JUDGMENT: Sethuraman, J. — This appeal has been filed by the first defendant in O. S. No. 592 of 1974 in the Court of the Subordinate Judge of Coimbatore. The plaintiff by name Ponnuswami and defendants 1 and 2 by name Anga Naicker and Chinnaswamy are brothers. The third defendant, Ranganayaki Ammal is their sister. The fourth defendant by name Palaniammal is the wife of the second defendant. Ponnuswami, the plaintiff filed the present suit for partition of the plaint schedule properties into four equal shares and for allotment of one such share to him. The father of the plaintiff and defendants 1 to 3 was one Anga Naicker, who had a wife by name Angammal. The father Anga Naicker died on 21st August, 1961, and his wife on 18th June, 1969. The case of the plaintiff was that he was employed in the Special Armed Police getting a salary of Rs. 200 per month till about.1950. that he was sending Rs. 100 to his parents during his period of service and that thereafter he got out of the service and he returned to Coimbatore and assisted his parents. His father who had some ancestral lands, was doing a business in “gunpowder”, which is really a business in explosives used for blasting the earth for excavation of wells. The mother was said to have been doing a business in cotton. There were some savings from these businesses, which were invested in a Bank and on its liquidation it (the Bank) transferred to Angammal 13 acre and 70 cents of land in a village called Neelikonampalayam, which is adjacent to Singanallur to which the parties belonged. Apart from the dry and wet lands, there was a business in running a cinema theatre, which was stated to have been yielding a substantial income. There were also said to be outstandings due to the family, which were traceable to the properties belonging to the family. The plaintiff, therefore, claimed that in the properties described in the several schedules to the plaint, he was entitled to an one-fourth share. 2. The second defendant filed a written statement in which he contended that as far as the cinema business was concerned it did not belong to the family and that it was the joint property of the first defendant and himself. 2. The second defendant filed a written statement in which he contended that as far as the cinema business was concerned it did not belong to the family and that it was the joint property of the first defendant and himself. He denied that the family had anything to do with the properties and the outstandings standing in the name of the fourth defendant, his wife. 3. The first defendant, who filed a written statement, after the second defendant's written statement was filed, contested the suit for partition on the ground that the cinema business belonged exclusively to him and that it had been started and built up by him out of his own resources. He did not dispute the right of the plaintiff to his l/4th share in some of the properties which were admittedly the joint family properties. 4. The third defendant supported the case of the first defendant and the fourth defendant claimed that the properties described in Schedule ‘B’ (c) belonged to her and that the amounts described in the plaint as advances in her name were her own. There was also a reply statement. There was also a prayer by the second defendant that he was in joint possession of the properties and that he wanted a division, for which he paid the requisite court-fees. 5. The trial Court framed a number of issues, some of which were framed on three different occasions, after the original issues were framed. For our present purpose, it is unnecessary to go into all these issues. It is enough to set out following issues, which are relevant for our present purpose: (1) Whether the Ambal Talkies is a joint family business as contended by the plaintiff? (2) Whether the second defendant is entitled to any and if so what interest in the said Ambal Talkies? (10) Whether the first defendant is liable to account for the income either to plaintiff or first defendant, (sic) and if so, for what period and in respect of what item 6. The plaintiff gave evidence as P. W. 1 and defendants 1, 2 and 4 as D.Ws. 4, 1 and 3 respectively. D. W. 2 was examined to show that he had advanced certain amounts to defendants I and 2 and that he gave on lease certain lands to the second defendant. The plaintiff gave evidence as P. W. 1 and defendants 1, 2 and 4 as D.Ws. 4, 1 and 3 respectively. D. W. 2 was examined to show that he had advanced certain amounts to defendants I and 2 and that he gave on lease certain lands to the second defendant. D. W. 5 spoke about the construction of the cinema theatre and his having written the accounts as a part-time accountant, and D. W. 6, who was a neighbour, spoke about what he knew about the affairs of the family. The plaintiff filed Exhibits A-1 to A -9 and for the defendants Exhibits B-1 to B-39 were marked. The learned Subordinate Judge, after considering the evidence, came to the conclusion that even though the evidence was meagre, unconvincing and contradictory, it could not now be denied that the father and the mother were able to make some profit in the businesses carried on by them and that the cinema business was traceable to the family properties. He granted a preliminary decree for partition in respect of the properties described in Schedule ‘B’ (a), (b) and (f), the outstandings described in schedule C (a), (b) and (c) and the mortgage described in Schedule D”, the deed standing in the name of the fourth defendant. He directed also an account in respect of the lands described in schedule B(a) and the business in B(f), The plaintiff was, in his turn, directed to render an account in respect of schedule ‘B’ (b) lands. The first defendant has filed the present appeal contesting the decree in respect of the cinema business described in schedule B (f) and his liability to account in respect of schedule B (a) lands. The other parts of the decree are not under challenge. 7. The first question that arises for consideration in the present appeal is whether the theatre business belongs to the joint family or it is the separate property of the first defendant. We may trace the history of this business as shown by the relevant exhibits, before going into the other aspects involved in determining this point. 8. Exhibit-B10 is a registration copy of a sale deed executed by one Sultan Mohammed in favour of the first defendant on 17th November, 1944, conveying the entire machinery of what was known as “Sultania Touring Talkies”. 8. Exhibit-B10 is a registration copy of a sale deed executed by one Sultan Mohammed in favour of the first defendant on 17th November, 1944, conveying the entire machinery of what was known as “Sultania Touring Talkies”. This touring cinema was run by the first defendant for nearly three years. It was first run in the same name and then under the name of Ambal Touring Talkies Exhibits B-39 and B-40 are the licences granted to the first defendant for running the touring cinema. Exhibit B-11 is the blue print of the pucca cinema theatre which was proposed to be constructed. Exhibit B-36 dated 4th December, 1946, is an application by the first defendant to the Panchayat Board, Uppilipalayam, for permission to construct a permanent theatre. The Panchayat Board granted him the permission on 1st April, 1947, under Exhibit B-37. During the period of construction, the touring cinema business was leased out to one Palaniswami Gounder on a rent of Rs. 2,000 for a period of 4 months commencing from 15th January, 1948. Vide Exhibit B-43 dated 10th January, i948. The District Magistrate, Coimbatore, asked in Exhibit B-45, the first defendant for the licence granted to him under the Places of Public Resort Act for some verification. The construction appears to have been completed towards the end of 1948 or early in 1949, Exhibit B-46 dated 19th February, 1949 shows that the Sub-Divisional Magistrate, Coimbatore, granted a licence to the first defendant for running the cinema. reversing the order of the Panchayat Board refusing the licence The first defendant was required to construct a septic task within 6 months. Exhibit B-13 is the photo taken at the time of the opening of the cinema theatre. 