Rajagopala Ayyangar, J.-These two appeals arise out of the decree of the Subordinate Judge of Mayuram in O.S. No. 52 of 1948. The plaintiff is the appellant in Appeal No. 217 of 1950 while the other appeal is by the contesting defendants in that suit. O.S. No. 52 of 1948 is a suit for partition filed by the plaintiff who is the undivided son of the 1st defendant, the 2nd defendant being his mother. Defendants 3 and 4 are the sister and sister’s son respectively of the plaintiff in whose favour defendants 1 and 2 have executed a settlement deed whose validity is challenged by the plaintiff in the action. Defendants 5 to 7 are the lessees in possession of the suit properties but claimed they might be left out of account. The plaint contains two schedules A and B claimed to belong to the family, schedule A comprising the immovable properties and schedule B comprising the movable properties. The learned Subordinate Judge has found that the movable properties had not existed and that they might therefore be left out of account. It is admitted that item 1 of schedule A is joint family property in which the plaintiff has a half share. But the question for consideration is whether the other immovable properties purchased in the name of the 1st and 2nd defendants are joint family properties in which the plaintiff has any share. To -appreciate the point raised it is necessary to set out briefly certain antecedent facts One Subramania Naicker had four sons Kandaswami, Marimuthu, Arumugha (1st defendant) and Vythilinga. Kandaswami Naicker died before 1905 leaving a son Krishnaswami Naicker. The five coparceners entered into a partition which is embodied in Exhibit A-1, a deed, dated 23rd August, 1905. The total properties of the family were valued at Rs. 4,180. There were debts due by the family to the extent of Rs. 1580 leaving a balance of Rs. 2600. Each of them got property worth Rs. 500 and Kandaswami’s widow was allotted Rs. 100. The property allotted to the share of Arumugha with whom alone we are concerned consisted of a tiled house worth Rs. 450 in Shiyali and a punja thidal with trees worth Rs. 50 making a total of Rs. 500. The property thus allotted to Arumugha in this partition, constitutes item 1 of the A schedule as regards which there is no dispute. 450 in Shiyali and a punja thidal with trees worth Rs. 50 making a total of Rs. 500. The property thus allotted to Arumugha in this partition, constitutes item 1 of the A schedule as regards which there is no dispute. There is a clause at the end of the partition deed stating “the respective persons shall share the profits and losses of their respective toddy shop kuthagai”. It is stated that there were two toddy shops which were conducted by the family and that one was. taken by Marimuthu and the other by Arumugha. But it is however significant that no value was attached to these shops as an asset of the family to be divided between the coparceners. The plaintiff was born in 1927 and his case is that the entire purchases by Arumugha, the 1st defendant, whether in his own name or in the name of his wife, the 2nd defendant, were out of the profits of the toddy shop which Arumugha was conducting as a continuation of this family trade. The purchases of the several items of immovable properties comprised in schedule A (of course other than item 1) started from 1913 and proceeded almost right upto the date of suit. The case of the plaintiff is that all these properties were purchased out of the profits of the toddy shop business conducted by his father though it might be with the assistance of his. mother and that the toddy shop business itself was originally financed by funds borrowed on the security of the admitted ancestral property item 1 of the A schedule. It is on this basis that the plaintiff claims that as the purchases were directly traceable to the aid of family funds, they must be held to be ancestral properties. On the other hand, the case of defendants 1 and 2 was that the bulk of the finances required for the conduct of the toddy shop came out of the funds of the childless widowed sister of the 2nd defendant who gave this couple considerable amount of cash that she had, as well as her jewellery and that on this account, all the family properties belonged to the 2nd defendant alone or, in any event, were the self-acquired properties of the 1st and 2nd defendants. An argument was also put forward in the Court below on behalf of the contesting defendants that even assuming that the 1st defendant utilised some funds raised on the security of property obtained by him at the partition of 1905, still, as he was the sole coparcener at that time and as admittedly this mortgage was discharged before the plaintiff’s birth in 1927, there was no detriment to the paternal estate by reason of this borrowing so as to render the subsequent acquisitions joint family properties, in which the plaintiff would have a share. This argument was rejected by the learned Subordinate Judge on the ground that he was bound by certain decisions to hold that even in such circumstances the toddy shop business would be treated as a joint family business and the purchases out of profits from this venture could be held to be joint family properties in which the plaintiff would have a share. The learned Subordinate Judge, on a consideration of the evidence held that the toddy shop business was started by the 1st defendant with the aid not merely of funds raised on the security of the joint property but also of considerable moneys received from the childless widow who was examined as D.W. 2 and whose evidence he was inclined to believe. There was also evidence that the 2nd defendant contributed considerable labour for the conduct of this toddy shop business and was practically in management of it from 1933 onwards. Taking these factors into consideration, the learned Subordinate Judge held that the toddy shop business, was in the nature of a joint venture in which the 1st defendant and 2nd defendant were each entitled to a half share, the 1st defendant being entitled to that share on behalf of himself and his undivided son the plaintiff by reason of the utilisation of the credit of the joint family for raising initially the funds with which the business was-started. On this reasoning, the Subordinate Judge held that in respect of all the properties purchased out of the profits of this venture and which were included in schedule A the 2nd defendant was entitled to a half share and the 1st defendant to the other half as the manager of the joint family. On this reasoning, the Subordinate Judge held that in respect of all the properties purchased out of the profits of this venture and which were included in schedule A the 2nd defendant was entitled to a half share and the 1st defendant to the other half as the manager of the joint family. The plaintiff, therefore, was held to have a fourth share in all the A schedule properties except item 1 in which he was admittedly entitled to a half share. He also directed that the properties included in the settlement in favour of defendants 3 and 4 might be allotted to the share of the-1st defendant so that the equities of these alienees might be safeguarded. The plaintiff has filed Appeal No. 217 of 1950 claiming that he was entitled not to a fourth share as has been decreed to him but to a half share in all the items. The 1st defendant died after the decree of the lower Court and defendants 2 to 4 have filed Appeal No. 151 of 1951 urging that the plaintiff is not entitled to any share in the items other than No. 1 of the A schedule. Before considering whether the plaintiff is entitled to a fourth or any higher share on the purchases by the 1st and 2nd defendants ranging from 1913 onwards, it will be necessary to consider the basis upon which the case of the plaintiff rests. It has to be conceded that the plaintiff would not be entitled to any share in the properties standing in the name of the 1st and 2nd defendants unless he is able