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Judgment
Satyanarayana Rao, J.—The plaintiffs, whose suit for recovery of possession of the plaint schedule mentioned house after setting aside the alienation made by their father in favour of defendant 3''s husband, Palepu Subbarao, was dismissed, are the appellants in this appeal.
One Pachigolla Venkataswami had three sons. Ramaiah, Subbarao and Veeraraghavaiah. He acquired considerable movable and immovable properties, in Bezwada and carried on business there. He died on 20-9-1896. After his death the business, started in the name of the father, was continued by the sons and at that time Viraraghavaiah was a minor. Ramaiah and Subbarao carried on business under different names after the death of the father. There was a business in the names of Ramaiah and Godavarti Venkataratnam and yet another in the name of Ramaiah jointly with Parepalli Purushottam and others.
On 13-8-1904, even during the minority of Veeraraghavaiah. by reason of misunderstandings that arose between the members of the family, they agreed to partition their joint family properties with the help of mediators, and in that partition the minor Veeraraghavaiah was represented by their mother Pullamma.
All the properties including the businesses were subject-matter of the partition and the property allotted to Ramaiah was described in Sch. A attached to the deed of partition, Ex. B-6. The share allotted to Subbarao was mentioned in Sen. B and the share allotted to Viraraghavaiah was mentioned in Sch. C. For the purposes of the partition, the entire properties of the joint family, movable and immovable, gold and silver articles, brass, utensils and furniture, were valued at Rs. 24.978-5-0 and each of the sharers was allotted property of the value of Rs. 8.042-12-4 after making due adjustments regarding the excess in each share.
Ramaiah married as his first wife the daughter of one Thavva Venkatanarasimham, a merchant of Bezwada, & after her death he married the third daughter of the said Thavva Venkatanarasimham. It is in evidence that Ramaiah before his death, which occurred on 5-2-1919, purchased some immovable properties which he had acquired under the partition deed, Ex. B-6. He also lent on mortgages as well as on promissory notes and acquired considerable fortune by his ability, skill and labour.
Whether he continued the business which was allotted to him under the partition deed and whether he carried on any other business is a matter on which there is dispute but an analysis of the documentary evidence filed in the case reveals that the aggregate of the purchases of the immovable properties made by him after the partition was of the value of Rs. 6,025/-, while he sold two items of property allotted to him in the partition of the total value of Rs. 1900/-. Thus the net amount of purchases made was Rs. 4,125/-
The total of the amounts advanced under the mortgages, twenty-one in number, of which there is evidence on record, was Rs. 12.937/-, i.e. between 1904 to 1911, advance on mortgages was Rs. 2620/- and between 1912 to 1918 it was Rs. 10,317/-. There were also certain decrees with show that he was also lending on promissory notes. The decree in O. S. No. 787 of 1912 was for Rs. 2499-3-9 and for costs (Ex-A-56); the decree in O. S. No. 101 of 1918 was for Rs. 1186-8-0 and for costs (Ex. A-57) and the decree in O. S. No. 552 of 1914 was for a sum of Rs. 2009/- which was referred to in a later document (will).
The suit property was acquired by him under a deed of exchange, Ex. B-1 dated 10-8-1918. Thereunder he gave a house which he purchased under Ex. A-10 dated 28-6-1911 in full discharge of a mortgage debt of Rs. 230/- with interest at Rs. 2/- per cent per mensem under the mortgage deed Ex. A-7. of 30-10-1905. and a sum of Rs. 2,100/- was paid in cash. The house given in exchange was valued at Rs. 850/-. So the consideration in all amounted to Rs. 2950/-.
On 13-12-1918 Ramaiah is alleged to have executed a will, Ex. A-1, whereunder he purported to bequeath the entire property to his wife who was charged with the duty of giving effect to the bequests and dispositions made thereunder. In para 4 he made a provision for the installation and maintenance of Sri Viranjaneyaswamy, whom he described as his favourite deity. The wife was authorised to take a boy in adoption and the adopted boy was to be entitled to the movable and immovable properties excluding those which were given to his wife and to the deity but his interest in the property was restricted to a life-estate.
In case there were disputes between the adopted son and Venkata Sesharatnamma, the testator''s wife, she would enjoy the silver and gold jewels as well as her own streedhana property, jewels of the value of Rs. 3,000/-. and she was also given other properties in para 6 of the will to be enjoyed by her during her life and to pass it on after her death to the adopted son. A small bequest to the mother-in-law. Thavva Venkataratnamma, was also given.
Immediately after this will, his brother''s (Subbarao''s son) son, Venkataswami, was adopted, but the exact date of adoption is not known. It is alleged that after the said adoption, on 15-1-1919, he executed a codicil, Ex. A-2, whereby some of the dispositions in the will were modified and the mortgage debt of Rs. 6,000/- clue from Subbarao, his brother, was remitted and his heirs were enjoined not to collect that amount from Subbarao. The codicil refers to the adoption made by him of Venkataswami and gives an absolute estate in the movable property in modification of the disposition in the will.
There is also the further addition that the vested remainder in the moveable property after the life-estate created in favour of the adopted sons should devolve on the heirs of the adopted son who should enjoy the same with absolute rights.
Subbarao was enjoined to protect the adopted son and his properties as well as the testator''s wife and mother-in-law.
