Medai Dalavoi K. Thirumalaiyappa Mudaliar vs Medai Dalavoi K. Shanmuganatha Mudaliar and Others

Srinivasan, J.—The principal question raised in this appeal centres round the conflict of interest between the legitimate and the illegitimate sons of Kumaraswami Mudaliar who died pendente lite, in view of certain dispositions of property, by way of settlement and partition effected by the said Kumaraswami Mudaliar in favour of his illegitimate sons, alleged to be to the detriment of his legitimate issues. The somewhat involved circumstances in which this suit for partition on behalf of the legitimate sons was filed have to be set out at some length.

Kumaraswami Mudaliar, his brothers Ranganatha and Shanmughakumara, respectively senior and junior to him, and their father, Thirumalaiappan, were members of a joint family. A registered partition was entered into on 18th June 1930, though even in July, 1928, a division in status had been brought about by an agreement in writing. On the date of this partition, none of the three sons had any male issue. It is not in dispute that even by that date, Kumaraswami had four sons and a daughter by his mistress, Pappammal alias Kalyani, the fifth Defendant in the suit. They are Defendants 6 to 9, sons, and Defendant 10, a daughter. It is also not in dispute that Kumaraswami was desirous of entering into a legitimate married life, but at the same time, he was anxious to make an adequate provision for his illegitimate children. On the 28th January 1932, he executed a settlement deed, exhibit B-1, the proper construction of which will arise for consideration in due course, purporting to settle 89 acres of nanja lands and 15 acres of punja lands on his illegitimate issues. On the 2nd of March, 1932, he married one Rajammal, a daughter of his sister, Alamelu. This Rajammal was brought on record as the 21st Defendant in the suit as one of the legal representatives of the deceased Kumaraswami. The Plaintiff, who is the eldest legitimate son of Kumaraswami, was born in October, 1934. Besides him, Kumaraswami had by the date of the suit two other sons and a daughter, who are Defendants 2 to 4 . It is alleged that after about 1938, Kumaraswami and his legally wedded wife, Rajammal, fell out, with the result that the Plaintiff, his brothers and his sister and also his mother were living with their paternal grandmother, the mother of Kumaraswami. Both from the pleadings and the evidence, it appears that Kumaraswami sought to get one of his illegitimate sons married to Shakuntala, daughter of his sister, Alamelu. This proposal was rejected and Kumaraswami in his turn refused to give in marriage his only legitimate daughter, the fourth'' Defendant in marriage, to the only son of his sister, Alamelu. In view of these disputes and the feeling the legitimate branch of the family had that Kumaraswami was advancing the interests of his illegitimate children to the disadvantage of his legitimate issues guardianship proceedings were started in the District Court, Tirunelveli, in respect of the legitimate minor daughter, the fourth Defendant. The ground advanced in support of the proceeding appears to have been the apprehension felt by the members of the family that Kumaraswami intended to force an undesirable marriage upon his minor daughter, the fourth Defendant. Kumaraswami appeared in Court and gave an undertaking that he would not put through any marriage except with the concurrence of his wife and his daughter. Contrary, however, to this undertaking, on the 30th April, 1954, he forcibly had a tali tied round the neck of the girl, alleging that it was done by one Thirumalaiappa Mudaliar, and that a valid marriage had thereby been effected. This resulted in petitions before the District Magistrate and the High Court. By an order of the High Court, the girl was removed from the custody of her father. The guardianship proceedings, however, came to an end in or about August, 1955, on the girl attaining the age of 18 years. Thereafter, a suit Original Suit No. 30 of 1954, on the file of the Subordinate Judge, Tirunelveli, was filed seeking a declaration that the alleged marriage of the fourth Defendant was neither true nor valid in law. A decree was granted. The person who figured as the husband filed an appeal in the High Court, but it was finally unconditionally, withdrawn and dismissed. The several members of the family who were living in the family house known as the Dalavoi Hall found it impossible to reside there any longer in view of the attitude of Kumaraswami. Matters having reached such a stage, on the 22nd of May, 1954, the Plaintiff issued a telegraphic notice to his father, Kumaraswami, announcing his intention to be separated from his father. A similar notice was given by the mother of the Plaintiff on behalf of the minor sons.

On the 26th of May, 1954, Kumaraswami registered a partition deed. This deed purports to have been executed on the 21st of May, 1954, a day prior to the issue of the telegraphies notices, by the Plaintiff and his mother, and by this partition deed, Kumaraswami. as the father, effected a division of his properties into eight equal shares, the sharers, being himself, his four illegitimate sons and his three legitimate sons. The Plaintiff thereupon laid the suit attacking the partition as well as the settlement of the year 1952 executed by Kumaraswami in favour of his illegitimate issues. The Plaintiff contended that the illegitimate sons are not entitled to share in the ancestral estate during the life-time of the father and that the partition claimed to have been effected by Kumaraswami was neither true in fact nor valid in law. The Plaintiff further questioned the truth of two debts claimed to have been incurred by Kumaraswami set out in the impugned partition deed, the debts being a sum of Rs. 40,000 and odd in favour of his mistress, the fifth Defendant, and another sum of Rs. 12,000 and odd in favour of his eldest illegitimate son, the sixth Defendant. The plaint also set out the various items of properties in which the Plaintiff was entitled to share.

Kumaraswami died pendente lite. A Will said to have been executed by him was put forward by his mistress and illegitimate children. The Plaintiff also attacked this Will and contended that in so far as the properties covered by the Will are concerned, Kumaraswami should be deemed to have died intestate and the properties covered by the Will should also be taken into account for the purpose of the partition.

In his written statement, the first Defendant claimed that the settlement executed by him in 1932 in favour of his illegitimate issues is a valid transfer of property which the Plaintiff and his brothers are not entitled to question, as on the date of the execution of this document, he was the absolute owner of the property which had fallen to his share at the earlier partition of 1930, and consequently he was competent to dispose of the property in any manner he chose and his legitimate sons born after the date of the transfer are not, therefore, entitled to question the validity of the settlement. He also alleged that the partition he effected between himself and his legitimate and illegitimate sons is a bona fide transaction, he being competent as the father to effect a division and at such a partition to give equal shares to his illegitimate sons along with his legitimate sons. He denied that it was a mala fide transaction brought about after a severance in status between himself and his legitimate issues. The other contentions advanced by him will be referred to in due course when dealing with the connected aspects of the case.

The learned Subordinate Judge who tried the suit framed as many as 30 issues. It is unnecessary to set out the evidence on the findings in respect of each and every one of these issues, for the controversy centres round only a few. We may mention even here that though the truth and validity of the Will left by Kumaraswami was put in issue, the learned Subordinate Judge declined to determine that question. On the death of Kumaraswami, the plaint was sought to be amended by including appropriate prayers which in effect were aimed at converting the suit for partition into one for administration of the estate of the deceased first Defendant, Kumaraswami. Such amendments to the plaint were rejected and that order of the trial Court was not canvassed in the High Court. The learned Subordinate Judge stated that it would be sufficient if the share of the first Defendant was set apart and that it was not necessary in this suit to determine who are the members entitled to succeed to the deceased Kumaraswami''s interest. The conclusion of the learned Subordinate Judge in this regard is challenged by the illegitimate sons, who are the real contesting Respondents in this appeal. Mr. R. Ramamurthi Ayyar, for these Respondents, urged that since evidence had been let in with regard to the execution of the Will, it would be desirable if this Court were to record a finding on that question as well. We are not satisfied hat the circumstances warrant our taking a view different from that of the learned trial Judge. In so far as the issues relating to the execution and validity of the Will and the disposition of properties thereunder are concerned, we do not propose to enter into these questions.

The principal points that are in controversy in this appeal by the legitimate son and the cross-appeal by the illegitimate sons are briefly set out below. The first of this relates to the second schedule to the plaint, which consists of the properties covered by the settlement executed by Kumaraswami in 1952, purporting to give certain extents of properties to his illegitimate sons. The principal attack upon this disposition was that the document did not create any rights in the illegitimate sons, that the property continued to belong to Kumaraswami and since they were properties which fell to Kumaraswami''s share at the family partition of the year 1930, they continued to possess the character of ancestral properties and are, therefore, liable to be included in this partition. It was contended that the document is so inchoate that the dispositive terms thereof cannot take effect. In the alternative, the Plaintiff-Appellant pleaded that settlement was brought into existence for the purpose of making up the share which the illegitimate sons would get at the partition after the death of the father. This settlement was executed even before Kumaraswami married and he thought that if his legitimate sons partitioned the properties after his death, his illegitimate sons would come in only for a smaller share and his expressed intention in executing the document was to give certain properties to the illegitimate sons as to make their share equal to the share of a legitimate son. On behalf of the Plaintiff-Appellant, it was contended that this was a condition and the disposition was to take effect in accordance with this condition. It was claimed that if note is taken of the properties covered by this settlement, the illegitimate sons in fact get a larger share than a legitimate son. It is said, therefore, that the property covered by exhibit B-1 should also be the subject-matter of the present partition if the illegitimate sons are to get shares equal to that of the legitimate sons. The trial Court disagreed with these contentions. It held firstly that on the date when exhibit B-1 was executed, Kumaraswami was the absolute owner of the property and if he transferred the property belonging to him absolutely, his after born legitimate sons could not question that transfer. It also declined to accept the argument that the document did not create any legal rights in favour of the illegitimate sons. Its judgment was, therefore, that these properties were no longer joint family properties liable to be partitioned.