to show that they are joint family properties. In this connection it has to be mentioned that the plaintiff was born in 1927 and that a good portion of the properties had been purchased before that date at a time when the 1st defendant was admittedly the sole coparcener. So far as the later purchases were concerned, they were either out of the profits of the toddy shop or out of the income from the properties already purchased. Unless therefore the plaintiff is able to establish that the toddy shop business was a joint family asset in which he had a share at his birth, his case must necessarily fail. Unless therefore the plaintiff is able to establish that the toddy shop business was a joint family asset in which he had a share at his birth, his case must necessarily fail. The only manner in which this was sought to be proved was that two mortgages had been executed on the admitted joint family property and moneys raised and that these moneys had been utilised for conducting this toddy shop business. It is also admitted that by 1910 the mortgages were discharged so that at the moment of the plaintiff’s birth there was no encumbrance on the admitted family property item No. 1 of the A schedule. The question is whether the utilisation of the loan thus raised is sufficient to impress upon the toddy shop business the character of a family business in which the plaintiff would have an interest by birth, by reason of which all the properties acquired out of the profits of this business should be treated as joint family properties in which the plaintiff would have a share. As mentioned earlier this point was raised and argued before the learned Subordinate Judge but was rejected by him. Before dealing with the law involved on this aspect of the case, the facts proved might be set out. We have already referred to the partition deed Exhibit A-1 and its terms. The next document to be referred to is a mortgage Exhibit A-2, dated 20th August, 1906, executed by Arumugha Naicker of the tiled house and the punja which had fallen to his share. Under this, a sum of Rs. 400 was borrowed, carrying interest at 12 per cent, per annum, for doing toddy shop trade. The endorsement on this mortgage shows that Rs. 200 out of the mortgage amount was repaid on 16th June, 1907 and the entire mortgage was discharged by the payment of the balance on 16th May, 1908. Sometime later another borrowing of Rs. 350 was effected on the security of the same property by Exhibit A-5, dated 24th August, 1908. It is recited that this also was received for the toddy shop trade. The endorsement on this deed states that the principal and interest were repaid and the mortgage discharged on 8th March, 1910. We might therefore proceed on the footing that two sums of Rs. 400 and Rs. It is recited that this also was received for the toddy shop trade. The endorsement on this deed states that the principal and interest were repaid and the mortgage discharged on 8th March, 1910. We might therefore proceed on the footing that two sums of Rs. 400 and Rs. 350 were utilised for the toddy shop business which the 1st defendant was carrying on at that date. The question is whether this mortgage on the security of the property obtained at the partition and this utilisation of funds by the 1st defendant for the business at a time when he was the sole surviving coparcener, are sufficient to impress the character of family business on the toddy shop venture so as to confer rights by birth on the plaintiff in it and in the properties purchased from out of its profits when the plaintiff was born in 1927. Before considering the details of the argument presented, on behalf of the appellant, it might be stated that it is settled that under the Mitakshara law the share of coparcenery property allotted to any member on partition becomes coparcenery property as regards his issue whether such issue were or were not born at the time of partition. But in the present case this proposition would cover the rights of the plaintiff only in regard to item 1 of A schedule. As regards the other properties, the argument on behalf of the appellant is rested on their having been acquired out of the income or with the aid or on the credit of joint family property. Reliance is placed on the following passage in Trevelyan’s Hindu Law (3rd edition) at page 265 where dealing with the several sources of joint family property the learned author says: “(g) Accretions to joint family property. Reliance is placed on the following passage in Trevelyan’s Hindu Law (3rd edition) at page 265 where dealing with the several sources of joint family property the learned author says: “(g) Accretions to joint family property. - Property acquired out of the income or with the aid or on the credit of joint family property, whether movable or immovable, the income of such property, the proceeds of sale of such property, and property purchased out of such proceeds, or front movable property belonging to the family, are joint family property.” Reference was also made to a passage in Mayne’s Hindu Law (11th edition) where in a similar context it is stated in Paragraph 222 at page 341: “All savings made out of ancestral property and all purchases or profits made from the income or sale of ancestral property, would form part of the ancestral or coparcenery property, whether such savings or acquisitions were made before or after the birth of a son”. Before dealing with the decisions on which the propositions above extracted in these text-books are based it might be useful to refer to the texts which bear upon the-point. In the Mitakshara, chapter I, section IV, verse 1, dealing with the effects not liable to partition the author commenting on the text of Yajnavalkya, chapter II verses 119, 120, says: “The author explains what may not be divided: whatever else is acquired by the coparcener himself, without detriment to the father’s estate, as a present from a friend, or a gift at nuptials, does not appertain to the co-heirs. Nor shall he, who recovers hereditary property, which had been taken away, given it up to the coparceners; nor what has been gained by science.” The author sets out in verse 2 the text of Yajnavalkya in his own words and continues-in verse 6: “Here the phrase anything acquired by himself, without detirment to the father’s estate must be everywhere understood; and it is thus connected with each member of the sentence; what is obtained from a friend, without detriment to the paternal estate; what is received in marriage, without waste of the patrimony; what is redeemed, of the hereditary estate without expenditure of ancestral property; what is gained by science, without use of the father’s goods. Consequently, what is obtained from a friend, as the return of an obligation conferred at the charge of the patrimony; what is received at a marriage concluded in the form termed Asura or the like; what is recovered, of the hereditary estate, by the expenditure of the father’s goods; what is earned by science acquired at the expense of ancestral wealth; all that must be shared with the whole of the brethren and with the father. The expression ‘without detriment to the father’s estate’ in the original is: There is not much difference so far as the present point is concerned between, the various commentaries and it might be taken therefore that what is acquired”without detriment to the father’s estate“belongs to the acquirer himself. It will be noticed that these texts apply to cases where an acquisition is made by a coparcener while in a state of coparcenery with others. This particular feature is brought out by Devanna Bhatta in his Smriti Chandrika. Dealing with”property not liable to partition“in Chapter VII the learned commentator says in verse 11: ” ‘Whatever else is acquired by the coparcener himself without detriment to the father’s estate’ the meaning of this passage is made clear by Manu thus: ‘What one brother may aquire by his labour without prejudice to the father’s estate’. In both texts, the use of the word father signifies jointness. ‘By labour’ means by agriculture and the like requiring labour. ‘Without prejudice’ means without detriment. Vyasa also says: ‘Whatever property is acquired by one’s own exertions without making use of the father’s property shall not be given to the co-heirs’. ‘Without making use’ means without using for the purpose of acquiring. The use of the word father here also signifies jointness.