After the death of the testator the will and the codicil were presented for registration before the Sub-Registrar of Bezwada, by Thavva Venkataratnama, the mother-in-law of the testator, and as Viraraghavaiah. the brother of Ramaiah. objected to the registration of the two documents on the ground that they were not genuine, the matter was enquired into by the Sub-Registrar in Will Cases Nos. 9 and 10 of 1919 and after an elaborate trial, the Sub-Registrar held by his order of 12-1-1920 (Ex. A-24) that the two documents were genuine and directed their registration. The documents were registered on 14-1-1920.
Venkataswami alienated the suit property which was acquired by Ramiah his adoptive father, under the exchange deed, Ex. B-1, under a sale deed of 29-4-1927, Ex. B-2, for a consideration of Rs. 1900/- in favour of defendant 3''s husband Palepu Subbarao. At that time plaintiff 1. one of the sons of Venkataswami, was in the womb as he was born on 20-10-1927 (Ex. A-3).
Venkataswami died on 21-10-1939. On 24-1-1941 on behalf of the three sons of Venkataswami, who were then minors, their mother got a notice issued through an advocate to defendant 3. Ex. B-22, where under it was claimed that Venkataswami had only a life-estate in the suit house under the terms of the will and the codicil, and the alienation in favour of defendant 3''s husband under Ex. B-2 did not ensure beyond the life-time of Venkataswami and that as he died on 21-10-1939, they were entitled to the suit property.
To this a reply was sent on behalf of defendant 3 through another lawyer on 10-12-1941 (Ex. B-23), in which it was alleged that the properties which Ramaiah owned were joint family properties and that he had no power of disposition over them, that even otherwise Venkataswami, even under the terms of the will, was empowered to sell the property to improve the estate arid as same was effected to improve another house by which the estate was benefited, the sons of Venkataswami had no right to question the same and recover possession of the property.
No action was taken by the mother, and plaintiff 1 after the attained majority got issued through his lawyer a notice on 7-10-1948 (Ex. A-41) claiming possession of the property on the ground that the alienation did not bind him and his minor brothers. The reply to this notice is Ex. B-28 dated 15-10-1948, which was also given by a lawyer on behalf of defendant 3 and others.
In this notice it was asserted again that the property acquired by Ramiah was joint family property as it was so acquired with the help of ancestral nucleus and that the will and the codicil executed by Ramaiah were not valid, that the alienation was supported by necessity and beneficial to the estate as from the amount of the consideration the debts, incurred by Venkataswami to reconstruct the house bearing Municipal door No. 4/424 in Sivalayam Street. Bezwada, which fell down in the cyclone of May 1925, were discharged.
The present suit was filed immediately on 19-10-1948 by plaintiff 1 and his brothers for a declaration of their absolute right in the suit property and for possession of the property with mesne profits from the date of the death of Venkataswami i.e., 21-10-1939.
In the plaint it was claimed that the properties acquired by Ramiah were his self-acquired properties and that the property acquired under the exchange deed. Ex. B1, which was sold to defendant 3''s husband under Ex. B-2, was also the self-acquired property of Ramiah, that under the will and the codicil Venkataswami acquired, only a life-estate in the property of Ramiah and that any alienation would not bind the plaintiffs.
They also pleaded an ante-adoption arrangement between Ramiah on one hand and Subbarao representing Venkataswami on the other, where under the right of the adoptee in the immovable property was restricted to a life-estate. It is further alleged that the will and the codicil evidence a family arrangement which is binding on Venkataswami, that the sale in favour of defendant 3''s husband, Subbarao, was not supported by consideration and was not valid and binding on the plaintiffs in any event.
They impleaded as many as 11 defendants in the suit. Defendant 11 is the mother of the plaintiffs.
At the time the property was acquired by defendant 3''s husband, he was a member of the joint family and after his death, under an arrangement among defendants 1, 2 and 3, the suit property was given absolutely to defendant 3. Defendant 3 in her turn seems to have executed a settlement deed in favour of defendant 4 but possession was not given to him under it. The other defendants 5 to 10 were tenants occupying portions of the house.
The 1st, 2nd and defendants 3 and 4 filed separate written statements. Some of the tenants also filed written statements supporting the case of defendant 3. The defence of all the defendants was that the will and the codicil were not genuine, that the property was Ramaiah''s joint family property and as by the date of the codicil and after the will adoption of Venkataswami was made he had no power to dispose of the property by will and therefore the restrictions imposed by the will in respect of the immovable property which devolved upon Venkataswami were of no effect.
They denied the ante-adoption arrangement pleaded by the plaintiffs as well as the family arrangement. The sale, it was also contended, was for a binding purpose and for the necessity of the estate and it is binding on that ground. Further, as there were antecedent debts which were discharged from, out of the consideration of the sale, the sale was binding apart from any necessity or benefit.
The learned Subordinate Judge who tried the suit framed as many as nine issues covering the contentions between the parties, including the claim of the defendants that they had effected improvements since the date of the purchase to the property. The Subordinate Judge held that the property was the joint family property of Ramaiah and his adopted son Venkataswami, that the codicil was brought into existence, after the death of Ramaiah and that the will though it bears the signature of Ramaiah was not executed by him at a time when he was of a sound disposing state of mind.
