26 March 1964
Supreme Court


Case number: Appeal (civil) 589 of 1960






DATE OF JUDGMENT: 26/03/1964


CITATION:  1965 AIR  289            1964 SCR  (7) 490

ACT: Hindu Law-Property acquired in the name of a member of joint family-Joint family having sufficient nucleus on that  date- Presumption  that  property is acquired  from  joint  family funds-If rebuttable-Past transactions-Manager when  account- able.

HEADNOTE: There  were  three brothers who continued as  members  of  a joint  family with the eldest of them, the first  respondent as  the karta.  Certain properties were acquired  thereafter for the joint family.  Certain properties were also acquired in  the  name  of the first respondent’s son  his  wife  and grandson.   The  two  other brothers  of  respondent  no.  1 acquired   properties  for  themselves  out  of  their   own earnings.   Relations became strained between  the  brothers and the second brother the present appellant filed suit  for partition  claiming not only the original properties of  the joint  family  and  the properties acquired  for  the  joint family  by  the Karta, the present respondent but  also  the properties  acquired by the respondent no. 1 in the name  of his  wife, son and grandson as joint family properties.   He also called on the first respondent to account for the  past years.  The third brother was impleaded as second defendant. Respondent  no. 1’s contention was that the  last  mentioned properties  were  bought  by him from his  own  savings  and therefore  were  not part of the join, family  property  and consequently  not  liable to partition.  The  learned  trial Judge held that those properties were joint family  property and  were  liable  to  be  partitioned.   Respondent  No.  1 thereupon  appealed  to the High Court and  the  High  Court allowed  the  appeal  regarding  substantial  part  of   the schedule  properties.   Thereupon the  appellant  filed  the present appeal. Held:  (i) Where properties were acquired in the name  of  a joint family member, if at the date of such acquisition  the joint  family had sufficient nucleus for acquiring  it,  the property  should be presumed to have been acquired from  out of  family  funds and so to form part of  the  joint  family property, unless the contrary is shown.  In the present case on  a  consideration of the evidence it is  found  that  the



joint  family  had  at the date of the  acquisition  Of  the properties  in question sufficient nucleus from which  these properties could be acquired. Amritlal Sen & Ors. v. Surath Lal Sen, A.I.R. 1942 Cal.  553 and  Appalaswami v. Suryanarayanamurthy, I.L.R. [1948]  Mad. (P.C.) 440, referred to. (ii) In   the   absence  of  any  evidence   of   fraud   or misrepresentation  the  Karta of a joint  family  cannot  be called  upon to account for the past transactions, but  this does  net  mean that the parties were bound  to  accept  the statement of the Karta as to what the property consisted  of and  an enquiry should be directed by the court in a  manner usually  adopted  to  discover that  in  fact  the  property consisted  of at the date of the partition.  In what  manner this  principle  can  be applied depends on  the  facts  and circumstances  of each case.  Where as in the  present  case the  evidence  ,on record shows prima facie that  the  Karta could not reasonably 491 be expected to have in his hands at the date of the suit any accumulaties found on evidence to have been acquired by  the family, there can be no justification for calling the  Karta to  account  for  his past dealing  with  the  joint  family property and its income. Parameshwar  Dube  v.  Govind Dube,  I.L.R.,  53  Cal.  459, explained.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 589 of  1960. Appeal  by special leave from the judgment and decree  dated April 28, 1953, of the Madras High Court in A.S. No. 695  of 1949. K.N.  Rajagopal Sastri, K. Jayram and R. Ganapthy Iyer.  for the appellant. A.   V.   Viswanatha  Sastri  and  T.V.R.   Tatachari,   for respondent     nos. 1, 3, 4 and 6 to 8. B.   Kalyana Sundaram, M. Rajagopalan, K. Rajendr  Choudhry, M. R. Krishna Pillai for K. R. Chaudhuri, for respondent no. 2. March 26, 1964.  The Judgment of the Court was delivered by DAs GUPTA, J.-Three brothers, Ramakrishna, Narayanaswamy and Mahadeva., who are eighty-three, seventy nine and sixty nine years  of  age respectively, are the main  figures  in  this litigation.   After their father’s death in 1908  the  three brothers continued as members of a joint family.  The eldest brother,  Ramakrishna became under the law the Karta of  the family.   When the father died the family was  possessed  of about 10 acres of land.  