“(as translated by Gholse). In Setlur’s translation of Smriti Chandrika the passage is rendered thus: (Chapter VII, Paragraphs 27 to 30). ”27. The principle contained in Yajnavalkya’s text i.e., ‘Whatever else is acquired by the coparcener himself without detriment to the father’s estate’ is explained by Manu in his passage, ‘What has been acquired by labour without prejudice to the father’s estate.‘ 28. In both the above passages, the word ‘father’ signifies an undivided co-heir generally, ‘By labour’ means by acts requiring labour, such as agriculture, etc. ‘Without prejudice,‘means without detriment. 29. In both the above passages, the word ‘father’ signifies an undivided co-heir generally, ‘By labour’ means by acts requiring labour, such as agriculture, etc. ‘Without prejudice,‘means without detriment. 29. Vyasa, too; ‘Whatever a man gains by his own labour without the assistance of the father’s estate shall not be given by him to the co-heirs.’ 30. ‘Without the assistance’, means without deriving assistance for the purpose of gaining. The word ‘father’ is used to denote an undivided co-heir generally“. It would be seen from these extracts particularly that from the Smriti Chandrika that the Hindu Law Commentators did recognise the distinction between acquisitions by co-heirs in enjoyment of common coparcenery property and sole coparceners whose powers of alienation were subject to no legal restriction. We might now take up for consideration the decisions in which the matter has been considered. The first decision to be referred to is Muddun Gopal v. Ram Buksk1which was rendered in 1863. Though the actual facts of the case are not very relevant in the present context, what is of importance is that the test of impartibility of a coparcener’s acquisition is founded on this property having been “acquired without detriment to the paternal estat”. In that case the property acquired by a grandfather was distributed by him among his sons and the question was whether by reason of such gift the property became the self-acquired property of the sons so as to enable them to dispose of it without reference to their grandsons. The learned Judges held: “This property cannot be said to have been acquired without detriment to the father’s {i.e., ancestral) estate, because it was not only given out of that estate but in substitution for the undivided share of that estate to which the father, appears to have been entitled. It cannot, therefore, be taken to have been given simply by the favour of the father, but upon consideration of the father surrendering some interest or right to share in the grandfather’s estate, which he did by the acceptance of this separate parcel.” It was held that the donees took the property with the incident of coparcenery properties in which their sons would have a right by birth. It might be noticed that in that case the alienations were all after the sons were born and were of the property obtained from the grandfather so that the question in the present form could not possibly arise in that case. In 1869 we have the decision in Sudanund v. Soorjoo Monee2. It was a suit by the plaintiff Sudanund who claimed to be the adopted son of his deceased father Chuckerdhur for possession of immovable properties which had descended to Chuckerdhur from his ancestors and also all properties acquired subsequently by the father. The father had executed a will and the plaintiff contested its operative character on the ground that the property sought to be conveyed by it was ancestral property which could not be disposed of by the father. There was no dispute as regards the property which had been inherited by the father and the only contest related to that which the father had acquired from the profits of the ancestral estate. The father of Chuck-herdhur died in Bengal year 1225 or 1226 and two items of property had been purchased by Chuckerdhur in 1226 and 1227 while Sudanund was adopted only in 1231. The contention, that was raised, was that even if these two estates were purchased out of the proceeds of the ancestral properties, still those proceeds belonged entirely to Chuckerdhur and that Sudanund would have no interest in them”so that the estates may be said to have been purchased out of the money, the sole property of Chuckerdhur.“The learned Judges Loch and Hobhouse, JJ., said: ”But we cannot in our own mind draw any distinction between investment of money derived from ancestral estates before adoption, and investment of similar money after adoption. That money is not the less the proceeds of ancestral estates if it was invested at one time or if it was invested at another time. In both cases, the money was entirely at the disposal of Chuckerdhur; in both cases he had an equal right to dispose of it as he chose; he might have invested it in the purchase of Government securities or in other movable property; or he might have expended it or have done what he liked with it. In both cases, the money was entirely at the disposal of Chuckerdhur; in both cases he had an equal right to dispose of it as he chose; he might have invested it in the purchase of Government securities or in other movable property; or he might have expended it or have done what he liked with it. But in this particular case, he chose to invest it in the purchase of immovable property, he chose not to alienate that property; that property was in existence at the time Sudanund was adopted; and we fail to see why Sudanund had not equally a vested right to that property as he had in any other similar immovable property which Chuckerdhur had it in his power before the adoption of Sudanund to alienate, but which as a matter of fact he did not alienate......We think that, in the case of these properties equally with any other, it was upon the defendant to show that Chuckerdhur had acquired them out of the proceeds of self-acquired assets; and that as he failed to do so, these properties must be considered to be ancestral property”. It is not quite clear whether the two properties purchased in 1226 and 1227 were”purchased out of “proceeds of ancestral property” or out of the income of the ancestral property. So far as the properties purchased after 1231 were concerned, they were held on the evidence to have been purchased out of the income of the ancestral property in which the son had acquired a right on adoption. The next decision in order of date is Adurmoni Devi v. Chowdhri Sir Narain Kur1, but this does not really touch the present question as it merely affirms the rule that property obtained by a father in a partition with his brothers is ancestral property in which the son would have a right by birth notwithstanding that the son was not born on the date of the partition-a position of law which is too well settled at this date to be discussed. Mitter, J., had to deal with the question in the present form in Gunga Pershad v. Ajudhia Pershad2. One Sheodyal Singh executed a mortgage bond on which a suit was laid and the property was brought to sale. Mitter, J., had to deal with the question in the present form in Gunga Pershad v. Ajudhia Pershad2. One Sheodyal Singh executed a mortgage bond on which a suit was laid and the property was brought to sale. The sale of the property was however resisted by some of the sons of Sheodyal Singh and the question was whether the property mortgaged was the self-acquired property of Sheodyal in which his sons had no interest. The finding of the Court was that the property was purchased with the income of the ancestral property, and that as Sheodyal