S.S. Venkataraman Chettiar vs S. Nandagopal Chettiar and Others

Ramamurti, J.—I have perused the judgment of my learned brother and I agree with his reasoning and conclusions. Even so, I desire to add

a separate judgment of my own.

It is sufficient if I briefly refer to the facts and the evidence in the case as my learned brother has dealt with the same in great detail. The Plaintiff

is the son through the first wife of one Sami Chettiar. The latter died on 26th May 1960, and hardly within six weeks the Plaintiff filed the suit for

partition on 4th July 1960 against Sami Chettiar''s third wife, two sons and one daughter through her, impleaded respectively as Defendants 3, 1, 2

and 4. Sami Chettiar''s first wife, the mother of the Plaintiff died when the Plaintiff was a baby of eight days. Sami Chettiar married a second wife

on whose death issueless, the third Defendant was married by him as his third wife. Sundaram Chettiar, the father of Sami Chettiar, and the grand-

father of the Plaintiff, took over the Plaintiff immediately after his mother''s death, brought him up and educated him, got him married and also

settled substantial; properties upon him. It is common ground that after the death of his mother, the Plaintiff has been living only with his paternal

grand parents, and that later on, after his marriage, he set up separate establishment and lived separately. The case of the Plaintiff is that about

1928, Sundaram Chettiar gave his two sons, Sami Chettiar and Muthusami Chettiar, cash and jewellery of the value of Rs. 4,000 each and that

with the aid thereof, the two brothers each started and carried on separate businesses of their own; Sami Chettiar started and carried on a cycle

business while Muthusami started and carried on a grocery business. It is not in dispute that this cycle business and its assets which form the main

subject of controversy grew out of this nucleus given by Sundaram Chettiar. The Plaintiff claims an one-fourth share therein, i.e. 5/20 in his own

right claiming to be one of the four coparceners, and in addition, an 1/20th share representing one-fifth in the one-fourth share of the father divisible

equally amongst the father''s three sons, third wife and the daughter u/s 6 of the Hindu Succession Act. The rival contention is that the Plaintiff was

never a member of the joint family along with the deceased Sami Chettiar and Defendants 1 and 2, that the Plaintiff was taken away and was living

separately with his grand-parents, that by his own uniform continuous course of conduct for over several decades the Plaintiff became separated

from the family of the Defendants, and that the Plaintiff regarded and dealt with himself as a separated member of the family, that the business

carried by Sami Chettiar was his own separate business, though with the aid of the nucleus given by his father, that after the birth of Defendants 1

and 2 the business became and was treated by Sami Chettiar and Defendants 1 and 2 as joint family business belonging exclusively to these three

persons. The further case of the Defendant is that in any event right from the Plaintiff''s boyhood till the moment of the death of Sami Chettiar the

Plaintiff was totally ousted and excluded from the enjoyment of the business, its assets and profits, and that the Plaintiff himself never asserted nor

claimed any right in the business, and its assets and that all throughout he himself acquiesced in and accepted the factual position that the business

belonged only to Sami Chettiar, and Defendants 1 and 2, with the result that the Plaintiff would not be entitled to any right even under explanation

II to Section 6 of the Hindu Succession Act.

There is no substance in the contention that the assets, cash and jewellery, of the value of Rs. 4,000 gifted by the father, Sundaram Chettiar, to

his son, Sami Chettiar, should be treated and dealt with as ancestral property in the hands of the latter. After the decision of the Supreme Court in

Arunachala Mudaliar v. Muruganatha Mudaliar (1953) 2 M.L.J. 796 S.C. the law is settled that when a father makes a gift of his properties to his

son, there is no presumption as regards the intention of the father as to the character in which the property gifted should be held by his son, the

donee. The view held by the Madras High Court up till then that in the absence of an express intention, the donee the son should hold the property

as ancestral property is no longer applicable. The character of the property in the hands of the donee will have to be determined not with reference

to any presumption but should rest upon the construction of the language employed in the document, whether a gift or a Will, taken along with the

surrounding circumstances in accordance with the well-known canons of construction. If the gift is not evidenced by a document, the question has

to be resolved by a consideration of the relevant facts, with particular reference to the aspect, whether the apparent gift was an integral part of a

scheme for partition, and what was given to the son, was really a share of the property, to which the son would be entitled at a family partition, if

such a partition took place at the relevant period. In the instant case, all the relevant considerations tend to the only inference that the property

gifted was to be held by the son as his own property which he could deal with, as he liked, without any fetters and with no obligation to preserve

for the benefit of himself and his sons. When there is no document evidencing gift, the best exponent of the intention of the ''donor, as to how, the

donee should hold and enjoy the property, is the declaration of the donor himself coupled with the inference to be drawn from his conduct. The

recitals in the Will exhibit A-2 of the year 1940 executed by Sundaram Chettiar leave no room for doubt. Sami Chettiar has been living separately

with his third wife. The other son Muthusami has been living separately. The relationship between Sundaram and his two sons was not cordial and

there was nothing but disharmony as recited in the Will itself. Sundaram Chettiar inherited no ancestral property, he was a self-made man and all

his acquisition were his own self-acquisitions. The Plaintiff, the grand-son, was cut away from his father and brought up by the grand-parents. A

perusal of the several clauses of the Will shows that Sundaram Chettiar was a careful person, fully self-conscious, business like, and wanted to

distribute his properties and avoid to the extent possible any future dispute amongst his sons inter as or even amongst his sons and grand-children.

The provisions of the Will manifest meticulous care and precision, the predominant idea underlying the Will being to make the bequest. In severalty

and thus avoid and minimize disputes to the irreducible minimum. In clause 4 of the Will, Sundaram Chettiar has referred to his gift of the nucleus in

the year 1928 of the value of Rs. 4,000 to each of his song. In that clause there is pointed reference to himself and his wife and the Plaitiff living

together as one family,

and the other two sons living separately as two separate families carrying on two separate businesses. It is dear from the Will that in the year 1928,

his idea was to out away his two soups from his family and for him to live jointly with his grandson. He had other properties then and he had also

acquired properties subsequently. Being a shrewd and cautious person he did not want his two sons to make any hum with regard to his

properties. The Plaintiff was then a minor aged eleven years and the nucleus of the value of Rs. 4,000 given to each of the sons is certainly not

under an integral part of a scheme for partition. The grand-father''s idea was that the Plaintiff should be the recipient of substantial bounties as is

shown by his gifts of the year 1935 and 1936. One thing which is perfectly clear beyond any shadow of doubt is that the grand-father was very

keen and particular that there should be no kind of connection between the Plaintiff and his father with regard to property rights. The intention of

the grand-father as disclosed in the Will, is to set up his son Sami Chettiar in a separate business of his own and for that purpose gave this nucleus

and the business was carried on separately by Sami Chettiar. Under this Will, exhibit A-2, he has made several bequests in favour of charity and in

favour of his two sons and the grand-ton the Plaintiff. Defendants 1 and 2 were already born and at the time of the Will, the first and second

Defendants were then aged 10 and 8 respectively. If the intention of the grand-father was to give the property to his two sons as representing their

respective branches, he would have made particular reference to Defendants 1 and 2. On the other hand, there is pointed reference only to the

Plaintiff. In the end of clause 14, there is an express provision that in respect of the properties not covered by the Will, Sami Chettiar, when he

inherits, should give to the Plaintiff, the latter''s legitimate share therein. The testator has made this provision in favour of the Plaintiff even for that

remote contingency. At the time of the will Sami Chettiar had carried on the business for a period of twelve years and naturally his business

activities must have expanded by that'''' time. If the intention of the grand-father was that the nucleus of Rs. 4,000 was to be held by Sami Chettiar

as ancestral property in his hands, the testator who was fully conscious that the business which had grown and expanded from this nucleus would

be Joint family property in which the Plaintiff also would be entitled to a share. The testator, the grand-father would have been cautious enough to

safeguard the Plaintiff''s right in the business and would have expressly provided that the business of Sami Chettiar was the business belonging to

himself and the members of his branch. There is no such provision or recital on the other hand, the express recital is to the effect that it is the

separate business of Sami Chettiar, In this case there is the further foot, that what was gifted was cash and jewels, which could be easily disposed

of by the donees and the father could not exercise any check or control. In the nature of things, it cannot be presumed that the father intended to

impose restrictions and curtail the freedom of the two sons in the matter of the disposal of the cash and the jewels. As pointed out by the Supreme

Court, if the property is given under such circumstances as conferring an absolute right and freedom without any fetters as to the disposal and

enjoyment of the property that itself is decisive to hold that the intention of the father, the donor, was that the property was to be held by the donee

as his own separate property. For all these reasons it has to be held that the business of Sami Chettiar, to start with, was his own separate

business. This conclusion is reinforced by the conduct of the Plaintiff himself. He never asserted any claim to the business at any time, but on the

other hand, he himself had acknowledged adapted throughout, on the footing that the business was the separate business of his father, to which

conduct of the Plaintiff, reference will be made in the discussion that follows.