9. For the construction of the cinema theatre the first defendant took on lease two sites 40 cents and 24 cents in S. No. 488/1 under the originals of Exhibits B 41 and B-42 from one Chinnaswami Naidu, and from one Veliyangiri. Two persons by name Kuppammal and Bhagyam, who are the heirs and legal representatives of Chinnaswamy took proceedings in R.C.O.P. No. 155 of 1966 under the Madras Buildings (Lease and Rent Control) Act, for evicting the first defendant. This petition was ordered by the House Rent Controller of Coimbatore. Two persons by name Kuppammal and Bhagyam, who are the heirs and legal representatives of Chinnaswamy took proceedings in R.C.O.P. No. 155 of 1966 under the Madras Buildings (Lease and Rent Control) Act, for evicting the first defendant. This petition was ordered by the House Rent Controller of Coimbatore. Against the eviction order there was an appeal in R.C.A. No. 174 of 1966, which was allowed on the ground that no building had been based by the landlord so as to attract the provisions of the Madras Buildings (Lease and Rent Control) Act. Later Kuppammal and Bhagyam filed C, S. No. 7 of 1970 in the Sub-Court, Coimbatore, for eviction of the first defendant. The suit, O. S. No. 7 of 197.:, was dismissed as settled out of Court. There was a renewal of the lease granted by Veliyangiri Naidu by his heir Savithri Ammal. After the settlement of O. S. No. 7 of 1970, the first defendant purchased the two sites under Exhibits B.25 and B-26 dated 10th April, 1972, B-59 dated 9th June, 1974, and B 60 dated 19th June, 1974. As the entire consideration had not been paid, the first defendant was paying interest to Kuppammal and Bhagyam as shown by the receipts marked as Exhibits B-66 to B-89. There was an extension of the theatre as shown by Exhibit B-61, which is a blue print plan for the construction of a canteen and a compound wall. It is in the light of these exhibits that we have to approach the problem before us. 10. The point that now requires consideration is whether this cinema business belongs to the joint family. In, this connection it is necessary to refer to the legal position regarding the burden of proof. As early as 1928 in Annamalai Chetty v. Subramanian Chetty and others1the Privy Council laid down that the burden of proving in an action for partition of joint family properties, that any particular item of property is joint, primarily rests upon the plaintiff and that circumstances may show the onus to be discharged, but where this has not been done, the Courts are not at liberty to speculate as to alternative possibilities. The legal position was elaborated by Sir John Beaumont, delivering the judgment of the Judicial Committee, in Randhi Appalaswami v. Randhi Suryanarayanamurthi and others2At page 447 the following passage occurs: “The Hindu law upon this aspect of the case is well-settled Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property”. The legal position set out above was quoted with approval by the Supreme Court in Shrinivas Krishnarao Kango v. Narayan Devji Kango and others1. At page 634 of the report in the M. L. J., after extracting the above passage, Venkatarama Ayyar, J., delivering the judgment of the Supreme Court pointed out as follows: — “Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions”. The same legal position was reiterated in Mudigowda Gowdappa Sankh and others v. Ramachandra Roygowda Sankh (dead) by his legal representatives and another2. At page 1080 it was observed as follows: — “The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. The same legal position was reiterated in Mudigowda Gowdappa Sankh and others v. Ramachandra Roygowda Sankh (dead) by his legal representatives and another2. At page 1080 it was observed as follows: — “The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate”. 11. In Ranganayaki Ammal and others v. S. R. Srinivasan and others1, a Division Bench of this Court considered the burden to be heavy on the plaintiff to establish the existence of joint family nucleus. 12. The nature and the extent of the legal presumption applicable to a case of business standing in the name of any member of a joint family has been considered by the Supreme Court in G. Narayana Raju v. G. Chamaraju and others2. At page 466 it was observed as follows: — “It is well-established that there is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact”. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact”. Thus, it is clear that it is the plaintiff, who has to discharge the heavy onus that lies on him to prove that any particular property, which he claims to be divisible, belongs to the joint family. It may be possible to discharge this burden by showing that the business grew up with the assistance of the joint family property — a case of direct proof — or that the joint family property was such that with its aid the property or properties in question could have been acquired -a case of proof by circumstantial evidence. In either case, the initial burden clearly lies on him. 13. We have already seen that, in this particular case, the cinema business came into existence with a sum of Rs. 9,501 used in the purchase of the touring cinema equipments on 17th November, 1944 from one Sultan Mohammed. Is this amount traceable to the joint family or as the first defendant claims to his earnings as an employee in Coimbatore under some businessman?. It would be necessary to examine his case of his earnings as the source only if we are satisfied that the plaintiff has discharged his initial burden, 14. The plaintiff has relied on the existence of the explosive business run by the father and the cotton business run by the mother as the sources for the business. P. W. 1 the plaintiff, has deposed that the father was carrying on the explosive business till about 1950 when it was discontinued. His father is stated to have had a bank account in Vamana Vilas Nidhi in which only a sum of Rs. 500 even according to him, was deposited. He could not produce any record in respect of the said deposit. He spoke about 93 cents of wet land and 1-02 acres of dry land along with a house having some to his father ancestrally. The father is said to have purchased further 2 acres and 1 cent and these properties have been described in schedule ‘A’. During the course of the cross-examination he changed his version of the source and stated that the theatre. The father is said to have purchased further 2 acres and 1 cent and these properties have been described in schedule ‘A’. During the course of the cross-examination he changed his version of the source and stated that the theatre. Ambal Talkies was constructed by the first defendant with the aid of the monies given to him by their mother. Even for this there is no evidence except his assertion in the witness box. 15. In order to test the probability of his version, it is necessary to bear in mind his background. He was aged 50 when he gave evidence in 1975 He was, thus, born in 1925. He stopped his studies in 1944 when he had read upto Intermediate. He was unemployed for about a year and a half, and then joined the Special Armed Police as a Jamedar. He should have thus joined the service towards the close of 1945. He was discharged from the service in 1960. He participated in the Hyderabad police action. Thus, during the material period, 1947 and 1948, when the cinema theatre was constructed, he was not in Singanallur and he could not have had any personal knowledge of how this theatre came into