But he had left some debts and  one of the first acts which Ramakrishna had to do as the Manager was  the repayment of those debts.  Ramakrishna  had  become the  Karnam in Narasingampettai in 1902 and even during  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. 492 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 acquired properties for themselves out of their own earnings. As  early as the thirties feelings became  strained  between Ramakrishna, the eldest brother and Narayanaswami the second brother.   Mahadeva  who  had to remain  away  at  different places in connection with his service demanded partition  of the  joint family properties and in this Narayanaswami  also seems  to have joined him.  The extreme action of  going  to courts  was however not taken so long as mother  was  alive. She died early in 1945 at the age of 90 years.  In December, (12th December) 1946 Narayanaswami sent a lawyer’s notice to Ramakrishna  in which he claimed that not only the 25  acres acquired  between 1911 and 1931 but also the properties  ac- quired  in  the  name of Ramakrishna’s  wife,  his  son  and brother-in-law  had  been acquired with the  income  of  the family  and formed part of the joint family properties.   He claimed  also in this notice that family funds of about  Rs. 25.000/-  was  in the hands of Ramakrishna in the  shape  of cash and Benami investments.  He demanded a partition of all these  properties  and  of  the  cattle  and  other  movable properties  owned  by  the  family.   He  also  called  upon Ramakrishana  to  account for the income  derived  from  the family  properties "for the last three years at least".   In all these he claimed a one-third share. To this Ramakrishna replied on December 1, 1946.  He  stated that the joint family properties consisted only of 10  acres left  by their father and about 25 acres acquired  later  on and denied that the other properties belonged to the family. Soon  after this, on the 1st February  1947.   Narayanaswami brought this suit for partition and accounts in the court of the Subordinate Judge, Kumbakonam.  The eldest brother Rama- krishna  was impleaded as the first defendant; Mahadeva  the third  brother, was the second defendant, Ramakrishna’s  son Venkatarama.  his wife Mangalathammal and his  brother-inlaw Raja lyer were in-pleaded as the third, fourth and the fifth defendants  respectively.  Mahalingam was impleaded  as  the sixth  defendant.  Two other minor sons of Venkatarama  were also  impleaded.   They  are  the  seventh  and  the  eighth defendants in the case. The plaintiff’s case was short and simple.  He claimed  that Ramakrishna  as  the Karta of the joint family  managed  the family  properties and acquired properties with  the  family funds from 1911 to 1946.  He thus claimed that not only  the 34 493 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 plaintiff though as regards the years, 1940, 1941, 1942  and 1943  his case in the written statement was that it was  the plaintiff  Narayanaswamy  and not the  first  defendant  who collected  the income from the join family properties.   For these  four years, he pleaded that the plaintiff was  liable to  render  an account while for the  remaining  period  the first defendant was said to be liable.  In a Schedule to his written  statement  he  mentioned  several  other  items  of properties  which  he claimed belonged to the  joint  family though one of the sale deeds stood in the name of the  sixth defendant Mahalingam and the other in the name of the  fifth defendant  Raja Ayyar.  The other defendants  contested  the suit. The  first defendant’s case was that though on his  father’s death  he became in law the Karta of the joint Hindu  family the actual management was carried on by the mother till 1940 and  from  1940  till  the mother’s death  in  1945  by  the plaintiff  Narayanaswami.   It was only after  the  mother’s death that he has taken up the management of the properties. He  pleaded that of the properties mentioned in  the  plaint only  34.58  acres mentioned in the A  Schedule  formed  the joint  family property. (In addition to some of the  movable properties  mentioned in A2 Schedule).  He  further  pleaded that  a house in Kumbakonam town which was acquired  by  the plaintiff  in  his own name as also some  lands  in  Manalur village  in  Kumbakonam and Rs. 8,000/- in  cash  which  the plaintiff had obtained on sale of certain lands also  formed part of the joint family property. His  wife Mangalathammal, the fourth defendant also  pleaded that the properties and the investments standing in her 494 name  were  made by her on her own account with  the  monies which  her  husband  Ramakrishna gave to her  from  his  own earnings.  