(1.) The defendant's appeal against the partition decree having been dismissed, it remains to consider the cross appeal filed by the plainiiffs. The subordinate Judge has found that at the time of the reunion, the 1 defendant brought into the common stock property worth Rs. 40 more than the 1 plaintiff's father arid he has in consequence given plaintiffs a decree for only 9/20 of the property instead of one half share. Even if he is right in law, the amount of the share has been wrongly calculated ; for if the 1 plaintiff's father contributed Rs. 400 and 1 defendant Rs. 440 out of the total Rs. 840, as has been found, the respective shares would be 10/21 and 11/21. However, we have now to consider whether there should be this unequal distribution of the property. It is contended for the plaintiffs that a reunion between the parties restores them to their original status and that when a partition is effected, the shares are the same as they would be at the original partition irrespective of the amount of capital contributed by each coparcener. This is certainly the law in the Bombay Presidency. We find that in the Printed Judgments of the Bombay High Court Vol. I. p. 67; it was held that where after partition, the coparceners reunite, they are restored to their original position notwithstanding that the portion brought on reunion may be unequal. In Pranjivandas Shivlal V/s. I charam (1915) I.L.R. 39 Bom. 734 the same principle was affirmed. We see also that in Prankishen Paul Ghowdry V/s. Mothooramohan Paul Ghoudry 10 M.I.A. 403 the Privy Council held that a reunion of a brother to the family remitted him to his former status as a member of a joint Hindu family and it is was further held that, where one of the coparceners had acquired property during the period of separation, if the monies employed for that acquisition were drawn from the joint estate, it followed that on reunion the other brother was entitled,, upon the general principles of the Hindu" Law, to share in that property as an acquisition made by the use of the joint funds! No doubt in that case there was a written agreement entered into between -the brothers, but the Privy Council based their decision not only on the express provisions of the deed but on the general principles of the Hindu Law. If we follow that decision here, it is quite clear that the. property acquired by the 1 defendant during the period of separation must in the absence of evidence to the contrary, be presumed to have been acquired from the funds which he received out of the family estate, and that being so, the plaintiffs would be entitled to share in those acquisitions and therefore on partition to an equal share in the whole estate. The view that the coparceners are entitled propertionately to the capital they contribute on reunion is based on a passage in Smrithi Chandrika Ch. XII, para. 41 ,That passage appears to have been indirectly applied in; the case reported in Manjanatha V/s. Narayana (1882) I.L.R. 5 Mad. 362 but there is no such provision in the Mitakshara which is the main authority in this Presidency. The effect of that provision is to hold that there is no reunion in an undivided family, as such but only the constitution of a tenancy in common between the previous joint coparceners, each holding a definite share in the coparcenery. This appears to be opposed to the primary idea of a joint family in which there are no definite shares and the members take by survivorship, and it is this view that has apparently found acceptance in this Court as well as in 10 M.I.A. 403. In Narasimhacharlu v. Venkata Singaramma (1909) I.L.R. 33 Mad. 165 : 19 M.L.J. 719 it was held that succession in a reunited Hindu family governed by Mitakshara Law is by survivorship and in Kristnayya v. Venkatramayya (1909) 19 M.L.J. 713 a Full Bench of this Court held that this contention of proportionate shares could not be supported by any text of the Hindu Law and was opposed to the fundamental conception of the status of an undivided Hindu family or of a reunited Hindu family. Whether this passage in Smrithi Chandrika was quoted before the Learned Judges in that case does not appear from the report ; but it was quoted in a later case reported in Narasimhacharlu V/s. Venkata Singaramma (1909) I.L.R. Mad. 165 : 19 M.L.J. 719 in which a Bench of this Court declined to accept the authority of the Smrithi, Chandrika and followed the previous Full Bench ruling. There is one case Alamelumangathayarammah V/s. Namberumal Chetty 23 I.C. 824 in which a single judge of this Court Sankaran Nair, J. held the contrary view ; but the large balance of authority is in favour of the view that on reunion the members of the family are remitted to their original status. In that view the plaintiffs are entitled to as equal share of the family property from the defendants and the decree must be modified accordingly.
(2.) A further objection is taken By the plaintiffs that the 1 defendant has not properly shown the outstandings due to the family. The Subordinate Judge has held that as plaintiffs have been unable to prove what exactly these outstandings were they are not entitled to demand an account, and has based his opinion on the principle that a Hindu Manager cannot be called upon for an account. The principle stated thus broadly goes a little bit too far. No doubt a Hindu manager is not responsible for the manner in which he has disposed of the family income in the past, except in the case of a fraud or misappropriation, but when a partition is demanded he cannot evade his liability to give an account of the assets of the family as it existed at the time of partition, This question has formed the subject of various decisions, and on a consideration of these decisions it was held in Parmeshwar Dube V/s. Gobind Dube (1915) I.L.R. 43 Cal. 459, that in an ordinary suit for partition in the absence of fraud or other improper conduct, the only account the Karta (or manager) is liable for, is as to the existing state of the property divisible and the parties had no right to look back and claim relief against the past inequality of the enjoyment of the members or other matters This was the view taken after considering most of the cases which have been quoted before us now, and with respect, I must express my concurrence with that view and with the further view that the parties are not bound to accept the statement of the Karta as to what the properties consist of and that the manager is the accountable party and the Court can order an account to be taken.
(3.) A further question which then arises is in what way is the manager to be made to account. Primarily he should (being the, person in the best position to know the facts) be compelled to prove the assets available at the date of the partition and if he fails to adduce such evidence as he can or ought to adduce, a presumption may be made, against him. In the present case, a commissioner was appointed to take charge of the property and the accounts, but the 1st defendant evaded production of a box containing all current documents belonging to the family. Admittedly the 1 defendant had been lending but monies, for we see from a list, Exhibit EE. which according to the 1 defendant, was prepared about 1909 that there were outstandings due to the family to the extent of 5 to 6 thousand rupees. The 1 defendant now only admits a total of Rs. 3,300 whereas plain tiffs estimate the amount at Rs. 18,000. I think it is quite clear that the 1 defendant has not acted quite fairly in this case and the Subordinate Judge remarks that he has strong reasons to suspect that the defendants have not been fair in putting before the court all the current documents relating to the joint family money lending business. In this state of the evidence any reasonable presumption can be drawn against the 1 defendant. He had admittedly been paying income-tax regularly on an income derived presumably from his money-lending business. He first paid a tax of Rs. 20 and then it was raised to Rs. 28 one or two years ago. It is not disputed that the family properties produced paddy largely in excess of the family requirements and that the family income is greater than the necessary expenditure. In order to bring in an income of Rs. 1,000 which is the income which is taxed at Rs. 20 the first defendant must have had a capital of not less than 11 or 12 thousand rupees, assuming that he got interest on the whole amount at 9 per cent, which is, I think a fairly liberal figure. He all along had a capital of Rs. 12,000 and he has not shown how that has been reduced to the figure of Rs. 3,000 and odd which he new puts forward. I would therefore hold that the outstandings amount to Rs. 12,000 and the plaintiffs are entitled to their share therein. The decree will be modified accordingly. Defendants will pay plaintiffs Costs in this appeal. Krishnan, J.