Singh had no sons at the date of the purchase he was a full owner of the income of these family properties with the aid of which the mortgaged properties were purchased. The question is thus stated by Mitter, J.: “Therefore the question which we have to determine is, whether under the Mitakshara law a son on his birth becomes a joint owner with his father in a property purchased by the father before his birth out of the income of the ancestral property. I think this question should be answered in the negative. An examination of the Mitakshara Law will show that the son on his birth becomes a co-owner only in a property which was inherited by the father, from his father or other lineal ancestor within three degrees.” The learned Judge then proceeded to set out the texts bearing upon the point and concluded the discussion thus:- “The result is, that a son becomes co-owner with his father only in a property which was inherited from the father of the latter. But property acquired out of the income of the ancestral pro-pert is not a property inherited. It is true that if property be purchased out of such income after the birth of the son, the latter acquires a joint interest in it. But this is so not under any special texts of the Mitakshara, but because he is jointly interested in the profits arising out of the ancestral property after his birth. But he has no such interest in the profits of such property before his birth.” He went on to add: “This view of the Mitashara Law, however, is contrary to the ruling in Sudanand Mahapattur v. Surjamonee Dayee3. We cannot therefore dispose of this case upon the ground mentioned above without reference to a Full Bench. But he has no such interest in the profits of such property before his birth.” He went on to add: “This view of the Mitashara Law, however, is contrary to the ruling in Sudanand Mahapattur v. Surjamonee Dayee3. We cannot therefore dispose of this case upon the ground mentioned above without reference to a Full Bench. But this is not necessary as we arrive at the same conclusion upon another ground.” The decision was referred to and commented on by the Calcutta High Court in 1884 in Isree Pershad Singh v. Nasib Kooer4. It was a suit for partition by one of the co-widows of one Baijnath Singh against her sons who had earlier partitioned the properties without giving her a share. Subsequent to this partition, properties had been acquired by the sons out of the income from the properties thus divided between themselves. Two of the defendants who resisted the plaintiff’s claim put forward a contention that the plaintiff would not be entitled to a share in the properties purchased by the sons after the partition since at that date they were entitled to the income of the properties absolutely. This however was negatived by a reference to the law as stated by Macnaghten that a mother was entitled at a partition with her sons not merely to the property which had descended from her husband but also to the subsequent increase not attributable to the exertions of the sons without reference to the family properties. Garth, C.J., referred to the passage in the judgment of Mitter, J., in Gunga Pershad v. Ajudhia Pershad1, and to the decision in.. Sudanund v. Soorjoomoney Dayee2, and expressed his preference to the earlier decision. It will however be seen that the present question did not directly arise for consideration before the Court. The decision of the Bombay High Court in Jugmohandas Mangaldas v. Sri Mangaldas Nathubhoy3, may next be referred to. It was a suit for partition. The: facts were as follows: One Manordas died in 1792 leaving five sons. He left a will dated 1789 whereby he directed his property to be equally divided among; his five sons of whom Ramdas the "grandfather of the 1st defendant and the greatgrandfather of the plaintiff was one. It was a suit for partition. The: facts were as follows: One Manordas died in 1792 leaving five sons. He left a will dated 1789 whereby he directed his property to be equally divided among; his five sons of whom Ramdas the "grandfather of the 1st defendant and the greatgrandfather of the plaintiff was one. The property was not, however, divided until 1852 long after the death of Ramdas and the share pertaining to Ramdas was received by the executors of his son Nathubhoy, Ramadas also having left a will. Nathubhoy’s. son Mangaldas, the 1st defendant and father of the plaintiff, contended that the properties bequeathed to him under the wills of Manordas, Ramdas and Nathubhoy were self-acquired properties and this was contested. There was a subsidiary question whether the plaintiff was entitled to any part of the property which was bought prior to the birth of himself and his brothers out of the income of the ancestral property. What is relevant in the present contest is the contention relating to these subsequent acquisitions. Scott, J., dealing with this point, said at page 550: "The defendant further argued that all the property he had purchased by means of the income of ancestral property, before the birth of the son, was self-acquired and did not vest in the latter at his birth. He cited, in support of this contention, a dictum of Mr. Justice Mitter, Gunga Prasad v. Ajudhia Pershad Singh1. This seems to be in conflict with the rule that the accretions and accumulations follow the corpus. I shall hold that all the property acquired out of the income of the ancestral property is of the character of that from which it came, on the principle that accessorium sequitur suum principale. A fortiori, does this apply to property consisting of accretions made with the. aid of the ancestral property after the birth of the son." On appeal Sargent, C.J., delivering the judgment of the Bench, stated, (at p. 580). "It remains to consider the question as to the accretions of ancestral estate during the 1st. defendant’s life-time prior to the plaintiff’s birth. The case of Gunga Prasad v. Ajudhia Pershad,1where Mitter T., held that the grandson has ‘no interest in the income of the ancestral estate which has accrued before his birth’, was relied on by the 1st defendant. "It remains to consider the question as to the accretions of ancestral estate during the 1st. defendant’s life-time prior to the plaintiff’s birth. The case of Gunga Prasad v. Ajudhia Pershad,1where Mitter T., held that the grandson has ‘no interest in the income of the ancestral estate which has accrued before his birth’, was relied on by the 1st defendant. But this is opposed to the ruling of the Privy Council in Umrithhath Chowdry v. Goureenath4, where it was held that accretions made by the investment of the profits of the ancestral property were ancestral property, and this ruling is considered both by Mr. Mayne, para. 248, and the learned authors West and Buhler, at page 723, to be the correct view, on the ground, that the accumulations would follow the character of the fund from which they proceeded." It might however, be noted that the decision in Umrithnath Chowdhry v. Goureenath Chowdhry4, does not support the particular point. It was a suit for a declaration by the plaintiffs as regards their title and joint possession of an undivided moiety of an estate called Majhoulee. This talook had been granted to the grandfather of the plaintiff, one Hurjee. After Hurjee’s death it descended upon his two sons Bacharam and Sheebloll. The estate, however, was registered in the name of Bacharam. The question was whether by reason of this registry the right of the younger son whose heirs were the plaintiffs had lost their rights. Lord Justice Tames delivering the judgment of the Privy Council stated that right through both Hurjee as well as Bacharam were asserting title to the zamindari in their hereditary rights and the mere fact that one of the two brothers was registered so as to be the proprietor to the outer world had no bearing upon the question of real rights to the property The two brothers lived together and the marriage and funeral and other