TMI Blog1964 (3) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... his father's life time started acquiring property. Property to the extent of about 25 acres was acquired for the joint family between the years 1911 to 1931. In 1927 Ramakrishna had been transferred to the bigger village of Vepatthur and continued to be there till 1930. On his retirement in that year his son Venkatarama succeeded him as the Karnam of Vepatthur. Between 1931 to 1946 properties in Vepatthur and other villages were acquired in the name of Ramakrishna's son Vankatarama, his wife Mangalathammal, his grandson (Ven- katarama's son) Mahalingam. Some property was acquired also in the name of Mangalathammal's brother Raja Ayyar. Monies were also invested in loans in the names of Ramakrishna's wife. Mangalathammal, his son Venkatarama and his grandson, Mahalingam. The second brother Narayanaswami became a Vakil's clerk in Kumbakonam in 1910. The third brother Mahadeva who was a boy a of thirteen at the time of his father's death was put into the medical school and qualified as a doctor. He was in service as a Sub-Assistant Surgeon at the time when the present suit was instituted by Narayanaswamy. Both of them earned well and have admittedly acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only the acres and 58 cents of land in the village Kumarakshi (men- tioned in the A Schedule) which the first defendant Rama- krishna's wife or son or grandson or brother-in-law were joint ties mentioned in the Schedules B, Bl and B2, and C, C1 and C2 and D for which the sale deeds stood in the name of Ramakrishna's wife or son or grandson or brother-in-law were joint family properties. He claimed also that between 1931 and 1946 Ramakrishna. the Karta. had invested family funds in the name of his wife. his son and his grandson and these were also joint family properties. The movable properties claimed to be joint family properties were mentioned in Schedule A2, while the house in Thiagarajapuram. also claimed to be joint family property was mentioned in AI Schedule. The plaintiff prayed for allotment to him of one third share of these properties by division in metes and bounds into three equal shares. He further prayed for a direction on the first defendant to account for the management of the family properties for three years and for payment to the plaintiff of his share in the amount that may be found due. The second defendant Mahadeva generally supported the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of the plaintiff and his brothers. The learned Subordinate Judge held on a consideration of the evidence that the plaintiff's case 'that the oldest brother Ramakrishna managed the family property as the Karta from and after their father's death in 1908 till the date of the suit had been established. He also came to the conclusion that in about 1931 Ramakrishna had with him an accumulated income of about ₹ 14,000/- belonging to the family and but very little money of his own,, From these findings it was an easy step to hold, as the learned Judge did. that the immovable properties mentioned in Schedules A, Al, B, B1., C. Cl, C2 and D as also Item 5 in Schedule B2 were all properties belonging to the joint family. Out of these he found that the properties in Schedule Al, that is, a house in Thiagarajapuram had been, given away to the sister Rukmaniammal and was no longer a joint family property and therefore not liable to division. The rest of the properties, he held, was liable to be divided among the three brothers, the plaintiff and the defendants 1 and 2. The Court also held that the mortgages and promissory notes on which money had been lent in the names o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the younger coparceners really have, particularly the second defendant, who after keeping for himself his earnings as a Doctor in Government Service finds himself entitled to a share in a greatly increased ancestral patrimony. Finally the High Court concluded that the plaintiff has not shown that any of the acquisitions or investments in the names of defendants 3, 4 and 6 were made from joint family funds. Accordingly, it allowed also the appeal preferred by the first defendant, holding that the only items liable for partition as joint property assets were those in Schedules A and D. It also ordered that the first defendant would account for the income from 12th December 1946, the date on which notice demanding partition was sent to him by the plaintiff. The present appeal has been preferred by the plaintiff against this decision of the High Court. Two main arguments were advanced before us by Mr. Rajagopala Sastri in support of the appeal. The first is as regards the properties purchased in the name of the first defen- dant's wife, his son, and his grandson. Learned Counsel submitted that the High Court did not record any clear conclusion that at the date of the acquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portance. On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisitions made in the names of the first defendant's wife. his son, and his grandson sufficient nucleus from which these properties could be acquired. In coming to this conclusion we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the 5th defendant. The period during which acquisitions admittedly for the joint family were made came to an end