existence. He has not produced any documentary evidence bearing on his version. He claims to have been sending a sum of Rs. 100 per month out of the salary of Rs. 200 that he claims to have received. Neither for the quantum of his salary nor in respect of any of the remittances, there is any evidence, except his oral statement. The remittances should ordinarily have been only by money order or through bank, and not even a single coupon or bank challan or pass-book is available to show that he remitted any money while he was in service. His claim to have contributed for the construction by remittances has thus absolutely no basis. The learned Subordinate Judge was not impressed with the truth of his evidence. After all, he had the opportunity of seeing the demeanour of this witness while he was in the witness box. We see no reason to come to a different conclusion, and reading his evidence as a whole, we are not impressed with its truth. In fact, the learned Subordinate Judge had pointed out that all the three brothers have no respect for truth. We see no reason to come to a different conclusion, and reading his evidence as a whole, we are not impressed with its truth. In fact, the learned Subordinate Judge had pointed out that all the three brothers have no respect for truth. We shall consider this criticism of the deposition of the other brothers separately, if it is necessary. But as far as P. W. 1 is concerned, we do not find it possible to disagree with the learned Subordinate Judge in holding that his oral evidence does not establish his case. There is no corroboration of his version by any independent testimony. 16. As far as the explosive business is concerned P.W.1 himself admitted that the licence was only for 500 1bs. per year. When questioned as to how from this small quantity selling at Re. 1 per lb. a profit of Rs. 5,000 as alleged by him, could have been earned, he would state that bis father was the said Nidhi. Exhibit B 32 shows that exceeding the licenced capacity by “influencing” the police. The facile manner in which this allegation is made determines the extent of its credibility He could not have been present when such “influence” was brought to bear upon the police. It is an allegation of want of fair dealing both on the part of his father and the police. It is impossible to accept such allegations without some better evidence than his own interested testimony. Having regard to the extent of the licence, the profits could not have been Rs. 5,000 per year. If that was such a profitable business, there is no ret son why such a business should have been stopped in the year 1950. The 500 lbs that have been sold under the licence could have yielded a sale price of only Rs. 500; and the profit there from would only be a fraction thereof. Therefore, it is not possible to hold that this business in explosives could contribute anything for the construction of the theatre. 17. There are three different versions as to when this business was stopped, D.W.1, the second defendant, stated that this business was discontinued in 1944, the plaintiff in 1950, and the first defendant in 1945. Thus, even the existence of this business at the time when the first defendant was constructing the theatre is in considerable doubt. 17. There are three different versions as to when this business was stopped, D.W.1, the second defendant, stated that this business was discontinued in 1944, the plaintiff in 1950, and the first defendant in 1945. Thus, even the existence of this business at the time when the first defendant was constructing the theatre is in considerable doubt. Even when the touring cinema equipment was acquired in 1944; it is not established that this business of explosives was there or that the machinery was purchased out of family resources. Even assuming that this business in explosives was started by the father with the aid of family resources, still, having regard to its magnitude, there is no possibility of its having furnished any nucleus for starting the business in running a theatre and exhibiting films. 18. P W. 1 stated in the course of his evidence that the resources for the business were given by his mother. There is no allegation that this business in cotton which was run by the mother for some years was started with any joint family resources. From the evidence, appears that the mother had been a domineering personality with a lot of initiative of her own. This business appears to have been started even in the twenties. P. W. 1 would say that his mother carried on this business till 1950 and that she was deriving an income of Rs 5,000 per year and in some years even a sum of Rs. 10,000 per year. No account book relating to the cotton business was produced She has not also paid any income tax with reference to the said business. It must be remembered that during the war years particularly, the taxable limit was as low as Rs. 1,000, which was increased to Rs. 2 000 subsequently. If really the mother had any income in the range of Rs. 5,000 to Rs.10,000 one would have expected her to pay income tax. There is no evidence of any such tax having been paid, and in fact it was admitted by P.W.1 that she was not an income-tax assessee. In her case also, if the business was yielding such a substantial sum in the range of Rs. 5,000 to Rs. 10,000 one would not have expected her to close it down or the members of the family to allow her to close it down. In her case also, if the business was yielding such a substantial sum in the range of Rs. 5,000 to Rs. 10,000 one would not have expected her to close it down or the members of the family to allow her to close it down. The plaintiff had himself come back from his service in 1950 and, therefore, with one more member of the family, who could have actively attended to it, it would not have been necessary to discontinue the business in 1950. The mother lived for another 18 or 19 years thereby showing that she was not so advanced in years as to discontinue the flourishing business, because of any consideration of health. It is not also in evidence that she had any ailment as such at any time so as to keep away from the activity of running a business, which was so productive of profits. The learned Subordinate Judge himself has observed in paragraph 23 of his judgment that it was clear from the evidence of D. W. 1 that even though the mother was running the cotton business first on her own behalf without any assistance from anyone, the income from that business was not very substantial and that the only surplus which she was able to invest was the money deposited in Vamana Vilas Nidhi and Ganga Vargha Sangha Bank. This deposit in Vamana Vilas Nidhi was prior to 1930. The land measuring 13 acres and 17 cents was acquired under a sale deed dated 25th February, 1932 for a sum of Rs. 7,200 from Angammal had three fixed deposits in the bank totalling Rs. 3,157-50 and that she had a fixed deposit in Ganga Vargha Sangha Bank amounting to Rs. 3,532-13-0. She had paid only Rs 509-14-0 in cash at the time of conveyance. The rest of the money apparently came out of the proceeds of the fixed deposits. Thee deposits show that the cotton business was in existence even prior to 1930 From the fact that there were fixed deposits of such large amounts even before 1932 it can be inferred that this lady was not a stranger to backing habits. It would, therefore, follow that if she had any substantial resources left out of the cotton business, she would have made appropriate investments either in banks or otherwise so as not to fritter away the resources. It would, therefore, follow that if she had any substantial resources left out of the cotton business, she would have made appropriate investments either in banks or otherwise so as not to fritter away the resources. In the absence of any such deposit after 1932, we think it proper to conclude that there was no surplus in her hands accuring from this business. 