Judgement Appeal (No. 122 of 1919) by special leave from a judgment and decree of the Chief Court of the Punjab (May 19, 1916) varying a decree of the District Judge, Ferozepur. The suit was instituted by the respondent firm in the Court of the District Judge, Ferozepur, against the present appellant and his four brothers, the sons of Joti Mal deceased, to recover the sum of Rs. 7200 upon four hundis given to the respondent firm by the firm Nagar Mal-Jot Mal in respect of a balance due on account between the two firms. The defendants, including the appellant, were members of a joint Hindu family, which carried on under the style of the debtor firm an ancestral money-lending business in respect of which the hundis had been given. The appellant by his written statement pleaded that he had no personal knowledge of the hundis, or anything in connection with them ; that he had never participated in the business of the family ; and that even if the claim was proved there could be no personal decree against him. The respondents by a replication to the appellants statement pleaded that his want of knowledge did not affect the respondents rights, and that he was a member of a joint Hindu family with his father and brothers, and was personally liable. The only issue material to the appeal was as follows " Are Mr. Gopal Chand and Lala Amar Nath not necessary parties, and personally or in their property liable for the hundis ? " The defendant Amar Nath was a pleader, and had filed a defence similar to that of the appellant. It appeared that the appellant in his youth spent seven years—i.e., 1892 to 1899—in England for the purpose of a special educational training for the Indian Civil Service, into which he had passed by examination, and that he held therein the post of a joint magistrate. The District Judge rejected certain defences raised on the form of the hundis and on an alleged absence of presentation, and held all the defendants to be personally liable. The present appellant and Amar Nath appealed to the Chief Court. The learned judges who heard the appeal held that the present appellant and Amar Nath were liable not personally but to the extent of their respective shares in the whole joint property. The present appellant and Amar Nath appealed to the Chief Court. The learned judges who heard the appeal held that the present appellant and Amar Nath were liable not personally but to the extent of their respective shares in the whole joint property. They differed however on the question whether the separate earnings of the then appellants formed part of that estate ; le Rossignol J. was of opinion that they did, and Shah Din J. was of opinion that they did not. This difference of opinion arose from the circumstance that there was no evidence to show whether or not the educational training of the appellants had been at the expense of the joint family. The following question was therefore referred to Rattigan J. under s. 98 of the Civil Procedure Code, 1908 "In a case where a member of a joint Hindu family has received a special training to qualify himself for a profession or for the service of State, is there an initial presumption in the absence of all evidence on the point, that he received his training at the expense of the joint family property, or should this fact be alleged and proved like any other fact in a case and be found in the negative if no evidence at all were given on either side ? " The opinion of Rattigan J. coinciding with that of le Rossignol J., the appeal was dismissed by the Division Bench, and a decree was passed declaring as follows " That the appellants are liable on the hundis in suit to the extent of their shares in the joint family property and that the separate property of the appellant Gokal Chand shall be held to be joint family property liable for the satisfaction of the decree. This decree shall be against the defendants shares in the joint family property, which shall be deemed to include Gokal Chands separate property." The Chief Court rejected an application for leave to appeal, but special leave to appeal was granted by the Judicial Committee to the present appellant and Amar Nath. The latter, however, did not appear. 1920. Nov. 19, 20. De Gruyther K.C. and OGorman for the appellant. This case depends upon the effect of the words " without detriment to the fathers estate" used in the Mitakshara, ch. l,s. 4, sub-ss. 1, 6, in commenting upon the earlier texts. The latter, however, did not appear. 1920. Nov. 19, 20. De Gruyther K.C. and OGorman for the appellant. This case depends upon the effect of the words " without detriment to the fathers estate" used in the Mitakshara, ch. l,s. 4, sub-ss. 1, 6, in commenting upon the earlier texts. The various relevant texts are conveniently set out in Shyama Charans Vivashta Chandrika, vol. ii., pp. 226-232. The decision of the Board in Metharam Ramrakhiomal v. Rewachand Ramrakhiomal (( 1917) L. R. 45 I. A. 41.) establishes that an application of the joint family funds to giving a member a general education does not render the subsequent gains of the member partible property. The education which the appellant received, though directed to a special purpose, was merely a general education. But the inquiry whether or not he received at the expense of the joint family a special education is not conclusive. The true test is whether the gains were the direct result of an expenditure of the family funds Chalakonda Alasani v. Chalakonda Ratnachalam. (( 1864) 2 Madr. H.C. 56, 69, 70.) The appellants official position and salary did not result directly from his education, but from his own