Another contention advanced by the Plaintiff was that when once severance in status had been brought about, the father was no longer competent to exercise his authority to give any share to his illegitimate sons. In repelling this argument the learned Subordinate Judge relied upon certain decisions which held that a Sudra father could demand that his desire to give a share, even a share equal to that of the legitimate son, to his illegitimate son, should be given effect to, even after the severance in status had taken place and even after a suit for partition had in fact been filed by the legitimate sons.

Another set of properties is impressed with a trust for meeting the obligations in respect of certain charitable purposes. They cover schedule 23 to 40 in" the plaint. Leaving out certain minor contentions (for it is claimed that in respect of a fractional estate in these properties Kumaraswami had a separate estate), the broad claim advanced by the Plaintiff was that by reason of an agreement entered in to among the members of the family consisting of Kumaraswami and his brothers, the illegitimate issue of the brothers are not entitled to a share in these properties. These properties are only burdened with the trust and it is common ground that the surplus income after meeting the charitable purposes is divisible among the several branches. The contention, as we said, that the illegitimate sons are not entitled to share in the management and the surplus, has not been accepted by the trial Court, and it is one of the points canvassed in the appeal.

Schedule 59 includes among other things a residential house known as the Kalyani Mahal. This was claimed by the Plaintiff to be joint family property. But the learned Subordinate Judge on the evidence came to the conclusion that Kumaraswami, who maintained the house for the residence of the illegitimate branch of the family, continued to treat it as a separate property and there was no proof of any intention on his part to waive his separate rights. On the other hand, the Plaintiff-Appellant claimed that the property had become blended with the joint family properties and that it should, therefore, be available for partition. The appeal attacks this finding of the learned Subordinate Judge which rejected the Plaintiff''s claim in this regard.

The memorandum of cross-objections questions the correctness of the finding of the trial Court in respect of schedules 7, 8, 57, 58 and 60, which cover immovable properties and schedule 61-B, which covers movables. Schedule 7 was admittedly a vacant piece of land belonging to the joint family. Schedule 8 is a hotel constructed thereon by Kumaraswami. The learned Subordinate Judge came to the conclusion upon the evidence that a considerable portion of the joint family-resources was employed in the construction of this hotel and that accordingly schedules 7 and 8 represented joint family property liable to division. This finding is objected to in the cross-appeal. In the case of schedules, 57, 58 and 60, the learned Subordinate Judge took the view that the manner in which Kumaraswami was treating the incomes from the property, the mode of accounting and his conduct in relation to them clearly showed that though they were at the inception the separate properties of Kumaraswami, they had become blended with the joint family properties. This conclusion is attacked in the cross appeal.

Schedule 61-B is a pair of diamond earrings, etc. which are items of personal adornment of Kumaraswami. The learned Subordinate Judge held that this item is also a joint family asset. There is no doubt very little evidence in this regard except that Kumaraswami''s father gave earrings to each of his sons. The learned Subordinate Judge held that merely because they were personal properties of Kumaraswami, they do not cease to be joint family properties, a finding which is attacked in the cross-appeal.

Two other points in controversy relate to two alleged debts, one in favour of the fifth Defendant in a sum of Rs. 40,551 and the other in a sum of Rs. 12,000 in favour of the sixth Defendant, the eldest illegitimate son. The claims in this regard were put forward both in the written statement of the respective Defendants and supported by the written statement of the first Defendant, Kumaraswami. In paragraph 5 of the writen statement of Kumaraswami, the position was explained thus. He stated that the second schedule property, covered by the settlement, exhibit B-1 of the year 1932, was in his management and that he was deriving the income from the property on behalf of his illegitimate issue. He claimed to have been spending the income for the fifth Defendant his mistress and her children, and that any surplus remaining therefrom was handed over to the fifth Defendant; but from time to time when Kumara swami had need for moneys he drew upon the funds in the possession of the fifth Defendant and asserted that these amounts so drawn from her were expended for family purposes. According to him, as on 30th June 1955, a sum of Its. 40,551-0-10 was due to her and he stated that in the impugned partition deed which he effected on the 21st May, 1954, provision for the discharge of this debt was made. In the case of the sixth Defendant, it was claimed that he was working as the manager of the Courtallam Boarding and Lodging House (schedule 8) and was to receive a salary of Rs. 300 per month. These sums were credited in his favour and in the same manner as in the case of the fifth Defendant, Kumaraswami purported to draw from this fund belonging to the sixth Defendant various sums which totalled Rs. 12,450 and this sum is claimed to be payable to him. The learned Subordinate Judge, who went into this question, held that these debts were, firstly, not proved, and secondly, that there was no evidence that these debts were binding on the joint family. This is attacked in the cross-appeal.

One of the main questions that arises for consideration relates to the power of the father to give his illegitimate sons a share equal to that of his legitimate sons in the joint family property. It will be recalled that practically simultaneously with the issue of the notice by the Plaintiff and his brothers voicing the intention to separate themselves, Kumaraswami executed a partition deed, exhibit B-2, whereby he divided the family properties into eight equal shares for himself, his three legitimate and four illegitimate sons. It has been found as a fact that this partition was effected by Kumaraswami after the notice of division in status had been given by the Plaintiff and his brothers. Notwithstanding that, the Court below held that Kumaraswami was competent to effectuate his intention of giving an equal share to his illegitimate sons. On behalf of the Plaintiff-Appellant, Mr. Thyagarajan has questioned the correctness of this finding. Briefly stated that the argument in this regard is that when once a coparcener gives notice of his intention to separate his share in the family properties as on that date becomes crystallised and thereafter the father, whatever he might have been competent to do in other circumstances, has no longer the authority to exercise his alleged power of giving a share to his illegitimate sons, which would in effect reduce the quantum of the share to which a legitimate son would become entitled on the severance in status being brought about. Mr. Thyagarajan does not deny that the decided cases dealing with this point do not support his contention. But nevertheless, he claims that those cases have not examined the question from this point of view, namely, the effect of the severance in status upon the share of the son.

Under the Hindu law, every coparcener is entitled to a share upon partition. This right of a coparcener extends to a son, who, though born after partition, was begotten at the time of the partition that is to say, a son, who was in his mother''s womb at the time of the partition, is entitled to a share though born after the partition. The Hindu law as regards illegitimate sons makes a distinction between the illegitimate sons of the three regenerate classes and the illegitimate sons of Sudras; the illegitimate sons of three regenerate classes are not entitled to inheritance or to any share on partition but to maintenance only; in the case of the illegitimate sons of Sudras, the following text of the Mithakshara has been relied upon to give them a share:

The son begotton by a sudra of a female slave obtains a share by his father''s choice or at his pleasure. But after the demise of the father, if there be sons of a wedded wife, let these brothers allow the son of the female slave to participate for half a share, that is, let them give him half as much as is the amount of one brother''s allotment.

Based upon this text, the following propositions are set down in Mulla''s Hindu Law (13th edition) page 364. The illegitimate son of a Sudra does not acquire by birth an interest in his father''s estate; consequently, he cannot enforce a partition against his father during his life time. But the father may, in his life time, give such illegitimate son a share in his property, even a share equal to that of a legitimate son. But, on the father''s death, the illegitimate son is regarded in the eye of law as a coparcener along with the legitimate son of his father. He has the right of survivorship and he can enforce a partition against the legitimate son. But, at such a partition, the illegitimate son takes only one half of what a legitimate son would take. Cases have held that these principles conferring rights upon the illegitimate son apply not only to separate property, as it was thought at one time, but to coparcenary property as well.

It is a well established principle of Hindu law that when a father purports to effect a partition, the partition is not only as between himself and his son but is one which separates the interests of the sons inter se. In Kandasmi v. Doraisamy Ayyar ILR (1880) Mad. 317 the question arose whether an instrument of partition brought about by the father, who had three sons by his senior wife and two by his junior wife, dividing the properties among each of these sons, after reserving some items for himself, created, a division as between the sons. A Bench of this Court held (at pages 321 and 322):

Assuming that the father executed the documents bona fide and in accordance with the Hindu Law, I see no reason to think that it could not alter the status of the sons. According to the Hindu law, it is competent to a father to make a partition during his life, and the partition so made by him binds his sons, not because the sons are consenting parties to the arrangement, but because it is the result of a power conferred on him, though subject to certain restrictions imposed in the interest of his family.