19. We have so far proceeded on the basis that the existence of resources in the hands of this lady would be relevant in the context of a suit for partition of the joint family properties. As already seen, the existence of any property in the hands of any member cannot be taken to be derived from the joint family assets. There is no presumption that a business carried on by a member of a joint family is joint family business. In the absence of any proof, in this case, to show that the said business was built out of the joint family funds, it has to be taken is the business of the mother. In the course of his evidence P. W. 1 has started that the mother gave the first defendant some monies for construction of the theatre. Assuming that his evidence on this aspect is believable still it is not possible to hold that any amount received from the mother is to be traceable to the joint family so as to treat the business as joint family business. 20. As regards the lands acquired under Exhibit B-35, D.W. 4, the first defendant, deposed that the land had been leased out till about 1943 on a rental of Rs. 300. The plaintiff as P W. 1 has also admitted that it was under lease till about 1945. He would say that on the lessees surrendering the land, the mother was deriving an income of Rs. 5,000. This land was mortgaged by Angammal herself to the Land Mortgage Bank. If she had such large resources available out of the income from the land one would not have expected her to borrow from the Land Mortgage Bank. There is also evidence to show that she had to borrow for her daughter's marriage in 1942. (See D. W. 4's deposition). The probability of her having funds of her own is not established Angammal did not have any accounts in respect of these lands. There is also evidence to show that she had to borrow for her daughter's marriage in 1942. (See D. W. 4's deposition). The probability of her having funds of her own is not established Angammal did not have any accounts in respect of these lands. The second defendant had stated that one Rangappa Naidu was paying Rs 5,000 per annum as rent and that Angammal purchased bullock-carts, house etc., and built a shed and deepened a well. On a consideration of this evidence, the learned Subordinate Judge has corns to the conclusion that till Rangappa Naidu surrendered the land, the rent was Rs. 300 per annum, and that after the surrender, Angammal was cultivating the land. The estimate of the income according to the three brothers ranges from Rs 300 to Rs. 4,000 There is no account available. Thus, there is nothing to indicate what was the actual income available to Angammal and whether she was left with any surplus and if so what happened to it The learned Subordinate Judge has found that this property was a gift by the husband to the wife and that the property was liable to be divided between the three sons and the daughter on the death of Angammal, There is no dispute about the decree in so far as the direction to divide this property is concerned. We are now concerned only with the question whether this property belonged to the family and whether it contributed anything to the resources for the construction of the theatre There is no evidence to show that this property belonged to the family. There is no material to hold that it contributed anything to the construction. Thus, neither from the father's nor the mother's businesses it can be taken that there was a surplus and that the construction of the theatre was financed from this surplus. 21. We have already seen that the father of the plaintiff and defendants 1 to 3 had inherited some lands from his ancestors. It is necessary now to examine the extent of the said property and to see if it was capable of leaving any surplus for the construction of the theatre. The immoveable properties of the family are described in schedule ‘B’. It consists of 5 items. Sub-item (b) is 13 acres and 17 cents of land purchased from Vamana Vilas Nidhi. It is necessary now to examine the extent of the said property and to see if it was capable of leaving any surplus for the construction of the theatre. The immoveable properties of the family are described in schedule ‘B’. It consists of 5 items. Sub-item (b) is 13 acres and 17 cents of land purchased from Vamana Vilas Nidhi. We have already seen that this property does not belong to the family. 17 acres and 41 cents described in schedule B (c) had been taken on lease by the second defendant from one Dr. Subramaniam on a rental of Rs. 1,000 in 1954. Therefore, this property could not have contributed to the starting of the cinema theatre in the forties Further, it must be remembered that with reference to this property, the second defendant alone has been found to be interested and the said lands are not joint family properties There is no dispute on this aspect and, therefore, schedule B (c) could not have contributed anything for the theatre with which we are now concerned. Item B (d) is a tiled house in 10 cents in Singanallur village, P. W. 1 deposed that the house was an ancestral house and that the first defendant was residing in that house from 1963. The house had not been improved upon. He admitted that there was another ancestral house to the south east of this property. Though in the plaint schedule the property was described as measuring 10 cents, 3 cents were admitted to have been included by mistake. There was only a balance of 7 cents. There is a tiled house in it. This property has been found to be an ancestral property. There is no evidence of any income being earned from this property. After all being an ancestral house, it is natural that it was under the occupation of one or other members of the family, so that there is no possibility of its having yielded any income. Schedule B (c) is a property measuring 3 cents of vacant land purchased by the first defendant under Exhibit B-5 on 4th September, 1945. After all being an ancestral house, it is natural that it was under the occupation of one or other members of the family, so that there is no possibility of its having yielded any income. Schedule B (c) is a property measuring 3 cents of vacant land purchased by the first defendant under Exhibit B-5 on 4th September, 1945. This property has been found by the learned Subordinate Judge to be the property of the first defendant exclusively so as not to be available for partition as a joint family property Therefore, there is no need to go into the question whether these 3 cents would have yielded any income at all. Having regard to the smallness of the extent of the property, it is not such as to yield any income, which can be taken as adequate to serve as a contribution for the construction of the theatre. 22. We are thus left with only item B (a) described in the plaint schedule. The description of this property shows that the extent is comparatively very small. There are 93 cents, 1-66 acres and 35 cents, which totalled to 2-94 acres. The extent of the property is so small that its income could not have left any surplus so as to be utilised in the construction of the theatre. We are not thus satisfied that there was any surplus from the joint family properties, which could have served as any nucleus for the cinema business started in the name of the first defendant. 23. There is one other aspect in relation to the land described in schedule B (b). The question raised is whether the property could have been blended with joint family properties. In Smt. Pushpa Devi v. The Commissioner of Income-tax, New Delhi1, the Supreme Court his held that a Hindu female, not being a coparcener, could not blend her separate property with the joint family property. Whether the separate property in the hands of the female member was her absolute property or was one where she had only a limited estate would make no difference to the legal position that she could not blend such a property with joint family property. Therefore, it is not possible to hold that the property in schedule B (6) had been blended and had become the joint family property. 