ceremonies were performed at the joint expense out of the income of the property. Impartibility and primogeniture having been negatived on the ground that no such custom was proved the plaintiffs were granted the declaration. This extended not merely to the property originally granted to Hurjee but also to the subsequent acquisitions which were made out of the income of the joint family properties. Impartibility and primogeniture having been negatived on the ground that no such custom was proved the plaintiffs were granted the declaration. This extended not merely to the property originally granted to Hurjee but also to the subsequent acquisitions which were made out of the income of the joint family properties. Two observations may be made in connection with the decision of Jagmohandas Mangaldas v. Sri Mangaldas Nathubhoy1. In the first place the decision of the Privy Council in Umrithnath Chowdry v. Goureenath Chowdhry2, is certainly not an authority for the wide proposition which it was treated as deciding namely that acquisitions made by a coparcener out of the income of ancestral property when he was absolutely entitled to do as the sole coparcener became coparcenery property in which the subsequently born or adopted son takes an interest by birth or by adoption. The other is that the joint family character of such acquisition is rested on the doctrine of accretion or an accession to the original ancestral property. This Court had to consider the question for the first time in Ramanna v. Venkata.3The case arose out of a suit by a minor son for setting aside a gift deed executed by the father in favour of the 1st defendant on the ground that the property gifted was family land. This land had been purchased before the plaintiff’s birth out of the income of the family property. The suit having been decreed an appeal was filed to this Court and one of the grounds raised was that the land mentioned in the plaint having been purchased by the plaintiff’s father before the plaintiff was begotten he acquired no right by birth in the property purchased. This contention was negatived by the Court, the learned Judges stating: "We entertain no doubt that property acquired by means of income derived from ancestral property is also ancestral and that the son acquires a joint interest in it with his father by birth under the Hindu Law. Any other view is inconsistent with Mitakshara, Chapter I, section IV, clause(1) which defines self-acquired property. It is suggested by the appellant’s pleader that the father may spend the income at his pleasure and, therefore, if he invests it in land, he is at liberty to alienate it at his pleasure. Any other view is inconsistent with Mitakshara, Chapter I, section IV, clause(1) which defines self-acquired property. It is suggested by the appellant’s pleader that the father may spend the income at his pleasure and, therefore, if he invests it in land, he is at liberty to alienate it at his pleasure. We are, however, of opinion that the father is not liable to be called upon to account for the income of family property during coparcenery not because he has an absolute disposing power either over the family property or its income, but because it is presumed from the continuance of the coparce-nery that the expenditure has been acquiesced in by the coparcener. If the father saves any part of the income, the saving is clearly part of the property of which the son can demand a partition. In the case of a childless Hindu widow, the income derived from her husband’s property constitutes part of the widow’s estate but in the case of a joint family, the income of a family estate is, unless it has been expended bona fide in the ordinary course of management, part of that estate. The observations of Mr. Justice Mitter in Gunga Prosad v. Ajudhia Pershad Singh4, are a mere dictum." We feel bound to observe that this reasonsing does not appeal to us. The assumption that the power of a sole coparcener over the income from the property obtained on a partition is subject to the same limitations as when there are other coparceners present, is, in our opinion, unjustifiable and does not accord with what is now clearly established law. Further the other line of reasoning based upon the analogy of the character of the income obtained by a Hindu widow from her husband’s estate being treated as part of her husband’s estate and the accumulations thereof and the purchases therefrom being ipso jure impressed with the character of the property from whose income they were acquired is clearly erroneous as seen in the later decisions of this Court such as for instance the decision in Akkanna v. Venkayya5. In a judgment rendered in that case by Benson and Bhashyam Ayyangar, JJ., the position as regards the income derived by a Hindu widow from her husband’s estate and the presumptions applicable to the property purchased out of the savings effected thereby is thus stated: We are unable to uphold the finding of the District Judge that the property acquired by Parvatamma, on a usufructuary mortgage for a long term of years by means of the income derived by her from the jiryati lands inherited from her husband, should be held to form an accretion to her husband’s estate, and that her alienation of the same does not bind her reversioners. The question as to the power of disposition which a Hindu widow has over property acquired by her out of the income from her husband’s estate, or out of savings from such income, has to be determined solely with reference to general principles and judicial decisions, there being no texts of Hindu law bearing upon it." After referring to the decisions of the Privy Council in Babu Sheo Lochun Singh v. Babu Saheb Singh6, and Saodamini Dasi v. The Administrator General of Bengal7, the judgment proceeds: "The acquisition made by her out of the income of her husband’s estate was not in the nature of an enlargement of that estate......It was simply investment on a usufructuary mortgage, of her sma 1 savings over which she had absolute power of disposal and it is difficult to see on what principle it is to be presumed that she thereby intended to part with her power of disposition, for the benefit of her reversionary heirs. The acquirer of property presumably intends to retain dominion over it, and in the case of a Hindu widow the presumption is none the less so when the fund with which the property is acquired is one which, though derived from her husband’s property, was at her absolute disposal. In the case of property inherited from her husband, it is not by reason of her intention but by reason of the limited nature of a widow’s estate under the Hindu Law that she has only a limited power of disposition. In the case of property inherited from her husband, it is not by reason of her intention but by reason of the limited nature of a widow’s estate under the Hindu Law that she has only a limited power of disposition. But her absolute power of disposition over the income derived from such limited estate being now fully recognised, it is only reasonable that, in the absence of an indication of her intention to the contrary, she must be presumed to retain the same control over the investment of such income......The case, therefore, is not analogous to that of an undivided member of a Hindu family possessing joint family property, who by throwing into the common stock the income he derives from his separate or self-acquired property, manifests his intention to impress such self-acquired property with the character of joint family property." This view of the powers of a Hindu widow over the income of her husband’s estate as well as her power over acquisitions made out of such income has been recognised and approved by the Privy Council in Raja of Ramnad v. Sundara Pandiyaswami Thevar1, Venkatadri Appa Rao v. Parthasarathi Appa Rao2, and in the Oothumalai case (Balasubrah-manya Pandya Thalaivar v. Subbayya Thevar)3, affirming the judgment of this Court in Navaneethakrishna Marudappa