industry. Had he failed to pass into the Civil Service, he would probably have followed a commercial career, in which case his earnings would have been his separate property. " Detriment to the family estate " for the purposes of the rule means a use of part of the joint corpus for the purpose of gain—e.g., funds advanced to a member who was a medical man to enable him to establish a laboratory. Great inconveniences would arise from holding that the appellants salary was part of the joint family property. [Reference was made to the following in addition to the authorities mentioned above Dunookdharee Lall v. Gunput Lall (( 1868) 10 Suth. W. R. 122.); Durvasula Gungadarudu v. Durvasula Narasammah (( 1872) 7 Madr. Great inconveniences would arise from holding that the appellants salary was part of the joint family property. [Reference was made to the following in addition to the authorities mentioned above Dunookdharee Lall v. Gunput Lall (( 1868) 10 Suth. W. R. 122.); Durvasula Gungadarudu v. Durvasula Narasammah (( 1872) 7 Madr. H. C. 47.); Boolagam v. Swornam (( 1881) I. L. R. 4 M. 330.); Lakshman Megaram v. Jamnabai (( 1882) I. L. R. 6 B. 225.) ; Krishnaji Mahadev v. Moro Mahadev (( 1890) I. L. R. 15 B. 32.) ; Lachmin Kuar v. Debi Prasad (( 1887) I. L. R. 20 A. 435.)); Durga Dat Joshi v. Ganesh Dat Joshi (( 1910) I. L. R. 32 A. 305.); and Ghoses Hindu Law ( 1903), p. 458.] The respondents did not appear. 1921. The judgment of their Lordships was delivered by LORD SUMNER. This was a suit brought to recover the principal amount of four hundis, to which five persons were made defendants. The plaintiffs were successful in both Courts below, and their Lordships Board gave special leave to appeal to two of the defendants, but one only, Mr. Gokal Chand, now appears. Sundry points connected with the validity of the hundis and their presentation were pleaded by some of the defendants, but not by the appellant. It has been held in the Courts below, that as a matter of practice he was not entitled to avail himself on appeal of points which had not been raised by him below. Before their Lordships this decision was but faintly contested, and they see no reason to doubt or to review it. The real issue in the appeal is one of some importance. Joti Mal and his sons, of whom the appellant is one, constituted a joint Hindu family governed by the Mitakshara law, which carried on a joint ancestral business as money-lenders under the style of Nagar Mal-Joti Mal at Ferozepur, and the hundis in question were given by this firm in the way of its business for debts due to the plaintiffs, who were near relatives. In the conduct of thisbusiness the appellant took no part. He was not privy to the debts incurred. In his youth he was for seven years absent from India for the purpose of being specially trained in England for the Indian Civil Service. In the conduct of thisbusiness the appellant took no part. He was not privy to the debts incurred. In his youth he was for seven years absent from India for the purpose of being specially trained in England for the Indian Civil Service. He succeeded in entering that service and, returning to India, was posted to the Central Provinces. At the commencement of the suit he was joint-magistrate at Sitarpur and in receipt of the substantial emoluments of that office, but he has never severed himself from the joint family of which he became a member at his birth. In a joint Hindu family, such as this, the rule is that the acquisitions of the members are joint property and partible, that is to say, liable to be shared with the other members of the family, and impartibility is the exception. One of the recognized exceptions is property acquired by the possession of special " science " or " learning." Where, as often happens, this is acquired outside the family and has to be paid for in one form or another at the expense of the family, it is described by the accepted writers as acquired " to the detriment of the family property." In that case it is regarded as a family investment, and the emoluments, which its possessor is thus enabled to obtain, are joint property of the family as fruits of the investment thus made in the person of one of its more gifted members. Of the exact meaning of " science" in the original text it is not now necessary to speak, nor need anything be said of the cases of science imparted within the family, or of science obtained by the pupil either by his own exertions or from educational benefactions, or in any other way not detrimental to the family funds. The question, what is " science " in this connection, must be intrinsically one of fact, though the area of discussion has been steadily narrowed by typical decisions, conclusive of numerous cases. The whole doctrine is not without anomalies. If the test is the returns obtained from the family investments, how far are these emoluments the result of the science —the specialising in education at the expense of the family funds—and how far are they the rewards of the learners brains and industry and good fortune ? The whole doctrine is not without anomalies. If the test is the returns obtained from the family investments, how far are these emoluments the result of the science —the specialising in education at the expense of the family funds—and how far are they the rewards of the learners brains and industry and good fortune ? Many a learned man makes nothing and many a sciolist gets on in his profession by pertinacity and mother wit. Again, if the specialist education is deemed to be the stock from which success—and income—accrue, this is true of success and income to