24. Therefore, it is not possible to hold that the property in schedule B (6) had been blended and had become the joint family property. 24. There was one aspect of the case which was vehemently pressed by Mr. V. Venkataraman, the learned counsel for the plaintiff first respondent. He stated that all the available evidence was only in the possession of the first defendant and that if he did not produce the said evidence, adverse inference should be drawn against him, and, in his submission, it should be inferred that the plaintiffs case that the family had an adequate income so as to leave a surplus to serve as a nucleus was proved. In this connection, he drew our attention to two decisions. Apart from the decisions cited above, we would examine other cases also, in due course. The first case relied on by him is Murugesam Pillai v. Manickavasaka Desika Gnana Sambandha Pandara Sannadhi and others1. That case related to one of the well-known Mutts in South India viz., the Dharmapuram Adinam. One Manickavasaka was the head of this Mutt, between 1873 and 1888. In 1875 one Arulananda raised a dispute regarding the headship of the Mutt and it ultimately ended in favour of Manickavasaka. In order to contest this litigation, the Mutt had to incur debts. On 24th June, 1883, Manickavasaka executed a mortgage of certain lands for the amount due to the creditor who had advanced monies for the purpose of this litigation. On his death in 1888 his successor Sivagnana recognised the binding nature of the mortgage. This Sivagnana surrendered his headship in favour of Manickavasaka II who also recognised the validity of the mortgage debt. A suit was instituted by the creditor's family for recovery of the amount due under the mortgage. One of the issues was, whether the debt was borrowed for a purpose binding on the Adinam. The High Court held that it was not proved that the loan was made for a binding purpose. The Privy Council reversed this decision. A suit was instituted by the creditor's family for recovery of the amount due under the mortgage. One of the issues was, whether the debt was borrowed for a purpose binding on the Adinam. The High Court held that it was not proved that the loan was made for a binding purpose. The Privy Council reversed this decision. The Mutt did not produce the books which were maintained by it and at pages 408 and 409 the Board observed as follows: “The practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough: they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships’ opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice”. Their Lordships also observed that it was proved in that case that the Mutt had regular books and that the best assistance to a Court would have been a scrutiny of those documents. Their Lordships, therefore, felt free to draw an adverse inference against the Mutt in that case. 25. This decision has been quoted with approval in Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others1. In that case the failure of the appellant to produce the account books admitted to be in his possession from which it could be seen how the income from the plot was dealt with was held to justify an adverse inference to be drawn against him. It was contended in that case that a particular plot of land belonged to the appellant and not to the Trust of which he was the Manager. He did not produce the relevant books and, therefore, an adverse inference was drawn against him and it was held that the property belonged to the Trust. There are two other decisions of the Privy Council, which are relevant in this context. 26. He did not produce the relevant books and, therefore, an adverse inference was drawn against him and it was held that the property belonged to the Trust. There are two other decisions of the Privy Council, which are relevant in this context. 26. In Bilas Kunwar v. Desraj Ranjit Singh and others2, the Privy Council pointed out at page 206 that it was open to a litigant to refrain from producing any documents that he considered irrelevant and that if the other litigant was dissatisfied it was for him to apply for an affidavit of documents, and that he could obtain inspection and production of all that appeared to him in such affidavit to be relevant and proper. If he failed so to do, neither he nor the Court at his suggestion was, their Lordships observed, entitled to draw any inference as to the contents of any such documents. This case was pressed into service in Gopal Krishnajee Ketkar v. Mohamed Haji Latif and others1, in favour of the individual, who contested the proposition that the property belonged to him and not to the trusts. In disposing of this contention, the Supreme Court relied on an unreported decision of Shah, J in Civil Appeal No 941 of 1965 decided on 15th April, 1968, in which it was observed as follows: “The observations of the Judicial Committee in Bilas Kunwar's case2, do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration (g) of section 114 of the Evidence Act, and also an impressive body of authority”. We may thus leave aside Bilas Kunwar's case3. 27. In Mahabir Singh v. Rohini Ramanadhwaj Prasad Singh3, the Privy Council was concerned with the question whether one Misrilal was born to Thakur Gir Prasad Singh or belonged to another branch viz, of Shivbaran Singh. We may thus leave aside Bilas Kunwar's case3. 27. In Mahabir Singh v. Rohini Ramanadhwaj Prasad Singh3, the Privy Council was concerned with the question whether one Misrilal was born to Thakur Gir Prasad Singh or belonged to another branch viz, of Shivbaran Singh. In that case the Subordinate Judge had commented on the non production of the horoscope and the books of account and held it to justify the inferences unfavourable to the respondent before the Privy Council On this aspect the Privy Council observed at page 91 as follows: “As regards the horoscope and the books of account there seems little doubt that these existed, and that, if still available and produced, they would have been of importance as evidence. But the circumstances under which the Court would be entitled to draw inferences unfavourable to the respondent are provided for by section 114 (g), Evidence Act, and the Court must be satisfied that the evidence could be produced. The appellant has not attempted to prove that the account books are in existence and could be produced It is most regrettable that the right of discovery is not fully taken advantage of in such a case as this, where documentary evidence, if it is still available, might afford valuable evidence. But the appellant's failure to exhaust this source cannot be used against the respondent”. It is clear from the above eases that though the Court can raise an adverse inference against a party withholding evidence available with him by reason of excessive reliance on a technical plea regarding the onus of proof, still it is necessary to prove that the relevant account books were in existence, and could be produced. P.W.1 of course, stated that a 1 the account books were with the first defendant. His evidence has not been accepted by the Court below as truthful and there is no reason to hold that as far as this part of his evidence is concerned, the deponent was making an exception and was speaking the truth Both Mr. V. Venkataraman, who appeared for the plaintiff and Mr. G. M. Nathan, who appeared for the second defendant, relied on the evidence of the first defendant himself as D W 4, who stated in his deposition that the father died in 1961 in his house and that the father had left the records. V. Venkataraman, who appeared for the plaintiff and Mr. G. M. Nathan, who appeared for the second defendant, relied on the evidence of the first defendant himself as D W 4, who stated in his deposition that the father died in 1961 in his house and that the father had left the records. He added that those records are not now available with him and that whatever he had filed as exhibits in this case were taken from the files kept in his cinema theatre. He stated also that he had kept on file the records in his cinema theatre and that for each section there was a file He admitted that there were records from the commencement of the cinema theatre and that he could produce them He, however, denied that these was any account for the touring cinema business. 