He further held that the family settlement and the ante-adoption agreement were not true and valid, that the sale was binding on the plaintiffs on the ground of necessity and antecedent debts, and that defendant 3 effected improvements to the property to an extent of Rs. 1000/-. He reserved the question of mesne profits for determination under O. 20, R. 12, C. P. C. and that defendants 3 and 5 to 7 were answerable for the mesne profits if the plaintiffs were to succeed in the action, but in view of his findings on the main issues he dismissed the plaintiffs'' suit, and this appeal is against that decision.
The questions that were raised and argued before us were: (1) that the will and codicil were genuine; (2) that the property was the self-acquired property of Ramiah and not joint family property; (3) that even if the property is held to be joint family property, the will and the codicil evidence an ante-adoption agreement between Ramaiah on the one hand and Subbarao the natural father acting on behalf of the adopted son on the other, and that the said arrangement was valid and binding and that the sale was not binding on the plaintiffs even on the footing that the properties were joint family properties.
It will be convenient to consider first the question whether the will and the codicil are genuine. The will was executed on 13-12-1918, The testator was suffering from beriberi and had no children. He had acquired considerable movable and immovable properties in Bezwada. He was anxious to make arrangements for the disposition of his property after his life-time. The will bears the attestation of four persons besides the scribe. The scribe was the clerk of the testator.
All but one of the attesting witnesses and the scribe were examined before the Sub-Registrar in the enquiry. Their depositions were exhibited without objection on the present suit as most of the witnesses were not available at the time of the trial. The other, attesting witness who was not examined on behalf of the plaintiffs is P. W. 9. The codicil was also written, by the clerk. Buddharaju Basvaraju and was attested by as many as eight persons of whom one was Mr. Goteti Lakshminarayana. a Leading advocate of Bezwada after consulting whom and under whose advice the codicil was prepared.
Two of the witnesses are common to the will and the codicil i.e., Nandurimati Subramanyam and Thavva Venkatakesavulu. The depositions of the attesting witnesses to the codicil, who were examined before the Sub-Registrar were also marked without objection in the suit. It is on the evidence of the witnesses who were examined before the Sub-Registrar and the other attesting witness to the will, who was examined in the suit as P. W. 9, that the decision of the question turns. (After discussing the evidence with respect to both the will and the codicil his Lordship observed:
There is nothing wrong as was thought by the learned Subordinate Judge, for a testator to get the attestation of witness after acknowledging before them that he had executed and signed the will. It is not always necessary that the attesting witness should actually see the testator signing the will. Even an acknowledgment by him would be sufficient and concluded:
For all these reasons differing from the learned Subordinate Judge, we hold that the will Ex. A-1 and the codicil Ex. A-2 are genuine and were executed by Ramaiah when he was in a sound disposing state of mind.
The next important question for decision is whether the property acquired by Ramiah was joint family property or his self-acquired property. If it is found to be self-acquired property it is beyond dispute that under the will and codicil Venkataswami had no power to alienate the suit property to enure beyond his lifetime and the plaintiffs would be entitled to succeed in the suit irrespective of the ether questions raised.
If on the other hand the property is found to be joint family property, the will and codicil have no effect and they would be invalid altogether. The validity of the alienation must he determined in that event in the light of the principles established under Hindu Law under which a father, who was also the manager, could alienate the property so as to bind his sons, subject of course to the truth and validity of the ante-adoption agreement put forward on behalf of the plaintiffs.
It was urged on behalf of the appellants that the property acquired by exchange under Ex. B-1 was the self-acquired property by Ramiah as the nucleus of the ancestral property which was allotted to him in the partition evidenced by Ex-6 did not yield sufficient income to leave a surplus in his hands after meeting the family expenditure, that he had acquired from his father-in-law Thavva Narasimham a sum of Rs. 40,000/- and that formed the source from which all the acquisitions of Ramiah flowed.
The respondents on the other hand contended that the alleged gift by Thavva Narasimham was a myth and was invented for the first time at the time of the trial, though not mentioned or referred to either in the plaint or in the earlier notices, that Ramiah acquired sufficient nucleus under the partition deed from which the subsequent acquisitions were made by him and in addition he continued the business which he took over after the- partition arrangement and it was carried on jointly with Parepalli Purushottam and others before the partition.
In addition to that business it is claimed by the respondents that Ramiah carried on money-lending business and also a business in brass and bronze wares. The foundation for all this was the large nucleus of property which was allotted to him under the partition and he by his ability, skill and labour improved the property. It is in evidence that even in places where loans were advanced by him on the security of immovable property, he charged interest at rates varying from 24 per cent to 9 per cent.
Some times he charged even compound interest. During his career he purchased properties for over Rs. 6,000/-, sold some of the properties allotted to him in partition for Rs. 1900/- and the volume of the money-lending business on the security of immovable property alone was nearly Rs. 13,000/- not to speak of the decree debts and of the promissory notes. In other words, the picture drawn on behalf of the respondents was that from small beginnings he developed his fortune as if a tree from a seed the various streams of business together with the income of the magnitude described above.
Therefore it is strongly urged on behalf of the respondents that the acquisition must be treated as joint family property as having flowed out of the nucleus of the joint family property. In any event it is contended that when a nucleus is established of sufficient magnitude capable of forming the source for the gradual acquisition made from time to time the burden is shifted to the ether side to establish an independent source from which the acquisitions could have been made. Of course they deny the gift of the large amount of Rs. 40.000/- alleged to have been made to Ramiah by his father-in-law.