in about 1931. At that time the first defendant had, according to his own evidence, about ₹ 15,0001- in his hand. His case is that this entire K. amount was what he had accumulated out of his own earnings. The Subordinate Judge held that a little more than ₹ 14,000 / - out of this amount was the savings from the family funds. We agree with the High Court that this conclusion is not justified by the evidence on the record. As rightly pointed out by the High Court properties worth about ₹ 20,000/had been purchased out of the family income during this period. During part of this per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g good years with bad, it would not be unreasonable to think that this also brought him a few thousands of rupees. We are convinced also on a consideration of his evidence, taken with the entries in the account book of Appaswamy Iyer (Ex. B IO 1) that he received a sum of ₹ 2,500/- as reward for successfully maintaining the litigation on Appalaswamy's behalf. There can be little doubt that he received good sum also as fees for writing documents. One of his witnesses, Narayanaswami Reddiar, DW 7, has given evidence that he paid the defendant ₹ 1,000/- as fees for the documents written for him. Even if this be considered an exaggeration, it s quite clear from, the evidence of this witness that Ramakrishha who, it may be noted, was a man of some education, did a flourishing side business as a writer of documents, saved two or three thousand rupees, earned by him by this work during the entire period he served as a Karnam. It is more than probable that he had other sources of income which he did not think it prudent to mention in the witness box. On a consideration of the circumstances we are convinced that this story that he had ₹ 15,O0O/- in his hands in abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry crops like black grams and green-rams grown on some of the lands. We accept the evidence given by the defendant that dry crops were not grown in every year and also not on all the lands. The sale proceeds of black grams and green grams amounted to ₹ 72/- for the year 1935 according to the account book Ex. A 98. Taking this to be the average receipt per year from the dry crops the receipts from these crops during the nine years under consideration amounted to about ₹ 648/-. The total income from the crops grown on the joint family lands during the years 1931 to 1939 thus works out approximately to be about ₹ 15,624/-. Adding to this the sum of ₹ 1,100/- received on repayment of the mortgage loan on Ex. 187 the joint family earnings during these nine years appears to have amounted to about ₹ 16,724/-. It is now necessary to have some idea of the expenditure incurred during these years. The claim of expenditure of ₹ 5,172/- during these years made before us on behalf of the respondent is not disputed by the appellant. We think also that the respondent's claim that ₹ 1,100/- advanced on the mortgage bond (Ex. 187) was paid from family ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces however which make us think that the first defendant's version is true. The most imoprtant of these is the fact that the youngest brother Mahadeva, who is clearly siding with the plaintiff in this family quarrel, made a definite assertion in his written statement in these words: Similarly the plaintiff has been collecting the income from the joint family properties during the years 1940, 1941, 1942 and 1943. He also stated there that the plaintiff had assured him that he would maintain proper accounts for the collection and expenditure of the income joint family for his period of management and made the definite claim that the plaintiff was liable to render an account for the period of his management. It is true that at the trial Mahadeva tried to explain away this assertion in the written statement by saying that this was based on information given to him by the defendant No. 1. In the very next sentence, however, he again said that this view that the plaintiff was exclusively managing for certain years was his coiiclusion. It is important to notice in this connection that at the bottom of Ex. B 190 dated the 13th March 1941 which Mahadeva received from Ramakrishna, Maha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not unlikely he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings. It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant. Apart from this, it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had with him sufficient income out of the joint family properties for purchasing all these lands. We have already found that the first defendant resumed management of the joint family properties on his mother's death in 1945. On the question about the income and expenses during this period there is hardly any evidence worth the name on the record. On a consideration of all these circumstances, we are of opinion that the High Court's conclusion as regards these properties also that they did not form part of the joint family property is correct. The brings us to Mr. Rajagopala Sastri's second argument.While admitting the legal position that in the absence of any evidence of fraud or misappropriation the Karta cannot be called upon to account for the past transactions, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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