daughter on her death. This disposes of the main contention in the case.
7. I need not refer in detail to all the authorities cited before us as regards the presumptions to be drawn in the case of a joint Hindu family owning property. I think presumptions are to be drawn from the facts of each particular case. As regards one of the mortgages on this house, it has been upheld by the trial Judge and there is no question about it. As regards the other mortgage, I agree with the learned Judge that it does not form a valid charge on the property as against the plaintiff. Plaintiff was in no way bound to meet the expenses of her brother’s marriage. No law has been cited before us which lays any obligation upon a dancing-girl to see that her brother’s marriage is performed. Any money, therefore, spent for the marriage of the brother will not be a valid charge on the property, and that is what the learned Judge has held with regard to the second mortgage.
8. The next question is as regards the jewels and other movables which the plaintiff has claimed. Except one item, viz., item No. 2 (besari), which has been given up before us by the respondent there does not seem to be any reason to differ from the learned Judge’s conclusion.. He has held that certain jewels did not exist and has disallowed the claim for those jewels, and there is no appeal as regards that. As regards the other jewels he has held that they were made with the joint funds of the plaintiff’ s mother, plaintiff and the 1st defendant and has given a half share in them to the plaintiff. It seems to me that this is probably the most equitable way of looking at the position. I am not satisfied that there is any sufficient reason for us to interfere with the conclusion as regards the properties.
9. It is argued that the plaintiff having sued for possession of the house in ejectment, is wrong in having combined with it the claim for moveable property. That objection is not valid; for leave has been granted by the trial Judge to do so, and it is too late now to take the objection. It is also argued that in giving a share in the jewels the trial Judge was really giving a partition decree to the plaintiff which should not have been combined with the decree for ejectment as regards the house in the Mint Street. I do not think that this objection has any substance at all. As the plaintiff had asked for jewels, it was quite open to the Court to grant a half share as it has done. It is only where any property outstanding has to be brought into the hotch-pot, an ejectment suit should not be converted into a partition suit.
10. All the objections raised by the appellant failing, this appeal must be dismissed with costs.
Venkatasubba Rao, J.
11. I agree. The point to be decided is, is the house in question the exclusive property of the plaintiff or the joint property of the plaintiff and the 1st defendant? Rukmani had two daughters Jeevarathnam, the mother of the plaintiff and Kannammal, the 1st defendant. They were members of the dancing-girl caste. When the house was purchased, the plaintiff had not been born, the 1st defendant was but a child, Rukmani was getting to be old and Jeevarathnam was of the age of about 21. The house was purchased in the name of Jeevarathnam. The sale-deed recites that she paid the price. She applied for and obtained the Collector’s certificate in her own name. About 8 years after the purchase, Jeevarathnam mortgaged the property and the deed of mortgage bears the attestation of Rukmani. The learned Judge who tried the case on the Original Side has held that Rukmani’s attestation evidences the fact that she was aware of the nature of the transaction and the contents of the mortgage-deed. I am of the same opinion. There is no reliable oral evidence regarding how the purchase-money was found. If, therefore, I should decide the case on such material as there is before the Court, I should without hesitation agree with the trial Judge that the property was the exclusive property of Jeevarathnam. and that the plaintiff is now entitled to it.
12. Mr. Ganapathi Iyer, the learned vakil for the appellant, contends that this case ought to be decided with reference to certain presumptions. I express no opinion on the question whether presumptions that are applicable to an ordinary joint Hindu family may be applied to a family of dancing-girls. But I shall assume for the purpose of this judgment that those presumptions or at any rate some of them are equally applicable to families of dancing women.
13. What then is the correct presumption that is applicable to an ordinary joint Hindu family? There is a presumption that a family is joint until the contrary is proved. But this does not mean that the family is possessed of any property. The joint family may be a family of paupers. There is nothing in the Hindu Law to compel us to presume that a joint family is possessed of property. If, however, it be said that the very expression ‘joint family’ implies that it possesses some property, the answer is, that there is no presumption that family is joint in that sense. These are only two different ways of stating the proposition, but the result is the same, namely, that it is not correct to say that, to start with, a presumption should be made that the family is possessed of joint property. From this it follows that you cannot presume from the mere fact that a member of the family holds property that it is joint family property. Something more must be shown. The party alleging that the property held by an individual member 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. This is clearly laid down in Ram Kishen Das v. Tanda Mal [1911] 33 All. 677. Chamier, J., lays down two propositions:
(1) There is no presumption that a family has any joint property.
(2) 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 some property by means of which the property in question could have been acquired.
14. In Narayana Rao v. Seshamma [1915] 27 M. L. J. 677 Sir John Wallis, C. J., and Seshagiri Iyer, J., quoted with approval the observations of Chamier, J., and accepted that learned Judge’s view. In a recent case of this Court, Vadamalai Pillai v. Subramania Chettiar A. I. R. 1923 Mad. 262 the same view was again taken. It is unnecessary to cite further cases. The law on the point may now be taken as being clearly settled.
15. It has not been shown that at the time the house in question was acquired, the family was possessed of any joint property. I, therefore, accept the finding of the learned Judge that the house was the self-acquisition of Jeevarathnam. There remains a minor question to be disposed of. It thus being established that the plaintiff was the owner of that property, was the 1st defendant justified in mortgaging it for raising funds to meet the expenses of the plaintiff’s brother’s marriage. The plaintiff was at that time a minor and the 1st defendant professed to act as her guardian. If there was any obligation cast upon the plaintiff to find funds for her brother’s marriage, it may fairly be argued that the act of the 1st defendant would be binding upon the plaintiff. It has not been shown that either under law or custom, there is any liability imposed upon a dancing-woman to perform her brother’s marriage. I agree, therefore, that the plaintiff is not bound to discharge the mortgage executed for raising money for this purpose. I agree with my learned brother in regard to the other points raised in the appeal and I have nothing further to add. I concur in the order made by him.