Thevar v. The Collector of Tinnevelly4. If this is so in the case of a Hindu widow who has no absolute dominion over the corpus of her husband’s estate, the position as regards a sole surviving coparcener with unrestricted powers of disposition over the corpus must a fortiori be in favour of holding the property so acquired as self-acquired property, so that the analogy of a widow far from supporting the conclusion which the learned Judges in Ramanna v. Venkata5, drew rom it, would lead to an exactly opposite result. The next case which might be referred to is a decision of the Allahabad High Court in Bachcho Kunwar v. Dharam Das6. One Paras Das was the managing member of the joint family owning a large extent of ancestral property. Paras Das and his cousin were the reversionary heirs of one Pardman Kunwar. But when the reversion fell in they were obstructed by a stranger who put forward claims to that property. There was a litigation which ended in a compromise, under which Paras Das got a fourth share in the property. Paras Das and his cousin were the reversionary heirs of one Pardman Kunwar. But when the reversion fell in they were obstructed by a stranger who put forward claims to that property. There was a litigation which ended in a compromise, under which Paras Das got a fourth share in the property. Paras Das died leaving a will by which he purported to create interests in favour of strangers on the portion of the property so acquired under the compromise. One of the sons of Paras Das filed a suit challenging his right to dispose of the property by will. The plaintiff’s contention was that though normally the property, which his father inherited as a reversioner, would be his self-acquired property which he was competent to dispose of at his pleasure, the family property had been expended for conducting the litigation which resulted in Paras Das acquiring the property and that consequently it should be treated as joint family property in which the plaintiff would have a right by birth. The facts were that about Rs. 9,000 was expended for this litigation and this sum was obtained from the surplus funds of the joint family in the hands of the manager. The same was replaced out of the self-acquired funds belonging to Paras Das within a short time. In other words, Paras Das took a loan from the family and repaid it after a short time. The’ question was whether this temporary utilisation of family funds was "a detriment to the paternal estate" which rendered the acquisition of the reversionary interest, coparcenery property in which the sons would have an interest. The learned Judges Stanley, C.J., and Burkitt, J., held that the property continued to be the self-acquired property and was capable of being disposed of by Paras Das. They stated at page 354: "On behalf of the appellant it is said that the money was merely borrowed by Paras Das and that this is shown by the accounts kept by him in regard to the property. They stated at page 354: "On behalf of the appellant it is said that the money was merely borrowed by Paras Das and that this is shown by the accounts kept by him in regard to the property. The family was a banking firm and had a large amount of money at its disposal, and it cannot be said that the temporary use made by Paras Das of the money applied in the expenses of the litigation caused any real detriment to the ancestral property." After dealing with the facts of the case they continued: "In view of these facts we cannot see our way to hold that property, which admittedly would have been self-acquired property became an increment to the joint family property by reason of the fact that Paras Das applied money of the family in the prosecution of his litigation. The transction we think ought to be regarded as a borrowing, by Paras Das, of money of the firm and nothing more. The joint estate suffered no appreciable detriment by the transaction, and it would be, we think unduly extending the principle of Hindu Law applicable to acquisitions by the aid of joint funds or joint exertion if we were to hold that the property which came to Paras Das from a collateral branch of the family, became joint family property." With respect to the learned Judges we agree that this is the correct approach to the question. The next decision in order of date is that of the Privy Council in Lal Bahadur v. Kanhaiya Lal 1, which is cited in Mayne’s Hindu Law as the basis for the passage in the text extracted earlier. The head-note of the case which sets out the facts sufficiently to understand the decision makes it clear that this is not an authority for the position that sons subsequently born have rights in properties acquired by their fathers during a period when the latter were the sole coparceners. The head-note runs thus: "A Hindu, the head of a joint family governed by the the Mitakshara law, left property which on his death in 1894 passed to his three sons who remained joint until 1866 when they came to a partition amongst themselves. There was nothing to show that any of them then had any separate property. The head-note runs thus: "A Hindu, the head of a joint family governed by the the Mitakshara law, left property which on his death in 1894 passed to his three sons who remained joint until 1866 when they came to a partition amongst themselves. There was nothing to show that any of them then had any separate property. At that time one of them had two sons and another son was bom to him after the partition. The father and these three sons lived together jointly and acquired other property. The father died in 1894 leaving a will by which he gave a small allowance and a residence to each of his younger sons and left all the rest of his property to his eldest son describing it as his self-acquired property. In a suit brought by the two younger sons against their brother to set aside the will, the Judicial Committee held that the share taken on partition by the father of the plaintiffs and defendant was ancestral property and that there being a nucleus of ancestral property the property in suit was not self-acquired........and that the will was not operative." The contention that was raised for consideration of their Lordships is to be found in the following passage in the judgment of Sir Andrew Scoble: " But it was contended that any property acquired by Durga Prasad after the partition was-acquired by him ‘ without the aid of ancestral funds, and with his own separate earnings,‘ and that he therefore had the right to dispose of it as self-acquired property". This argument was negatived on the reasoning that "it is admitted that Durga Prasad and his sons lived together as a joint Hindu family, and it is. established that there was considerable nucleus of ancestral property in his hands after the partition.. The onus was therefore on the respondent to prove that his subsequently acquired property was his. separate estate. How has the onus been discharged?" After referring to the books of account of Durga Prasad, his Lordship continued at page 254: "The entries show that properties of considerable value were from time to time purchased by Durga Prasad, and that he did not in any way discriminate between the sources of his income, but blended them all in one general account. There is oral evidence also, that his sons when they became of age to earn their own living, gave the pay which they received to their father, with whom they lived and by whom they were supported. This is strong evidence that there was but one common stock of the whole family, into which each voluntarily threw what he might otherwise have claimed as self-acquired; and that the property purchased by, or with the assistance of, the joint funds, was joint property of the family, and not of any particular member of it." This decision has really no application to a case like the present. The next case which is relied on in. this connection is the decision of the Bombay High Court in Chabildas v. Ramdas2, which arose out of a