Varadachariar, J

[1] This appeal arises out of a suit for partition of the estate of one Subbaraya Mudaliar, who died in December, 1927. The minor plaintiffs are the sons of Subbaraya s third wife. The first defendant is the son of his first wife and defendants 2 and 3 are the sons of his second wife Subbaraya executed a will (Ex. I) on 17th October, 1927, whereby he disposed of all the properties, movable and immovable which he then had, partly in favour of the plaintiffs and partly in favour of the defendants. It is sufficient to say that he allotted to the plaintiffs a house and Rs. 6,000 in cash. The plaintiffs advisers apparently felt that there was an unequal division of the estate and thought fit to institute this suit for partition on the footing that all the properties in Subbaraya s possession were joint family properties and that the will was accordingly invalid. The learned Subordinate Judge has upheld the contention of the plaintiffs and decreed a general partition. Hence this appeal by the defendants.

[2] A point was taken before the lower Court that Ex. I was not duly executed by Subbaraya. This formed the subject of the 2nd issue; the learned Subordinate Judge has found that the will was duly executed by Subbaraya in a sound disposing state of mind. The only question therefore that was argued before us is that raised by the first issue, namely:

"Whether any of the plaint properties are the self-acquisition of the deceased Subbaraya Mudaliar."

[3] On behalf of the appellants, Mr. Krishnaswami Aiyar made a point that the lower Court had really proceeded on a theory of blending or throwing into the common stock which was not the case made in the plaint. Mr. Sitarama Rao pointed out in reply that no such objection had been raised in the grounds of appeal nor any surprise pleaded. Apart from this, however, we are not quite sure that the learned Subordinate Judge has proceeded on a theory of throwing into common stock. His observation in paragraph 17 of the judgment rather suggests that it was his view that Subbaraya s purchases and investments were never his self-acquisitions, because he never kept his earnings separate from the income derived from the joint family properties. As we have, however, heard the. case fully on the merits, it does not seem to us necessary to; consider whether really there has been any departure from the case made on the pleadings.

[4] In the plaint, it was alleged in paragraph 4 that at a partition made 12 years before, there was a division of movables, cash, money-lending, etc., and that sometimes later, that is, in February, 1920, there was a partition of immovable properties between Subbaraya and his father and his brother. The obvious intention of this paragraph when taken with paragraph 5 was to suggest that the outstandings which belonged to Subbaraya s estate at the time of his death really represented the development of the money-lending business which came to Subbaraya at the partition. The plaint makes no reference anywhere to Subbaraya having had any substantial earnings of his own apart from the income yielded by the immovable properties or any other properties that came to him at the partition. The learned Subordinate Judge has found that Subbaraya was making a very substantial income from his profession as a native medical practitioner and that finding has not been challenged before us. He has also found that at the partition between Subbaraya and his coparceners, Subbaraya obtained only certain immovable properties and did not obtain any cash or share in the money-lending business. The evidence also shows that the annual income from the immovable properties which Subbaraya got at the partition was somewhere below Rs. 200 per annum. It is not disputed that Subbaraya married three wives and had a large family to maintain. He had at least 5 sons and a daughter and two of his wives were alive for a long time. There can be little doubt that the maintenance of the family alone must have cost a great deal more than the income derived from what may be described as the ancestral properties that came to Subbaraya at the partition. The learned Subordinate Judge therefore rightly holds that Subbaraya s income from his profession as a native physician must have contributed largely to the accumulation of wealth. He nevertheless held that as Subbaraya maintained no accounts and it did not appear that even otherwise he made any distinction between his self-acquisitions and the joint family properties or between the income derived from the joint family properties and the income derived from the practice of his own profession, he must have confused or blended the two incomes so as to make the two indistinguishable from each other with the result that all his properties must be held to be joint family , properties.