The principles applicable to situation like this have been settled and crystallised by decisions of the Madras High Court, the Privy Council and finally the Supreme Court. The difficulty is not in determining the principle applicable but of applying it to a given situation. Before we advert to the decisions from which the principles could be deduced, it will be more convenient and appropriate to settle the facts in respect of which there is a controversy on both.
It must be stated at the outset that the theory of self-acquisition was not adverted to in the notices that passed between the parties prior to the suit nor was there a mention of the gift of Rs. 40,000/- by the father-in-law either in. those notices or even in the plaint. Neither in the will nor in the codicil does the testator assert that the properties were his self-acquired properties. Under the partition arrangement of 1304 Ramiah was allotted for his share four houses in Bezwada and a land of the extent of Ac. 2-70 cents in Maheswarapuram the aggregate value of which was Rs. 3.717/-.
He obtained gold weighing nearly 104 tolas of the value of Rs. 2,177-3-0, silvernware of 175 tolas of the value of Rs. 104/-. Besides these he was allotted the joint business which was carried on by him jointly with Parepalli Purushottam and others, which was valued at Rs. 712/- He was allotted arrears of rents due from tenants of house, amounting to Rs. 622-0-3 and by way of equalisation of shares, Subbarao was directed to pay to Ramiah Rs. 572-11-8. The total of all this came to Rs. 8,042-12-4. Subbarao was allotted immovable properties and the other businesses, three in number, and as the value of his share was in excess of the other shares, he was asked to pay Viraraghaviah a larger amount in respect of which he executed a mortgage and a promissory note.
The case of the appellants was that Ramiah discontinued the business which he carried on jointly with Purushottam and that he did no other business after that, while the respondents'' case was that he continued that business and in addition to it he did money-lending business, and also brassware business. This acquisition has a material bearing on the character of the properties acquired by Ramiah.
The alleged gift of Rs. 40,000/- by his father-in-law Thavva Venkata Narasimham to Ramiah does not bear scrutiny. His Lordship was further of opinion that the story also seemed to be inherently improbable and was an alter thought.) In support of this gift Learned Counsel for the appellants relied upon Ex. A 61, which, it is claimed, was a draft of the will, in the handwriting of Ramiah.
The plaintiffs in the course of the trial produced a number of documents which according to them were in the handwriting of Ramiah and P. W. 7 was examined to prove to handwriting. A perusal of his evidence shows that he was not the clerk as stated by him and he had no opportunity really of knowing the handwriting of Ramiah. There is no document which admittedly contains the handwriting of Ramiah. There are only documents which show his signature. These other documents were not relied on for any particular purpose before us.
Exhibit A-61 was produced after the examination of P. W. 7 was over and at a late stage. The document was however marked for a limited purpose and the learned Judge, on an application filed for review by the plaintiffs, refused to give an opportunity to prove that the document was in the handwriting of Ramiah. All that is stated in the document is that after the first daughter was given in marriage to him, his father-in-law Venkatanarasimham entrusted the entire management of the family and Kottu business to him and that he was maintaining the family all along.
The document is unsigned and does not bear the signature of the scribe. The learned Judge refused to give an opportunity to prove this document on the ground that it was exhibited only for a limited purpose, namely, to prove that the first wife''s name was Venkatasubbamma. Counsel for appellants asked for an opportunity to prove this document and he also contended that as the other documents have been proved to be in the handwriting of Ramiah by P. W. 7 and as the handwriting in those documents is similar to the one in Ex. A-61, we must presume that it is in the handwriting of Ramiah under S. 90, Evidence Act.
Under S. 90, Evidence Act where a document which purports or which is proved to be 30 years'' old is produced from proper custody, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person''s handwriting, and in the case of document executed or attested, that ft was duly executed and attested, by the persons whom it purports to be executed and attested. In the case of a handwriting the document must therefore purport to be in the handwriting of a particular person, that is, the scribe''s name must appear.
An anonymous document is not within this section. Evidence aliunde cannot be availed of.
If the proof so adduced to establish the handwriting of a particular person is inadequate, the presumption cannot be invoked. A person can either seek to establish the handwriting to be in a particular person''s hand by adducing proof or invoke a presumption permissible under S. 90 in his favour. If he seeks to prove it and fails, there can be no question of invoking the presumption under S. 90.
The argument of the counsel is that he would establish the handwriting in the document to be that of Ramiah and that the presumption under S. 90 must also be invoked. If he establishes by proof aliunde the handwriting of Ramiah in the document, there is no question of invoking the presumption and the document by itself, as it is an anonymous document, does not attract the presumption under S. 90 and does not help the appellants.
We considered the question whether any useful purpose would be served by acceding to the request of the appellants to permit them to adduce the evidence now. Assuming that the appellants are able to establish that it is in the handwriting of Ramiah, it does not advance their case of the gift of Rs. 40,000/- by Venkatanarasimham to Ramiah as no mention was made in the document of any such gift. Further, we cannot visualise the circumstances under which Ramiah, if he was the author of it, prepared the draft. We therefore think that there is no necessity to give an opportunity to the appellants to adduce further proof.
The above finding that the gift of Rs. 40,000/- was an after thought and was not established, rules out the possibility of Ramiah having any other independent source of his own from which he could have carried on the money-lending business and made acquisitions so as to impress them with the character of self-acquired property. There remain therefore the Original nucleus and the business, if any, carried on by Ramiah with the help of the nucleus. He could not have carried on business, from any other source than the assets allotted to him at the time of the partition.
