Madhavan Nair, J

[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-tiffs 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 7th April 192

2. 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 9th 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 64

3. 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. 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. 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. 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 192

1. It will be remembered that the enfranchisement in the present case took place in 189

1. 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 11th 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.

[4] And the learned author mentions in the foot-note all the relevant cases. This paragraph makes it clear that it must be shown that the person who alleges that the property is joint family property must show that the owner has voluntarily thrown the property into the joint stock with the intention of abandoning all separate claims on it. In Periakaruppan Chetty v. Arunchalam Chetty 1927 50 Mad 582, it was pointed out by Reilly, J., that:

The separate property of a Hindu ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by any physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. It is unnecessary to labour that point, as it underlies all the authoritative decisions on the subject from 1876 onwards: Hurpurshad v. Sheo Dayal (1877-78) 3 IA 259 the case under the Oudh Talukdars Act referred to by Mr. Mayne.... see also Hemchandra Ganguli v. Motilal Ganguli 1934 60 Cal 1253 at p. 1257.

[5] The passage quoted from Mr. Mayne and these eases show that unless it is proved that plaintiff s husband had at any time a consciousness that these properties were his self-acquired properties and a consequent intention to treat them as joint family properties, the properties in question cannot be claimed as joint family properties by the appellants. It must specially be so in a case like the present one where there have been fluctuations in legal opinion as to whether the enfranchised properties were in law to be treated as separate properties or joint family properties. In Mayandi Servai v. Santhanam Servai 1925 20 MLW 812, a case very much like the present, where the question arose with respect to Nattamai service inam lands (enfranchised in 1906), this Court, after referring to the passage in Mayne s Hindu law, Para. 278, in second appeal, called for a finding as to whether defendant 3 in that case converted his separate property into joint family property by throwing it into the common stock after enfranchisement. The question is clearly one of intention : did the plaintiff s husband voluntarily throw into the common stock the suit properties knowing them to be his self-acquired properties and intending to treat them as joint family properties There is no evidence of any such intention on the part of the plaintiff s husband in this case. The evidence only shows that the father of the plaintiff s husband treated the properties as joint family properties (see Ex. 1, dated 11th September 1892); and the sons thereafter continued to treat the same in a similar manner, though by the process of enfranchisement on 9th May 1891 the properties had become the separate properties of the plaintiff s husband. It does not show that at any time the plaintiff s husband abandoned his separate rights to the properties and surrendered them in favour of the family. We accept the finding of the Subordinate Judge on this point. No other question was argued before us. The appeal is dismissed with costs of respondent 1.