These therefore were not part of the joint family property and consequently not liable to partition. The  third  defendant  (Venkatarama’s)  case  was  that  the purchases  of land and investments of money standing in  his name  were all with his own earnings since he became  Qarnam and  did  not form part of the joint  family  property.   As regards  what  stood in the name of his son  Mahalingam  the third  defendant  pleaded  that  these  were  with  his  own earnings.   The fifth defendant also pleaded  that  whatever stood in his name was acquired by him with his own money and did  not form part of the joint family 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 Rs. 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 of defendants 3 to 5  belonged to the joint family with the exception of a  few standing  in the name of the third  defendant  (Venkatarama) which  was  held  to  be  the  third  defendant’s   personal property.   A  preliminary decree was made by the  Court  in accordancewith  these  findings  with a  direction  that  an account be taken with reference to income of the  properties in  Schedules A, A1, B, B1, C, C1 and D and Item 5  in  Sch. B2 and the house at Kumbakonam mentioned in the Schedule  to the  first  defendant’s written statement, for  three  years prior to the date of the suit and from the date of the  suit till  the  passing  of the final  decree.   As  regards  the properties   in  Schedule  A  it  was,  directed  that   the accounting  will  cease from the date on which  the  parties took  possession  of  their share  in  accordance  with  the interim decree. Against  this decision the first defendant appealed  to  the High  Court  of Judicature at Madras.   The  plaintiff  also filed- 495 an appeal challenging the decision of the Subordinate  Judge that  the house in Kumbakonam was a joint  family  property. ’The High Court allowed the plaintiff’s appeal holding  that the Kumbakonam house was a separate self Acquisition of  the plaintiff.   Against  this  decision of the  High  Court  no appeal  has  been preferred and we are no  longer  concerned with  the  question  whether  this  house  was   plaintiff’s property or not. In  the  appeal preferred by the first  defendant  the  High Court  came  to the conclusion, disagreeing with  the  Trial court, that the first defendant Ramakrishna had saved enough from his separate earnings from which it was quite  possible for him to make all the acquisitions and investments in  the name  of his son, wife and grandson subsequent to 1930.   In the  opinion of the High Court the view of  the  Subordinate Judge  that by 1930 the first defendant had in his  hands  a sum of Rs. 14,000/- accumulated from the income of the joint family  lands  was "surprising and untenable".  It  did  not disturb  the  Trial Court’s findings that  Schedule  D  land acquired  in the name of the 3rd defendant was joint  family property,  apparently  because no appeal had been  filed  as regards  this  property.   Taking  these  14  acres  to   be acquisitions  for  the family the High  Court  recorded  its conclusion thus:-               "When  we  consider  that  the  joint   family               nucleus  has been more than quadrupled, it  is               difficult  to see what grievance  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  acquisition  of  these properties the joint family had not a sufficient nucleus for acquiring these. He  argued  that the acquisitions in the name of  the  first defendant’s  wife was admittedly with funds advanced by  the first  defendant  himself;  and  if  at  the  date  of   the acquisition  in  her name the joint  family  had  sufficient nucleus  for acquiring them, the presumption would  be  that they  were acquired with joint family funds  notwithstanding the fact that the first defendant may have sufficient  funds of his own for the same purpose.  It was rightly argued that in  such  a  case the property should be held  to  be  joint family  property  unless the presurmption  of  the  acquired property  also being joint family property was  rebutted  by the  first defendant.  It was also argued that  acquisitions in  the name of the third defendant and the sixth  defendant should also be held to have been made with funds advanced by the  first  defendant himself and so these  also  should  be presumed to have been acquired with joint family funds if it is  shown that the joint family had sufficient  nucleus  for acquiring  these  at the date of the  acquisitions  and  the first defendant does not show positively that the funds with which they were acquired did not belong to the joint family. The  legal position is well settled that if in fact  at  the date  of  acquisition  of a particular  property  the  joint family had sufficient nucleus for acquiring it, the property In  the  name of any member of the joint  family  should  be presumed  to be acquired from out of family funds and so  to form part of the joint family property, unless the  contrary is  shown.  (Vide Amritlal Sen & ors., v. Surath Lal  Sen  & others(1) Appalaswami v. Suryanarayanamurthy & others(2). In the case before us, it is not disputed that the  acquisi- tions  in the name of the first defendant’s wife  were  made with funds advanced by him.  As regards the acquisitions  in the name of the third defendant and his minor son the  sixth defendant  also  we  find it reasonable  to  hold  from  the evidence, as regards the earnings of the third defendant and other circumstances, that for these acquisitions also  money was  paid by the first defendant.  The question whether  the joint  family had at the time of each of these  acquisitions sufficient  nucleus from which the acquisitions  could  have been made is therefore of great importance. 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. (1)  A.I.R. 1942 Cal. 553. (2)  I.L.R. [1948] Mad. (P.C.) 440.



497 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 Rs. 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 Rs. 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 Rs. 20,000/had been purchased out of the family income during  this  period.  During part of this period  at  least monies had to be spent for other requirements of the  family including the expenses on the education of the third brother Mahadeva.   The several documents produced in the case  show that  at  the  time  of more than  one  purchase  the  first defendant had to borrow money on promissory notes to pay the consideration  mentioned  in  the documents.   It  is  worth mentioning  that even the plaintiff was not prepared to  say that  the  family  income was sufficient to  pay  for  these purchases.   In cross-examination a question was put to  him in these words:-               "Q.  From  1911 out of the family  income  Rs.               20,000/worth of lands had been purchased?  Can               there  have been more income from  the  family               lands?"               The  answer is significant.  It was  in  these               words: --               "A.  From the family income, the joint  income               of  myself and Defendant 1 certainly  exceeded               Rs. 20,000/-.  The income of myself and Defen-               dant 1 which went in the purchase of lands may               have come to Rs. 10,000/-". In  other words, the plaintiff himself seem to concede  that only Rs. 10,000/- of the family income was available  during this period for purchase of lands.  The claim made here that he also contributed to the purchase is clearly  inconsistent with  his own written statement and with other parts of  his evidence and cannot be accepted. The  learned  Subordinate Judge, appears to have  been  con- vinced  that  Ramakrishna’s  personal  earnings  were   very little.  He thought also that what little Ramakrishna earned was  required  for  the expenses of his own  branch  of  the family.  The learned Judge concluded that he could not  have saved out of these earnings.  This view appears to have been mainly responsible for this conclusion that almost the whole of  Rs.  15,0001which the defendant No. 1 admitted  to  have with him in about 1931 came out of the family funds.  In our opinion,  the  materials on the record do  not  justify  the Trial   Court’s  view  that  Ramakrishna  could   not   have accumulated a sum of 498 Rs.  15,000/- out of his own income.  The mamools  which  he received  as Karnam of Narasingampettai and later on of  the bigger  village  Vepatthur amounted to a  considerable  quan tity  of  paddy and must have fetched him a  goodly  income. There was apart from this, his income from the banana  plan- tations which he had at Narasingampettai.  One of the  lease deeds  shows a receipt of Rs. 450/- for one season.   Taking 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 Rs. 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 Rs. 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 Rs. 15,O0O/- in his  hands  in about  1931 as accumulated out of his own earnings  is  sub- stantially true. Mr. Rajagopala Sastri has however rightly pointed out that a finding that in 1931 very little remained out of the  family income  would  not be sufficient to show that there  was  no sufficient nucleus for the acquisition of the different pro- perties in the name of the defendant’s wife, his son and his grandson  after 1931 For a proper decision of this  question it   is  necessary  to  consider  roughly  the  income   and expenditure  out of the admittedly family properties  during this period. We  shall first consider the period, 1931 to 1939, as it  is clear  from  the  evidence  that  during  this  period   the defendant  No.   1 carried on the actual management  of  the joint  family  properties.  