He acquired immovable property fetching some income and the exact extent of which cannot be precisely determined on the evidence. He had gold of considerable value, and as suggested on behalf of the respondents the values of the properties as given in the partition deed may not reflect the true market-value as the tendency is to beat down the value for the purpose of escaping the stamp duty. The best evidence on this question would have been the accounts maintained by Ramiah. The plaintiffs deny the existence of accounts maintained by Ramiah and deny their custody.
During the course of the trial the plaintiffs produced from their possession and custody a number of old documents and the accounts must have been available with them. Venkatarathnamma, the mother-in-law, deposed in Ex. A-26 that the account-books, etc., belonging to Ramiah were in her house only. Exhibit. A-56 shows that the suit O. S. No. 787 of 1912 was based by Ramiah on Katha. In Ex. A-27 Kesavulu refers to the testator''s account and that an amount was due to him from the testator was borne out by the testator''s accounts.
The mortgage executed by Subbarao on 19-11-1913 in favour of Ramiah for a sum of Rs. 5,000/- (Ex. A-55) refers to the borrowing by Subbarao after opening a Katha with Ramiah.
P. W. 4 speaks to the fact that Ramiah had two clerks of whom one was Pachigolla Rattiah. P. W. 1 admits that his grand-father Ramiah was having money-lending business and that all the records he filed into Court were found by him in the old records in the house.
In view of these statements it is difficult to believe that Ramiah never maintained any accounts and the accounts did not exist. The persons who would naturally be expected to be in possession and custody of the accounts are the plaintiffs. According to Venkataratnamma''s evidence, the accounts were in existence in the house in 1S19. What became of those accounts, there is no explanation as the plaintiffs put forward an extreme case that there were no accounts at all.
It is common knowledge that Vysyas who carry on business preserve their accounts for a very long period, like Natukoti Chettis of the south. The non-production of the accounts by the plaintiffs is a strong circumstance against their case that the ancestral family nucleus had nothing to do with the acquisitions made by Ramiah and the money-lending business carried on by him.
The accounts, if produced, would have undoubtedly disclosed how by the money-lending business he was able to find the necessary capital on the credit of the joint family properties allotted to his share including gold and silver and how by lending moneys at very high rates of interest he was able to multiply. In some cases in discharge of the debts he acquired property, perhaps treating such property also as a stock-in-trade.
It is impossible to attribute any other source for the money-lending business and for the acquisition made by him than the only known source evidenced by Ex. E-6. The plaintiffs'' specific case of the gift of Rs. 41000/- is ruled out and it is difficult to imagine an unknowable source to have existed to make the property the self-acquired property of Ramiah. At any rate the circumstances established by the defendants are in our opinion sufficient to shift the burden of proof to the shoulders of the plaintiffs who assert the claim that the properties in the possession of Ramiah were his self-acquired properties.
Apart from money-lending business, he was carrying on trade, and the case of the appellants that he stopped the business cannot be true as borne out by the facts and the evidence adduced in the case. In very many documents Ramiah''s source of livelihood is described to be trade. See for example, Ex-A-7 dated 30-10-3905, Ex. A-8 dated 16-12-1906, Ex. B-8 dated 7-4-1907, Ex A-9 dated 9-12-1909, Ex. A-10 dated 28-6-1911, Ex. B-9 dated 28-6-1911, Ex. B-10 dated 27-10-1911, Ex. A-55 dated 19-11-1913, Ex. B-12 dated 8-4-1916, Ex. B-13 dated 27-7-1916, Ex. A-53 dated 20-12-1916. Ex. B-14 dated 20-12-1916 and Ex. A-11 dated J 0-8-1918.
(After briefly referring to oral evidence of witnesses for both parties his Lordship proceeded:)
The defendants could not be expected to give more detailed evidence than the plaintiffs who are in possession of the best evidence, namely, the accounts and withheld them from Court. On this evidence it is fairly certain that Ramiah was carrying on not only money-lending business, but also other business. The volume of the business and the profits earned during the course of that business cannot be gauged in the absence of the positive evidence.
That Ramiah did not sustain any loss but on the other hand earned income out of the business is clear from the evidence relating to acquisitions and the money-lending transactions so far as they could be gathered from the registered documents. Three decrees obtained an the basis of documents, other than mortgages, such as promissory notes and Khata, are also in evidence and those decrees are for large amounts. As adverted already, the suit property was acquired by him by giving in exchange a house valued at Rs. 580 - and payment of cash of Rs. 2,100/. The house was acquired by him m discharge of a mortgage debt which was advanced by him under Ex. A-7, immediately after the partition, on 30-10-1905 a sum of Rs. 230/- which was lent at the rate of 24 per cent per annum and which multiplied to a large amount by 1911. He gave up a part of the debt and in discharge of the balance purchased the house under Ex. A-10 on 28-6-1911. The nucleus would be amply sufficient to enable Ramiah to advance the loan under Ex. A-7.
The sum of Rs. 2100/-, the balance of the amount paid under Ex. B-1, must have come out of the money-lending business or the profits of other businesses. The exchange Ex. B-1 was a few months prior to the execution of the will, that is, on 10-8-1918. So practically it was at the end of his career that he had exchanged this property which was subsequently sold by Venkataswami under Ex. B-2.