Mr. Gopalaswamy Ayyangar urged next that even assuming the cycle business at it inception was the separate business of Sami Chettiar, the

latter by his own conduct treated the business as joint family business by giving up or abandoning his separate rights and impressing upon the

business the character of a Joint family business. In support of this theory of Heading, learned Counsel relied upon exhibits B-23 to B-30, the

income tax refund certificate, during the period 1950-58, as well as the letter, exhibit B-8, written by Sami Chettiar and his sons, Defendants 1 and

1, to a banker while borrowing money and certain orders of assessment by the income tax officer, in all of which the business is referred to as joint

family business. The crux of his argument is that even though there was a cessor of commensality and the Plaintiff lived separately from Sami

Chettiar and his other two sons, Defendants 1 and 2 and even though the Plaintiff had his own separated business there was no formal division in

status between the Plaintiff and his father, that at no particular point of time was there a declaration of a division in studs communicated by one

party to the other, that the status of the family was throughout joint, with the result that when Sami Chettiar abandoned his separate rights and

made his separate business, a joint family business, the benefit of the blending would ensure to the Plaintiff also. It is true, that under the Hindu law,

blending is not regarded as a transaction or transfer of property from one person to another. It is merely a relinquishment of the separate rights of

an individual member of the family over his separate property which by its own force alters the character of the property as joint family property,

so that when once an individual member abandons or relinquishes his separate rights the property becomes joint family property, not for the

individual benefit of one or some only of the members of the joint family, but the benefit of this blending ensures to the joint family as a unit, and

every individual member of the joint family will be entitled to claim rights over the property without any difference between one member and the

other. Learned Counsel relied on a Bench decision of this Court of which one of us was a party in Rajagopal v. Pakkiam ILR (1968) Mad. 138 in

which this principle was accepted and applied. In that case the father who owned self acquisitions executed a document styled as a release deed,

by which he abandoned and relinquished his rights in respect of the self-acquired properties and immediately thereafter the sons executed a

partition deed, treating the properties as joint family properties consequent upon the blending. One son was excluded in this release deed executed

by the father; and the question rose whether the representatives of that excluded branch would be entitled to an equal share in the properties

blended, i.e., covered by the release deed. The Bench held that when once the father abandoned his separate rights and impressed upon the

property the character of joint family property the benefit would accrue to every son and the fact that the document evidencing the blending was

executed in favour of some of the sons only would not affect the rights of the other son excluded. In that case the two documents were drafted by

lawyers and one of the sons happened to be a lawyer himself. Both the documents contained precise, legal language, legal terms, both in Tamil and

in English, making particular reference to this peculiar doctrine of blending under Hindu law. In fact the word used were that the father had

voluntarily abandoned his separate rights and effected a blending. In the instant case the question as to whether what Sacni Chettiar did was a

blending as understood in Hindu law or whether it is merely an association of his two sons, Defendants 1 and 2, in the business and making them as

co-owners of the business, shall be considered a little later. For the purpose of the present argument it may be assumed that what Sami Chettiar

did was an actual blending as understood in Hindu law. The question is to what extent the Bench decision in Rajagopal v. Pakkiam ILR (1968)

Mad. 138 supports the contention of the Plaintiff. It is true, the only case relied on by the Plaintiff in his plaint was that the gift of the nucleus of the

value of Rs. 4,000 to Sami Chettiar was ancestral property and the business which grew there from should above regarded as joint family property

in which the^ Plaintiff will be entitled to a share and the Plaintiff did not plead the alternative case of blending by Sami Chettiar in the event of the

business being his own separate business. Even so, we have permitted learned Counsel to argue this point because this question of blending has to

be necessarily considered to determine the relative rights of Defendants 1 and 1 and their sister, the fourth Defendant. Defendants 1 to 3 have

alleged in paragraph 9 of their written statement that the shop business though at its inception was the separate business of Sami Chettiar was later

on treated by him as the business of the coparcenary and himself and his sons, Defendants 1 and 2, and that throughout it was dealt with as joint

family business; while in the written statement of the fourth Defendant the plea is that the business was throughout the separate business of Sami

Chettiar. In the trial Court evidence, oral and documentary, had been adduced touching this aspect of blending. There is also some discussion in

paragraphs 11 to 13 of the judgment of the trial Court.

There are several effective answers to this alternative claim of the Plaintiff who has invoked the doctrine of blending as explained in the Bench

decision of this Court cited above.

Taking an over-all view of all the facts of the case and the entire background the inference is irresistible that Sundaram Chettiar, the head of the

family, cut away and separated himself from his two sons, Sami and Muthuswami and continued himself as a joint family consisting of himself and

the Plaintiff. It is not disputed that under Hindu law it was competent to Sundaram Chettiar, the head of the joint family and the paternal

grandfather, to cut away his son, Sami and remain joint with his grandson when Sami agrees to such a course. The following preamble portion in

paragraph 4 of the Will shows that Sundaram and the Plaintiff alone continued as one joint family in striking contrast to the rest of the recitals in

paragraph 4 showing that Same and Muthuswami were living separately, each carrying on separate business of his own:

Sami accepted this Will; he has taken benefit there under and it is legitimate to presume that Sami agreed not only to remain separate thereafter but

he also agreed to the grandson, the Plaintiff herein, being joint with the grand father. Admittedly between the Plaintiff and his father there was no

jointness in estate; no jointness in mess; no jointness in worship; everything was separate. Even so Mr. Gopalaswamy Ayyangar urges that despite

these factors the status of the family in law was one of Jointness as it was not the case of any of the parties that there was any formal declaration of

a division in status communicated by one member to the other. It is true that if there is evidence of a declaration of a division in status made by one

member and communicated to the other that will be clear evidence of a disruption in the status. But, that does not mean, that, if there had been no

such explicit declaration of a division in status, an inference of disruption in the family cannot be drawn so as to ignore the facts and the conduct

and the acting�s of the parties.

The intention to separate may be evidenced in difference ways either by explicit declaration by conduct, the result being the same in either case.

If it is an inference derivable from conduct it will be for the Court to decide whether it was unequivocal and explicit. Vide Mayne, eleventh edition,

page 551. Where there is no writing and the intention to separate is to be inferred from the conduct of the member concerned, the question should

be decided with due regard to the cumulative effect of all the facts and circumstances, like cessor of commensality, cesser of joint worship;

existence of separate transactions, to. Every one of these acts, though standing by themselves, may be equivocal and may not be conclusive proof

of partition; but they may lead to the conclusion of an intention to separate, if all the fact are taken together and in conjunction with the back,

ground and the surrounding circumstances of the ease. No single fact should be taken in isolations. When the active participants at the inception,

the grandfather, Sundaram, and the father, Sami, are dead, any possible gaps in the evidence as to intention to separate, on the part of Sami, may

be-Shed up, by reasonable inference from the evidence a record and from the inference from the uniform course of conduct and the acting�s of

the parties.

