ANNAMALAI CHETTY Vs. SUBRAMANIAN CHETTY

JUDGEMENT

(1.) The appellant claims that he, his brother the first respondent, and his brothers two minor sons who are the second and third respondents, together form a joint and undivided family governed by the Mitakshara law as administered in Madras, and consequently that a half share of a dwelling house and certain other property in the possession of the first respondent are joint estate. That the family is a joint family and that it still remains undivided is not in dispute; the real question is whether there exists any joint property in which the appellant would be entitled to share. The appellant and the first respondent are the sons of one Vairavan Chetty, who is stated in the evidence to have died in 1883, but is found by the Court to have died in 1886; the statement in the evidence may be a misprint, or it may be a misunderstanding 1886 appears to have been accepted as the date of his death. Apart from the two brothers the father left him surviving a widow and two daughters, but the only property which it is established that he possessed was a share or interest in a house along with his brother, and certain funds in respect of which the first respondent received Rs. 1,129- 1-6 on March 6, 1899, and Rs. 580-11 on June 18, 1905. Beyond this and some vague reference about jewellery belonging to the widow, there is no evidence that he left any property at all. The first respondent was born in 1873 and was a lad of thirteen years when his father died. The appellant was a mere child. In 1887 by a document which settled a dispute as to the division of the house, Rs. 220 was fixed as the price of the share of the father and this sum is stated in the award to have been paid to the first respondent. In 1888 a site for a new house was bought for Rs. 300 and upon it in 1890 a house was built, and was further enlarged in 1905. The house is now of considerable value and it is one of the items in which the appellant claims a half share. The appellant's brother appears from the earliest time to have engaged actively in business on behalf of money lenders, and ultimately became a partner in some money-lending firm. The appellant originally claimed a share in the money so earned upon the ground that the business had been implemented from a nucleus of joint family estate. It is sufficient to say that, apart from the fact that the initials of the firm's name under which the first respondent trades is V.E.S.P.L., which is alleged to be a combination of V.E., denoting the father of the parties and S.P.L. the firm of N.A.S.P.L., there is no evidence whatever to warrant this claim, and their Lordships agree with the High Court in thinking these letters are an unsafe guide. A member of a joint undivided family can make separate acquisition of property for his own benefit, and unless it can be shown that the business grew from joint family property, or that the earnings were blended with joint family estate, they remain free and separate. That part of the claim therefore wholly fails.

(2.) So also in their Lordships opinion does the claim in respect of the two sums of 1,129 and 580 rupees. The account furnished, showing expenditure of moneys approximately equivalent to these sums after their receipt, is sufficient at this lapse of time to discharge the respondent from any further obligation in respect thereof. The real difficulty is with regard to the house. Of direct evidence that its site was acquired or its structure built out of joint estate there is absolutely none. This is not surprising; the transaction took place forty years ago when the appellant was a mere child, and there seems no contemporary witness who had knowledge of the facts. It is, of course, true that the amount received for the share of the original family house is very near to the sum used for the purchase of the new site, and it is likely also that a sum available out of joint estate would have been used for this purpose. Beyond this it is impossible to go.

(3.) Now the family appears to have had no money and their needs must have been urgent for the widow had herself and three little children to look after apart from the respondent. It is just as reasonable to suppose that the money was required and used for present necessities as that it was kept for twelve months and then with some slight addition used to purchase a new site. The matter is, however, complicated by further considerations; the new site is said to have been bought in the name of the first respondent. This is indeed accepted by the appellant, though the proper evidence of the fact is not forthcoming and it is difficult to see where the respondent acquired the money to enable him to make such purchase for himself. The account he gives is a striking one. He says that from 1885 to 1888 he had been away serving as an apprentice, and at the end received 500 rupees as a present out of which he purchased the site. The learned Subordinate Judge thought that his evidence was unsatisfactory and their Lordships necessarily attach much weight to such an opinion, but one of the reasons for doubting his evidence appears to their Lordships to be slender. The learned Judge says: The first defendant says he paid Rs. 300 out of this amount for effecting purchase of the site. He has undoubtedly given unsatisfactory evidence in regard to this matter. He would at one time state he brought all the Rs. 500 home from foreign parts when he returned and another time assert that he had deposited part of this amount (400 rupees) in S.S.A. firm and had drawn upon it for purchase moneys by means of a hundi from here. As the plaintiff's Vakil put it, this hundi is important evidence for showing from whom moneys were drawn and why the same was required, and one would expect that, after moneys paid out, the hundi will have been reclaimed and secured as part of the title-deeds appertaining to the site purchased.