In these circumstances it is fair to presume that the property under Ex. B-1 must have been acquired from joint family funds especially when there was no other source from which Ramiah could have found the necessary funds for the acquisition of the property. From small beginnings the nucleus grew in money-lending business, perhaps aided and augmented not only by the income he derived from the property but also from the profits of other lines of business carried on by him. His family was limited and did not require much expenditure.
The period extends from 1904 to 1918, that is, for fourteen years. It is not like the case where there was a single acquisition and joint family nucleus, in which case the question would be of easy solution. If the nature and relative value of the joint family nucleus and its income falls to be considered for determining the nature of the subsequent acquisition the nucleus must be of sufficient magnitude in the sense that from that source the necessary funds for the acquisition could have been raised.
It is fair to presume in such a case that property, unless the other side establishes that without using the joint family asset, was kept intact or if it was not an income-yielding asset, it would be easy to hold that the acquisition made, when another source is indicated, was self-acquired property. If there is income yielding joint family nucleus and there is also another which would have provided the necessary funds for paying the consideration for the acquisition, the extent of the income would become a material factor in applying the presumption.
If the income was hardly sufficient to maintain the family, it could not be presumed that the acquirer would spend for the maintenance of the family out of his separate funds rather than the joint fund on which the maintenance is a primary liability, if the income of the joint family nucleus is of sufficient magnitude, it would be easier to raise a presumption as that would have afforded the necessary money to purchase the property, and the burden shifts to the other side to establish an independent source from which it was purchased.
The conflict in all these cases is generally between the joint family source and the separate source of the member acquiring the property. When the separate source does not exist and all that we have is the nucleus and the acquisition is made long after the joint family fund came into existence, it is fair to assume in the absence of any other independent source, that the nucleus was augmented by the skill and ability of the person owing it and the later purchase could only have been made from the fund and no other.
It is needless to refer to all the decisions on the question as in our opinion the matter is really concluded by two decisions, one of the Judicial Committee and other or the Supreme Court. The decision of the Judicial Committee is reported in - ''Appalaswami v. Suryanarayanamurthi,'' AIR 1947 PC 189 (A). The appellant in that case who was the father was allotted in a partition with his brothers immovable property, house and site of the value of Rs. 2,000/-, 1/4th of a 6/16th share in the Radhakrishna Rice Mills, outstanding valued at Rs. 3,500/-, gold articles worth Rs. 446/- and some utensils worth Rs. 70/-.
The whole property was valued at Rs. 7,220/-. This partition was in 1917. Between 1918 and 1934 the father acquired various properties at a total cost of Rs. 55.000/- by his enterprise, by his energy and labour. Though the initial nucleus and its income was very small, when compared with the outlay on acquisitions made during the period of nearly sixteen years, the judicial Committee cast on the appellant, the father, the burden of proving that the property which he owned and possessed at the time of the suit was his self-acquired property, though ultimately it was held that the father discharged the burden by establishing that the property allotted at the partition was subsequently intact and was kept distinct, the income from those properties was properly applied towards the expenses of the family and therefore it was held that the nucleus did not assist the appellant in acquiring the property.
It was established in that case that the appellant started an independent business of his own in alluminium and paddy and it was from the profits of that business that he was able to find money for the acquisition of the properties of the value of Rs. 55,000/-. The importance of this case arises in connection with the initial burden in a case where the acquisitions extend over a long period. The nucleus was comparatively small when compared with the total outlay for the acquisition of the properties. Still the Privy Council held that the initial burden lay on the father. The general rule as stated by their Lordships at p. 192 is in these terms:
Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property....
In the present case their Lordships think that the acquisition by the appellant of the property under Ex. A., which as between him and his sons was joint family property, east upon the appellant the burden, or proving that the property which he possessed at the time of the plaint was his sell-acquired property, but they agree with the District Judge in thinking that this burden has been discharged.
Their Lordships cited with approval two decisions of the Madras High Court in - Kotikelapudi Venkatramayya Vs. Digavalli Seshamma and Others, and C.V. Vythinatha Aiyar Vs. C.V. Varadaraja Aiyar and Others, , and one decision of the Bombay High Court in - Babubhai Girdharlal Vs. Ujamlal Hargovandas, where the rule was enunciated in similar terms.
Recently the Supreme Court considered this question in - Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others, There again the joint family property was only 56 acres of Watan land whose income was insignificant when compared with the amount spent in acquiring the properties. The acquirer had an independent source as he was employed as a Tahsildar in the State of Hyderabad and served there for a period of forty years before he retired on pension. The decision of the Judicial Committee in AIR 1947 PC 189 (A) was referred to with approval.
The Supreme Court emphasised the importance of considering the income which the nucleus yields in order to apply the presumption in favour of the person asserting that the properties were joint family properties so as to shift the burden to the other side. As the income from the lands was not sufficient even for the maintenance of the members of the family and as there was an independent source, it was held that the property was the self-acquired of the acquirer.
Bearing these principles in mind and having regard to the fact that there was no other means by which Ramiah could have augmented the property which fell to his share in the partition of 1904, the source must be attributed to the joint family nucleus and a presumption raised in favour of the defendants unless the plaintiffs who must necessarily be in possession of very valuable evidence in the nature of accounts maintained by Ramiah are able to shift the burden to the other side.