As observed by the Privy Council in Musammai Inder Kuer v. Musammat Pirthipal Kuer (1945) ILR 20 Luck 391, 401 (P.C.) separation of a

family can be proved by the conduct of the family and the attendant circumstances. Cessor or commensality though is not conclusive proof of

partition because a member can become separate in residence and in food merely for the purpose of convenience is certainly an element which

may be well considered along with the other acts and transactions of the parties concerned. As observed in Mt. Raghbiri Vs. Lakhpat Singh, ,

where the question to be decided relates to the severance of status or otherwise and there is absence of any clear intention expressed in so many

words the question has to be decided with reference to the acts and omissions, altitude and conduct of the parties concerned. In the instant case

the Plaintiff till his marriage lived with his grandfather and separate from his father, after the marriage he set up separate establishment, and that too

in the same place very near his father. There had been no joint dealings between the parties. The Will, exhibit A-2 shows that Sami and the Plaintiff

were living as two separate families. There has been no joint dealing and till the death of Sami in May 1760 the Plaintiff never asserted any rights to

any of the properties of Sami. There were two litigations between the Plaintiff and his father--vide exhibit A-7 and exhibits B-1 to B-3 which show

that the relationship between the Plaintiff and Sami, the father, was not cordial at all. Sami associated his two sons Defendants 1 and 2 and held

them out as members of a joint family and as joint owners of the business along with him. But nothing of the kind was done with regard to the

Plaintiff; on the other hand the Plaintiff worked for sometime in the business only as a salaried employee. The recital in exhibit B-5 dated 22nd July

1959 executed by the Plaintiff in favour of Sami and his two sons and Muthusami put the matter beyond any doubt. There the Plaintiff had admitted

that Sami and his two sons, Defendants 1 and 2, were living together as one family, that the Plaintiffs uncle, Muthusami, was living separately as a

divided member, and that the Plaintiff toad living and carrying on separately at members of respective divided families. This recital in exhibit B-5 is

the acknowledgment of a fact resting upon a uniform unbroken continuous course of conduct for several decades. The connected

contemporaneous document of release of even date, exhibit A-3, executed by Sami and his two sons, Defendants 1 and 2 and Muthuswami also

acknowledge the fact that these three units, i.e., Sami and his two sons Defendants 1 and 2, Muthusami and the Plaintiff, were living separately as

separate families. When all these facts and the attendant circumstances are taken into account it is clear that the Plaintiff and Sami were not

members of a joint family; but were divided in statue. In view of this factual position the Bench decision referred to above has no application to the

instant ease. The Plaintiff who was a divided member at all material times cannot invoke to his aid the doctrine of blending because the benefit can

enure only to the member of the joint family.

Even if it should be held that the Plaintiff should be regarded as joint with Sami and Defendants 1 and 2, by reason of his exclusion and ouster

for over 12 years the Plaintiff''s right to a share in the business would be barred under Article 127 of the Act of 1908 corresponding to Article 110

of the Act of 1963. Right from the moment when Sami began to acquire properties, and started the business and expanded its activities, the

Plaintiff was ex-eluded and he never asserted nor was he allowed to assert any right as a coparcener. As observed by the Privy Council in

Radhoba Babola v. Aburao Bhagwant Rao ILR (1929) 53 Bom. 699 there is no definition of the word exclusion in the Limitation Act and the

question whether a person has been excluded from joint family property must depend upon the facts and circumstances of each case. It is not a

mere case of refusal of the Plaintiff to live with his father or his non-participation in the enjoyment of the family property. But it is a case of

conscious and deliberate continuous course of conduct showing that the Plaintiff was excluded from enjoying any of the properties. The facts

establish a clear ouster of the Plaintiff for several decades. It is true the burden of proof of exclusion or ouster is on the Defendants and it is heavy.

As observed earlier in 1948-49 there was litigation between the Plaintiff and his father even with regard is to the right to drainage. If the Plaintiff

thought that he had a right in the business, he would not have kept quiet during the entire period and would hare made his claim just after the death

of his father. It is true that the two documents, exhibits A-3 and B-5, the mutual release deeds, do not contain any reservation that the business is

the separate business of Sami and his two sons, Defendants 1 and 2. In my view what is crucial and significant is not a reservation that Sami and

his two sons, Defendants 1 and alone are entitled to the business; but the absence of reservation reserving the Plaintiff''s rights to the cycle business

the fact that the Plaintiff did not secure a reservation of his rights or a recognition of his rights to the cycle business, is decisive proof that at any rate

in 1959, the Plaintiff never thought that he had any right to the cycle business and was perfectly satisfied he has no kind of right to the same These

two documents constitute intrinsic powerful evidence of the ouster and exclusion of the Plaintiff for over 12 years within the meaning of Article 127

of the Limitation Act. It is unnecessary to refer to the cases which have dealt with the scope of Article 127 of the Limitation Act on the question as

to when an inference of ouster can be drawn; because the particular inference will turn upon the peculiar facts of each case. Even when there is no

evidence of ouster at a particular point of time it is not unreasonable for the Court to infer ouster as existing for a long time from the facts found.

Mr. Gopalaswami Ayyangar relied upon the decision of the Privy Council, Radhoba Babola v. Aburao Bhagwant Rao I.L.R.(1929) 53 Bom.

699 in support of his contention that on the facts of the instant case no inference of ouster and exclusion should be drawn. In that case one Nana,

after the death of his father and mother, lived with his maternal uncle voluntarily. The maternal uncle helped this boy who was living with him.

During the time when Nana lived with his maternal uncle the other members of the joint family did not subscribe towards Nana''s maintenance,

education and marriage expenses. After Nana attained majority he made a demand for his share in 1909-1910. But he was not given anything.

Nana made a claim to his share and there was a dispute. In 1919 Nana executed a deed conveying his share in the property in favour of the

Plaintiff in the action. The Defendants resisted the suit relying upon Article 127 of the Limitation Act. The Privy Council held that nothing that

happened during Nana''s minority would amount to exclusion even-though the evidence showed that Nana was throughout living with his maternal

uncle and the member of the family did not contribute anything towards his education, maintenance and marriage expenses. The question of

exclusion was, therefore, considered with reference to the period, subsequent to the attainment of majority by Nana, the evidence showed that

Nana had been asserting his rights and it only, when he failed in his efforts to secure his share he conveyed the same to the Plaintiffs and the suit

itself was filed within 12 years of the denial. From the foregoing it will be seen that the decision in that case turned upon the peculiar facts therein

and is not of much relevance to the instant case where the facts are essentially different. The cumulative effect of the entire evidence in the light of

the attendant circumstances of the instant case taken along with the uniform course of conduct of the parties leave no room for doubt that the

Plaintiff to his knowledge has been ousted and excluded for over 12 years within the meaning of Article 127 of the Limitation Act.

It only remains to deal with the contention of Mr. D. Ramaswami Ayyangar who appeared for the daughter, the fourth Defendant, who has

preferred a memorandum of cross-objections, attacking the finding that the business is a joint family business belonging to Sami and Defendants 1

and 2. The contention of learned Counsel is that throughout the business was the separate business of Sami, that there has never been any blending

with the result, that on Sami''s death the fourth Defendant will be entitled to a one-fourth share. The burden of proof is upon Defendants 1 to 3 to

establish that Sami waived or abandoned his separate rights to the business and impressed upon the business the character of joint family business.

The documentary evidence in this case is quite adequate and sufficient to warrant the inference of blending with regard to the joint family consisting

of Sami and his two sons, Defendants 1 and 2. Exhibit B-6, the letter signed by Sami and Defendants 1 and 2 shows that all the three had been

incurring obligations and borrowing moneys on behalf of the business. Exhibit B-7, the letter addressed by Swami and his two sons, again leads to

the same inference. In the first paragraph of that letter they have acknowledged that they, the three adult members, are carry-ling on business in

Dindigul as members of a Hindu point family under the name and style of Section Sami Chettiar, cycle dealers and shop merchants. In addition to

the above recital the contents also show-all the three have been incurring obligations borrowing moneys, etc., in connection with the business.

Exhibit B-8 is a promissory note (cancelled) showing that a sum of Rs. 3,000 had been borrowed by these three people from Karur Vysya Bank

in connection with this business. The second Defendant has given evidence about these matters. I am not impressed with the arguments of Mr.