suit for a declaration that the properties included in schedules to the plaint were the self-acquired properties-of the plaintiff. The facts are complicated but the point decided is sufficiently brought out by the head-note which runs thus: “If a Hindu having ancestral monyes spends them all on the support of his family, and, working independently, makes large extrinsic gains, which he keeps wholly distinct, he may treat the latter as his self-acquisition. But if he mixes his gains with his ancestral moneys, he cannot afterwards be allowed to separate them by a mere account. Where there is an indiscriminate blending of ancestral with self-acquired properties what is purchased out of the aggregate result is ancestral. Where after a man has made much money he comes in for a small addition of a fixed and ascertainable character, which is ancestral and where he can account for the expenditure of it over and over again in maintaining his family, it may lose its infecting character and deprive his sons of the right to insist that it has coloured all the rest of their father’s self-acquired property.” These passages would show that the real question at issue in that case was one of blending and not of any point of the type now under consideration. Learned counsel for the appellant placed strong reliance on a passage in the judgment of Devadoss, J., in a case in Vadamalai Pillai v. Subramania Chettiar1. The case itself related to a person who had obtained on partition with his brothers lands valued at Rs. 200 and burdened with debts to the extent of Rs. Learned counsel for the appellant placed strong reliance on a passage in the judgment of Devadoss, J., in a case in Vadamalai Pillai v. Subramania Chettiar1. The case itself related to a person who had obtained on partition with his brothers lands valued at Rs. 200 and burdened with debts to the extent of Rs. 500 and subsequently acquired with his income as Dubash of certain commercial concerns properties worth Rs. 40,000. The learned Judges held that the nucleus was not sufficient to impress the subsequently acquired property with the character of joint family property. The case concerned a suit brought for the recovery of money due on a mortgage by deposit of title deeds which was executed by the father. The sons who were impleaded in the suit as co-defendants, disputed their liability. One of the contentions raised by the plaintiff was that the property, which was the subject-matter of the mortgage, was the self-acquired property of the father and that therefore they could not dispute the plaintiff’s right to bring it to sale. The learned Judges Spencer and Devadoss, JJ., both held that the mortgage would be binding upon the sons even if it was the joint family property. They also held that the property was the self-acquired property of the father differing on the latter point from the Subordinate Judge who found otherwise. After dealing with the authorities relevant to the second question, Devadoss, J., went on to add (at page 952): “Cases can be conceived where the family nucleus is mortgaged and money raised on the secu-rity of it with which a trade is started and acquisitions made out of the savings of the trade prrofits or where the family nucleus is given as security for an appointment such as that of Dubash or cash keeper and but for such security the member could not have secured the appointment in such it may reasonably be held that the family property was the means or the foundation of the fortune that was acquired afterwards”. It is this passage which is relied on by learned counsel for the appellant as laying down that if the family property is mortgaged and the money raised thereby is utilised for the purpose of a business, such utilisation so infects the business as to render it a joint family concern. It is this passage which is relied on by learned counsel for the appellant as laying down that if the family property is mortgaged and the money raised thereby is utilised for the purpose of a business, such utilisation so infects the business as to render it a joint family concern. In our opinion these observations are obiter and do not apply to transactions by sole coparceners. The last case relied on was Ayyangouda v. Gadigeppagouda2. There were other points involved in the case but the facts necessary for appreciating the discussion relating to the present subject were these: A joint family possessed considerable properties which the 1st defendant Ayyangouda inherited. He was then the sole surviving coparcener. One of the items thus inherited was sold by him for Rs. 3,000 and the proceeds were utilised for the purchase of two properties in which the adopted son as the plaintiff claimed a share as part of the joint family property in which he obtained rights on adoption. There can be no dispute that Ayyangouda’s sale was within his competence for he was then the sole owner of the property and could convey a valid title by his sale which could not be questioned by an adopted son who came into the family at a subsequent date for the latter’s rights do not relate back for this purpose to a date anterior tohis adoption. “If Ayyangouda therefore had appropriated the proceeds of the sale for his private purposes he could not be made accountable to the plaintiffs.” But the question was whether if it was established that the proceeds were utilised in purchasing other properties, this would partake of the character of ancestral property in Ayyangouda’s hand in determining the claim of a subsequently adopted son to a share therein. The learned Judge found as a fact that the moneys obtained by a sale were invested by Ayyan-gouda in a profitable business and that the profits made from that business enabled him to purchase the properties in dispute. On these findings Wassoodew, J., stated: “If profits were made from business started with the proceeds of the sale of ancestral property the investment made from these profits would, in my opinion, form part of the ancestral coparcenery property. On these findings Wassoodew, J., stated: “If profits were made from business started with the proceeds of the sale of ancestral property the investment made from these profits would, in my opinion, form part of the ancestral coparcenery property. Ordinarily, if such investments were made by the father or manager as head of the family, they would partake of the character of ancestral property, for the investor was clearly accountable to the other coparceners........I do not think the position of the sole surviving coparcener, who has invested the ancestral funds in a fresh business started by him, should be different merely because he was the sole owner of the entire property at the time of the investment. I think the principle of accretion could properly be applied to the profits made from investment of the ancestral funds by the sole surviving coparcener prior to the adoption. There is nothing in the texts or the authorities cited to suggest that the adopted son’s right to a share must be restricted to the ancestral property which could be followed in specie I think it is logical to regard the accretions to the ancestral funds as partaking of the same character as the corpus.” Indarnarayan, J., who agreed with the other Judge, rested his conclusions on the following reasoning: “I will only add that a sole surviving coparcener has undoubtedly the right to alienate the family property to third parties without being accountable, but it does not follow therefrom that if he only converts part of the family property into a different kind of property or cash and keeps it in his own hands, such new property-the result of conversion-loses its character of joint family property. On a similar basis, to my mind, must be considered accretions to such converted property.” It will be seen that in this case there has been a sale of ancestral property with the result that when the adopted son emerged on the scene there was certainly a detriment to the paternal estate in the