the end of the learners life, yet it is unquestioned that the individual can sever from the family at will on the footing of bringing his accumulations into hotchpot as part of the family property and without capitalising future earnings or being under future liability as to what he may make thereafter. The distinction between acquisitions made by a coparcener solely by his own exertions and those which have involved the use of the patrimony is as old as the laws of Manu. The text of the Mitakshara gives as an instance of impartible acquisition that which has been gained by " science " or learning. Difficulties in applying this simple distinction are supposed to begin when Vijnaneswara makes the comment on this illustration, that " without detriment to the fathers estate" must be implied throughout the passage, so that the gains of this kind, which are impartible, are not gains of science as such, but gains of science made without any detriment to the fathers estate and acquired by the coparceners exertions independently of patrimonial help. Succeeding commentators developed this point, not always in terms that can be completely reconciled, but the rule itself is simple and logical; though difficulties arise, as with so many rules, in the application. Succeeding commentators developed this point, not always in terms that can be completely reconciled, but the rule itself is simple and logical; though difficulties arise, as with so many rules, in the application. If the substance of the distinction is between acquisitions which have and acquisitions which have not involved the use of the patrimony and therefore such detriment to it as use of it or expenditure out of it involves, there is no logical reason for making any further distinction between gains made by science and gains made by labouring on the patrimony or by laying out the family funds and reaping the fruits of the outlay, nor for distinguishing cases where the learning employed is a specialised and cases where it is a mere ordinary education. The connection between the outlay and its fruits may be more difficult to trace ; for a distinction can be made between the use of family funds in acquiring gain and the use of family funds to qualify a member of the family to acquire gain by his own efforts. It may be said to be direct in the one case and remote in the other, but if risk of or detriment to family property is the point in both cases, there appears to be no such merit in "science," recognized by the sages of the Hindu law, as would warrant the exclu sion of gains of science as such from the category of partible acquisitions. Whatever doubt might once have existed, when the Hindu law was to be gathered from text-writers only, has been removed by a series of decisions, and it is now clear that personal earnings and acquisitions may remain partible throughout the un-separated members life, if he was originally equipped for the calling or career, in which the gains were made, fey a special training at the expense of the patrimony. It has been so held in the case of a Prime Minister, Luximon Row v. Mullar Row ((1831) 2 Knapp, 60.); a dancing girl, Chalakonda Alasamis Case (2 Madr. H. C. 56.) ; and a pleader (7 Madr. H. C. 47.) and (6 Bom. H. C. (A. C. J.) 1.) ; but secus of an astrologer. (I. L. R. 32 A. 305.) The like distinction is found in the case of a karkun (I. L. R. 15 B. 32.); and an army contractor. H. C. 56.) ; and a pleader (7 Madr. H. C. 47.) and (6 Bom. H. C. (A. C. J.) 1.) ; but secus of an astrologer. (I. L. R. 32 A. 305.) The like distinction is found in the case of a karkun (I. L. R. 15 B. 32.); and an army contractor. (I. L. R. 20 A. 435.) The grounds on which in the three last-mentioned cases, however, the gains were held to be impartible serve to define the rule still further. In none of them was it held that the occupation in itself was such that the gains of science could not be said to apply to it. Impartiality rested in every case on the slight-ness or the peculiar character of the education by which the science was acquired. Thus in the first-mentioned case the gains were really due to the astrologers native talent for that profession. In his early youth its rudiments had been instilled into him by his father, an astrologer likewise, but without expense to the family or anybody else, for the casting of horoscopes seems to be a profession in which the equipment is slender and a gift for inspiring confidence is the main thing. It was not, however, suggested that, if the special training had been similar to the skill in song and dance which enhanced the attractions of a nautch girl, the gains of the astrologer would not equally have been partible gains. As a profession, astrology enjoyed no immunity. Still more striking is Lakshman Megoram v. Jamnabai (I. L. R. 6 B. 225.), where the family member was actually a Subordinate Judge. At the family expense he had received a slight elementary education of an entirely non-professional character. His law he had picked up for himself. His salary was held impartible, not because a judge stands outside the rule or because a knowledge of law in the nineteenth century is not within the term " learning " as used in the eleventh, but because in these matters a self-taught man has the best of it, for gains are impartible which are not the result, directly or indirectly, of anything but his own exertions. The present case is the first in which such an official position as that of the appellant has come into question, but, except for its higher respectability, there does not seem to be any ground on which as an occupation it can be taken