Ramaswami Ayyangar that these documents have been taken by the Bankers from Sami and his two sons as a matter of routine. These documents

contain significant recitals and they also show that the two sons, Defendants 1 and 2, exposed themselves to liabilities; this they would not have

done, unless they are also joint owners or proprietors of the business. Exhibit B-10, the order of assessment, for the year of assessment 1961,

accounting year ending with 31st March 1960, shows that the income tax department has accepted the factual position that Sami and his two sons

were members of a joint family, and on that basis the assessment has been made. The Defendants have filed income tax refund forms, exhibits B-

23 to B-30, for the years 1950 to 1958. The forms show that the assessment was as HUF, Hindu Undivided Family, and there has been some

refunds in all these years. These forms contain the details of the amount of income the total tax collected, the tax due and the amount refunded. At

one stage of the argument Mr. Rama swami Ayyangar raised the objection that these to merely forms i.e., not originals and no reliance can be

placed upon the same. But this argument was not persisted on seeing that these are marked by consent and no proof was insisted upon in the trial

Court. Further these are all forms signed by the authorities concerned and there can be no doubt about it that these are all refund forms issued by

the Department to the family. These forms are signed by the concerned authorities. Learned Counsel raised the further objection that the

Defendants must have corresponding orders of assessment and adverse inference should be drawn against them for the non-production of those

assessment orders. Learned Counsel also urged that the answers given by the first Defendant in relation to the orders of assessment, the

assessment forms and the belated stage at which they were produced are unsatisfactory and that there has not been a frank disclosure by the first

Defendant of all the relevant facts. While we see some force in the criticism of learned Counsel about the evidence of the first Defendant we are

not on that account inclined to put aside the evidentiary value afforded by exhibit B-10, the order of assessment and exhibits B-23 to B-30 the

refunds. The Defendants 1 to 9 filed an application Civil Miscellaneous Petition No. 3441 of 1969 for reception as of additional evidence the order

of assessment for the year ending with 31st March 1959, i.e. a period prior to the death of Sami. There was no serious objection to the reception

of this additional evidence, namely, the order of assessment. This document has been received as additional evidence and accordingly marked as

exhibit B-31. This also shows that the status of the family was a Hindu undivided family even during the earlier period. The records would no doubt

have been complete if the orders of assessment for the relevant period had also been filed. The first Defendant has stated that the orders of

assessment are not available and we are inclined to accept that explanation, because, there is no motive for him to suppress the same, because the

assessments must have proceeded only on the basis of HUF since the refund orders, exhibits B-23 to B-30 for the period 1950-1958 show that

the return and assessment for the corresponding years was as HUF. The adverse inference for non-production of documents is not to be drawn in

the abstract. Further any such adverse inference for non-production cannot displace the inference which flows from the established facts and from

the documents already filed. As observed earlier the documents already filed tend to the only inference that right from 1950 the return was as HUF

and the business as treated and dealt with as HUF. Considering the evidence as a whole we are satisfied that the evidence clearly establishes a

clear intention on; part of Sami to waive his separate rights and-to impress upon; the business the character of joint family business. The set up of

the family was also such as to lead to the inference of such a clear intention on the part of Sami, because Defendants 1 and 2 are his sons through

the third Defendant, who is living with him, and Defendants 1 and 2 are actively assisting the father in the business; besides, they have also

executed bonds and borrowed moneys along with the father. There is no rebutting evidence whatsoever. The result is that Defendants 1 and 2 will

get each one-third share and the one-third share of Sami Chettiar will again devolve upon Defendants 1 and 2, his widow, the third Defendant, and

the daughter the fourth Defendant; each would get 1/12th. In view of my findings supra and the explanation II to Section 6, the Plaintiff will not be

entitled to any share.

The result is the appeal is dismissed with costs of Defendants 1 to 3. The memorandum of cross objections is dismissed; no costs.

Palaniswamy, J.

The Appellant is the Plaintiff. His claim to 6/20th share in the plaint mentioned business has been negative by the trial Court. The following

pedigree is useful to understand the relationship of the parties:

Sundaram Chettiar, the paternal grandfather of the Plaintiff, owned some properties, all of which were his self-acquisitions. In the year 1928, he

made a gift of Rs. 2,000 and jewels worth Rs. 2,000 to each of is sons, Sami Chettiar and Muthusami Chettiar. With the amount so obtained,

Sami Chettiar started a business (in cycles, electric goods, spare parts, etc.) which is the subject-matter of this litigation. D.W. 1, Muthusami

Chettiar, started a separate business to which the Plaintiff does not lay any claim. Sami Chettiar died intestate on 26th May 1960. The Plaintiff, son

of Sami Chettiar by his first wife, laid the suit alleging inter alia that the suit business was the joint family business of Sami Chettiar and his sons,

namely, himself and Defendants 1 and 2, that on the death of Sami Chettiar, the interest in the business devolved on him and Defendants 1 to 4 and

that he was entitled to 6/20th share.

Defendants 1 to 3 contended that the Plaintiff was never a member of the joint family of Sami Chettiar, that the business started by Sami

Chettiar was his separate business at the inception, that later on Sami Chettiar treated the business as the business of the joint family consisting of

himself and Defendants 1 and 2, that the Plaintiff, even if he had any interest in the business, had lost it by ouster for over the statutory period and

that as such the Plaintiff was not entitled to any share.

The fourth Defendant (daughter of Sami Chettiar) contended that the suit business was the separate business of Sami Chettiar and did not

become the joint family business at any time as alleged by Defendants 1 to 3 and that she was entitled to one-fourth share.

On a consideration of the evidence, the trial Judge found that the business at its inception, was the separate business of Sami Chettiar, that

subsequently Sami Chettiar treated the business as that of the joint family consisting of himself and Defendants 1 and 2, that in 1959 the Plaintiff, by

executing a release deed in favour of Sami Chettiar and Defendants 1 and 2 in respect of certain properties, became a separated member, that the

Plaintiff had been excluded from the enjoyment of the profit of the suit business for over the statutory period and had lost his right, if any therein,

and that, therefore, the Plaintiff was not entitled to any share. The trial Judge accordingly granted a decree in favour of the Defendants, declaring

1/12th share to each of Defendants 3 and 4 and 5/12th share to each of Defendants 1 and 2. Aggrieved by this decision, the Plaintiff has filed this

appeal. Aggrieved by the decision denying her one-fourth share and granting her only l/12th share, the fourth Defendant has field a memorandum of

cross-objections.

It is the common case of all the parties that Sundaram Chettiar acquired; several properties by his exertions, having inherited no ancestral

property and made a gift of Rs. 2,000 and jewels worth Rs. 2,000 itoeachl of his two sons, Sami Chettiar and Muthusami Chettiar. The parties are

at controversy as to the nature of the gift. The contention urged on behalf of the Plaintiff is that the gift was made so that each of the two sons could

hold the gifted property for the benefit of his respective branch. On the other hand, the contention of the Defendants is that the gift was intended as

the separate property of the donees. It is, however, the common case of all the parties that with the money and jewels gifted to him Sami Chettiar

started the suit business. The fact that the business was started and conducted by Sami Chettiar, father of the Plaintiff, does not necessarily raise a

presumption that the business was joint family business of Sami Chettiar, the father and his sons. There are no presumptions in Hindu law that the

business standing in the name of any member of the family, even if he is the manager of the family is a joint family business. The burden lies upon

the person to prove that the business is joint family business even though it is in the name of an individual member of the family--see Seeyali Achari

and Others Vs. K. Doraiswami Achari and Another, and G. Narayana Raju Vs. G. Chamaraju and Others, . Inasmuch as admittedly Sami

Chettiar started the business with the funds provided by his father, the further question is whether the gift was made for the exclusive benefit of

Sami Chettiar or for the benefit of the branch consisting of himself and his sons. In Mithakshara law, the father has unfettered powers of disposal

over his self-acquired property and he can gift away his self-acquired property in any way he likes. The question whether the gift by a Hindu father

over his separate property in favour of his son would be the separate property of his son or would be ancestral property in his hands for the benefit

of himself and his sons has arisen for consideration in a number of cases and the answer was given in different ways by different High Courts, with

the result that there was considerable diversity of judicial opinion. It is unnecessary to refer to those cases as the conflict is now set at rest by the

Supreme Court in Arunachala Mudaliar v. Muruganatha Mudaliar (1953) 2 M.L.J. 796 (S.C.). The relevant observation of the Supreme Court is

at page 802.

...the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it--exclusively for himself or that the

gift would be for the benefit of his branch of the family. If there are express provisions to that effect either in the deed or gift or a will, no difficulty is

likely to arise and the interest which the son would take in such property would depend upon the terms of the grant. If, however, there are no clear

words describing the kind of interest which the donee is to take, the question would be one of construction and the Court would have to collect the

intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canon

of construction. Stress would certainly have to be laid on the substance of the disposition and not on its mere form. The material question which the

Court would have to decide in such cases, is, whether taking the document and all the relevant facts into consideration, it could be said that the

donor intended to confer a bounty upon his son exclusively for his benefit and capable of being dealt with by him at his pleasure or that the

apparent gift was in integral part of a scheme for partition and what was given to the son was really the share of the property which would normally

be allotted to him and in his branch of the family on partition. In other words, the question would be whether the grantor really wanted to make a

gift of his properties or to partition the same? As it is open to the father to make a gift or partition of his properties as he himself chooses, there is,

strictly speaking, no presumption that he intended either the one or the other.