The learned Judges disagreed with the view taken by the trial Court that such a partition made by the father would affect only his individual status and his share in relation to his sons and could have no influence either on the relation of his sons inter se or of their shares as between themselves. It will be seen accordingly that while unequivocal declaration of a son to get himself divided from the family may operate only to �ever his interest in the family and bring about a separation of his status vis-�-vis the rest of the family leaving the rest of the family still joint, when a father effects a division allotting properties to his sons, so long as the partition is bona fide and the allotment of the properties cannot be challenged as unfair the father brings about severance in status as between the sons themselves. It would necessarily follow therefrom that when a son announces his intention to separate, it does not put an end thereby to the father''s power under the Hindu law. That power of the father which is of such amplitude as to enable him to bring about an alteration of the status of his sons inter se cannot be affected by the declaration of one of the sons to separate. If it should so happen that the father has illegitimate sons as well, the power of the father during his life time to give shares to his illegitimate sons cannot in principle be affected by the declaration to separate given by a legitimate son. The Hindu law makes a distinction between a Sudra father with legitimate and illegitimate sons and a father of the other three regenerate classes with regard to the father''s power to provide for the illegitimate sons. It is difficult to accept the contention that solely by the device of giving a notice to separate, the legitimate son can effectively destroy the right of the Sudra father to provide for his illegitimate sons. Nor can we agree in this context, with the argument of Mr. Thyagarajan that for the reason that the Plaintiff and his brothers had given notice of their intention to separate, their shares in the property had become determined and quantified and thereafter the father can have only an equal share with legitimate sons, and if he seeks to make any provision for his illegitimate issue, he must do so only out of his share of the estate-- though the illegitimate sons have no right to a share or to demand partition during the life time of the father, they can obtain a share at the father''s choice or at his pleasure, and this power of the father to give a share to his illegitimate son cannot, to our minds, be destroyed by the severance in status brought about by notice of intention to separate, given by the legitimate sons, on the theory that on such notice, the legitimate son become entitled to obtain a share ignoring the existence of illegitimate sons.

An analogous case arose in Karuppannan Chetti v. Bulokam Chetty ILR (1889) Mad. 18. In that case, a suit was brought by the son against his father and others. The father had illegitimate sons born to him by a permanently kept concubine. The father expressed his wish that the illegitimate sons should share equally with the legitimate sons. The trail Court, relying upon the text of the Mithakshara extracted earlier, granted a decree for only a half share to the legitimate sons. On appeal, the first appellate Court, relying upon the very same text, held that a full share could arid should be given to the legitimate son during the life time of the father at the father''s pleasure. The judgment of the High Court is a very short one and it is held therein that when the father desired that his illegitimate sons should share equally with his legitimate sons, the decree of the lower appellate Court, which granted such a share, was perfectly correct. Another point that was decided herein was that the text of the Mithakshara referred to does not apply only to the self acquired property of the father.

The very point urged by Mr. Thyagarajan, learned Counsel for the Appellant, that on the issuance of a notice to separate, the shares of the sons become crystallised and such shares cannot be cut down by the exercise of the father''s power to provide for his illegitimate sons, was dealt with in Deivanai Achi v. Chidambaram Chettiar AIR 1854 Mad. 657, 671:

It is contended on behalf of the Appellants that the text should be restricted to the division of self-acquired properties of the father and not to the joint family properties as in that event the existing rights of the other coparceners, who had acquired right by birth in the property would be diminished by the exercise of the choice of the father. The father could dispose of his self-acquired properties in any manner he pleases. He can make an unequal division. Under Hindu Law, it has been established that the father has an overriding right to bring about a division of the property between himself and his son, subject however to the qualification that the allotment made by him is not unequal or unfair. There is no necessity for conferring a right on the father to allot a share to the illegitimate sons, when he decides to divide his self acquired property. It is open to him to give away the entire self-acquired property to the illegitimate sons.

Under strict Mistakhara law, it is true that right by birth is recognised both in self-acquired property as well as in the joint family property, the father having wider power of disposing of his self-acquired property than in the case of joint family property, but the theory no longer holds the field and it is unnecessary to empower the father to give a share to the illegitimate sons restricting his right to self-acquired property, as without the text relied on, the father had otherwise ample power in disposing of his self-acquired property in any manner he liked. The text cannot, therefore, be construed as referring to self-acquired property. It applies, in our opinion, to joint family property.

It was than argued that it applies only when the father exercises his superior right to divide the property when it was open to him to have exercised his choice of alloting a share to the illegitimate sons also along with the legitimate sons, but if, as in the present case, the power is invoked after the institution of the suit, it is not open to the first Plaintiff to now exercise his choice long after the institution of the suit. In Karuppannan Chetti v. Bhulokam Chetti ILR (1889) Mad. 18 the power was allowed to be exercised in a suit. There is no reason, therefore, to restrict the choice only when the father exercise his parental right. It was there pointed out that there is no foundation for the suggestion that the text should be restricted to the self-acquired property of the father. The correctness of this decision was never disputed and we see no reason to differ from it.

The next argument was that the choice was not exercised by the father till long after the institution of the suit and that too after the division in status was brought about by the institution of the suit. It was also pointed out that there was no pleading in respect of it and that, therefore, the question should not be allowed to be raised. The plaint proceeded on the footing that the sons were legitimate and claimed a 3/4 th share. Of course, it was open to the Plaintiffs to have put forward the alternative case of the first Plaintiff having exercised his choice. But if the father continued in the bona fide belief that the marriage was valid and that the children were legitimate, he could not have exercised the choice consistently with his belief until after serious doubt was thrown upon it. It was then during the course of the arguments, as pointed out by the learned Subordinate Judge in paragraph 93 of the judgment, that the Plaintiffs'' learned vakil stated that the first Plaintiff did desire to give Plaintiffs 2 and 3 an equal share with his deceased son. A division in status would not deprive the father of the right to exercise his chance as there was no actual division by metes and bounds which became complete and final.

It may be noticed that Karuppannan Chetti v. Bhulokam Chetti ILR (1889) Mad. 18 has been relied on in this regard. The power of the father to provide for his illegitimate sons would according to this decision be exercisable after a severance in status has been brought about and even after the institution of the suit for partition. but before the partition has been effected by metes and bounds.

We may now deal with the alleged debts in favour of the fifth and sixth Defendants. The comment made by the learned Subordinate Judge that there is no independent evidence at all about the debts except the entries in the relevant pages of the accounts is not criticised in any way by the learned Counsel for the Defendants-Respondents. It was the ease of the first Defendant Kumaraswami himself that in so far as the debt due to the fifth Defendant is concerned, it represented moneys which he took from her for purposes of the joint family and that she had in her hands the surplus of the income from the second schedule property, i.e., the property settled on the illegitimate branch in 1932. The learned Subordinate Judge also examined the state of the income relating to this property as evidenced by the balance-sheets filed by the Defendants. He found as a fact that the household expenses, which presumably include the expenses of both the illegitimate and legitimate parts of the house-hold, far exceeded the income from the second schedule property. He further found that the extent of expenses incurred in respect of the joint family, the legitimate branch, was far less than that in respect of the illegitimate branch. There had also been certain fixed deposits made in the name of the fifth Defendant by way of defence loan bonds, etc. If due note is taken of that, it would show that very little of the income from the second schedule property should have been utilised for the expenses of the family as a whole. The learned Subordinate Judge also noticed that if the entries in the accounts are to function as the solitary evidence in respect of the alleged debts, several of these entries are inter-lineated. He principally noticed, that the entries, dated 16th May 1951, 16th November 1951, 10th January 1952 and 20th June 1952 had been made by way of interpolation between two entries, after the rest of the account had been written. It was also noticed that in the ledger account relating to schedule 2 properties, there was no entry relevant to the diversion of the surplus income by way of loan to the first Defendant, Kumaraswami. Unfortunately, there was no separate account of the income and. expenditure in respect of schedule 2 property, so that beyond the ipse dixit of Kumaraswami, there was nothing to show whether, any and if so, what amount by way of surplus income was available from this item of property. We also perused some of the entries, particularly those apperaing at page 173 of exhibit B-35 and at pages 74, 98 and 191 of exhibit B-57. In one particular case, we noticed that the entry relating to one item of alleged loan proceeding from the fifth Defendant was written on the same line which ncorporated an entry relating to expenses, a somewhat peculiar method of making an entry. Whether the alleged debts are true or not, there is no doubt at all that several of these entries have been made subsequently after the accounts had been made up for the period during which the entry has been made. That necessarily casts a great deal of doubt not only upon the genuineness of the entries but also on the genuineness of the debt as well.