out of the rule which the earlier cases establish. Mr. J. D. Maynes well-known work on Hindu Law has throughout all its editions contained the statement in s. 283 that a post in the Covenanted Civil Service of India is a post to which the rule would apply, and this never seems to have attracted comment, still less to have aroused dissent, among the many judgments which have dealt with this subject. In Metharam Ramrakhiomal v. Rewachand Ramrakhiomal (L. R. 45 I. A. 41.) the judgment under appeal actually acquiesced in his view, if it did not adopt it, and this passage is recited in the judgment of their Lordships Board, without dissent or comment. It is true that an Indian civil servant is not always what is commonly called a scientific man, but his is certainly a special and in many cases an eminently learned profession. As no distinction in principle can be found between Mr. Gokal Chands official position and the decided cases, it remains only to consider two questions raised on his behalf. The first, whether in his particular case there is either proof or presumption of the requisite detriment to the patrimony ; the second, whether, if so, that detriment is not so remote that the appellants official salary should be regarded as being wholly acquired by his own personality, integrity and learning and therefore as being impartible. The appellant was not called at the trial nor was any evidence given as to his education and early life, but there is no question here of an ordinary education, which must be the stepping-stone to the acquisition of any learning, such as might be given in a mission Lakshman Mayaram v. Jamnabai (I. L. R. 6 B. 225.); or a Government school Metharam Ramrakhiomal v. Rewachand Ramrakhiomal (L. R. 45 I. A. 41.); still less of a mere provision of " food and apparel." Neither has any question been raised of an equitable distribution of the acquisitions between the separate and the family estates. Admittedly Mr. Admittedly Mr. Gokal Chand spent seven years in England acquiring that comprehensive and costly education which qualified him to pass with success into this Service. The family to which he belongs is a family of hereditary moneylenders, and the ordinary education, which all its male members would naturally and appropriately enjoy, may be taken to be one of considerable extent and to include varied attainments but there can be no doubt that, alike in the subjects of study, the proficiency to be attained, and the mentality which is formed as the result of it, Mr. Gokal Chands education must have been very different from that of other members of his family. Mr. Gokal Chands education was, above all, a specialised education. Among the un-separated members of a joint Hindu family, possessed of ancestral property by means of which the science whose gains are in question might itself have been acquired— Bai Manchha v. Narotamda Kashidas (6 Bom. H. C. (A. C. J.))—the presumption, even in the case of such special gains, is that the acquisitions of all members are partible, until the contrary is proved. This was first decided in Luximon Rows Case. (2 Knapp, 60.) Observations have since been made on the slender evidence which connected Luximons position as Prime Minister to the Peishwa with the joint family property, either through his education or otherwise, but the rule there laid down as to the presumption, though for a time not always acquiesced in, is now unquestionable and binds their Lordships. It is true that a distinction may be drawn between a presumption in favour of partibility, which is a legal attribute of the gains in question, and a presumption in favour of detriment to the patrimony involved in acquiring the specialised learning, the use of which has produced the gain, which is a question of fact; but, in their Lordships opinion, if it is in general incumbent upon the joint family member to prove that his case is an exception to the prevailing rule of partibility, it is also incumbent upon him to prove the particular facts which are needed to establish the exception. For this there is the authority of the decisions in 7 Madras High Court Rep. 47, and in 10 Sutherlands Weekly Reporter, 122. It must accordingly be taken that the whole burden of proof was- on Mr. Gokal Chand. For this there is the authority of the decisions in 7 Madras High Court Rep. 47, and in 10 Sutherlands Weekly Reporter, 122. It must accordingly be taken that the whole burden of proof was- on Mr. Gokal Chand. If he desired to give evidence to show that his specialised education in England was obtained by the " presents of a friend," the charitable benefactions or the educational foundations of strangers, or by his own self-taught efforts, this should have been done by him at the trial. If, as their Lordships hold, his official position cannot be taken out of the area of partibility, it must now be presumed in the absence of evidence to the contrary that his gains, not being in their nature incapable of being family acquisitions, are partible. Then can it be said that the gains which are partible are such as result only directly from the use of joint family funds, and that emoluments, which are the consideration for the personal services of an official selected for his special personal qualifications, result remotely only and too remotely from any family outlay ? Not only is no authority forthcoming for the first part of this contention, but the contrary has been continuously assumed in all the cases which turn on " gains of science." The point of all of them is, that persons qualified for earning money by specialised education, enjoyed to the