28. The contention for the first respondent was that the appellant was relying on a technical plea of onus of proof and was proceeding as if it was not necessary for him to produce the account books. He commented that it was this kind of practice that had been deprecated by the Privy Council and the Supreme Court in no uncertain words; and that the appellant cannot now be heard to any that it was the plaintiff who has to prove how these monies for the construction were raised. In this connection our attention was also drawn to the fact that there was a notice to produce the relevant files and the account books by the counsel for the second defendant to the first defendant. 29. We are unable to hold that this notice to produce the documents given by the learned counsel for the second defendant can in any manner assist the plaintiff It was for the plaintiff to show that the cinema theatre owed its origin to the ancestral joint family resources. If really the plaintiff considered that there were account books or other files which would go to establish his case, it is he who should have taken action and called upon the first defendant to produce the relevant documents. If really the plaintiff considered that there were account books or other files which would go to establish his case, it is he who should have taken action and called upon the first defendant to produce the relevant documents. Even proceeding on the basis that an adverse inference was to be drawn against the first defendant by reason of the notice to produce the documents not having been complied with, the inference to be drawn cannot be in favour of the plaintiff It can only be in favour of the second defendant, who had given the notice The second defendant's case was that this cinema theatre was constructed out of the joint resources of himself and the first defendant. He denied that the cinema theatre belonged to the joint family, as such In paragraph 4 of his written statement he stated thus: “It is only out of the personal labour of this defendant and out of the joint efforts of defendants 1 and 2, the said cinema theatre has been constructed and is being run by defendants 1 and 2 Neither the plaintiff nor any other member of the family has got anything to do with the said theatre described in item (f) of Schedule ‘B’ to the plaint”. The notice to produce the documents was thus apparently to support the second defendant's case that it was the joint property of defendants 1 and 2 and not the joint family property. If, therefore, any adverse inference is to be drawn against the plaintiff from the non-production of the documents called for, then the inference could only he that the property was the joint property of defendants 1 and 2. The case of the second defendant that the theatre was the joint property of defendants 1 and 2 and that it did not belong to the joint family has been negatived by the Court below. It has also been held that the property belonged to the family, as such. The second defendant has not come forward with any appeal or any cross-objections. In these circumstances, even assuming that we draw any inference that the cinema theatre is the joint property of defendants 1 and 2, it is not going to assist us in the decision of the dispute now before us viz., whether the property belonged to the joint family or not. In these circumstances, even assuming that we draw any inference that the cinema theatre is the joint property of defendants 1 and 2, it is not going to assist us in the decision of the dispute now before us viz., whether the property belonged to the joint family or not. The adverse inference could only be that the property did not belong to the joint family. 30. The timing of this notice to produce is also significant. The plaintiff's evidence as P.W.1 was closed on 6tb December, 1975. D.W.1 (the second defendant) gave evidence on 10th December, 1975 and his evidence was closed on 23rd December, 1975. D.W.2 was examined on 2nd January, 1976 and D.W.2 on 3rd January, 1976 The first defendant gave evidence as D. W 4 on 5th January, 1976 His evidence was continued on 6th January, 1976, 7th January, 1976 and 8th January, 1976. At one place in his evidence on 8th January, 1976 he stated that there were account books. But a few sentences later he has also stated that be did not have the account books The other two witnesses viz D Ws. 5 and 6 were examined on 9th January, 1976 The evidence of D W. 4 is not clear to show that all the account books were with him. It contains some contradictions. At one place he stated that there were account books At another place he stated that he did not have the account books. The earlier version was that he had all kinds of accounts and had kept them separately. The present notice to produce was with reference to the files and the account books. His examination on 8th January, 1976 could have been utilised to find out as to where the books were in a more thoroughgoing fashion rather than in the halting manner attempted by extracting two sentences from him about the availability of the account books. The plaintiff could also have attempted to prove the existence of the books by getting a Commissioner appointed to verify the existence of the books and to bring them to Court if they were there. From the vague evidence of D.W.4, we are not able to conclude that the account books in relation to this business, especially for the period of construction, were available with the first defendant. From the vague evidence of D.W.4, we are not able to conclude that the account books in relation to this business, especially for the period of construction, were available with the first defendant. It must be remembered that he was giving evidence in 1976 and relevant books related to a period of 1947-48. The books to be produced should thus have been preserved for a period of 28 years, if they were to be available. We are unable to draw any inference on the facts herein that there were such books preserved for three decades nearly, and they were withheld from production by the first defendant. 31. Mr Venkataraman contended also that the relevant income-tax assessment orders had not also been produced and that they would have thrown a flood of light on the availability of resources. On this aspect instead of asking us to draw an adverse inference, it would have been more useful if the plaintiff himself had applied to the Income-tax Authorities for copies of assessment orders Under Income-tax Act, 1961 , there was a provision, section 137, which barred the disclosure of information contained in any statement made to the Income-tax Officer or any document produced before the Income-tax Officer or any record of asseesment etc. This provision was deleted with effect from 1st April, 1964. Thus the secrecy which shrouded the income-tax assessment orders and the supporting documents has been lifted and, therefore, the plaintiff could at least have made some effort at trying to get at the relevant materials from the Income-tax Department and having them produced before the Court. The plaintiff, having regrettably failed to take advantage of this position and the right of discovery and inspection, cannot ask us to ignore his defaults and to draw adverse inferences merely on a theoretical assumption that there were certain records available with the first defendant and that they had not been produced. 