In the case of the sixth Defendant, the claim that a sum of Rs. 12,450 is payable to him by way of salary of Rs. 300 a month during his employment as manager of the hotel is wholly unsupported by any worthwhile evidence. It is not denied that in the account books of the hotel, the payment to the sixth Defendant appears as a debit on the expense side and the profit and loss of the hotel has been computed after taking this expenditure item into account. There is no account which purports to show that the amount had not been paid, but was debited as against the hotel thereby indicating an outstanding in his favour. On the 30th June 1953, at page 105 of exhibit B-60, a consolidated entry of a sum of Rs. 12,000 and odd finds place, and this is all that is available by way of evidence in support of the claim of the sixth Defendant, no doubt supported by Kumaraswami''s written statement. It also appears that before the dispute arose Kumaraswami was looking upon this boarding house as his separate property and was presumably dealing with the income therefrom. It is impossible in these circumstances to rely upon such entries which have been made out of place and in a suspicious manner to hold that the truth of these claims by the fifth and sixth Defendants has been established.

The learned Subordinate Judge noted that the only persons competent to speak about these claims are the fifth and sixth Defendants respectively and they have not chosen to examine themselves as witnesses. While this is no doubt a factor to be taken note of in assessing the evidence, it was perhaps too much to expect the fifth Defendant, the mistress of Kumaraswami, to enter the witness box and face the cross-examination which might cover several other aspects. We may well excuse her in refusing to face the cross-examination in view of her. status as the mistress of Kumaraswami. But there is no reason at all why the sixth Defendant, who is the eldest illegitimate son of Kumaraswami, should not have given evidence in support of his claim. The learned Subordinate Judge observes;

The only person who is competent to speak about it is the sixth Defendant who was not examined, though he was present in Court almost every day.

This comment is fully justified and we see no reason to differ from the view taken by the learned Subordinate Judge that the evidence available has not established the genuineness of the alleged debts.

Mr. R. Ramamurthi Ayyar, for the Respondents, urged that in the case of the fifth Defendant, a decree could at least have been granted against the estate, excluding such of those entries as appeared to the Court to be interpolated. It is said that the total of such entries comes to Rs. 17,500 and Mr. Ramamurthi Ayyar pleaded that since other entries did not appear at all suspicious, the fifth Defendant would be entitled to the sum covered by those other entries. We have given the matter careful consideration. We are not prepared to accede to this request. When it has been established that the first Defendant deliberately made fictitious entries in the accounts for the purpose of advancing the interests of the illegitimate branch of the family to the detriment of the legitimate branch, we see no reason to believe that the entries, though they do not bear any signs of interpolation, would by themselves establish the truth of a debt. We must accordingly reject this plea.

It was next urged by Mr. Ramamurthi Ayyar that these claims might at least be held binding against the first Defendant, Kumaraswami for he has acknowledged his indebtedness to this extent. He further argued that the Plaintiff has not shown these debts to be tainted by any illegal or immoral purpose and if so, these debts incurred by the Hindu father are binding upon the sons on the theory of pious obligation. That is no doubt true. Had Kumaraswami been alive, it might have been a justifiable course to have made these debts binding on his share of the estate. Kumaraswami being dead, the Defendants, his illegitimate issues, have propounded a Will. The genuineness of the Will is itself in question. If it should turn out that the Will is not genuine, even the legitimate sons would be entitled to share in Kumaraswami''s estate. To make these debts, which have been found doubtful, binding upon'' Kumaraswami''s estate, would in effect affect the shares of the legitimate sons in the separate estate of Kumaraswami, if it should be found that he died intestate. We are not, therefore, prepared to agree to the claim that these debts should be made binding on the share of Kumaraswami.

We may now take up schedules 7 and 8. Schedule 7 is admittedly vacant land belonging to the joint family, and schedule 8 is the Kuttalam Boarding and Lodging House constructed thereon by Kumaraswami between the years 1943 to 1948. In paragraph 22 of his written statement, Kumaraswami claimed that the building in the seventh schedule is in no sense joint family property, but his separate property, having been constructed with his separate funds. He conceded, however, that the site was ancestral site, and that since his legitimate sons would be entitled to shares in the site, in the partition deed which he executed in 1954 he had adjusted their shares otherwise and had allotted this site to his own share. The claim of the Plaintiff was on the other hand, that the building was constructed with joint family funds. It is admitted that the building was constructed at c cost of about Rs. 1,67,000. In his written statement, Kumaraswami stated that besides having in his hands the income from the second schedule property, he had also other considerable properties got as a reversioner and that he sold some of these properties and realised cash to the extent of Rs. 1,20,000. With the sum so raised and with money drawn from the current common account of the income of not only the second schedule property but from the joint family properties and his own separate properties, he claimed to have put up the building at a cost of Rs. 1,60,000 and spent a sum of Rs. 20,000 providing furniture and amenities. Paragraph 9 of his written statement makes this clear. His claim was further that the sums which he drew from the family account were very much less than the income which he received from his own separate properties. For these reasons, he averred that the Boarding and lodging House should be regarded as his own separate property not liable to partition. It is not in dispute that certain separate properties of his were sold away for Rs. 1,20,000 at about that time under exhibits B-7 to B-13. On behalf of the Plaintiff Mr. V. Thyagarajan pointed out that Kumaraswamy discharged joint family debts to the tune of Rs. 1,30,000 at that time, so that the sale proceeds derived from exhibits B-7 to B-13 were completely exhausted thereby. Mr. Ramamurthi Ayyar does not dispute this factual position. But he argues that the sums realised by the sales under exhibits B-7 to B-13 were undoubtedly separate properties of Kumaraswami, and that if he applied those sums towards the discharge of joint family debts Kumaraswami could later reimburse himself from the joint family income to the extent to which he had utilised his separate funds for the discharge of the joint family debts. He argues, therefore, that even if it is found that the joint family income was the source from which the funds for the construction of the lodging house were initially, derived, in view of Kumaraswami''s undeniable right to recover what he advanced to the joint family from his separate funds, the construction of the hotel should be deemed to have been with his separate property. Now, unfortunately, this was not Kumaraswami''s case at all. It is only by way of an argument, when it has been established that the sale proceeds had been fully exhausted on the eve of the construction, that Mr. Ramamurthi Ayyar for the Defendants-Respondents is driven to adopt this line of reasoning. The learned Subordinate Judge found in paragraph 69 of his judgment that the total sale proceeds came to Rs. 1,21,015-8-0 and that the total debts according to the list filed by the Defendants came to Rs. 97,779-15-8. Even by Fasli 1353, debts to the extent of Rs. 1,30,254-14-2 had been paid. On the 1st of September 1943, there was an opening balance of only Rs. 12,529-1-4 representing the total balance from all sources of income, both joint family and separate. The factual position cannot, therefore, be denied that when Kumaraswami started upon his construction he had no separate fluid assets. The question was next examined by the learned Subordinate Judge as to whether during the period between 1943-48, when the construction was put up, Kumaraswami would have received sufficient income from his separate properties which would suffice to finance this venture. In paragraph 75 of his judgment, a statement showing the various amounts of income from the several classes of properties has been set out, the correctness of which is accepted by both sides, and in paragraph 76 of the judgment, the household expenses of every fasli from 1353 onwards given. Taking the period faslis 1353 to 1359, the learned Subordinate Judge worked out that the total income from the joint family properties came to Rs. 1,44,257-3-10 and that from the separate properties came to Rs. 90,619-4-8. Having regard to the total of the household expenses for the same period given in paragraph 76 of the judgment, the learned Subordinate Judge found that it was impossible for Kumaraswami to have derived a sum of Rs. 1,60,000 and odd required for the construction of the hotel from the income of his separate properties, and that, on the other hand, a very substantial and considerable portion of the Joint family income should have been utilised for the construction of the building.

As has been pointed out, this position is not seriously controverted by Mr. Ramamurthi Ayyar, whose argument we notice to be that since Kumaraswami had diverted a sum of Rs. 1,20,000 out of bis own separate property for the discharge of the family debts, whatever amount he drew from the joint family income for the purpose of the construction of the building should be regarded as by way of reimbursement towards the advance he had made from his separate funds for the discharge of the family debts, and in that view, he insisted that the sale proceeds of Rs. 1,20,000 was still available to him by way of reimbursement from joint family income. We are really unable to accept this line of argument. Not only is it violently contradictory to what Kumaraswami himself stated in paragraphs 8 and 22 of his written statement, but there is also thing to support this line of reasoning. The accounts could well have displayed this mode of transaction if that was so really intended by Kumaraswami. The accounts do not, however, show that Kumaraswami treated the discharge of the joint family debts with the separate funds of his as involving the advance of moneys from his separate sources to the joint family to be reimbursed by him later on. A member of a joint family is entitled to use his separate income for purposes of his joint family and unless there is a specific understanding to that effect, one cannot assume that the member created an enforceable claim against the joint family, and that is principally what Mr. Ramamurthi Ayyar''s argument amounts to. It follows, therefore, that the major part of the resources for the construction of the building came from the joint family income and the view of the learned Subordinate Judge that the building must be regarded as joint family property, liable to be divided among the family members is, therefore, correct.