[5] The above conclusion has been attacked before us by the learned Counsel for the appellants. It does not seem to us necessary to refer at length to the relevant authorities because many of them have been referred to and discussed in recent judgments of this Court, particularly in Naina Pillai v. Daivanai Ammal (1935) 43 L.W. 302 and Periakaruppan Chetty v. Arunachalam Chetty (1926) 52 M.L.J. 571: I.L.R. 50 Mad. 582 [LQ/MadHC/1926/512] and the unreported judgment of Ramesam and Jackson, JJ., in A.S. Nos. 363 of 1923 and 47 of 192

5. We may take the statement of the law in paragraph 227 of Mulla s book as representing the result of the authorities, namely, that:

Property which was originally the separate or self-acquired property of a member of a joint family may become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it.

[6] The author adds that a clear intention to waive his separate rights must be established. It has been suggested by Mr. Sitarama Rao that the present case is not exactly the one covered by this rule, because he argues that he does not concede that any of the suit properties was at any time the self-acquired property of Subbaraya. We do not think that that way of stating the question really solves the problem. It cannot be denied that Subbaraya s earnings at the moment they came into his hands were his separate property and that he had absolute power of disposal over them. That is certainly a stage which the plaintiffs must admit. No doubt they tried to avoid even that problem by suggesting in the plaint that all that Subbaraya possessed at his death must have come out of the immovable properties and the cash and money-lending business that he got for his share at a partition and, as we have already said, the plaint wholly ignored Subbaraya s independent earnings. But on the facts as now found the plaintiffs cannot get away from the fact that Subbaraya starts with a large amount of money in his hands which at the initial stage were undoubtedly at his absolute disposal and were not derived from the joint property. It is true that he had a small income every year from the ancestral properties as well. It is also true that that Subbaraya kept no accounts and we are not therefore in a position to say either that he brought both sets of income into one account or that he did not. If, as the authorities suggest, the onus lies upon the person who pleads that what was at any particular moment the separate property of a member of the joint Hindu family has at some later stage ceased to be so, to establish that it has been so dealt with as to lose its separate character, it does not appear to us that the plaintiffs can succeed merely upon the circumstance that we do not know how Subbaraya dealt with the two sets of income. It will be practically throwing the onus on the wrong person to hold that because we do not know how he dealt with the two sets of income, he must be presumed to have mingled them so as to lose his rights over his own earnings. Our attention has been drawn to the observations of the Lahore High Court in Beli Ram v. Sardari Lal A.I.R. 1930 Lah. 613 at 617 to the following effect:

In the absence of any evidence that he was keeping his self-acquisitions strictly separate, the presumption is that the whole income of the family from whatever source derived went into the common chest out of which the family was maintained and some of the members were married.

[7] We are, with great respect, unable to accept this presumption as well-founded. The expression " the whole income of the family " used by the learned Judges in the passage above quoted is somewhat ambiguous. It looks as if the learned Judges meant what each member of the family or any member of the family was earning. If so, we are not aware of any warrant for laying down a general presumption in the form enunciated by the learned Judges. It is not contended by Mr. Sitarama Rao that there is any presumption of Hindu law to that effect. It is one thing to say that the Hindu law recognises blending and attaches to such blending certain legal consequences, but it is another thing to say that there is any presumption in favour of blending. We would respectfully say that we are aware of no authority in favour of such a presumption. The presumption, if any, can only be one of fact to be drawn in the light of all surrounding circumstances and in accordance with what is described in Section 114 of the Evidence Act as the common course of human conduct. Dealing with the income derived by a Hindu widow from her husband s estate, it was laid down as early as in Akkanna v. Venkayya (1901) 12 M.L.J. 5: I.L.R. 25 Mad. 351 that the reasonable presumption to make in respect of any person having income at his or her absolute disposal is that he or she intended to reserve to himself or herself that power of disposal unless there is evidence to the contrary. This aspect of the matter has been emphasised in the unreported judgment of Ramesam and Jackson, JJ., already referred to and we need not labour it.

[8] A decision of a Bench of this Court in Krishnamachariar v. Chellammal may perhaps be said to state the position in terms somewhat favourable to Mr. Sitarama Rao s contention. The learned Judges in that case were prepared to draw an inference that a brother-in-law who had earnings of his own intended to throw his earnings into the common stock from the fact that he was contributing to the maintenance of his deceased s brother s widow not merely from the income of the admitted joint family property but even from his own earnings. It is not for us to say whether as an inference of fact the learned Judges were justified in drawing such an inference or not, but it seems to us to put the matter too high to say, as the learned Officiating Chief Justice said, that mingling a portion of one fund with another fund raises a presumption not merely in respect of the portions mixed but also in respect of the balance of the earnings in the hands of the acquirer. We venture to think that the presumption to be drawn in the circumstances of the present case do not warrant the necessary inference which the learned Subordinate Judge felt obliged to draw from the absence of accounts showing that Subbaraya kept his earnings separate from the income derived by him from the joint family property.