32. The whole case of the plaintiff had thus ultimately to be rested on Exhibit A-1, dated 30tb May, 1948. That was a document creating a mortgage in favour of one Ranganayaki Ammal The executants of the document were Angammal, the mother, defendants 1 and 2 and the plaintiff The document recited that the scheduled property belonged to Angammal as her self-acquisitions. That is the property measuring 13 acres and 70 cents described in schedule B (b). That was a document creating a mortgage in favour of one Ranganayaki Ammal The executants of the document were Angammal, the mother, defendants 1 and 2 and the plaintiff The document recited that the scheduled property belonged to Angammal as her self-acquisitions. That is the property measuring 13 acres and 70 cents described in schedule B (b). It further recites that on 19th November, 1S47, a lease had been granted in respect of 64 cents of land in favour of the first defendant and the construction thereon. It is added that the landed property which was a self-acquisition, and the cinema theatre, which was common to the family, were offered as security for a sum of Rs. 15,000 advanced on that day by the said Ranganayaki Ammal. 33. The case of the plaintiff is that by reason of Exhibit A-1 this property had clearly assumed the character of a joint family property. It was in this connection that several decisions on the question of blending rendered under the Indian Income-tax Act of 1922, were brought to our notice. One of those decisions was of this Court in Subramania Iyer v. Commissioner of Income-tax, Madras1and this case was followed by the Andhra Pradesh High Court in Duggirala Sadasi a Vittal V. Bolla Rattalu and others2, and it was held that a person might impress his self acquired or separate property in whole or in part with joint family character by a declaration of clear intention. It was further observed that it was not necessary that he should convert the entire selfacquired property into joint family property. By a statement in a deposition, an affidavit or a document, or by course of conduct he might alter the character of the self-acquired or separate property into joint family property, and no formalities were required for impressing the self-acquired property with the character of joint family property. In that case it was held that the father had treated the particular property as the joint family property by including it in the partition deed and taking it for his share and agreeing to pay a sum of Rs 500 to the son in lieu of the house. The proposition that no particular formalities are required to impress the self-acquired property with joint family character is not in dispute. We do not, therefore find it necessary to go into the several decisions cited before us. 34. The proposition that no particular formalities are required to impress the self-acquired property with joint family character is not in dispute. We do not, therefore find it necessary to go into the several decisions cited before us. 34. But the question before us is whether the recital in Exhibit A-1 can be said to be effective to convert the theatre, which was the separate property of the first defendant, into a joint family property At the time when Exhibit A-1 was executed, the father of the plaintiff and defendants 1 to 3 was alive. He was not a party to the said document. It is only Angammal, the plaintiff and defendants 1 and 2, who have executed the document. When the father was alive, he would ordinarily be the kartha of the joint family, and if the property belonged to the joint family, it was he who should have executed the mortgage. If the mortgagee required, the other members of the family might have joined the execution of the deed, but the primary right to mortgage in respect of the joint family property was with him. He did not join in the execution. The plaintiff has alleged in the plaint that even during the lifetime of the father, it was the first defendant, who was acting as the kartha The document does not suggest that the first defendant was acting as the kartha in executing the document Thus, the basic ingredient to show that the property is joint family property is absent in this case. In order that a property should lose its character as separate property and should assume the ‘character of joint family property, as discussed already, there must be evidence to show that the owner voluntarily threw the property into joint stock with the intention of abandoning all separate claims on it. We have thus to see whether there has been any conscious abandonment of the separate character of the property by the first defendant by throwing into the common hotchpot the said property. 35. Before we go into the question of blending, it may be pointed out that the very concept of blending involves that the property was initially the separate property of a particular member, who threw it into the common hotchpot In the present case the plaintiff does not allege that the property was ever the separate property of the first defendant. Before we go into the question of blending, it may be pointed out that the very concept of blending involves that the property was initially the separate property of a particular member, who threw it into the common hotchpot In the present case the plaintiff does not allege that the property was ever the separate property of the first defendant. Thus, the concept of blending would be destructive of the plaintiff's case as alleged in the plaint. 36. In this connection we may examine two decisions, one of a Bench of this Court in Naina Pillai and others v. Daivanai Ammal1. That was a case of karnam service inam which had been enfranchised. On enfranchise ment, the lands formed the separate property of the person in whose name they were enfranchised. The question was whether by reason of the property being dealt with as the joint family property, it had lost its character of self-acquired property Madhavan Nair and Stone, JJ, referred to the fact that in several documents the properties were treated as joint family properties and in document after document they were described as ancestral joint family properties and dealt with as such In spite of these features, the learned Judges went into the question of blending and referred to a decision of Reilly J., in Periakaruppan Chetty v. Arunachalam Chetty2, in which it was observed that the separate property of a Hindu acquired the characteristics of his joint family, not by any physical mixing with his joint family or ancestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property After referring to the above decision, the learned Judges observed at page 179 as follows: “The question is clearly one of intention: did the plaintiff's husband voluntarily throw into the common stock the suit properties knowing them to be his self-acquired properties and intending to treat them as joint family properties? There is no evidence of any such intention on the part of the plaintiff's husband in this ease. There is no evidence of any such intention on the part of the plaintiff's husband in this ease. The evidence only shows that the father of the plaintiff's husband treated the properties as joint family properties (see Exhibit A-1 dated 11th September, 1892) and the sons thereafter continued to treat the same in a similar manner, though by the process of enfranchisement on 9th May, 1891, the properties had become the separate properties of the plaintiff's husband. It does not show that at any time the plaintiff's husband abandoned his separate rights to the properties and surrendered them in favour of the family.” 