Keeping the above principle in view, the facts of this case may be examined. The contention that the gift by Sundaram Chettiar in favour of his

son, Sami Chettiar, was for the benefit of the branch of Sami Chettiar was for the first time put forward on behalf of the Plaintiff in the course of

arguments before us. There is no allegation in the plaint to support this contention. The Plaintiff did not join issue with the Defendants on this

question before the lower Court; nor has any ground been taken by the Plaintiff in the appeal memorandum in this regard. It is the common case of

all the parties that the gift was oral. As such, the question of construction of any documents to find out the intention of the donor does not arise. In

these circumstances, the question of intention of the donor has got to be gathered from his own declarations, if any, in respect of the gift and his

conduct and attitude in relation to the gift and enjoyment by the donee. On 13th March 1940, the father, Sundaram Chettiar, executed a registered

Will under the original of exhibit A-2 making certain provisions with regard to some of his properties. In that Will, reference is made to the gift, and

the relevant portion is contained in paragraph 4 of the Will which reads thus:

...in or about the year 1928, as there was no unity in my family, myself, my late wife, Lakshmikanthammal and my grandson, Venkataraman Chetty

(Plaintiff) alone were living as one family and my sons, namely, S.S. Sami Chettiar and S.S. Muthusami Chettiar were made to live separately and

they were each given a sum of Rs. 2,000 worth of jewels and cash Rs. 2,000 for doing businesses and were made to do business and they also, in

turn, accepted the same and from the capital amount given by me, S.S. Sami Chettiar opened a Shroff business and S.S. Muthusami Chettiar a

provision and maligai shop and they are carrying on the business separately and enjoying the profits and losses derived from their respective

businesses themselves and having their residences separately without any manner of connection between each other.

After making the above declaration, the Will proceeds to refer to certain settlements executed by the testator in favour of the Plaintiff with regard

to certain properties which the Plaintiff has admittedly taken absolutely under those transactions. Under the Will, the testator, made some

provisions for a trust called Karthikai Vanabojana Annadhana Dharmam, which he was conducting. For the purpose of carrying out the trust,

provision was made in the Will setting out some properties. Three items are described in the A schedule and one item in the B Schedule. Item 1 of

the A schedule was directed to be let out and the income there from was directed to be received by the two sons, Sami Chettiar and Muthusami

Chettiar, and they were directed to spend not less than Rs. 150 for the trust, with liberty to divide the balance among themselves. The two sons

were given right of residence respectively in items 2 and 3 and the Plaintiff was given right of residence in the B schedule property, and an

interdiction against alienation was imposed on both the sons and the grandson, namely, the Plaintiff. As regards the sharing of the surplus income

from item 1 of the A schedule, the testator expressly stated that the Plaintiff also is entitled to receive his share of that income according to law out

of the half share due to Sami Chettiar. Though the testator made such a detailed provision to safeguard the rights of the Plaintiff, he made no

provision regarding the business started by Sami Chetty with the aid of the gift made by him. If really the intention of the donor was that the gift was

for the benefit of Sami Chetty''s branch, it is not likely that he would have omitted to say that in the business started by Sami Chettiar, the Plaintiff

also would have a share.

The Plaintiff who has no personal knowledge is hardly competent to say whether the gift to his father was for the benefit of the branch of his

father. Muthusami Chettiar, brother of Sami Chettiar, gave evidence on the side of the Defendants as D.W. 1. In chief examination he stated that

Sami Chettiar started the suit business as his self-acquisition and that the Plaintiff had no interest in it. Significantly no question was put to him in

cross-examination to make out that the gift was for the benefit office branch of Sami Chettiar.

Mr. Gopalaswami Ayyangar, appearing for the Plaintiff, contended, that there are some circumstances which, according to him, if, taken

cumulatively, lead to the inference that the gift was for the benefit of the branch of Sami Chettiar. The first circumnutated which he mentioned was

that equal amount of cash and jewels of equal value were gifted to the two sons. Secondly, he referred to the fact that the gift was made after

disputes arose in the family, which is referred to in the Will, already adverted to. It is, therefore, contended that in as much as the father, Sundaram

Chettiar, wanted the two sons to live separate and start separate business on account of lack of amity in the for only is likely that he wanted the

two sons to stare business for the benefit of their respective branch and it is not likely that the donor would have intended that the sons should take

the gifts as their separate property. No doubt, these circumstances are not very insignificant. But we are of the view that there are note weighty and

substantial grounds which establish the contrary position. The first and foremost circumstance to be noted is that though Sundaram Chettiar was

possessed of considerable immovable properties at the time of the gifts in 1923, he chose to make a gift of only some cash and jewels. It was open

to the donees to spend away the cash and dispose of the jewels, in any way they liked there being nothing to control or restrict their rights. It is

also important to note that the gift was not a joint gift in favour of the two sons, but the gif were separate. No portion of the immovable property

was given to the two sons. It cannot, therefore, be said that the gift was an integral part of a 1 partition which Sundaram Chettiar wanted to effect

between him and his two sons. We have already referred to the Will exhibit A-2 which makes no provision for the Plaintiff to get a share in the

business which Sami Chettiar was carrying on at that time, though the testator made other provisions to enable the Plaintiff to claim a share along

with Sami Chettiar and his other sons with regard to some other income.

The Plaintiff who was born in 1917, became a major in 1935. His father Sami Chettiar, died in 1960. During the lifetime of Sami Chettiar, the

Plaintiff made no claim whatsoever for a share in the profits of the business. Not only lie did not claim a share, but he worked as an employee

under his father in the suit shop and received salary. That fact is admitted by him and that is also borne out by the entries written by the Plaintiff

himself in the account book exhibit B-18. (Though the word salary is not mentioned in those entries, the Plaintiff admits in his evidence that the

entries relate to hi] salary per month.) The Plaintiff worked in die suit shop from 1938 to 1941 and only during that period there wore withdrawals,

which, according to his admission in evidence, represent his salary. Significantly no such withdrawal was made before 1938 or after 1841, though

he claims to be on cordial terms with his father till his father died. Significantly he made no claim for a share in the income at any time.

Sundarm Chettiar, paternal grandfather of the Plaintiff, owned a house in Monusipuram village, Dindigul taluk (which may, for the sake of

convenience, be referred to as Munisupuram house). That house was not dealt with under the Will exhibit A-2 and that was the only immovable

property of Sundaram Chettiar which was left undisposed of under the Will. On 22nd July 1959 the Plaintiff and his father Sami Chettiar,

Defendants 1 and 2 and D.W. 1 entered into an arrangement with regard to the Monusipuram house. Sami Chettiar and Defendants 1 and 2 and

D.W. 1 executed a registered settlement deed, exhibit A-3, in favour of the Plaintiff leaving to him the Monusipuram house, absolutely. On the

same date, the Plaintiff executed the registered release deed, exhibit B-5, in favour of Sami Chettiar and Defendants 1 and 2 and D.W. 1 with

regard to his right if any in items 2 and 3 of the A schedule in the Will, exhibit A-2. These documents came into existence evidently to avoid

disputes in the future. Significantly, the Plaintiff did not even imagine at that time that he had any share in the suit business. There is significant

absence of reference to the suit business in the release deed, exhibit B-5, executed by him. All the foregoing circumstances, in our view, far

outweigh the circumstances on which reliance is placed on behalf of the Plaintiff as supporting the contention that the gift was for the benefit of the

branch of Sami Chettiar. We have no hesitation to hold that the gift made by Sundaram Chettiar to Sami Chettiar of cash and jewels was for the

exclusive benefit of Sami Chettiar and was not intended to be taken by him for the benefit of his branch. Thus the business started by Sami Chettiar

by utilising the cash and jewels was his separate business.