[9] Mr. Sitarama Rao called in aid the analogy of a trustee mixing his own funds with the funds of the cestui que trust; we do not think that that is a true analogy. In those cases the law only casts upon the trustee the onus of proving what his own funds are and distinguishing them from the funds of the cestuique trust. It is only if he is unable to do so, that a presumption in favour of the trust in respect of the whole fund is drawn. On the other hand, the result of the doctrine of blending is that the whole property becomes as a matter of law impressed with the character of joint property. It was also suggested that as Subbaraya must have been receiving something like Rs. 200 every, year from the joint family property, that amount might have gone into some of the assets that existed at his death. But if he has been spending very, much more than that amount on the maintenance of the joint family, there is no reason to presume that his separate moneys were spent on the maintenance of the family and that the income from the joint family went into the investments. Whatever may be the position, when the income from joint funds might have left a surplus over the requirements of the joint family, it does not seem to us necessary or reasonable to draw the inference, even where the income from the joint property is far below the requirements of the family that the investments made by the earning member were made in whole or in part out of the joint income. If the matter rested on presumptions alone, we should have held that the plaintiffs had not made out that the subsequent acquisitions of Subbaraya were either joint property or had been thrown into the joint stocks.

[10] Mr. Sitarama Rao however relied on two items of conduct: (1) that Subbaraya had dealt with both sets of properties on the same footing in his will and (2) that one item of immovable property which Subbaraya got at the partition had been sold by him in 1926 under Ex. IX for Rs. 1,000 out of which Rs. 300 is admittedly traceable to a hypothecation bond now in existence and nothing is known of the balance of Rs. 700. So far as the circumstances first, mentioned is concerned, the Vakil who drafted Ex. I has spoken to the conversation between himself and Subbaraya in connection with the inclusion of the ancestral properties in the will. They are undoubtedly of very small value as compared to Subbaraya s acquisitions and we see no reason to think that the explanation given by the witness does not represent the truth. Even otherwise, the mere fact that Subbaraya might have made a mistake in assuming that he could dispose of the joint family property by a will when he was giving them to his own sons does not justify the inference that he intended to lose his power even over his self-acquired properties. Every reasonable presumption must be made in favour of validating the will as far as possible rather than in favour of invalidating it. We are therefore not prepared to draw an inference adverse to the appellants from the manner in which Subbaraya dealt with the two sets of properties in his 1 will. The observations in Isri Dutt Koer v. Hansbutti Koerain (1883) L.R. 10 I.A. 150: I.L.R. 10 Cal. 324 at 337 (P.C.) Which Mr. Sitarama Rao relied on in this connection, must be (read in the light of the facts found in that case and with due regard to the circumstance that at that time the prevailing view in respect of a Hindu widow s savings and investments was more strongly in favour of the theory of accretion to the husband s estate than has been laid down in later authorities. The decisive facts in that case were that the widow s purchases consisted of shares of lands in which the husband was a shareholder to a larger extent and the purchases were made within a short time after the husband s death.

[11] As regards the proceeds of the sale under Ex. IX, the plaintiffs are no doubt entitled to contend that the hypothecation for Rs. 300 must be treated as joint family property. But we do not think that the inability of the first defendant to explain what Subbaraya did with the remaining Rs. 700 can be used against the defendants. The first defendant was not a party to Ex. IX and there is nothing to suggest that he has kept back any information in his possession. The plaintiffs advisers are aware of Subbaraya s investments as they are specified in the will and if by proximity of time or by other means it had been possible to suggest any connection between this sum of Rs. 700 and any of Subbaraya s investments, the position might have been different. For ought we know Subbaraya might have spent away the said sum of Rs. 700. We do not think therefore that that circumstance suggests any inference in plaintiffs favour.