detriment of family funds, become, as it were, a continuing investment for the family benefit. No decision attempts to distinguish between the personal and the family elements in the ultimate gains; it would probably be impracticable to do so. There is equally little ground for contending that partibility depends on causa proxima, or is negatived by the intervention of the personal element of the individual coparceners character. It is true that in the very learned judgment of Mr. Collett in Chalaconda Alasani v. Chalahonda Ratnachalam (2 Madr. There is equally little ground for contending that partibility depends on causa proxima, or is negatived by the intervention of the personal element of the individual coparceners character. It is true that in the very learned judgment of Mr. Collett in Chalaconda Alasani v. Chalahonda Ratnachalam (2 Madr. H. C. 56.) he expresses the view, that logically the rule should have regard to the use of family property in acquiring the partible gains themselves " during and for the purposes of the acquisition," and not to its use in acquiring the science by means of which they are gained, and he cites Sir T. Stranges opinion that in order to make the gains in question partible the common fund must have been directly instrumental in procuring them. There is also an allusion in Lakshman Mayaram v. Jamndbai (I. L. R. 6 B. 225, 243.) to "the branch of science which is the immediate source of the gains, " a passage, however, intended to distinguish between elementary and specialised education, and not between the direct and indirect fruits of the latter. This view was, however, overruled on appeal in Chalacondas Case (2 Madr. H. C. 56.), and has never been re-established. For fifty years and more the current of authority has run the other way, and in any case, in their Lordships opinion, it is now too late to change it. It is true that, partly in the hands of the commentators and partly under the decisions of the Courts, changes may be traced in the rules laid down with regard to gains of science, and these changes have been in the direction of narrowing the category of partible gains. From maintenance out of family funds during the period of education, the basis of partibility changed to the receipt of the education itself at the family expense, and then education generally was narrowed to specialised education, which is now the basis. No corresponding change, however, is to be traced upon the question what is science, in the sense in which the text of the Mitakshara uses the term. On the contrary, while the principle has remained the same, the application of it has tended to widen, as changing times have brought up fresh instances of callings, to which special science and not the native wit of man is the means of entrance. On the contrary, while the principle has remained the same, the application of it has tended to widen, as changing times have brought up fresh instances of callings, to which special science and not the native wit of man is the means of entrance. It may be difficult to see now why the anomaly should have arisen, by which the gains of a mans own labour or of his own bargains axe impartible, because they are the fruits of his own effort, while the gains of his science are partible, though they are the fruits of his effort too. In each case the member of the joint family is indebted to the family funds for something ; in the former for the nurture, which has made him strong to labour, in the latter for the professional education in addition, which has made him also skilled in art. Conversely the dull coparcener, who learns but turns his learning to poor account, must share his gains, such as they are, while his brother, who learns without teaching and acquires professional skill by intuition only, keeps his greater gains for himself. All that can be said is that the rule, if really anomalous, is too old and well settled to be altered now. Their Lordships are also fully alive to the incongruity, more striking perhaps to Western than to Indian minds, of applying to such an occupation as Mr. Gokal Chands an ancient rule which had its origin in a state of society possibly simpler than and certainly different from the state of society existing in the present day, but this anomaly proceeds largely from the Occidental habit of relying on mere analogy in the application of legal rule instead of deducing the application from a logical apprehension of the principle as the best Eastern thinkers do. Be this as it may, they conceive it to be of the highest importance that no variations or uncertainties should be introduced into the established and widely recognized laws which govern an ancient Eastern civilisation, and least of all in matters affecting family rights and duties connected with ancestral customs and religious convictions. The appellants liability is, of course, a liability in respect of his share in the family property, including therein such of his own earnings as are partible under the rules above explained. The appellants liability is, of course, a liability in respect of his share in the family property, including therein such of his own earnings as are partible under the rules above explained. Questions that may arise in regard to property, not the gains of science or partible on any ground, and also in regard to the statutory rules which restrict the alienability of an officials emoluments, may properly be the subject of decision in execution proceedings if they arise. Their Lordships are of opinion that the appeal fails and should be dismissed, and they will humbly tender this advice to His Majesty.