The next contention urged on behalf of the Plaintiff is that even if the business was the separate business of Sami Chettiar, the Plaintiff as one of

the three sons of Sami Chettiar, is entitled to a share in it. This claim is repudiated by the Defendants in two ways. Firstly, it is contended that even

in about 1928 the Plaintiff became divided in status from his father, Sami Chettiar, and was not a member of the joint family of Sami Chettiar at the

time when Sami Chettiar died. Secondly, it is contended that even if there was no division in status in the year 1928, the Plaintiff should be deemed

to have become separated member from Sami Chettiar by reason of the execution of the release deed, exhibit B-5. Ordinarily, the presumption is

that a Hindu family is joint. But this presumption is rebuttable. Partition is the severence of joint status and it is a matter o individual volition. A

definite and unequivocal declaration of an intention by a member to separate him self from the family is sufficient to bring about disruption of the

joint family status. There is no presumption that if one coparcener separates from the others, the others remain united--vide the observations of the

Judicial Committee in Balabux v. Rukhmabai (1903) I.L.R 30 Cal. 725 (P.C.) the principle of which has been upheld by the Supreme Court in

Bhagwati Prasad Sah and Others Vs. Dulhin Rameshwari Kuer and Another, .

In the instant case, it is the common case of all the parties that the joint family of Sundaram Chettiar and his two sons did not own any joint

family property and that all the properties owned by Sundaram Chettiar were his self-acquisitions. But the fact that the joint family did not own any

property does not necessarily mean that there was no need for a division in status. It is open to the members of a joint family to put an end to the

coparcenaries and to live as members of a divided family even though the family did not possess any joint family property. The primary test to find

out whether there was division in status is the intention of the parties. We have already adverted to the provisions in the Will in paragraph 6 supra

which clearly show that from 1928 Sami Chettiar and his brother, D.W. 1, were living separate from their father, Sundaram Chettiar. It is also

declared in the Will that there was no manner of connection between these groups and that the Plaintiff was living along with his grandfather as a

member of his family. The question is whether the said declaration in the Will merely evidences the fact of separate living or whether the separate

living was in pursuance of the intention to put an end to the joint family status of the members inter se. If the intention of the testator was only to

record the fact of mere separate living, the subsequent conduct of the parties should be only consistent with that view and should lead to the

inference that the members, in spite of separate living, were dealing not only among themselves but also with the rest of the world only as members

of a joint family. The Plaintiff does not lay any claim to the business started by D.W. 1, his paternal uncle; nor does D.W. 1 lay any claim to the suit

business. Sami Chettiar and D.W. 1 began to live separately and started their respective businesses in the year 1928, their father, Sundaram

Chettiar, executed three settlements in favour of the Plaintiff, his grandson, giving him some immovable properties absolutely. One of those

settlements was of the year 1935 and two were of the year 1936. That fact is admitted in paragraph 6 of the plaint. These settlements were

executed by Sundarm Chettiar without any reference to his two sons. The Plaintiff has dealt with some of those properties by executing a

settlement in favour of his wife. It is not the case of the Plaintiff that he ever lived with his father Sami Chettiar after 1928. The Plaintiff became a

motherless child even when he was eight days old and thereafter he was brought up and educated by his grandfather, Sundaram Chettiar. From

1928 the Plaintiff lived only with his grandfather. But Sami Chetter lived separate in the same village from 1928 and thereafter Defendants 1 and 2

were born. The Plaintiff is the owner of several businesses. He is conducting a press of his own, besides a separate business in paper stores, sound

service, scented tobacco and a cycle shop. In none of these businesses, either his father or Defendants 1 and 2 have any share. The Plaintiff claims

those businesses as his separate business.

We have already adverted to the non-participation by the Plaintiff in the income derived from the suit business. Not only that, but he was

employed as a servant under his father for three years and drew salary.

We have also adverted to the provision in the Will by which Sundaram Chettiar, the testator, made necessary provision for the Plaintiff to get a

share in the surplus income of the properties set apart for the trust. In paragraph 12 of the Will it is declared that the surplus income should be

equally divided between Sami Chettiar and Muthusami Chettiar and they were entitled to utilise the same for the respective families. But not

content with the above provision, the testator, went further and stated that the Plaintiff was also entitled to his due share according to law from the

half share of the income of Sami Chettiar. If really the Plaintiff member of the family of Sami Chettiar, there was hardly any need for this separate

provision. That again indicates that from 1928 the members had become divided and that the testator was obviously alive to the fact that if no

provision was made enabling the Plaintiff to claim a share in the surplus income, the entire half share in the surplus income would be taken only by

Sami Chettiar and his undivided son, Defendants 1 and 2.

In the settlement deed, exhibit A-3, executed by Sami Chettiar, Defendants 1 and 2 and D.W. 1 in favour of the Plaintiff reference is made to

the Will exhibit A-2 and it is declared that the Will had come into force and had been acted upon that the parties were in enjoyment of the

respective portions as per the Will. After referring to the provision in the Will, this is what the settlement says:

...we have been carrying on as separate family members by individual Nos. 1, 2 and 3 of us as one family and individual No. 4 and yourself each

living separately, (individual Nos. 1, 2 and 3 Sami Chettiar and Defendants 1 and 2 respectively and individual No. 4 is D.W. 1 and yourself refers

to the Plaintiff.)

The relevant passage in Tamil reads thus:

The word is found struck and in its place the word is inserted. The scribe of this document is D.W. 5. His evidence is that the scoring was made

because Sami Chettiar and D.W. 1 stated that the word did not convey the clear meaning and that the word would be a correct word, as they

were divided. He denies that the scoring was made at the instance of the Plaintiff. No doubt, the statement contained in exhibit A-3 was not made

by the Plaintiff, but was made by Sami Chettiar, Defendants 1 and 2 and D.W. 1. But on the same date, the Plaintiff executed the release deed

exhibit B-5 in which he made similar statement, the relevant portion reading thus:

(individual Nos. 1, 2 and 3 refer to Sami Chettiar and Defendants 1 and 2 respectively and individual No. 4 refers to D.W. 1 and refers to the

Plaintiff).

The foregoing recitals in exhibits A-3 and B-5 do not merely indicate that the parties were living separately, but still continued to be members

of an undivided Hindu family with right of survivorship. We have already pointed out that the Plaintiff makes no claim whatsoever to any property

standing in the name of D.W. 1 and that D.W. 1 for his part makes no claim to any property standing in the name of Sami Chettiar or in the suit

business and that position is consistent with the view that D.W. 1 is not a member of the joint family. That is obvious because of the fact that he

and Sami Chettiar had become separate from their father when they started their separate business in the year 1928 with the help of the gifts made

to them by their father.

It is not as though the Plaintiff was always on cordial terms until his father, Sami Chettiar. The relationship between them was mostly strained.

They had to figure as opposing parties in litigation in Original Suit No. 39 of 1948, on the file of the Sub-Court, Dindigul. That was a suit instituted

by Sami Chettiar against the present Plaintiff for recovery of possession of an item of property given to him under the Will. Sami Chettiar alleged

that he had permitted the Plaintiff herein to be in possession, and that the Plaintiff had committed acts of waste and had placed his printing machine

therein. The Plaintiff denied these allegations and claimed right to be in joint possession with his father, Sami Chettiar. The Court rejected that

contention and decreed the suit--Vide certified copy of the judgment. This adjudication throws considerable light on the question whether or not

the Plaintiff was an undivided member of the family of his father. The above decision which is binding on the Plaintiff negatives the existence of joint

family relationship between the Plaintiff and his father and is entirely consistent with the position that is established by the various declarations and

conduct of the parties that there was no joint family relationship between the Plaintiff and his father, obviously due to the fact that as early as 1928,

they had become divided. In the year 1954, the Plaintiff and Sami Chettiar again quarreled over drainage with reference to the same property

which Sami Chettiar claimed under the terms of the Will. This matter was settled as per the compromise exhibit B-4 on 31st July 1954. These

disputes one of which resulted in a suit, are more consistent with the view that the Plaintiff and his father, Sami Chettiar were not members of a

joint family, but were members of a divided family, each asserting title in himself with regard to the properties which they got from Sundaram

Chettiar.

The following facts emerge from the foregoing discussion. From 1928, when the Plaintiff was aged about 11, Sami Chettiar was living separate

and carrying on business separately, whereas the Plaintiff lived with his grandfather and earned his bounties and obtained several properties by gift.