The plaintiffs failed to discharge that burden. We have therefore no hesitation in agreement with the learned Subordinate Judge that the property was the joint family property of Ramiah and his son Venkataswami. It follows that that the will and the codicil are invalid and they cannot affect the property.
It was urged on behalf of the appellants that even if the property was the joint family property, there was an ante-adoption agreement pleaded by them, which if true and valid, would curtail the rights of Venkataswami to a life-interest in the properties and therefore his alienation would come to an end with the death of Venkataswami. There is no document evidencing this ante-adoption agreement The adoption of Venkataswami was between the dates of the will and the codicil. There is no mention of this arrangement in the codicil, and if it existed, it would certainly have been brought to the notice of the advocate Sri Lakshminarayana.
The codicil was prepared by Sri Lakshminarayana under the instructions of the testator. The plaintiffs rely upon the evidence of P. W. 4 who was the brother-in-law or Subbarao to establish the arrangement. Under the will to the intended adoptee, Ramiah gave only life-estate in the movable and immovable properties. In the codicil he altered the disposition by giving an absolute estate in the movable properties. Perhaps it was thought that the disposition under the will giving a life-estate to the adopted boy and leaving the vested remainder without disposing it of would invalidate the bequest of the life-estate altogether.
In the case of immovable property the vested remainder was given under the codicil in favour of the heirs of the adoptee to be enjoyed by them with absolute powers. The ante-adoption arrangement pleaded was that Venkataswami should have only a life-estate in immovable property and take an absolute estate in the movables. P. W. 4 states in his chief-examination That when Ramiah asked Subbarao to give his son in adaption to him, Subbarao consulted him and his parents, on which they all went to Ramiah and Ramiah represented to them that he would execute a will bequeathing part of his property to his wife with absolute rights and some property to the boy to be adopted and then to the children without powers of alienation.
He also stated that he gave authority to his wife to adopt and that he would himself take the boy in adoption. Thereupon the witness and his parents suggested to Ramiah to make provision in favour of the sons of the adoptee by giving the remainder with powers of alienation and that Subbarao agreed and gave the boy in adoption. He admits, however, in cross-examination that no document was executed by Ramiah about the arrangement and the terms on which Subbarao wanted to give his boy in adoption were not reduced to writing and that he was not present at the time of the execution of the codicil.
The witness is naturally interested in the plaintiffs, and on such an important question as an ante-adoption agreement, they never thought of having an independent document so as to bind both parties irrevocably to the arrangement. Subbarao, no doubt, was present at the time when the codicil was executed and it may be presumed that when he agreed to give the boy in adoption he was aware of the will and its terms. All that follows from this is that Subbarao was willing to sacrifice the rights of his son for the prospect of getting the property altogether.
But an arrangement requires two parties, one, the adoptive father, and the other, adoptee who being a minor must be represented by somebody like the natural father; and as between them there must be an irrevocable arrangement, Assuming, therefore, that Subbarao acquiesced in the arrangement evidenced by the will and the codicil, is there anything to show that Ramiah agreed not to alter the provisions in the will and the codicil? It was not definite then whether the property was the self-acquired or joint family property.
Ramiah did not bind himself not to alter the provisions of the will and the codicil. He could have altered the provisions of the will after adoption as he was not bound by any arrangement between him and the adopted boy representing by the natural father. The very essence of an arrangement is its binding nature on both the parties. In the absence of that element it is difficult to infer from the passive acquiescence of Subbarao an ante-adoption arrangement or agreement subject to which the adoption was made.
But let us assume that there was such an agreement. Is it valid? Whatever the law was at the time the will was executed, it, has since been settled by the Judicial Committee that ante-adoption agreements should not extend to anything other than the regulation of the rights of the widow in the property and the sanction to it was based on custom.
In '' AIR 1927 139 (Privy Council) the Judicial Committee subjected the conflicting decisions, including a Full Bench decision of the Madras High Court in - ''Visalakshmi Ammal v. Sivaramien,'' 27 Mad 577 (FB) (G), to a critical examination.
Before the decision of the Privy Council it was thought that any reasonable arrangement which was beneficial to the minor adopted son could be upheld and different reasons were given in support of that view. By virtue of the adoption the boy is transplanted from one family into another and his status from the natural family is shifted to the adoptive family. He takes the place of the natural son in the adoptive family and the rights which he acquires by reason of that status could not be curtailed by an arrangement entered into by the natural father whose dominion over the minor ceases with the adoption before the rights in the property come into existence.
His guardianship does not and cannot extend in law to regulate or restrict the enjoyment of the rights of the son given away in adoption in the adoptive family. This strict view, and which is the only logical view, was accepted by Subrahmania Ayyar, Offg. C. J. in the above order of reference to a Full Bench in 27 Mad 577 (G). Though on the facts the decision in 27 Mad 577 (FB) (G), could be justified even on the principle now laid down by the Judicial Committee, the learned Judges in the Full Bench, following the view of Farran, J., laid down at p. 587 thus:
The validity of the adoption, if legally made, is quite independent of the validity of any agreement as to the property. If the agreement is such as to be inconsistent with the fundamental idea underlying adoption and the purpose for which it is sanctioned by Hindu Law, as, for instance, if it deprived the adopted son of all rights to the property of the adoptive father and so left him without any means of his performing the necessary religious offices towards the manes of his adoptive father and his ancestor, it may well be that the Courts would regard the condition as essentially repugnant to Hindu law and would refuse to uphold it.
