MAYANDI SERVAI Vs. SANTHANAM SERVAI

JUDGEMENT

(1.) In this appeal, we are concerned only with plaint items 3 and 4, which consist of nattamai service lands enfranchised in 1906, in the name of the third defendant. The lower Appellate Court, acting in accordance with rulings, which at the time of its decision were held to embody the law governing the case, has decided that the title to these properties vested not in the third defendant alone, but in the joint family of which at the time of enfranchisement he was a member. In view of the decision of the Privy Council in Musti Venkata Jagannadha V/s. Musti Veerabhadrayya A.I.R. 1922 P.C. 96, it must now be held that these lands were after enfranchisement the separate property of the third defendant It would seem to follow from this that the present suit should be dismissed, as regards these lands. But Mr, Ananthe-krishna Ayyar, who represents the plaintiffs before us, has raised another point. He contends that, although the lands must be treated as the separate property of the 3 defendant after enfranchisement, yet the third defendant threw them into the common stock and allowed them to be treated as joint family lands, so that they became, in fact, joint family lands : (vide Mayne's Hindu Law, Section 278). In support of this contention, he refers to certain findings of the District Munsiff contained in paragraph 15 of the latter's judgment. This plea was not made the subject of an issue, and as it has not been considered by the lower Appellate Court, we should be disinclined to allow it to be raised at this stage of the case; but we think that in view of the revolution in the idea of the effect of enfranchisement, which is involved in the recent Privy Council decision we should, in fairness, allow the plaintiffs to raise the point which they may, not unnaturally, have disregarded as immaterial and unnecessary, in view of the conception of the law prevailing at the time, when they launched their plaint. In calling for a finding, we may point out that the conversion of separate property into joint family property, by the process of throwing it into the common stock, seems to pre-suppose a consciousness on the part of the separate owner, that the property is his separate property and an intention which Mr. Mayne refers to, in the passage above cited, as a clear intention to waive his separate rights. Mr. Ananthekrishna Ayyar alleges that the third defendant possessed this consciousness and intention and refers us to the allegation in his written statement that the items belong exclusively to the third defendant. Whether it is so or not would be a question of fact to be determined by the lower Appellate Court.

(2.) With these remarks, we must call for a finding from the Permanent Subordinate Court, Madura, on the following issue: Did the third defendant convert his separate property in items 3 and 4 into joint family property by throwing it into the common stock after enfranchisement?" Evidence may be let in by both sides. Finding will be returned by the 9 of July, 1923. Seven days will be allowed for objection. After the Subordinate Judge returned the finding this second appeal came on for final hearing upon the issue referred for trial and the Court delivered the following: Judgment

(3.) In view of the remand order, which held that both consciousness and intention must be found, the finding that the former is wanting is in appellant's favour. It being a finding of fact, must be accepted, and the second appeal is allowed with costs.