One of the items in dispute is the premises known as the Kalyani Mahal. It forms part of schedule 59. This property originally belonged to a distant collateral one Shanmugha Kumaraswami Mudaliar, and it was inherited by his widow, Kalyani Anni. On the death of this lady in 1941, the first Defendant Kumaraswami and his brother Ranganatha got possession thereof as the nearest reversioners, and in a suit for partition, a half share came to the first Defendant Kumaraswami. The Plaintiff claimed that this property was treated by Kumaraswami as property of the joint family and that he had abandoned his seprarate interest therein and sought to have this item also brought in for the purposes of partition. The first Defendant in the written statement claimed that this property had been obtained by him as a reversioner and that he did not merge this property with the joint family properties and never abandoned his separate interest in it. This property adjoins the ancestral family house, the Dalavoi House. It was never in dispute that Kalyani Mahal was always under the occupation of the fifth Defendant (mistress) and the illegitimate children. At no point of time did the legitimate branch of the family ever enjoy this item of property. In fact, tracing the history of this property, it is in evidence that Kumaraswami obtained a lease of this property as long back as in 1930 in order to house his concubine, the fifth Defendant, and her children. Subsequently, however there appears to have been a lease for a period of 15 years in favour of Kumara. swami and his two brothers. During the currency of this lease which commenced in 1933, Kalyani Anni died in 1941 and the brothers became owners by reversion. But despite that fact and till Ranganatha filed a suit for partition and obtained his half share of this property, Kalyani Mahal was always in the occupation of the illegitimate branch of the family, and after Kumaraswami''s half share in the property was defined as a result of the partition suit between Kumaraswami and Banganatha, the same position continued in respect of that share, which is the item now in dispute. The learned Subordinate Judge was called upon to examine whether this property, which was undoubtedly separate property of Kumaraswami when he acquired it, became joint family property on the theory of blending. While the evidence undoubtedly established that some improvements had been effected to this property by Kumaraswami with the joint family funds, the learned Subordinate Judge yet refused to accept this as posititive evidence of the abandonment of the separate rights of Kumaraswami. He relied principally upon the fact that Kumaraswami kept this item exclusively for the use of his concubine and the illegitimate issues. Whether the separate property of a coparcener is thrown into the hotchpot and thereby acquires the character of joint family property is a matter both of intention on the part of the coparcener concerned and of reasonable inferences to be drawn from the course of conduct of the coparcener himself in relation to that item of property. The learned Subordinate Judge on the basis of the facts available held that there could not have been any intention on the part of Kumaraswami to waive his separate rights and that the only relief which the Plaintiff could have in relation to this property was to debit to the share of the first Defendant Kumaraswami the amount which he drew from the joint family funds for the improvement of this item of property. This finding of the trial Court is attacked by the Plaintiff in this appeal.

It seems to us that there is very little material on the basis of which the Plaintiff Appellant''s claim can be accepted. Right from the beginning, long before the first Defendant became entitled to any interest in this property, he acquired it by way of a lease in or about 1930 to house his concubine and his illegitimate children. In 1933, there was no doubt a lease in favour not only of Kumaraswami, but his two brothers as well, but the evidence does not disclose that the other brothers ever enjoyed this property. After the death of Kalyani Anni and after the three brothers became entitled to the property as reversioners, the third brother died and in the suit filed by Ranganatha, Kumaraswami obtained a half share of this property. But at no point of time did Ranganatha or the third brother ever enjoy the property, even at a time when they had a leasehold right therein; at any rate, the evidence does not disclose anything to that effect. But confining ourselves to that half share of Kalyani Mahal which alone is in dispute now, this property was in exclusive enjoyment of the illegitimate branch of the family which was obviously unable to find any residence in the ancestral family house, the Dalavoi House. There can be no gainsaying the intention of Kumaraswami that he kept this property for the exclusive use of the illegitimate branch of the family and the mere circumstance that he spent some amounts from the joint family funds in his hands for the improvements of Kalyani Mahal is not sufficient to displace the force of the intention evidenced by the above facts. We are accordingly of the view that the learned Subordinate Judge came to the right conclusion in so far as this item in dispute is concerned.

We may now turn to the property covered by schedules 23 to 35 and 36 to 40. These are the properties which are burdened with certain trusts Items 36 to 40 are referred to as the Singikulam properties. It appears that these items originally belonged to a collateral, the very same person to whom Kalyani Mahal originally belonged. After his death his two widows, Kalyani Anni and Parasakthi, became entitled and later Kalyani Anni, as the sole surviving widow, became the owner thereof. Now according to the evidence, the father of Kumaraswami, Thirumalappa, apparently took unlawful possession of the properties covered by items 36 to 40 and Kalyani Anni filed a suit Original Suit No. 39 of 1919, and obtained a decree for possession. There was an appeal against this decision, which after the death of Thirumalappa was continued by the three sons, the first Defendant and his two brothers. It appears from the evidence that Kalyani Anni had to refund some moneys to the three brothers and in lieu thereof she gave up her interest in the properties covered by schedules 36 to 40 in favour of the three brothers. Now, it is not in dispute that the debt which Kalyani Anni had to discharge was a debt due to the joint family and it is obvious, therefore, that the property so obtained in realisation of what is admitted to be a joint family outstanding acquired the character of joint family property in the hands of these three brothers. In so far as the character of the property covered by schedules 36 to 40 as joint family property is concerned, neither side disputes it. The only question that will have to be examined in this connection is whether the Court below was justified in conferring upon the illegitimate issue the right of management of these charities as well as a share in the surplus income therefrom. That we shall refer to presently.

In the case of the remaining trust properties covered by schedules 23 to 35, it is common ground that six out of 24 shares therein belong to a stranger. According to the first Defendant''s written statement the joint family possessed only 11 out of 24 shares and that statement is not controverted. He claimed that excluding the six shares belonging to the stranger and the 11 shares belonging to the family, the remaining seven shares were acquired by him by reversionary right along with his brother Ranganatha so that 3| shares out of the 24 shares of the property covered by these schedules were claimed by the first Defendant to be his separate property. The dispute in the present case accordingly covers the first Defendant''s 1/3 rd interest in the 11/24 shares, that is say, 3|/24 shares which is admittedly joint amily property liable to be partitioned, and 31/2/24 shares, which he claims to be his separate property. The learned Subordinate Judge found, on a consideration of the evidence, principally of the several accounts relating to the estate, that the first Defendant had made no distinction between the 3 2/3 / 24 shares and the separate 31/2 /24 shares. The Plaintiff put forward the claim that the 3 1/2 /24 shares had become blended with the joint family properties and were available for partition, while the contention of the Respondents in this appeal is that they continued to be the separate properties of Kumaraswami. The learned Subordinate Judge held, relying on the manner in which the accounts were maintained in respect of the 3| and 3 1/2 shares, that the lack of any distinction between the incomes from the two sets of shares in the accounts could only show an intention on the part of the concerned person to waive his separate right. Since these were trust properties and they could not be dealt with and the family was entitled only to the surplus income therefrom, there was no alternative to determining the intention of the owner except by drawing inferences from the mode of maintaining accounts with regard to the income and the utilisation of the income. The Respondents do not deny that the incomes from these two sets of shares were all brought into a single account and dealt with therein. But, nevertheless it is contended that that cannot be conclusive evidence of blending, the more so, when Kumaraswami purports to regard them as separate when he executed the partition deed on the eve of the suit in 1954 and later also purported to deal with the 3 1/2 out of the 24 shares in his Will. The question that accordingly arises is on what grounds is the blending of separate properties of a coparcener with joint family properties to be made out.

It is well recognised that the separate or self-acquired property of a coparcener may become joint family property if it is thrown voluntarily into the common stock with the intention of abandoning all separate claims upon it. Since the matter is primarily one of intention, it has to be clearly established. The fact that the coparcener permits the other members of the family to enjoy it along with himself or that the income from such separate property is used for the purpose of the joint family may not normally lead to an inference of such intention. Such acts of generosity on the part of the member would not amount to an admission of the existence of any legal right in the property on the part of the other members. In essence, therefore, the question resolves itself into one of determining whether such acts of the coparcener owning that property, or the acts of the other coparceners, are of such a distinctive character that one can say with a fair degree of certainty that the member has waived his separate rights therein or that the other members have acted in such a manner as to indicate an assertion of equal rights therein. The evidence available may differ from case to case and the reasonableness of the inference in favour of blending must rest upon a consideration of the totality of the circumstances available in any instant case.