It is common case  of  both  the parties that the paddy yield in 1931 was 856 kalams;  during 1932  1,000  kalams and during 1933 1,118 kalams.   For  the next   five  years  paddy  yield  was,  according   to   the respondent’s  counsel,  1,058,  1,058,  958,  958,  and  958 kalams.   The  appellant’s counsel puts  his  estimates  and 1,160   kalams  respectively.   These  differences  in   the estimates  for these years at the higher figures  of  1,360, 1,360,  1,160, 1,160 seem to be mainly due to the fact  that while, 499 according to the respondent, the family was in possession of only  six  acres  of mortgaged land in addition  to  the  35 acres,  the appellant’s case was that an additional area  of six  acres  of  mortgaged  land was  also  in  the  family’s possession  during these years.  Mr. Rajagopala  Sastri  was not  however  able to point out anything on  the  record  in support of this claim.  We think it reasonable therefore  to accept as substantially correct the estimate of paddy  yield as mentioned before us on behalf of the respondent for these years.   For the year 1939 the yield may be taken  as  1,153 kalams  roughly  as in that year the D  Schedule  lands  now found  to be the property of the joint family had also  been acquired. On  an examination  of the evidence on the record we  accept the the price for each kalam of paddy to be Rs. 2.50 nP  for each of the years 1931 and 1932 and 1.19, 1.25, 1.37,  1.40, 1.50, 1.56 and 1.62 for the years 1933 to 1939 respectively, as  contended  before us on behalf of the  respondent.   The total  income received from paddy in these nine  years  thus appears  to be about Rs. 14,976/-.  To this has to be  added the  receipts from the dry 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 Rs. 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 Rs. 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 Rs.  15,624/-.   Adding  to  this the  sum  of  Rs.  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 Rs. 16,724/-. It  is  now necessary to have some idea of  the  expenditure incurred  during these years.  The claim of  expenditure  of Rs.  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 Rs. 1,100/-  advanced on  the mortgage bond (Ex. 187) was paid from  family  funds should  be  accepted.  We have next to add the  sum  of  Rs. 6,500/-  that  was paid for the purchase of the  D  Schedule lands,  Rs.  4,030/-  paid as kists and Rs.  2.000  /  -  as cultivation expenses including Kariasthan’s pay.  The  total expenditure during the nine years-1931 to 1939-amounted thus to more than Rs. 18,000 / -. Proceeding  therefore  on  the basis on which  there  is  no longer any dispute, that the D Schedule lands were  acquired out  of  the family funds, it appears clear that  the  joint family did not possess sufficient nucleus for making any  of the other purchases. made  during this period, viz., the properties mentioned  in Schedules  B and BI purchased by the document Ex.  125,  the properties  mentioned  in  Schedule  Cl  purchased  by   the document  Ex. B 124, the properties mentioned in Schedule  C purchased  by  Ex.  129, the  properties  mentioned  in  the Schedule  to the written statement of the  second  defendant purchased  by documents Exhibits B 134 and B 135.  The  High Court’s conclusion as regards these properties that they did not  form  part of the joint family properties and  are  not liable to partition in the present suit is therefore clearly correct. The  properties mentioned in Schedule C2 were  purchased  on the  24th  April  1941 by Ex. 136 in the name  of  the  4-th defendant  while  properties  mentioned  in  Item  1  of  B2 Schedule  were purchased on the 19th August 1942 by Ex.  126 in the name of the sixth defendant.  Though it was the first defendant’s  case  that  he had nothing  to  do  with  these purchases  we  are  convinced  on  a  consideration  of  the evidence  that  the  monies for these  purchases  were  also advanced by him.  To decide whether these properties or  the properties  mentioned in Item 5 of Schedule B2, a  house  in Vepatthur,  of which mortgage was taken in the name  of  the first defendant himself by Ex.  B 1929 on the 10th May 1942, formed part of the joint family property, it is necessary to examine  what funds, if any, belonging to the  joint  family were with the first defendant during these years.  