shape of his having lost the ancestral property in which he would have a share if the alienation had not been effected before his adoption. Secondly it will be noticed that the joint family character of the acquisition is rested on the theory of its being an accretion to the original property. Secondly it will be noticed that the joint family character of the acquisition is rested on the theory of its being an accretion to the original property. We might now summarise the effect of these several decisions: (1) Property obtained by a coparcener on partition is ancestral joint family property in which sons born or adopted subsequently have rights, notwithstanding that, at the date of the partition, the dividing member was a sole coparcener. (2) A sole coparcener has absolute rights of alienating properties thus obtained by him on partition and subsequently born or adopted sons cannot question such alienations for the property has ceased to be family property at the date of their birth or adoption. (3) It follows that the income received by a sole coparcener from what might become joint family property on the emergence of a coparcener is till such date at the absolute disposal of such owner. (4) Where ancestral property is sold by a coparcener and the sale proceeds are -utilised for the acquisition of other property, either with or without self-acquired funds, the property so acquired would partake of the character of ancestral property in which sons subsequently born or adopted would acquire coparcenary rights because such property has been acquired “by detriment to the paternal estate,” the detriment being that the original property, which would have come to him but for the alienation, is not available at the subsequent date. Apart from cases of such detriment, where from the income of ancestral property a sole coparcener makes purchases, the only legal basis for imputing joint family character to the subsequent acquisitions is the theory of accretion which would be dependent upon the intention of the acquirer. In such cases the mere utilisation of any portion of the income from ancestral property would not ipso jure render the acquisition part of the ancestral property in which a son subsequently born or adopted would acquire a right by birth. (5) In the present case though the money raised on the security of ancestral property was used for running a business which produced the profits out of which the acquisitions were made, there was “no detriment to the paternal estate,” since long before the plaintiff was born the mortgages had been discharged so that the ancestral property was available to him when he was born. There was therefore no detriment to the interests of any coparcener, nor can the subsequent acquisitions be treated as coparcenery property by recourse to the theory of accession or accretion for no evidence of such intention can be gathered from the purchases or from their dealing. The view of Mitter, J., in Gunga Pershad v. Ajudhia Pershad1, appears to be logical and is supported by the text of Smriti Chandrika which has been extracted above. But possibly it is too late in the day to affirm it with all its consequences. One thing is clear. There is no decision of the Privy Council which lays down a contrary rule. None of the decisions had to deal with a case of acquisition by a sole coparcener and the decision usually cited in this context, viz., Umrithnath Chowdry v. Goureenath2was not a case of such an acquisition. So far as the decisions of the High Courts are concerned, the only relevant cases dealing with acquisitions by sole coparceners are Isree Pershad Singh v. Nasib Kooer3. Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy4; Ramanna v. Venkata5and Ayyangouda v. Gadigeppa Goudar6. The decision in Isree Pershad Singh v. Nasib Kooer3, was rested on the authority of Sudannund v. Soorjoo Monee7 and in this case it was not clear whether it was the sale proceeds of the ancestral property or the income therefrom that was utilised for the purchase of the other property. The principle upon which the joint family character of the acquisition was sustained by the decision in Jugmohandas Mangaldas v. Sir Mangaldas Nathubhoy4was on the theory of accession. The decision in Ramanna v. Venkata5, by Muttuswamy Ayyar, J., proceeds upon a theory of an incipient or inchoate coparcenery even when the property belonged to a sole coparcener and was rested upon the rule that a sole coparcener had not an absolute interest in the income from ancestral property which is not the law as subsequently understood. Reference was also made to the analogy of a widow in respect of whom it was stated that she had no absolute interest in the income from her husband’s estate which also is incorrect in view of the later decisions. This decision cannot, therefore, be treated as resting on any correct principle in the light of the law as now understood in respect of these several matters. This decision cannot, therefore, be treated as resting on any correct principle in the light of the law as now understood in respect of these several matters. The last decision to be noted in Ayyangouda v. Gadigappa Goudar6, where it is rested on the theory of accession or accretion. We have only to add that the conclusion we have reached above is that the mortgages effected by the 1st defendant on item 1 of A schedule in 1906 and 1908, which mortgages were repaid before 1910, and the utilisation of these moneys for starting a business of a toddy shop do not render that business a joint family business so as to make the properties purchased with its aid joint family properties, in which the son can claim a share in the partition. In this connection the decision in Bachcho Kunwar v. Dharam Das8, in our opinion lays down the correct law. We therefore hold that the only ancestral property in which the plaintiff would have a right to claim a share is item 1 of the A schedule and that he is not entitled to claim a partition in respect of other items in suit. The result is that Appeal No. 217 of 1950 is dismissed and the other appeal, i.e., Appeal No. 151 of 1951 is allowed, both with costs. Advocate’s fee in A.S. No. 151 of 1951 alone. Learned counsel for the plaintiff drew our attention to the fact that the 1st defendant died after suit and that we should take into consideration this circumstance and grant to the plaintiff relief on the basis of his succeeding to the interests of his father. Having regard however to the settlements effected and the challenge made as regards their validity, we do not consider it proper to travel, beyond the pleading in the case and to adjudicate upon any rights not put forward in the plaint. All the other matters could and ought to be agitated in other proceedings if the parties are so advised. Having regard however to the settlements effected and the challenge made as regards their validity, we do not consider it proper to travel, beyond the pleading in the case and to adjudicate upon any rights not put forward in the plaint. All the other matters could and ought to be agitated in other proceedings if the parties are so advised. These appeals having been posted to be mentioned this day, 7th April, 1955, the Court made the following Order.-We have dealt with the appeal on the footing that the plaintiff has no right to claim a share in the properties in suit other than item 1 of Schedule A on the ground that they were not properties which were held by his father jointly with himself. There was a further contention raised, which found acceptance at the hands of the learned Subordinate Judge, that the acquisitions by the father were not with his own funds merely, but were the joint acquisitions of himself and his wife. Though this point was raised by the plaintiff-appellant here, arguments have not been heard on that point, and our decision does not conclude that question in favour of or against the plaintiff appellant. R.M. ----- Appeal No. 217 of 1950 dismissed. Appeal No. 151 of 1951 allowed.