In a decision of the Privy Council in Suraj Narain v. Ratan Lal ILR (1917) All. 159 (P.C.) it is pointed out that all the circumstances of the case have to be taken into account in deciding whether a member of a joint Hindu family, who has acquired separate properties, intended to keep the property so acquired as his separate property. In that case, a member of a joint Hindu family, who effected considerable savings from his earnings as a pleader and who was also entrusted with the management of the joint family and eventually became the managing member, kept a single account both in respect of the joint family income and his own separate income. He had also purchased properties in the name of his son-in-law out of such composite amounts entered in the account book. The Privy Council held that by so blending the private savings with the receipts and payments of the joint account, he disclosed an intention to make them joint property. In that case, the Judicial Committee noticed that there was very little or no direct evidence upon the point except the books of account kept by the member, supplemented by the oral evidence of the member in an earlier suit. The account book was not strictly an account book at all, but a book in which were recorded from day to day the various payments and receipts of moneys from different sources, including the receipts of his own earnings and his private payments. In addition to receipts from his professional income the account showed receipts from several properties which were admittedly joint properties. There were entries which showed payments on joint account, receipts of money from the joint family estate and its application towards the purchase of property. They said (at 165):

The account may be called an "omnibus" account, into which Bam Narain''s professional fees are entered in common with other items such as described, and from these mingled sources a balance is struck day by day, and the whole account is abstracted and summarised at the end of the year.

They also found that there was nothing to show that out of this account, payments were made to the joint family accounts kept at Lucknow, and observed (at 166):

and this, in their Lordships''s opinion, is the most material matter, because if no such remittances were made, it follows that the balances that were carried forward from time and brought into account against future purchases were blended balances of Ram Narain''s own earnings and of joint moneys and that they remained so blended throughout the whole period of time.

Radhakanth Lal v. Nazma Begum I.L.R (1917) Cal. 733 (P.C.) is another decision of the Privy Council which also deals with a similar question. The question arose in connection with the validity of a deed of gift made by one Drigpal the father, the son asserting that the properties to which the gift related were part of the joint family estate. The properties in question had been inherited and were at the time of acquisition the separate properties of the father. The evidence upon which the Judicial Committee held that there was a blending of the separate property with the joint family estate was virtually based upon the fact that Drigpal maintained one book of account for all his receipts from all sources, whether it was income from joint family property or from that which had been acquired as stated earlier or any other source of income; and similarly, this very account displayed all his expenditure of whatever kind. The Judicial Committee referred to the earlier decision Suraj Narain v. Ratan Lal ILR (1917) All. 159 (P.C.) in holding that the separate property had been blended with the joint family property. In yet another decision, Rajani Kanta Pal v. Jaga Mohan Pal ILR (1923) Cal. 439 (P.C.), their Lordships point out that it mattered little whether the separate estate was brought into the joint family accounts or the joint family property was brought into the separate accounts. In that case, they repelled the argument that because it would have been possible to have prepared from the books of account a further account showing how the respective estates stood in relation to each other, there could not be any blending. They noticed finally (at 445):

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.

And they approved of the statement of the trial Court, which stated (at 445):

If the members of the 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.

In Chelikani Jagannadharao and Another Vs. Merla Ramanna and Others, , a similar question was dealt with as below:

It remains then to consider whether if there was a severance, the properties conveyed were blended with the family properties, and as pointed out in connection with the nature of the conveyance, at no time was any distinction made between the income of the four branches from the several sources, including the properties conveyed. There was one general account for the four branches till 1908 and no distinction was made by Dharma Rao even in the Swantham account opened by him thereafter. The receipts from all sources were dealt with as a single fund and Kasi Babu and his family were treated as members of the joint family. The idea of Dharma Rao in dealing with this receipt as he did is irrelevant and on the materials on record, the alleged blending cannot reasonably be doubted.

The above decision was taken in appeal to the Privy Council and the decision of the Judicial Committee is reported in Ramanna v. Jagannadha Rao ILR (1942) Mad. 886 (P.C.). The decision of the High Court was affirmed. Lastly, we may refer to a decision of the Supreme Court in Mallesappa Bandeppa Desai and Others Vs. Desai Mallappa and Others, . Their Lordships approve of the principle laid down in Rajani Kanta Pal v. Jaga Mohan Pal ILR (1923) Cal. 439 (P.C.).

If we turn to the evidence available in the present case in the light of these decisions, it seems to us that the 3 1/2 out of 24 shares which Kumaraswami inherited as his separate property, was voluntarily thrown into the common stock, Kumaraswami displaying by his mode of accounting and the treatment of the income therefrom that he did not intend to assert his separate rights thereto. The chittas and the ledgers covering the period from 1932 to 1954, exhibits B-14 to B-62, have been filed and it is not in dispute that all the moneys from all sources, whether joint money or separate, were taken into the same day-book and dealt with regardless of the source or the object of the application of the funds. It was open to Kumaraswami, the first Defendant, to have maintained separate accounts, if he had any intention of keeping his separate interest in the 3| out of 24 shares distinct from the joint family assets. That he did not do, and he also expended moneys from out of this joint account both for the purposes of the joint family or for purposes of the illegitimate branch of his family, which, in a sense may be regarded as not being for the purposes of the joint family. Not only that; we have already pointed out that schedules 36 to 40, which were also trust properties, are wholly joint family properties in character; the income from these also was brought into the accounts and the balances or the surplus of income available at the end of each year was entered into a single account known as the No. I Account. This is not a case where it can be said that Kumaraswami in making the income from his separate properties available to the members of the joint family must be regarded as having acted generously and his generosity should not be construed as operating to deprive him of his separate interest. For a long number of years, over two decades, till the disputes arose leading to the suit, the mode of the treatment of the properties and the income therefrom most unmistakably point to an intention on the part of Kumaraswami to blend his separate property with the joint family estate. That on the eve of the suit he claimed the right to treat the property as still being separate is of no avail, for when once the separate property has been blended with the joint family properties, it is not open to the coparcener to take it out. We are accordingly satisfied that the conclusion of the learned Subordinate Judge on this part of the question is perfectly correct.

An issue connected with these trust properties is issue 15, which reads thus:

Are the Defendants 6 to 9 entitled to claim a share in the trust properties, viz., schedules 23 to 40 properties, in view of the partition deed, dated 18th June 1930.

Defendants 6 to 9 are the illegitimate sons. Now the short contention of the Plaintiff in this regard is that the illegitimate issue are not entitled to share in these trust properties by reason of certain conditions expressed in the partition, that is, the one by which the first Defendant, his brothers and their father became divided. The first Defendant himself in his written statement claimed that the recitals in the partition deed were not intended to have that effect. But, it appears that in an earlier suit, Originial Suit No. 20 of 1938, which was a suit filed by the widow of the third brother, Shanmughakumaraswami, Kumaraswami, as the second Defendant therein, would appear to have taken a some what different stand. That suit related to these very trust properties. The widow of Shanmughakumaraswami and others sought for a declaration of their right to participate in the management of the trust properties and to share in the surplus income. While contending that these properties had always been kept joint and that in order to avoid complications that might arise with regard to these properties, specific provisions were settled and incorporated in the partition deed of the year 1930, to which Shanmughakumaraswami, the husband of the first Plaintiff in that suit, was a party, Kumaraswami in paragraph 15 of that written statement, exhibit A-5, stated:

The main object and purpose of the partition deed was to confine and restrict the joint family properties charged with religious and charitable kattalais and services to successive male members of the family accepted and accorded by the best traditions of the ancient Dalavoi family, and to exclude all female members so long as even one single male member was alive.

He accordingly questioned in that suit the right of the widow of Shanmughakumaraswami, his brother to participate in the management of the trust propeties or to claim a share in the surplus income. In the further paragraphs in the written statement, the claim to any right in the female children of each of the members of the family was specifically denied. In another suit filed by an adopted son of Ranganatha, the brother of Kumaraswami, which also related to the trust properties, Kumaraswami contended in his written statement, exhibit A-6, as follows:

Under the terms of the family partition deed, dated 28th of June 1930, approved and acknowledged...no one who does not belong to the caste and family of Medai Dalavoi and who is not a child bom under the Kulacharam and Mathacharam can succeed to the trust estate.

The claim of one of the Plaintiffs in that suit was thus attacked on the ground that his adoption was illegal and he could not be regarded as the heir of Ranganatha.

In the partition deed which has been extracted in paragraph 89 of the judgment of the trial Court, what was contemplated was only the management by turns by the members of the family who were alive at that time. It does not appear that Ranganatha, Kumaraswami (first Defendant herein) and Shanmughakumaraswami, the three sons of Thirumalappa, who along with their father Thirumalappa entered into this partition deed, had any (legitimate) issues at that time, i.e., in 1930. They were accordingly the only four members who were entitled to the management of the trust properties and to share in the surplus income thereof as on the date of the partition deed. The relevant portion of this document stated that as these properties had been kept undivided from generation to generation, an arrangement was made thereunder in respect of the management, considering the practice and custom. It laid down that the four persons, Thirumalappa and his three sons, should keep the properties joint that Thirumalappa should manage the properties during his life-time and within three months of the end of each fasli should divide the surplus income and pay it over to the other members. It proceeded to say that after his, Thirumalappa''s death, his three sons, Ranganatha, Kumaraswami and Shanmughakumaraswami should keep the properties undivided but, each should manage for a term of three years in rotation. The surplus income was to be divided equally among the three. The important recital upon which reliance was placed on behalf of the Plaintiff is in these terms:

If any among the three is unable to manage, the remaining sharers and the male issue according to the Kulacharam and Mathacharam of the other sharer should take their father''s share. If there are no male issue, the female issue according to Kulachara and Mathachara should take the surplus income equally.

