JUDGMENT : T.K. JOSEPH, J. 1. This appeal is from the decree dismissing a suit for partition. The plaintiff is the son of the first defendant. The latter had another son, Subramonia Iyer, who is alleged to have left home 23 years before the institution of the suit and has not been heard of since then. The parties are governed by Hindu Mithakshara Law. Alleging that the properties described in the plaint schedules belonged to the joint family of the plaintiff and the first defendant, the plaintiff sued for partition and recovery of one-half share in the same. Items 15 to 18 in schedule A of the plaint were sold by the first defendant to the second defendant, and according to the plaintiff, the sale was not binding on him. The supplemental third defendant was impleaded later as he purchased items 15 to 18 from the second defendant. The plaintiff also claimed damages on account of waste alleged to have been committed by the first defendant. 2. All the defendants contested the suit. The first defendant contended that the properties in schedule A were acquired by him with his own efforts and that the same belonged to him absolutely. As regards the moveables, his case was that he did not get any in family partition and that those he had, were taken possession of by the plaintiff when he forcibly drove him out of his house. The sale of items 15 to 18 was stated to be a valid transaction. The allegation of waste was denied. Defendants 2 & 3 filed separate written statements contending that the first defendant was competent to sell items 15 to 18, that the sale was valid and that the plaintiff was not entitled to any relief in respect of the same. 3. The court below held that the properties did not belong to the joint family but were the acquisitions of the first defendant. It was also held that the plaintiff’s elder brother could be presumed to be dead. The suit was accordingly dismissed, and the plaintiff has preferred this appeal. The first defendant died after the suit was decided by the trial court and respondents 1 to 3 were impleaded as his legal representatives. It was also held that the plaintiff’s elder brother could be presumed to be dead. The suit was accordingly dismissed, and the plaintiff has preferred this appeal. The first defendant died after the suit was decided by the trial court and respondents 1 to 3 were impleaded as his legal representatives. On the application of the first respondent, a daughter of the first defendant who claimed all the properties under a will executed by the deceased first defendant, the other respondents were removed from the array of parties. The plaintiff relinquished his claim in respect of items 15 to 18 and defendants 2 &3 were not made parties to the appeal. 4. The main question arising for decision is whether the properties belonged to the first defendant exclusively or to the joint family consisting of himself and the plaintiff. 5. The plaintiff’s case is that the properties obtained by the first defendant in family partition formed the nucleus with the aid of which the later acquisitions were made, that he also contributed money for the acquisition of properties and that he was in any event entitled to a share as the first defendant had agreed to treat the properties as belonging to the joint family. The learned Subordinate Judge found these points against the plaintiff. 6. As regards the first point, we may state that we were not impressed by the plaintiff’s case that the family properties obtained by the first defendant in partition formed the nucleus of his later acquisitions. Ext. A-l dated 21-7-1908/17-1-1084 is the deed of partition between the first defendant and his brother, Venkitachala Pattar. Under this deed the house where the brothers were residing with their mother was allotted to Venkitachala Pattar and the first defendant was given the right to collect a sum of Rs.416-2-3 from three debtors. Besides this, he was given a sum of Rs.10/- towards his share of the moveables. It was also provided in the deed that the first defendant and Venkitachala Pattar should pay respectively 30 paras of paddy and Rs.4-8-0 and 30 paras of paddy and Rs.19-8-0 annually towards the maintenance of their mother and that a sum of Rs.120/- should be spent by the two brothers jointly for her funeral obsequies. It was also provided in the deed that the first defendant and Venkitachala Pattar should pay respectively 30 paras of paddy and Rs.4-8-0 and 30 paras of paddy and Rs.19-8-0 annually towards the maintenance of their mother and that a sum of Rs.120/- should be spent by the two brothers jointly for her funeral obsequies. The house was to be kept in common till the death of the mother and the first defendant was to receive a sum of Rs.100/- from his brother in lieu of his share of the same. It is in evidence that Venkitachala Pattar did not pay either the amount due to the mother for maintenance or his share of the expenses in connection with her death so that the first defendant had to meet both. After the mother’s death in 1096, Venkitachala Pattar executed a mortgage in favour of the first defendant for Rs.400/- made up of Rs.100/- due to the first defendant as his share of the house, Rs.100/- due from him on account of the amounts paid by the first defendant for the maintenance and funeral expenses of the mother and Rs.200/- due to the first defendant who had discharged a debt of Venkitachala Pattar. After the partition the first defendant had to meet fairly heavy expenditure for the maintenance of his wife and children as well as the mother, for the seamanthom of his eldest son, for the marriage of his eldest daughter and for educating Venkitachala Pattar up to the College classes. It is also in evidence that the first defendant had to sell a small property in the year 1091 when his daughter was married, which shows that the sum of Rs.416 obtained in partition must have been spent by