The Plaintiff never claimed a share in the suit business, but was employed on salary for three years and was content to receive only salary. Though

the Plaintiff and Sami Chettiar lived in the same village, they never lived together. The Plaintiff is not having several businesses of his own in which

neither Sami Chettiar nor his sons, Defendants 1 and 2, have any share. Similarly, D.W. 1, the paternal uncle of the Plaintiff, is living separately

from 1928, having his own business and having no manner of claim to any properties standing in the name of the Plaintiff or Sami Chettiar.

Evidence of partition need not necessarily be by means of an instrument. If there is an instrument containing the clear intention of the parties, no

difficulty arises. But in a case like this, where there is no instrument, the question whether there has been a division in status has to be decided with

reference to the intention of the parties and such intention can be inferred only from the acts of the parties. The question is one of fact to be

decided due regard being had to the cumulative effect of all the facts and circumstances--Vide Ganesh Dutt Thakoor v. Jewack Thakoorain I.L.R.

(1904) Cal. 262 The Privy Council have pointed out that cessor of commensality is an element which may be properly considered in determining

the question whether there has been a partition of joint family property. But their Lordships have pointed out that mere cessor of commensality is

not by itself a conclusive proof, the reason being that a member may become separate in food and residence merely for convenience or a member

living in a different place where he is employed may live there without expressing any intention to get separated. Their Lordships have pointed out

that the evidence in other respects should be examined to find out whether it supports or negatives the theory that the cessor was adopted with a

view to separation in the legal sense of the word. If we apply the above test to the facts of this case, it would be seen that from is 1928, Sami

Chettiar and the Plaintiff were not living separately for the sake of convenience, but were living separate only as members of a divided family. In

our view, the circumstances pointed out above go to show conclusively that the separate living was only in pursuance of the division in status,

though the family, at the time of division, did not own any joint family property. Coparcenary is a creature of law and it cannot be created by

agreement of parties except in so far that by adoption a stranger can be introduced as a member of the family, etc.--Vide Sudarsanam Maistri v.

Narasimhulu Maistri ILR (1901) Mad. 149 and Bhagwan Dayal Vs. Mst. Reoti Devi, . Basing the argument upon this principle, Mr. Gopalaswami

Ayyangar, appearing for the Plaintiff, contended that if there was disruption in the joint family status in the year 1928, there could not have been

any joint family between the Plaintiff and his grandfather Sundaram Chettiar and that, therefore, the case of the Defendants is unacceptable. The

assumption underlying this argument is unfounded. It is not the case of the Defendants that in 1928, Sami Chettiar and Muthusami Chettiar alone

got divided leaving the Plaintiff to remain as a member of the joint family of his grandfather, Sundaram Chettiar. All that they contend is that in

1928, there was disruption in the joint family and that after 1928, the Plaintiff was not a member of the joint family of his father, Sami Chettiar. The

question whether the Plaintiff was or was not a member of the joint family of his grand father, Sundaram Chettiar, does not arise for consideration

in this case.

The alternative contention of the Defendants is that even if there was no disruption in the joint family status in the year 1928, the Plaintiff ceased

to be a member of the joint family in the year 1959, when he executed the release deed, exhibit B-5. A coparcener can renounce his interest in the

joint family estate. Such a renunciation merely extinguishes his interest in the joint family estate. But the renunciation does not affect the status of the

remaining members quoad the family property and they continue to be coparceners as before. In other words, the renunciation brings about

reduction in the number of coparceners. But to bring about severance, the outgoing coparcener should renounce his interest in all the properties of

the family and in favour of all the other coparceners. The case of Defendants 1 to 3 is that even if there was joint family between the Plaintiff and

his father, such family had interest only in item 2 of the A schedule of the Will, exhibit A-2. and in Mounsipuram house and that by reason of the

settlement of the Mounsipuram house by Sami Chettiar and D.W. 1 in favour of the Plaintiff under exhibit A-3 and by reason of the release by the

Plaintiff of his interest in item 2 of A schedule to the Will, the Plaintiff ceased to be a member of the joint family. This contention is put forward on

these basis that the suit business was the separate business of Sami Chettiar and that, therefore, it was not dealt with under the release. If in 1959,

the suit business was the separate business of Sami Chettiar, then, the position taken up by Defendants 1 to 3 may be well^ founded. But the case

of Defendants 1 to 3 is that from about 1950, Sami Chettiar treated the suit business which at its inception was his separate business as the

business belonging to the joint family consisting of himself and Defendants 1 and 2--which contention we accept for the reasons which we shall

advert to presently--and that from that time onwards the suit business was their joint family business. If in about 1950, the Plaintiff was not a

divided member from his father and if at that time the father treated his self-acquisition as a joint family property such conversion will enure for the

benefit of the Plaintiff also, the principle being that the blending or conversion will enure for the benefit of all the members--Vide Rajagopal v.

Pakkiam ILR (1968) Mad. 138 a case decided by a Bench of which one of us (Ramamttrtian J.), was a member. If in 1959, the suit business was

the joint family business of Sami Chettiar and his sons, then the renunciation or the release by the Plaintff under exhibit B-5 cannot bring about a

severance in status between the Plaintiff on the one hand and the other members of the fustily on the other, for the renunciation must be in respect

of the entire estate of the joint family and not only in respect of a few of the items of the joint family. We are, therefore, of the view that if for any

reason a division in status could not be held to have taken place in the year 1928, then, no division in status could have taken place in the year

1959, by reason of the release under exhibit B-5.

The contention of all the Defendants is that even if the suit business was the joint family business, as contended by the Plaintiff, the Plaintiff was

excluded from the suit business for more than 12 years on the date of suit and was, as such, barred from claiming a share therein. The relevant

article of the Limitation Act, 1908, that arises for consideration in this connection is Article 127. According to this article there is a period of 12

years for a suit by a person excluded from the joint family property to enforce a right to share therein. The time would begin to run from the date

when the exclusion becomes known to the Plaintiff. Thus the principal questions that would have to be examined under this article are (i) whether

the Plaintiff was excluded from the joint family business, (ii) if he had been excluded, when did such exclusion take place and (iii) when did the

exclusion, if any, become known to the Plaintiff. The exclusion referred to in this article is total exclusion. It must be understood in the light of the

concept of joint family. In the joint family possession of the properties is with the manager of the family and such manager is in possession for the

benefit of all the members of the family. Mere non-participation in the benefits of the property by any member will not amount to exclusion within

the meaning of Article 127. The exclusion contemplated is the conscious and deliberate act, amounting to denial of the right of a particular member

concerned to have the benefits of the properties and such a member must have also notice of such exclusion, for a period of 12 years prior the

institution of the suit. The burden lies upon the person, who pleads exclusion to prove, by clear evidence that there has been such a denial for over

12 years. Unless all these foregoing elements are satisfactorily established, the plea of limitation would not be available vide Radhoba Baloba v.

Aburao Bhagwant Rao I.L.R.(1929) 53 Bom. 699 Machiraju v. Simhachalam (1898) 9 M.L.J. 129, Gopala Panicker v. Kunji ILR (1958) Ker.

389 (F.B.), and Marudanayagam v. Sola Pillai I.L.R.(1965) Mad. 711.

Keeping the above principles in view, the contention of the Defendants should be examined. We have already pointed out that at no time the

Plaintiff took a share in the income of the suit business. From 1928, the Plaintiff and Sami Chettiar were living separate in the same village. The

separate living has been affirmed and admitted by the Plaintiff himself in the release deed exhibit B-5. At no time during the long period of a quarter

of a century after he became a major the Plaintiff demanded a share in the income of the suit business. Not only he did not demand a share but he

was content to work as an employee under his father and receive salary. That circumstance establishes two important elements (i) conscious and

deliberate act on the part of Sami Chettiar to exclude the Plaintiff from enjoying the benefits of the business and (ii) knowledge of the Plaintiff that

he had no share in the business or its income. Exclusion need not necessarily be by a declaration by the person seeking to exclude the other

member. Exclusion is a matter of inference to be drawn from the conduct of the parties. Judged by that test, we have no doubt in holding that the

Plaintiff to his knowledge was totally excluded from the enjoyment of the suit business and its assets for more than 12 years prior to the suit.