For the purposes of this appeal, a proper interpretation of the expression male issue according Kculachara and mathachara has to be found. The contention on behalf of the Appellant is that by this agreement among the three brothers and their father, all illegitimate issues, male or female, stood excluded, whether in the participation in the management or in the sharing of the surplus income. We may at once say that the written-statements of the first Defendant in the two earlier suits we have referred to do not in specific terms accept the position that the illegitimate issue are excluded. In Original Suit No. 20 of 1938, Kumaraswami, by his written-statement, exhibit A-5 sought to exclude the female heirs, and in Original Suit No. 34 of 1949, he sought to exclude the adopted son of Ranganatha, contending that the adoption was not true, valid or legal. Specific point that arises in this appeal, viz., whether the illegitimate sons were excluded or can be excluded, did not arise then. The learned Subordinate Judge held that when once the position is conceded that these properties are joint family properties, the first Defendant Kumaraswami had the undoubted right to give a share therein to his illegetimate sons. Observing that the mode of management of the properties was not in issue now, but only whether the illegitimate sons could share in the surplus income, the learned Subordinate Judge found that the properties being joint family properties, the necessary consequences of Kumaraswami''s power to effect an equal division thereof between his legitimate and illegitimate sons should follow.

We are of the view that this conclusion of the learned Subordinate Judge is correct. We are not satisfied that the terms of the partition deed, which were incorporated more for the purposes of providing for smooth management of the trust properties, can be construed so as to defeat the lawful rights even of the illegitimate sons. The provision for the management of the trust properties by turns among the members entitled to management is no doubt valid. But when the right of the family to enjoy the surplus income of its properties is in question, that right is undoubtedly property which would normally follow the lines of inheritance laid down by the Hindu law. Is is the well-accepted position in law that even a founder cannot lay down a line of devolution in relation to such property, which would be opposed to the principles of Hindu law, or in effect create an estate unknown to Hindu law. Any arrangement in this regard among the then living members of the family entitled to the management and to the surplus income, seeking to oust the right of the members of the family in the future would certainly be invalid. For instance, the parties to the partition deed of 1930 could not introduce the principle of primogeniture in relation to the management or the enjoyment of the surplus income. Any right in relation to the trust estate being property under the Hindu law, succession thereto must be governed by the principles of the Hindu law and any departure therefrom, even if agreed to among the then living members, will not bind their successors. It is on this principle that the learned Subordinate Judge has rightly, in our opinion refused to concede any weight to the argument on behalf of the Plaintiff. We confirm that finding.

One of the questions considered by the Plaintiff-Appellant relates to the validity and the effect of the settlement deed executed by Kumaraswami, exhibit B-1, in 1932 whereunder he settled 89 acres of nanja land and 15 acres of punja land on his illegitimate issue. The contention on behalf of the Plaintiff has been that the settlement did not in terms operate to vest the estate in the settlees and that the properties continued to be joint family properties. In the alternative, it was argued that Kumaraswami reserved to himself a share along with the settlees under the document, so that at least his share in the properties covered by exhibit B-1 schedule 2 to the plaint should come in for general partition in this suit.

In order to appreciate the scope of the argument in this regard, it is desirable to set out the circumstances in which this document came to be executed. In 1932 when exhibit B-1 was executed by Kumaraswami, he was the sole surviving member of his branch of the family which had become divided at the general partition of the year 1930, that is to say, when he had, become divided from his father and brothers. In 1932 he was not married. Long before that date, he had taken to himself a mistress, the fifth Defendant and by 1932, he had by her four sons and a daughter. From the preamble contained in the document exhibit B-1, it is inferable that Kumaraswami thought it fit to take a lawfully wedded wife presumably under pressure from his relations. On the date on which he executed exhibit B-1 and purported to effect a settlement of certain properties upon what may be called the illegitimate branch of the family, he was the absolute owner of the property and he could alienate the properties without any let or hindrance. His after-born sons, the Plaintiff and Defendants 1 and 2, could not question a transfer validly made by the father before they were born and at a time when he was the sole and absolute owner of the property. So much is not disputed by Mr. V. Thyagarajan appearing for the legitimate sons. But what is contended is that this document is so inchoate that it contains no positive dispositive terms and that the various clauses in the document can only lead to the conclusion that no present rights were conferred upon the settlees. It is said that that the utmost that can be said of this document is it is a sort of an anticipatory provision intended to enlarge the lesser share of an illegitimate son at a partition that might take place after Kumaraswami''s death and that since it was executed with this intention, that is, to operate aginst a contingency, the reservation of this property for the purpose stated should in the circumstances be taken note of in effecting a partition between the legitimate and illegitimate sons. By this somewhat involved reasoning what is meant is only that the property covered by the document should also be regarded as property available for partition, if Kumaraswami''s later expressed intention both in his written statement and in the partition deed, exhibit B-2 which be effected in 1954 to give an equal share to his illegitimate sons is to be effectuated. The question accordingly turns upon arriving at a proper construction to this document, principally whether by this document, there was a valid transfer of property which took affect at once and was not postponed to any later date or was made contingent upon the fulfilment of any condition.

After setting out that the fifth Defendant was his permanently kept mistress by whom he had four sons and a daughter who were all under his protection, Kumaraswami proceeded to state that he had decided to marry. He stated:

In case I have children by such a marriage, the abovesaid (illegitimate) children of mine would get only smaller shares according to the Hindu Law. As it is my desire that these children should also get shares no different from the legitimate sons that may be born to me, I am executing this settlement, and I have given these properties to you subject to the condition herein. Under the partition in my family, I have obtained an absolute interest in these properties. When a partition takes place in the family, my four sons above should get their shares according to Law in all kinds of properties. Further, to make up for lesser share, I at present the exclusive and absolute owner of these properties with full powers of alienation make over these schedule properties.

The words actually used here are

By this document, I separate and bind the schedule properties for the above purpose.

Proceeding, he states:

You as joint owners of these properties shall take and enjoy them under my protection and under my control during my life time. Hereafter, I shall not have any power to alienate the propertis. But during my life time, you cannot demand that these properties should be handed over to you exclusively. The management of these properties in all its aspects shall continue to be by me. When I think it fit, I shall separate the shares of one or more of you. I am at liberty to expend the income from the properties for your maintenance and for purchase of other propeties to add to the corpus. Except for such rights as I have reserved in relation to these properties, neither I nor any heirs of mine shall have any rights therein, This settlement will not affect your right under the law with regard to my other properties. . . . .1 have no power to modify or revoke this document.

It is true that reading the documents as a whole, several different aspects appear therein. One is his desire to give his illegitimate sons properties so that they would not suffer by having to obtain a lesser share in the event of a partition after his death. The second is that he gives the properties to the settlees at the same time denying to himself any power to alienate the properties. The expression, You shall take and enjoy the properties during my life-time is no doubt part of a compound sentence which places the settlees under his control and protection. Nextly, he did not desire that these settlees should divide the properties during his life time. He also indicates clearly that the entire income from the properties is to ensure for the benefit of the settlees both for their maintenance and for the purchase of other properties with any surplus income. Finally, he disclaims any power to revoke the settlement. If we look at the document broadly, notwithstanding the somewhat apparently oppressive conditions that find place, there is no reason to believe that Kumaraswami did not intend to create an absolute estate in favour of the settlees. The very circumstancein which the document come into existence is grave apprehension that his illegitimate sons might be entitled to less than what he would like them to have in case he happened to die before the partition, the fact that when he executed the document he was the absolute owner and could make a gift without having to meet any objections are all circumstances which must guide the construction of the instrument. The further statement that the income from the properties would be used exclusively for the purposes of these settlees is also a clear indication of what Kumaraswami intended to do. The final clause by which he divested himself of any authority to revoke the document also confirms the impression that one derives from the rest of the recitals that under the document he had given away something which he could not take back. In Khushalchand Bhagchand v. Trimbak Ramchandra ILR (1946) Bom. 984, 989 it was observed:

The question whether certain document is a gift or a will depends not merely upon the form of the document but upon the intention gathered from the words used in the document itself. The usual tests are the name by which the document is styled, the registration of it, the reservation of the power of revocation and the use of the present or future tense. All these are indications to find out the intention taking singly or cumulatively. The mere reservation of a life estate does not necessarily indicate that the document is testamentary and that therefore the grant is revocable.