[12] [This appeal having been set down "to be spoken to" and coming on in the presence of the said respective Advocates for the appellants and the respondents]

[13] The Court made the following

ORDER

[14] The result is that the decree of the lower Court cannot be sustained in the form in which it has been passed. Likewise, the claim for partition of all the properties left by the deceased Subbaraya is not maintainable. As Subbaraya s will comprises joint family properties as well as properties which we have held to be self-acquired and as the plaintiffs have under that will been given certain benefits which they may not be entitled to retain if they prefer to repudiate the will, they must elect either to stand by the will or to repudiate it. We allowed the matter to stand over for sometime to see if the plaintiffs next friend is able to do anything in the matter. But their learned Counsel represents that as the next friend is a woman, it will be better if following the English practice the Court itself holds an enquiry as to what is most beneficial to the minors in the circumstances and decides accordingly. See Brown v. Brown (1866) L.R. 2Eq. 481 and also the passage in Mullah s Transfer of Property Act, page 157. We must accordingly call upon the lower Court to make an enquiry after giving notice to both parties and ascertain whether it will be more advantageous for the plaintiffs to confirm the will and take the benefits conferred upon them by the will or to repudiate the will and limit their claim to a partition of such of the properties as according to the directions above contained must be held to be joint family properties. The report will be submitted before the 10th January 1937. Ten days for objections.

[15] Order a report will be rests given to avoid property family lower the interests by the has allotted under declaring propertie

[16] Ther report present Rs. 20 friend Counsel us have being consid made a direct first their

[17] [On receipt of the Findings]

[18] The Court made the following

ORDER

Varadachariar, J.

[19] The lower Court has now made a report to the effect that taking all things into consideration it will be more beneficial to the minor plaintiffs to take the interests given to them under their father s will than to be allowed to avoid that will so far as it purports to dispose of joint family property and take their shares in what is found to be joint family property. In view of the information set out in the lower Court s report, we agree that this is the better course in the interests of the plaintiffs. The decree for partition given by the lower Court is accordingly set aside except so far as it has allotted to the plaintiffs the very properties given to them under the will and in its place a decree will be substituted declaring that the plaintiffs are entitled only to the rights and properties given to them by their father s will.

[20] There is some force in the observation in the lower Court s report that it will be convenient if provision is made in the present decree itself in respect of the monthly maintenance of Rs. 20 directed by the will to be paid to the plaintiff s next friend during the minority of the plaintiffs. As the learned Counsel for the defendants both in the lower Court and before us have very reasonably consented to a provision to that effect being made in the decree in this suit itself it is not necessary to consider whether otherwise that provision can or cannot be made in the suit as framed. The decree will accordingly contain a direction that the defendants shall during the minority of the first plaintiff pay Rs. 20 per mensem to the plaintiffs through their next friend, such payment to be made on the 15th of er:h month and that any sum not so paid will carry interest at 6 per cent, per annum till date of payment. This direction will also apply to all arrears of maintenance remaining unpaid upto this date; but in view of its being an accumulated amount, the defendants are given a period of six months from this date for paying up the amount and the amount will carry interest as above provided for only from the expiry of the six months period. As the will itself provides that Rs. 6,000 directed to be paid in cash on the first plaintiff attaining majority shall be a charge on the property the decree shall contain a direction declaring it to be a charge on the plaint estate. It does not appear to be necessary to make any special provision at this stage in respect of the amounts directed to be paid for the marriage of the plaintiffs.

[21] As regards the costs of this litigation, we are not able to accede to Mr. Sitarama Rao s contention that costs of all parties in both the Courts should come from the estate. We cannot help thinking that the plaintiffs advisers have unfortunately been misled in choosing the course that they adopted. But as there may be something to be said in extenuation of their conduct in the way that the testator had dealt with the property in the will, we think the reasonable order as to costs in the circumstances will be that in this appeal each party do bear his costs but that in the Court below the plaintiffs should pay the defendant s costs and also pay the court-fee due to Government on the plaint. The court-fee will also be a first charge on the fruits secured to the plaintiffs under the decree.