MALLIPUDI NARASIMHAMURTHY Vs. MALLIPUDI NAGABHUSHANAM

JUDGEMENT

(1.) Defendant 1 is the appellant in this second appeal. One M. Mallayya, who died on 16-8-1942 left two sons, the elder of whom was the plaintiff born to him in 1908 by his second wife. Defendant 1 was the other son born to Mallayya by his third wife. They formed members of a joint Hindu family. The family owned some lands and also held the office of village Munsif. According to the plaintiff, Mallayya gave up his office of village Munsif in favour of his eldest son, the plaintiff, some 13 years before his death which occurred in 1942. The father voluntarily gave up his appointment in favour of his son and got the latter appointed as Village Munsif. Mallayya was aged about 80 years at the time of his death according to the plaintiff. Evidently, he was feeling that he had become far too old to discharge the duties of the office and therefore had the office transferred in favour of his son.

(2.) The plaintiff and defendant 1, who are step-brothers, appear to have been living amicably for a considerable time after their father's death. The present suit concerns two items of property, the first item being S. No. 495/3 of the extent of ac. 2-44 cents and the second item being ac. 1-62 cents in S. No. 379/2. The plaintiff, the elder brother of defendant 1, brought the suit for a declaration of his title to these two items of property and for recovery of possession of the same after ejecting defendant 1, his younger brother, and defendant 2 who is said to be the lessee of the property. The case of the plaintiff is that those two items of property were his self acquisitions having been purchased in his name under Ex. A-1 dated 7-10-1941 and Ex. A-3 dated 26-2-1941. Ex. A-1, which relates to the first item, was a purchase for Rs. 500/- and Ex. A-3, which was for Rs. 150/- was a purchase of item 2. While the plaintiff claims that these two items are his self-acquisitions, defendant 1's claim, is that they are joint family properties and that the plaintiff is therefore entitled to treat him as a trespasser or to an injunction restraining him from remaining in possession of the property. On the question whether the properties now in suit are joint family properties or the self-acquisitions of the plaintiff, the Courts below differed, the trial Court holding that the properties were joint family properties and the Appellate Court holding that they were the self-acquisitions of the plaintiff.

(3.) The learned Advocate for the respondent has referred me to the decision of the Madras High Court with regard, to the character of the acquisitions made by the members of the joint Hindu family. He argued and in my opinion quite correctly that unless it is shown that there was a substantial nucleus of joint family property from the income of which, after meeting the family expenses, the property subsequently acquired could have been purchased, it could be assumed that the subsequent acquisition was joint family property. He also argued and again quite correctly that if property is acquired by a member of a joint Hindu family the onus of proving that the acquisition is for the benefit of the family, is upon person setting up the plea. Again he argued and again correctly, that the property, which was originally self-acquired might become joint family property, if the acquirer intentionally throws it into the common stock and thereby abandons his exclusive claim over the property but the onus of proving this fact is on the person setting up the plea. Whether an item of joint family property acquired by a member of a joint family belongs to the joint family, or to the acquirer as his self-acquisition, has to be decided in the light of the foregoing considerations.