These observations are of use in construing the present document. When Kumaraswami stated that the settlees were to take the properties and used the present tense, there can be no scope for the argument that no present interest was conferred upon the settlees. Nor are we impressed with the argument of Mr. Thyagarajan that the composite expression used in this clause, hat is,

You along with me as joint owners during my life-time but under my protection and control shall take and enjoy the property,

reserves any life interest in Kumaraswami. Reading the document as a whole and the reservation by Kumaraswami of the right to manage the properties during his life-time and the further clause that apart from the reservation so indicated he had no other rights in the properties, it is reasonable to infer that Kumaraswami did not make himself a joint owner along with the settlees. Even if there should be any such reservation of a life interest, it cannot defeat the transfer in favour of the settlees. In a case arising under the Stamp Act, a Full Bench of the Bombay High Court held in Reference by the Collector and Superintendent of Stamps, Bombay case ILR (1895) 20 Bom. 210 (F.B.) that clauses of a like nature which provided for the management of the ultimate beneficial interest in the property did not adversely affect the vesting of the property at once. It may be that the restraint upon the partition or the restraint upon the alienation imposed by Kumaraswami upon the settlees may be ineffective in the face of the earlier clause settling the properties absolutely in their favour. But that will not affect the validity of the instrument in anyway. Section 11 of the Transfer of Property Act is a sufficient answer to that line of argument. The Supreme Court held in Radha Sundar v. Mohd. Jahadur Rahim AIR 1950 S.C. 24,

that it is a settled, rule of interpretation that if there be two admissible constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted....

On a consideration of the several clauses, we are satisfied that the document did confer an estate upon the settlees immediately and though by reason of the reservation of the power of management in Kumaraswami certain clauses which are capable of a different construction were embodied in the document, the document as a whole had the effect of conferring an instant estate upon the settles.

On behalf of the Plaintiff-Appellant, it was urged that Kumaraswami had dealt with the properties covered by exhibit B-1 in such a way as to indicate that the properties continued to belong to him and had not passed to the grantees under the settlement. In putting forward this argument, some reliance was placed upon an exchange between an item of property covered by schedule 2 with another item belonging to a third party. It is true that in this document of exchange, exhibit A-10, which was executed on the 30th October, 1942, nearly ten years after the execution of the settlement deed, Kumaraswami referred to that item as belonging to me and remaining in my enjoyment. In like manner, another item of property covered by the deed of settlement was also exchanged under exhibit A-11, on exchange deed, dated 27th June 1944, wherein also Kumaraswami stated that the item of property was in his enjoyment. But, in this document he did not say that this item belonged to him. These exchanges were effected by him obviously for the purpose of convenient enjoyment, and the mere fact that he executed these documents in 1942 and 1944 does not lead to any inference that the settlement was not acted upon. If the settlement deed validly passed title to the properties covered by sechedule 2 to the illegitimate sons, they could no doubt question the validity of these exchanges effected by Kumaraswami. But from the mere circumstance that he effected these exchanges of small extents, one cannot draw an inference that no rights were created in the illegitimate sons by means of the settlement deed. It appears further that in 1950, Kumaraswami obtained a loan for the construction of a well from the Government and offered as security a portion of the property covered by exhibit B-1. In a statement made by him, which is exhibit A-23, he said that he was enjoying the punja land comprised in certain survey numbers which are included in exhibit B-1 and he offered to furnish those lands as security. The fact that Kumaraswami as the person in management of the properties covered by this schedule offered one of the items as security for a loan to enable the construction of a well in that very piece of land does not really entitle anyone to assume that Kumaraswami was the absolute owner of the property. In fact, what he said was that he was enjoying the land and that the patta was in his name, which statements are in keeping with the contents of the settlement deed itself, whereunder he was in management of the properties and a clause also specified that the patta should continue in his name. These stray incidents cannot serve to affect the construction of the document, which we have set out earlier, namely, that there was a valid transfer of the property covered thereby and the title to the property passed eo instanti to the grantees thereunder.

The only questions that are now left for consideration are those relevant to schedules 57, 58 and 60, which are immovable properties, and schedule 61-B, which are movables. The case of the immovable properties can be dealt with together. It is not in dispute that these properties formed the separate properties of Kumaraswami. The contention of the Plaintiff-Appellant was that by the mode of treatment accorded to these properties by Kumaraswami, they had become blended with the joint family properties, a contention which was accepted by the trial Court. The Defendants have filed a memorandum of cross-objections against that finding. The question whether there was blending is necessarily a question of fact depending upon the manner in which the properties were treated by Kumaraswami, and in so far as we can see, these properties were not treated in any way differently from the separate estate which Kumaraswami had in the trust properties covered by schedules 25 to 35. We have already dealt with those items and expressed our approval of the conclusion reached by the learned Subordinate Judge in this regard. The learned Subordinate Judge has examined numerous accounts, day-books and ledgers, that were produced, and pointed out that the income from these properties and the admitted joint family properties were mingled together and used for the purposes of the entire family, both the legitimate and the illegitimate branch. If Kumaraswami intended to assert his separate title to these properties keeping them separate from the joint family estate, he could have done so with very little difficulty, for numerous accounts were being maintained in respect of the management and the receipt and utilisation of the income from these and other properties. It is true that there was no occasion, when these properties themselves were dealt with by Kumaraswami in such a manner as to display his intention either to continue his separate estate in them or to show that he had blended them with the common stock. We have thus only to act upon the manner in which he dealt with the income from the properties and in so far as the mode of dealing with the income can give any clue, it unmistakably points to a blending of the two sets of properties. It is true that the mere fact that a member or a manager of a joint family allows the other members of the family to enjoy the income from his separate properties may connote nothing more than his generosity. But, when for a period of nearly a quarter of a century, the same state of things is continued and no act of the member either in the matter of management of the property or at the time of the receipt of the income therefrom serves to show his alleged intention, we have necessarily to make the most reasonable inference from the circumstances, and that to our minds is, thus, that the use of the incomes over a long period of time, which is fully established by the numerous accounts in which the relevant entries find place, proves that the separate properties were in fact blended with the joint family properties. It would be futile to refer to the evidence in this regard over again which is considered extensively by a survey of the relevant accounts in paragraphs 50 to 60 of the judgment of the trial Court.

The last surviving item that calls for consideration consists the movables covered by schedule 61-B. There are the diamond ear-rings and rings which Kumaraswami used to wear. In his written statement, Kumaraswami claimed that they were his personal properties. There was very little other evidence in this regard. The learned Subordinate Judge observed in paragraph 103:

Personal properties cannot mean that they were not joint family propreties. Anyhow they were joint family properties owned and given by the father. There is no plea of gift by the father to the sons at any time prior to partition. There is no evidence about any gift. If they were the properties given by the father out of the joint family properties in the partition, they continued to be joint family properties, whether they were used by the first Defendant personally or not. So, I find these items are joint family properties.

We have already noticed that there was a family partition in 1930 in the family consisting of Kumaraswami, his brothers and their father, Thirumalappa. In that partition deed, it was stated that each of the parties should take and enjoy absolutely such of the movables, vessels, cars, etc., in their possession. This partition deed exhibit B-123, does not make any specific mention of these pieces of jewellery. There is nothing to show that Kumaraswami came to possess them at the time of the partition under the terms stated above. The only evidence in this regard is that of P.W. 1, who had married the sister of the Defendant Kumaraswami. He stated:

My father-in-law (that is, Tirumalappa) gave each of his three sons each diamond ear ring and rings. Defendant 1 used till his death. It was intended for his personal use.

This statement was made during his cross-examination. In his chief-examination, he stated, item B-1 of schedule 61 are the ancestral jewels. It is from this evidence that we are called upon to determine whether these jewels have to be regarded as ancestral or separate properties. P.W. 1 does not say when these jewels were given by the father, whether before the partition in 1930 or after the partition. If the father gave each of his sons some articles of personal wear, there is no reason why the giving should not be regarded as a gift. If this gift was after Kumaraswami had become divided, he might well regard it as his separate property.

But, nevertheless, even if Thirumalappa made a gift of what might be regarded as his self-acquired property or separate property to his son Kumaraswami, what the character of that property is in so far as the male issue of Kumaraswami is concerned, is essentially one of intention pertaining to the gift. There is no presumption that Thirumalappa intended the gift to be taken as the separate property by Kumaraswami or should be regarded as ancestral property in Kumaraswami''s hand. But, from the surrounding circumstances in which the gift was made, that is to say, that Thirumalappa gave similar articles of jewellery to all his three sons, one can well infer that these properties were originally joint family properties and to this extent the evidence of P.W. 1 supports the Plaintiff''s claim. Though we have only Kumaraswami''s claim in his written statement that these are his separate properties, as against the evidence of P.W. 1 that they are ancestral, we are justified in making a reasonable inference from the surrounding circumstances and for the reasons that we have indicated above, these articles must be deemed to be joint family properties liable to be partitioned.

It follows that all the grounds taken both in the appeal and in the memorandum of cross-objections fail. The appeal and the cross-appeal are accordingly dismissed, but, in the circumstances, each side will bear its own costs.