The first defendant’s  case, as already indicated, is that  from  1940 till  the  mother’s death in 1945 the plaintiff and  not  he managed  the  joint  family properties so that  he  did  not receive any portion of the joint family earnings during  the period.   The plaintiff has strenuously denied the truth  of this  statement.   There are several  circumstances  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 501 received from Ramakrishna, Mahadeva made in his own hand  an entry in red ink to the following effect: - "1939-Kuruvai   (paddy)-sold   by  Nana   1939-Semba   Mudal (harvest)-by Nana, sold in 1940." It  is true that there are some letters which indicate  that even during 1941 and thereafter Ramakrishna was issuing some instructions to the Kariasthan.  But, considering the  facts mentioned  above along with the letters Exibits B 177 and  B 72 in which detailed instructions about the cultivation were being given by the plaintiff to the Kariasthan, we have come to  the  conclusion that from about 1940 till  the  mother’s death  early  in   1945 the plaintiff  displaced  the  first defendant  from the management of the family lands and  took away  all the family lands in Kumarakshi and took  away  all the income from them. The only income from joint family properties that appears to have come into the hands of the first defendant during  this period was that from D Schedule lands.  The yield from these lands may roughly be estimated at about 300 kalams for  each year.   The price per kalam in 1941 appears from Ex. 100  to have  been Rs. 2/6/-.  The net income, after payment of  the kist  and debiting the expenses of cultivation etc., may  be placed there-fore at about Rs. 500 It is undoubtedly a  very rough  estimate.   But  in  the  absence  of  anything  more specific on the record we think it proper to accept this  as a reasonable basis for ascertaining the nucleus available in the  first defendant’s hands from the D  Schedule  property. On this calculation the first defendant appears to have  had in his hands about Rs. 1,5001 during the years 1940 to 1942. There was already however a deficit of more than this amount on  his  management of the properties  during  the  previous period  1931 to 1939.  It is reasonable therefore  to  think that  there was no nucleus from the joint family  properties which the first defendant could have possibly used in making the  acquisitions during 1941 and 1942.  The  conclusion  of the  High Court that these properties did not belong to  the joint  family  and  are therefore not  liable  to  partition cannot therefore be disturbed. Some  of  the  properties mentioned in Schedule  B2  to  the plaint were purchased in 1945 and 1946 by Ex.  B 127 aid  B. 128 in the name of the third defendant, Venkatarama.  At the time  of  these acquisitions the third  defendant  had  been karnam  of Vepatthur for over 15 years.  It is 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 502 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 Counsel stresses the responsibility of the  Karta  to establish what are the assets  available  for partition.  In support of this, the learned Counsel drew our attention  to  the  decision in Parmeshwar  Dube  v.  Gobind Dube(1).   That case laid down the rule that in the  absence of  fraud  or other improper conduct the  only  account  the Karta  of  a joint family is liable for is to  the  existing state of the property divisible; but that this did not  mean that  the parties were bound to accept the statement of  the Karta  as to what the property consisted of and  an  enquiry should be directed by the court in a manner usually  adopted to  discover what in fact the property consisted of  at  the date  of  the  partition.  About  the  correctness  of  this proposition  there  is  no dispute.   In  what  manner  this principle  can be applied depends however on the  facts  and circumstances of each case.  Where, as in the present  case, the  evidence already adduced before the court  shows  prima facie  that  the Karta could not reasonably be  expected  to have  in his hands at the date of the suit any  accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there  can be no justification for calling the Karta to account for his past dealings with the joint family property and its income. In the circumstances of this case therefore the order of the High  Court  that  there  was  no  liability  on  the  first defendant  as managing member to render any account  of  any kind  prior  to  the 12th December  1946,  on  which  notice demanding  partition  was  issued, does  not  call  for  any modification. In the result, the appeal is dismissed with costs. Appeal dismissed. (1)  I.L.R. 53 CaL 459. 503