that time for other legitimate expenses of the family. The expenses incurred by the first defendant for family purposes was much higher than what he got in partition and the paltry sum obtained in partition would not have been available for acquiring properties for over Rs.6000/- in later years. The evidence on this point has been carefully considered by the learned Judge and we do not see any reason to hold that properties were acquired by the first defendant with the aid of what he obtained under Ext. A-l. 7. The evidence on this point has been carefully considered by the learned Judge and we do not see any reason to hold that properties were acquired by the first defendant with the aid of what he obtained under Ext. A-l. 7. Another source of money is stated to be the income of item 1 in schedule A which was a garden with a house taken on lease by the first defendant from Varikumancherry Mana where he was working as a cook. The annual income of the property was about Rs.300/- while the yearly rent was only Rs.2 and odd. It was contended that the acquisition of the lease-hold interest in item 1 was on behalf of the family and that this furnished a substantial source of income. There is dispute between the parties as to whether the lease was confined to the house in item 1 or to the whole property. Even assuming that the first defendant was able to take the income of the whole property, the fact that the first defendant’s wife and children were residing with him does not lead to the inference that the lease was taken on behalf of the joint family. 8. The second point raised by the plaintiff is that he also contributed money for the acquisition of these properties. His case is that he left home when he was about 12 years old, that he was thereafter working in several coffee hotels at Salem and that he used to send his salary to his father during those years. Except for his interested testimony there is no evidence that he ever sent money to his father before the acquisition of the properties. He has, no doubt produced some money order receipts to show that he sent altogether Rs.130/- to his father. The amount was sent long after the properties were acquired when his wife and children were living with the first defendant. There is no record to show that he sent any amount before the dates on which the properties were acquired. Reference may also be made to the unqualified admission of the plaintiff in the two mortgage deeds, Exts. A-5 & A-6, and the assignment deed, Ext. A-7, executed by first defendant and the plaintiff to strangers that the properties were the private acquisitions of the first defendant. The plaintiff’s case on this point cannot therefore be accepted. 9. Reference may also be made to the unqualified admission of the plaintiff in the two mortgage deeds, Exts. A-5 & A-6, and the assignment deed, Ext. A-7, executed by first defendant and the plaintiff to strangers that the properties were the private acquisitions of the first defendant. The plaintiff’s case on this point cannot therefore be accepted. 9. The only point which remains for consideration is whether the first defendant agreed to treat these properties as belonging to the joint family and dealt with the same accordingly. The law on the point has been summarised by Mulla in his treaties on Principles of Hindu Law as follows: “Property which was originally the separate or self acquired property of a member of a joint family may become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to waive his separate rights must be established, and it will not be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used to support a son nor from the mere failure of a member of generosity or kindness should not be construed as admissions of legal obligation. Separate property thrown into the common stock is subject to all the incidents of joint family property”. (p. 552) (12th Edn.) The evidence has to be examined to see whether the plaintiff has obtained a clear intention on the part of the first defendant to waive his separate rights in the properties. The plaintiff relied on Exts. A-5, A-6 and A-7 for this purpose Ext. A-5 is a deed of simple mortgage executed by the first defendant and the plaintiff in favour of a stranger on 21-12-1936, mortgaging items 9 to 1.4 in the plaint schedule as well as another item of immovable property. Ext. A-5 states that the properties mortgaged thereunder are the private acquisitions of the first defendant. The consideration is a sum of Rs.400 said to have been borrowed for ‘tarwad purpose’, namely, payment of the amount due to a chitty foreman in respect of a ticket prized by the first defendant. Ext. Ext. A-5 states that the properties mortgaged thereunder are the private acquisitions of the first defendant. The consideration is a sum of Rs.400 said to have been borrowed for ‘tarwad purpose’, namely, payment of the amount due to a chitty foreman in respect of a ticket prized by the first defendant. Ext. A-6 is another deed of simple mortgage executed by the first defendant and the plaintiff on 23-2-1937 and this also contains a statement that the properties were acquired by the first defendant. However, there is an additional statement in Ext. A-6 that the improvements in the properties mortgaged were made by both the mortgagors. Ext. A-6 is for a sum of Rs.1090/- stated to be borrowed for ‘tarwad purposes’, and three debts incurred by the first defendant in the years 1110, 1111 and 1112 are specifically mentioned to indicate the nature of the necessity. Ext. A-7 is a deed of assignment under which a simple mortgage taken in the name of the first defendant was assigned on 23-2-1937. Plaintiff has also joined in the execution of this deed and the assignment was given in discharge of a debt due from the first defendant to the assignee. 