NAINA PILLAI Vs. DAIVANAI AMMAL

JUDGEMENT

(1.) Defendants 1 to 4 are the appellants. Defendant 1 is dead and his legal representatives have been brought on record. The dispute in this appeal relates only to properties in Schedule C to the plaint. These are admittedly karnam service inam lands and had been enfranchised in favour of the plain-tiff's husband. The question is whether they belong to the plaintiff as the self-acquired properties of her husband, or whether they belong to the appellants as the joint family property of the family, the properties being according to the appellants treated as such by all the parties concerned. The plaintiff's husband Ayyaperumal Pillai, and the father of defendant 1, Thambiran Pillai, were two undivided brothers and were the sons of one Karuppan Pillai. Both of them are dead. The plaintiff's husband died on 7 April 1922. Defendants 2 to 4 are the undivided sons of defendant 1. Defendant 5 is a mortgagee from defendant 1. The learned Subordinate Judge found in favour of the plaintiff. In this appeal the correctness and the validity of that finding are questioned by the appellants.

(2.) As already stated, the properties are admittedly karnam service inam lands. These lands were enfranchised in plaintiff's husband's favour on 9 May 189.1. (See. Ex. D). There is no doubt that when karnam service inam lands have been enfranchised the lands form the separate property of the person in whose name they have been enfranchised and are not subject to any claim to partition by other members of the family: see Venkata Jagannadha v. Veerabhadrayya 1922 44 Mad 643. But previous to this decision there have been fluctuations in opinion as to whether such enfranchised lands form the private property of the holder or the joint family property of the members of the family. In Venkata V/s. Rama (1885) 8 Mad 249 the earliest decision on the question, accepted as having laid down correct law by the Privy Council in Venkata Jagannadha V/s. Veerabhadrayya 1922 44 Mad 643, it was held that the enfranchised lands form the private property of the holder of the office. But in two decisions, Gunnaiyah V/s. Kamakshi Ayyar (1903) 26 Mad 339, and Pingala Lakshmipathi v. Bommireddipalli Chalamayya (1907) 30 Mad 434, this position was not accepted and the enfranchised properties were held to be joint family properties. The Privy Council introduced a resolution in the familiar conception in this Presidency as to the effect of an enfranchisement. The period of the above decisions covers the years October-November 1884 to April 1921. It will be remembered that the enfranchisement in the present case took place in 1891. Evidence shows that there have been alienations of various portions of these properties in which they had been treated as joint family properties. (Vide Exs. 1 to 8, 15 and 18. They range from the year 1892 to 1922.)

(3.) Some of these are by the plaintiff's husband alone (Ex. 5, 6 and 7); some are by the plaintiff's husband and his brother (Exs. 2 and 3). Ex. 19 is by the plaintiff's husband and defendant 1, his nephew. Ex. 15 is executed by defendant 1 alone, but it is attested by his uncle, the plaintiff's husband. In all these the properties are treated as joint family properties. In document after document. they are described as ancestral joint family properties and dealt with as such. This position is not disputed. It is not necessary to refer to these documents in detail. Ex. 1 dated 11 September 1892,. the earliest alienation, was executed by Karuppan Pillai, the father of the plaintiff's husband, and attested by the plaintiff's husband and another brother of his, and there also, the property was treated as joint family property. The question is whether in these circumstances properties which must be considered to be self-acquired properties have become joint family properties. By merely being dealt with as joint family property the self-acquired property of the person who deals with it as such does not necessarily lose its character of separate property. In his book on Hindu law, Para 278, the law bearing on the subject is thus stated by Mr. Mayne: ... property which was originally self-acquired, may become joint property, if it has been voluntarily thrown by the owner into the joint stock, with the intention of abandoning all separate claims upon it. This doctrine has been repeatedly recognised by the Privy Council. Perhaps the strongest case was one where the owner had actually obtained a statutory title to the property under the Oudh Talukdars Act 1 of 1869. He was held by his conduct to have restored it to the condition of ancestral property. The question whether he-has done so or not is entirely one of fact, to be decided in the light of all the circumstances of the case; but a clear intention to waive his separate rights must be established and will not be inferred from acts which may have been done merely from kindness or affection.