JUDGMENT 1. The first question for determination in these second appeals is whether the property which T. Subbayya purported to deal with by his will (exhibit VI) was the family property of the Plaintiff and the sixth Defendant or the self-acquired property of T. Subbayya. The Subordinate Judge held that the property in question was family property. The District Judge was of opinion that it was self-acquired. The will recites that one-fourth of the immoveable property dealt with by the will was ancestral property and that the whole of the moveable property was self-acquired. It is common ground that one-fourth of the immoveable property was ancestral. The District Judge, in paragraph 4 of his judgment, states correctly the law applicable to the question which he had to decide. He says: "The law on the point I take to be thus: Subbayyas separate property would be property (1) acquired by his own exertions, (2) without the aid of family funds, and (3) which he did not mix with family property intending to add it to the family funds." The District Judge was of opinion that these three conditions were satisfied. In coming to this conclusion he relied mainly (1) on the statement in Subbayyas will, (2) the conduct of Subbayyas son (the sixth Defendant) in not objecting to the will, and (3) the so-called reference to arbitration by the first and sixth Defendants embodied in exhibit VII. 2. In our opinion none of these matters is evidence upon the question whether the property dealt with by the will was ancestral or self-acquired. At the time the will was executed, the testator would seem to have been under the honest belief that he had full disposing powers over the property on the ground that it was self-acquired ; but the statement in the will that the property was self-acquired is clearly not evidence of the fact that it was self-acquired. As regards the conduct of the sixth Defendant in not opposing the will, he no doubt, so far as he was capable of forming an opinion at all, shared Subbayyas belief that the property dealt with by the will was self-acquired; and his acquiescence was based on the supposition that Subbayya had full disposing power over the property. 3. As regards the conduct of the sixth Defendant in not opposing the will, he no doubt, so far as he was capable of forming an opinion at all, shared Subbayyas belief that the property dealt with by the will was self-acquired; and his acquiescence was based on the supposition that Subbayya had full disposing power over the property. 3. As regards exhibit VII it is clear that at the time the so-called submission to arbitration was made, no question had arisen between the parties to the submission as to whether or not the testator had disposing power over the property. The so-called arbitrator was appointed to divide the property in accordance with the provisions of the will. The submission to arbitration therefore carries the case no further than the statement in the will. The District Judge apparently attached little weight to the oral evidence and observed that the witnesses probably had but little personal knowledge of Subbayyas affairs. Here we agree with him. Eliminating, then, the matters upon which the District Judge based his conclusion, what is left to rebut the presumption that the property was family property except the fact that from small beginnings the property became something considerable, worth about Rs. 20,000? This is not enough. As the Subordinate Judge points out the growth of the property was the work of over half a century and was partly at least the product of the skill and labor of Subbayyas father; and, admittedly, there was a considerable nucleus of joint property to start with, We agree with the finding of the Subordinate Judge on the third issue and we think there was no evidence to support the finding of the District Judge. 4. It was contended on behalf of the Respondents that even assuming the property to be family property, the disposition effected by the will could not be impeached by the Plaintiff. 4. It was contended on behalf of the Respondents that even assuming the property to be family property, the disposition effected by the will could not be impeached by the Plaintiff. It was argued that if such a disposition of family property had been effected inter vivos by Subbayya as the manager of the family, with the consent of the sixth Defendant, the only adult member of the family, it would have been binding on the Plaintiff, that the handing over of a proportion of the property for the maintenance and marriage expenses of Subbayyas second wife and the daughters of his second wife, was an arrangement which it would have been reasonable and proper for him to have made, that it would have been competent to him to have made such a disposition of the property inter vivos in his capacity as managing member, and that being so, it was equally competent to make the disposition by the will. In the present case we feel no doubt that Subbayya made his will under the belief that he had full disposing power over the property. We hold that in law, he had no such power and for the purposes of this branch of the Appellants argument it was conceded he had no such power. But we are asked to presume