But it would seem that a fair and reasonable disposition of the property is, not essentially repugnant to Hindu law, or the purposes of which adoption is allowed, and is nowhere forbidden by that law. Such dispositions are commonly made, and are upheld by the authority of case and the consciousness of the people.
Stated in such broad terms, the proposition was not accepted by the Judicial Committee.
In AIR 1927 139 (Privy Council) the position is summarised by their Lordships at pp. 145, 146 in these words:
It will be seen from these views that in their Lordships'' opinion the only ground on which such arrangement can be sanctioned is custom. They are of opinion that there is such a consensus of decision in the case with the exception of the case of - ''Jagannadaha v. Papamma, 16 Mad 400 (H), that they are fairly entitled to come to the conclusion that ''custom has sanctioned such arrangements in so far as they regulate the right of the widow as against the adopted son.''
It seems part of the custom that one sine qua non of such an arrangement should be the consent of the natural father. But if this is looked at narrowly, it is only because it is a part of the custom that it is either here or there.
(Italics here into are mine).
Again, lower down in the same page, it is observed:
But the consensus of judgments seems to solve these two questions in this way, namely, that the consent of the natural lather shows that it is for the advantage of the boy, and that the mere postponement of his interest to the widow''s interest, even though it should be one extending to a life interest in the whole property, is not incomplete with his position as a son.
Their Lordships are. therefore, prepared to hold that custom sanctions such arrangements.
As soon, however, as the arrangements go beyond that, i.e., either give the widow property absolutely or give the property to strangers, they think no custom as to this has been proved to exist and that such arrangements are against the radical view of the Hindu law.
Notwithstanding this authoritative pronouncement of the Privy Council the Learned Counsel for the appellants wanted to persuade us to go back to the decision in 27 Mad 577 (FB) (G), and to take the wider rule of reasonableness and benefit to the minor; and he attempted to support his view by a reference to subsequent decisions of Ramesam and Venkatasubbarao, JJ., in - ''Raju v. Nagamma,'' AIR, 1928 Mad 1289 (I). But we think that there is no foundation to support the argument of the Learned Counsel either in AIR 1927 139 (Privy Council) or in the later decision in T. Raju Vs. Nagammal and Another,
The only question with which learned Judges in T. Raju Vs. Nagammal and Another, were concerned was whether an ante-adoption arrangement, of a portion of the husband''s estate is given absolutely to the widow with powers of alienation, would be valid in view of the principles laid down in AIR 1927 139 (Privy Council)
Both the learned Judges agreed in upholding the arrangement. Venkatasubba Rao, J., in dealing with 27 Mad 577 (FB) (G) categorically stated that the decision of the Full Bench, which was at that time regarded as binding authority in Madras, was overruled by the Privy Council. The learned Judge further stated:
Indeed, on the contrary, it is patent from their judgment, that this was the course which their Lordships were not prepared to and did not adopt. In this connection. I may observe that in the Full Bench case, though other reasons are given, reasons which must now be taken to be unsound, the ground of custom is specifically mentioned. Benson. J" with whom the other Judges concurred, quotes from West and Buhler:
Fair arrangements for the protection of the widow''s interest during her life, are commonly made, and are always supported by the authority of the caste.
A view which found favour with the Full Bench. What then is the effect of the Privy Council decision It unequivocally holds that such arrangements cannot be upheld as give property to strangers; in other words, - ''Ganapathi Ayyar v. Savitri Ammal,'' 21 Mad 10 (J), is inferentially overruled, where it had been held that a disposition in charity by the adoptive father was binding: On the other hand, Balkrishna Motiram Gujar Vs. Shri Uttar Narayan Dev, , is inferentially upheld where a gift by the adopting father in favour, of a charity was by the High Court held bad.
The learned Judge therefore held that the actual decision in the Pull Bench case was good and excluded the unsound reasons given in the judgment in support of the decision. There was sound reason in support of the decision, namely, the validity of such arrangements founded on custom. It is on this ground and on this ground alone that the learned Judge must be deemed to have held that the decision in 27 Mad 577 (FB)-(G), is still good law.
The learned Judge''s judgment does not warrant us in going back to 27 Mad 577 (FB) (G), ignoring AIR 1927 139 (Privy Council) Under the arrangement now relied on the rights of the adopted son. were cut down to the life-estate, and it cannot be justified on the ground of any custom and no such custom was ever put forward or proved in the present case.
It therefore, follows that the arrangement cannot be brought within any of the principles enunciated in AIR 1927 139 (Privy Council) and must be held to be invalid. It is not a case in which the power of the widow over the property is sought to be regulated or some property is given to the widow.
The extreme contention urged on behalf of the appellants was that all that was decided by the Privy Council was that gifts to strangers would be invalid but gifts to lineal male descendants of the adoptee would be valid.
We do not find any warrant for this view of the case and the decision of the Judicial Committee must be strictly confined to the regulation of the rights of the widow as such a regulation was sanctioned by custom. In the result, we find that the ante-adoption arrangement pleaded by the plaintiffs is not true and is invalid.
The only question that remains to be considered is the validity and binding nature of the sale under Ex. B-2 on the plaintiffs. (After reviewing the evidence his Lordship concluded:) There are no other questions argued in the appeal, and as we hold that the transaction is binding on the plaintiffs, the decision of the lower Court must be confirmed and the appeal dismissed with costs.