The last question that remains to be considered is whether the suit business continued to be the separate business of Sami Chettiar till his death,

as contended by the fourth Defendant or whether it became joint family business of Sami Chettiar and Defendants 1 and 2 in about 1950 as

contended by Defendants to 3. We have already found that at its inception the suit business was the separate business of Sami Chettiar. In Hindu

law it is open to a member of a joint family having separate or self acquired property to convert it into joint family property in the ordinary sense of

the term. For such a conversion no formal document is necessary. All that is required is a clear intention on the part of such member to abandon his

separate claim to the property and to treat it as joint family property with all its usual incidence. Such a conversion may be made either by blending

his self-acquired property with joint family property and by treating all the properties as joint family properties recognising the rights of the other

members of the family in all the properties. But such a blending postulates the existence of some ancestral property with which alone normally the

blending may be possible. But even if the joint family does not possess any property it would be open to a member of a joint family to impress

himself acquired property with the character of joint family property by giving up his separate interest and by treating it as one in which other

members of the family also have interest. This can be done by a clear declaration of his intention--vide Rangbhat Ramchandrabhat Vs. Sitabai

Bandbhat, , Subramania v. Commissioner of income tax ILR (1956) Mad. 682, Manicka v. Thangavelu ILR (1963) Mad. 955, A. Ranganathan

Vs. Controller of Estate Duty, , and G. Narayana Raju Vs. G. Chamaraju and Others, .

In the light of the foregoing principles, the evidence in this case may be examined. Though Defendants 1 to 3 have not stated specifically as to

the exact time when Sami Chettiar gave up his exclusive interest in the suit business and treated the suit business as one in which his sons,

Defendants 1 and 2, also have shares as members of his family, the evidence establishes that this had happened in about 1950. That was perhaps

the time when the second Defendant became a major. There is no formal declaration by Sami Chettiar that he gave up his exclusive interest and

recognised the rights of Defendants 1 and 2 as members of the family in the suit business. Such a declaration is not necessary and his intention has

to be gathered from his conduct. Exhibits B-23 to B-30 are income tax assessment forms standing in the name of S.S. Sami Chettiar, the name

under which the suit business was conducted. They are for the period from 1950-51 to 1958-59. In all these forms the status of the Assessee is

stated as ""HUF"" (Hindu undivided family). Exhibit B-10, dated 20th September 1960 is an assessment order issued by the income tax department

to the first Defendant. In that order also the status of the Assessee is stated to be Hindu undivided family. The name of the Assessee is that of the

first Defendant, who is described as the legal heir to the estate of S.S. Sami Chettiar. It related to the year of assessment 1960-61, the accounting

year ending with 31st Marsh 1960. Sami Chettiar having died on 20th June 1960, the assessment was made after his death. In the course of the

hearing of this appeal, Defendants 1 to 3 produced another assessment order issued during the lifetime of Sami Chettiar and that was ordered to

be received as per our order in Civil Miscellaneous Petition No. 3441 of 1969 and that has been marked as exhibit B-31. In that assessment order

also the status of the Assessee is shown to be Hindu undivided family, accounting year ending with 31st March 1959. The explanation of

Defendants 1 to 3 is that similar assessment orders issued for other years have not been preserved.

Mr. Ramaswami Ayyangar appearing for the fourth Defendant, contended that exhibits B-23 to B-30 should not be acted upon, his contention

being that they raise doubt about their genuineness. He pointed out that some of these forms has been signed by any income tax officer, that they

purport to have been initialed by some clerks of the income tax department and that in the absence of the corresponding returns submitted in

respect of the business, these forms should not be accepted. We are unable to accept this argument. No doubt, the first Defendant stated in the

course of his cross-examination on a particular day that the prior income tax records were not with them. But he was recalled the next day and

examined when he produced exhibits B-23 to B-30. No objection was taken on behalf of the fourth Defendant at that time for the reception of

these forms; nor was it suggested to the first Defendant that those forms were not genuine, and were fabricated by him over-night. In these

circumstances, it is now too late on the part of the fourth Defendant to question the genuineness of exhibits B-23 to B-30. It is true that Defendants

1 to 3 have not produced office copies of the returns or certified copies of the returns on the basis of which assessments were made. Their

explanation is that the relevant records are not available. We see no reason to reject this explanation. The fact that even during the life time of Sami

Chettiar, the business was treated as joint family business is proved beyond any doubt. For the purpose of the business, Sami Chettiar and

Defendants 1 and 2 borrowed a loan from Karur Vysya Bank, Dindigul. On 15th September 1959, they borrowed a sum of Rs. 3,000 under the

promissory note exhibit B-8 from the said bank. In that connection, they gave the letter, exhibit B-6, on that date undertaking to be liable. On the

same date they also gave a letter exhibit B-7, stating inter alia that they were the only adult male members of the joint family carrying on the

business in Dindigul under the name and style of S.S. Sami Chettiar. They also undertook on behalf of the joint family to be liable for all the

outstanding, stating that the bank was at liberty to recover the outstanding not only from their joint family business but also from their other separate

properties. The evidence of the first Defendant is that inasmuch as in exhibit B-6, there was no reference to joint family, exhibit B-7 had to be given

stating that the business was joint family business. The declaration in exhibit B-7 is in conformity with the prior assessment orders which were made

on the basis that the business was joint family business.

Mr. Ramaswami Ayyangar, appearing for the fourth Defendant, contended that much reliance should not be placed upon the letter, exhibit B-

7, describing the business as joint family business, for, the letter was obviously given for the purpose of securing a loan and that necessary intention

on the part of Sami Chettiar to give up his exclusive interest and to recognise the rights of Defendants 1 and 2 in the business cannot be inferred. In

support of this argument, he placed reliance upon the observations of the Supreme Court in G. Narayana Raju Vs. G. Chamaraju and Others, , in

which the scope of a letter similar to exhibit B-7 was considered. No doubt, the Supreme Court has pointed out that the recitals in the letter were

made for the purpose of securing a loan and cannot be construed as consent on the part of the members of the family to treat the business as joint

family business--Vide the observations at page 1280. It is true that if the case of Defendants 1 to 3 were to rest upon exhibit B-7 alone the

contention urged by Mr. Ramaswami Ayyangar will have to prevail. But the facts as disclosed by the assessment orders show that from 1960 the

business was treated as joint family business. It is not as though in any particular year either the first Defendant or the second Defendant sent a

return describing the business as joint family business. If that were the case, perhaps it may be said that such a return was made clandestinely

without the knowledge of Sami Chettiar. But successively for about nine years during the lifetime of Sami Chettiar the business was shown as joint

family business and it is impossible to think that such assessments were made without Sami Chettiar knowing the full implications thereof. We have

no doubt in holding that the assessments were made on the business treating it as joint family business with the knowledge and consent of Sami

Chettiar. We, therefore, accept the case of Defendants 1 to 3 that at the time of the death of Sami Chettiar, the suit business belonged to the joint

family consisting of Sami Chettiar and Defendants 1 and 2. There was no impediment for the existence of such a joint family for we have already

found that even in 1928, the Plaintiff had become a divided member from Sami Chettiar and Defendants 1 and 2 were born in 1930 and 1932

respectively.

Section 6 of the Hindu Succession Act provides for the devolution of interest of a Hindu male in co-parcenary property. It provides inter alia

that such interest shall devolve bysurvivorship upon the surviving members of the co-parcenary and not in accordance with the provisions of the

Act. This is, however, subject to the proviso that if the deceased had left him surviving a female relative specified in class I of the schedule or a

male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakshara co-parcenar property shall

devolve by testamentary or inter-State succession, as the case may be, under this Act and not by survivorship. Explanation 2 to that section enacts

that a person who has separated himself from the coparcenary before the death of the deceased is not entitled to claim a share by virtue of these

provisions. It would follow from these provisions that the 1/3rd share that belonged to Sami Chettiar in the suit business devolved upon his

undivided sons, Defendants 1 and 2 and his widow, the third Defendant, and daughter, the fourth Defendant, to the exclusion of the Plaintiff. That

is, each of Defendants 1 and 2 would be entitled to 5/12th share and Defendants 3 and 4 each would be entitled to 1/12th share. These shares

have been correctly declared by the lower Court. Inasmuch as the fourth Defendant had paid the necessary Court-fee, the lower Court directed

division of her 1/12th share and allotment thereof. In the result, the appeal fails and is dismissed with costs of Defendants 1 to 3. The memorandum

of cross objections is dismissed in the circumstances, without costs.