that a man who, acting on the assumption that he could make any testamentary disposition he pleased with reference to his property, deals with that property by will, would have made the same disposition of his property inter vivos if he had been aware that his rights over the property were only those of the manager of an undivided family property. We do not think we are entitled to make any such presumption or to speculate what Subbayya would or would not have done if he had been aware that the property in question was, in law, not self-acquired but ancestral. This being so, it is not necessary for us to consider how far Mr. Krishnaswami Ayyars proposition that, with reference to an ancestral estate, testamentary disposition stands on the same footing as a gift inter vivos is supported by the authorities. We may observe, however, that the general proposition in the judgment of the Privy Council in the case of Baboo Beer Pertab Sahee v. Maharajah Rajendar Pertab Sahee 12 Moo. Krishnaswami Ayyars proposition that, with reference to an ancestral estate, testamentary disposition stands on the same footing as a gift inter vivos is supported by the authorities. We may observe, however, that the general proposition in the judgment of the Privy Council in the case of Baboo Beer Pertab Sahee v. Maharajah Rajendar Pertab Sahee 12 Moo. I.A. 38, "Decided cases, too numerous to be now questioned, have determined that the testamentary power exists, and may be exercised, at least within the limits which the law prescribes to alienation, by gift inter vivos "was made, as the context shows, with reference to self-acquired property, and that the authorities which go to show that as regards an undivided share of coparcenary property the powers of giving and bequeathing are co-extensive (see, for instance, Court of Wards v. Venkata Surya Mahipati Ramakrishna Rao I.L.R. 20 Mad. 167 at p. 183 do not help the Respondent, since the disposition which Subbayya purported to make by his will, cannot, in any view, be regarded as a disposition of an undivided share of family property. The will does not purport to deal with an undivided share but with the whole property. 5. Mr. Krishnaswami Ayyar also contended that the award was binding on the Plaintiff. The award is not binding on the Plaintiff so far as the question before us is concerned for the reason, amongst others, that the question whether the lands were ancestral or self-acquired was no part of the subject-matter of the submission to arbitration or of the award. As has been pointed out, the arbitrator was appointed to divide the property in accordance with the provisions of the will. 6. The Plaintiffs claim in this case was in the alternative. He asked that either he or his father (the sixth Defendant) should be put in possession of the whole of the properties in question or alternatively, that he (the Plaintiff) should be put in possession of a moiety of the properties after partition. The Subordinate Judge held that the Plaintiff was only entitled to a moiety. The Plaintiff appealed against the decree of the Subordinate Judge in so far as it only gave him a moiety. In his appeal to this Court the point that he is entitled to the whole is not taken in the grounds of appeal, but the question was argued before us. The Plaintiff appealed against the decree of the Subordinate Judge in so far as it only gave him a moiety. In his appeal to this Court the point that he is entitled to the whole is not taken in the grounds of appeal, but the question was argued before us. We think the Subordinate Judge was right. The sixth Defendant also appealed against the decree of the Subordinate Judge in so far as it only gave a moiety of the lands to the Plaintiff, and this appeal was dismissed. He appealed to this Court against the decree of the lower Appellate Court and then abandoned his appeal. As regards one undivided moiety the Plaintiff is suing on behalf of his father. In these circumstances we think the Plaintiffs case, in so far as he claims to be entitled to the whole, fails. In Ramanna v. Venkata I.L.R. 11 Mad. 246 the son succeeded in setting aside an alienation, though an earlier suit brought by the father to set aside the same alienation failed, the result being that the father succeeded in recovering through his son what he could not recover himself and what he was estopped from recovering by a suit instituted in his own right. But this case is distinguishable. It appears from the papers in the case, though it is not made clear in the report, that the fathers suit was to set aside the alienation, not on the ground that he had no power to alienate, but on the ground that ho had been coerced into making the alienation. Second Appeal No. 798 of 1901 is, therefore, dismissed. We allow Second Appeal No. 799 of 1901, set aside the decree of the lower Appellate Court and restore the decree of the Subordinate Judge. The order as to costs in the Court of First Instance made by the Subordinate Judge will stand. Both in the lower Appellate Court and in this Court the Plaintiffs case has been that he was entitled, to the whole of the property in question. This being so, the parties will bear their own costs in this Court and in the lower Appellate Court.