10. There are certain features common to these three documents. Though it is stated that the properties were acquired by the first defendant, these transactions are stated to have been entered into for family purposes described as ‘tarwad purpose’ in Exts. A-5 and A-6. The properties belonged to the first defendant but the plaintiff also joined in the execution of the deeds and it is stated that the rights of both the executants in the properties were mortgaged, which amounts to an admission on the part of the first defendant that plaintiff had some interest in the properties. The only interest which the plaintiff possibly could have had in the properties was as a member of the joint family. At the time of the execution of these deeds plaintiff’s elder brother was away and both the executants arrested to indemnify the respective mortgagees under Exts. A-5 and A-6 and the assignee under Ext. A-7 against any possible loss or damage due to his non-participation in the deeds. The plaintiff also undertook liability for the mortgage money under Exts. A-5 and A-6. A-5 and A-6 and the assignee under Ext. A-7 against any possible loss or damage due to his non-participation in the deeds. The plaintiff also undertook liability for the mortgage money under Exts. A-5 and A-6. So far as Ext A-7 is concerned there is a statement that the plaintiff and the first defendant ceased to have any further rights in the mortgage right assigned thereunder. It may be stated that the first defendant’s case is that it was mainly with the aid of the prize money in kuries that the properties were acquired by him. The plaintiff has been made to undertake liability for some of these debts. According to the first defendant the plaintiff was made to join in the execution of the deeds at the instance of the mortgagees and the assignee. Even if they insisted on the plaintiff joining in the execution of the deeds, it was not necessary to state that plaintiff had any right in the properties mortgaged or the mortgage right assigned under Ext. A-7. It was also unnecessary to make him undertake liability for the debts. In our opinion these deeds show a clear intention on the part of the first defendant to throw the properties into the common stock. Though the properties were the private acquisitions of the 1st defendant, he voluntarily threw them into the common stock so that the same became subject to all the incidents of joint family property. The plaintiff is therefore entitled to claim a half share in items 1 to 14 in schedule A of the plaint. 11. As regards the moveables the plaintiff has not satisfactorily established his claim to the same. Admittedly the plaintiff entered into possession of the residential house of the first defendant who was driven out of the same. Such moveables as were in the house must thus have come into the possession of the plaintiff, and he is not entitled to the relief prayed for. The claim for damages for trees alleged to have been cut and sold by the first defendant has also not been substantiated. The decree of the court below in respect of the moveables and damages does not therefore call for interference. The claim for damages for trees alleged to have been cut and sold by the first defendant has also not been substantiated. The decree of the court below in respect of the moveables and damages does not therefore call for interference. In view of our conclusion that the plaintiff is entitled to a share in items 1 to 14 of schedule A, the question whether he is also entitled to a share of the rents and profits arises. It was stated in the plaint that the annual profits of the properties would amount to 600 paras of paddy and Rs.15/- and that the plaintiff was entitled to half the amounts as his share of rents and profits. Consistent with our finding that the plaintiff is entitled to a decree for half of items 1 to 14 he must be allowed one-half of the rents and profits of these items from the date of suit. The first defendant contended that the annual profits would amount to only 500 paras of paddy. There was no issue, or reliable evidence, on the point”. It has also to be stated that the plaintiff’s estimate of the rents and profits is in respect of items 15 to 18 also in respect of which the claim has now been relinquished. There is not sufficient material on record to decide the quantum of rents and profits. The trial court is directed to determine the amount due to the plaintiff towards his half share of the rents and profits and to provide for recovery of such amount from the other half of items 1 to 14 in a schedule. In ascertaining the same the court below will take into account the income of item 1 or any other property which may be in the plaintiff’s possession. 12. There is dispute between the parties regarding devolution of the half share of the first defendant. The first respondent claims the same under a Will executed by the first defendant who died after the decree of the trial court. Claims regarding that half of the properties do not properly arise for consideration in this case and the plaintiff may establish his claim, if any, in a properly framed suit. 13. The first respondent claims the same under a Will executed by the first defendant who died after the decree of the trial court. Claims regarding that half of the properties do not properly arise for consideration in this case and the plaintiff may establish his claim, if any, in a properly framed suit. 13. In the result, we reverse the decree of the court below and pass a preliminary decree allowing the plaintiff a half share in items 1 to 14 in schedule A of the plaint. The plaintiff is also allowed to recover one-half of the rents and profits of these items from the date of suit and the trial court is directed to ascertain and provide for the same in the final decree. The suit is dismissed in other respects. The appeal is allowed only to the extent indicated above. Both sides are directed to bear their respective costs here and in the court below.