37. If in spite of the property having been dealt with in a number of documents, as if it was the joint family property, the inference was drawn that it had not lost its character as separate property, in our opinion, the inference in this case that the property continued to be the separate property of the first defendant is a fortiori as the description is solitary and isolated. It is not possible to read Exhibit A-1 as if it discloses any intention on the part of the first defendant to abandon his separate rights, and to impress the particular property with the joint family character. It was suggested for the first defendant, and his evidence also reiterates it, that the description was in pursuance of the desire of the mortgagee to see that no dispute was raised at the time of the recovery of the money due under the mortgage. 38. Even P W. 1, who relies heavily on Exhibit A-1, has candidly admitted in his cross-examination that the recitals in Exhibit A-1 were incorporated at the behest of the mortgagee and that the loan could not have been raised unless the mortgagee's conditions were agreed to. 39. In these circumstances, and in the absence of independent testimony, it is not possible to draw an inference either way. We would only state that Exhibit A-1 cannot be taken as a conscious abandonment of the individual rights of the first defendant in the cinema theatre. 40. In this connection, the learned counsel for the first respondent, Mr. V. Venkataraman, sought to rely on a decision in Mst. Ramrati Kuer v. Dwarika Prasad Singh and others1. We would only state that Exhibit A-1 cannot be taken as a conscious abandonment of the individual rights of the first defendant in the cinema theatre. 40. In this connection, the learned counsel for the first respondent, Mr. V. Venkataraman, sought to rely on a decision in Mst. Ramrati Kuer v. Dwarika Prasad Singh and others1. The proposition for which the case was cited was that the first defendant must be presumed to know that the statement that he made was against his interest and that he cannot get away from the effect of the statement he had solemnly made. In that case Mst. Phulbehari Kuer executed a gift deed in favour of Ram Rati, her step daughter, claiming that she had inherited the property on the death of her husband Basudev Narain, who in his turn, had inherited it from his father Ram Ruch. The respondents, the sons of a brother of Ram Ruch, claimed title to the property and filed a suit challenging the gift deed on the ground that Basudev Narain had not survived Ram Ruch and, that, therefore, on the death of Ram Ruch in or about 1920, his daughter-in-law could not have inherited his property under the Hindu Law, as it then prevailed. Phulbehari Kuer had filed a suit for recovery of the amount due under a mortgage in favour of her husband in 1924, and in the course of that suit she made a statement to the effect that her husband had predeceased her father-in-law, who, afflicted by the brief on the death of his only son, disappeared and had not been heard of since. When that statement was made there was no dispute as to who died first, Basudeo-Narain, the son, or Ram Ruch, the father. The question before the Supreme Court was whether this statement in the mortgage suit was admissible in evidence, and whether the statement made by the donor in the gift deed was admissible to contradict the statement she made in the mortgage suit. The question before the Supreme Court was whether this statement in the mortgage suit was admissible in evidence, and whether the statement made by the donor in the gift deed was admissible to contradict the statement she made in the mortgage suit. It was held that the statement in the mortgage suit, was against the proprietory interest of Phulbehari, as in the event of her husband Basudev Narain predeceasing his father, the last male holder would be the father-in-law and she, as the daughter-in-law could not succeed to her father-in-law under the law prevalent then and that it would be admissible in evidence under section 32 (3) of the Evidence Act, as she was dead by that time. As between the two statements, one made in the mortgage suit and the other in the gift deed, the Supreme Court held that the statement a the mortgage suit carried greater weight, as it was made at a time when there was no dispute in the family. The real question in that case was the determination of the relative validity between the two statements, one made in the Court in a suit and another made in a document, which was challenged. As the statement made in the Court had been made consciously, and not at the instance of anyone, she was, thus, presumed to know that the statement was against her proprietory interest and that it was relevant as an admission. It was in that context that their Lordships held that the earlier statement at a time when there was no dispute had to be preferred to the statement contained in the gift deed, which was contradictory to the earlier statement. We do not consider that this decision lays down any universal proposition of law as if the statement contained in any document cannot be examined to find out whether it represented the truth or not. In fact, in the said case their Lordships stated that the question whether the statement was made consciously with the knowledge that it was against the interest of the person making it would be a question of fact in each case, and that it would depend in most cases on the circumstances in which the statement was made. In the present case we are unable to hold that the first defendant made any conscious statement against his own interest in Exhibit A-1. In the present case we are unable to hold that the first defendant made any conscious statement against his own interest in Exhibit A-1. The occasion when the statement was made also goes to show that it was made when the first defendant was badly in need of funds for construction of the theatre. It would not thus be a voluntary statement made with a view to abandoning his individual rights. We do not consider that the said decision, in any manner, weakens the proposition laid down in Naina Pillai and others v. Daivanai Ammal1. 41. In all cases of blending we have to examine whether the document embodies a conscious statement abandoning the individual right and conferring rights on the joint family. If there is no conscious abandonment of the individual right or the circumstances do not show that there could not have been any conscious abandonment, then it would be futile to rely on a vague statement made in such a document. 42. The conduct of the parties subsequent to this document does not show that there was any such blending as contended by the plaintiff. The second defendant himself claims that the property does not belong to the family. Thus, the whole case rests on the testimony of the plaintiff as to the effect of Exhibit A-1. The licence continued to stand in the individual name. There is no evidence of any participation by the members of the joint family in the affairs of this business. The subsequent litigation for eviction and the purchase of the property have all been attended to only by the first defendant. The plaintiff did not state that he had anything to do with this litigation or the purchase. In these circumstances, we are of the opinion that the first defendant continued to be the owner of the cinema business and that the family had acquired no title to it. We, therefore, disagree with the finding of the Court below that the property described in schedule B (f) belongs to the joint family. 43. The only question that now remains for consideration is whether the decree for accounting passed by the Court below in respect of the property in schedule B (a) was proper? We, therefore, disagree with the finding of the Court below that the property described in schedule B (f) belongs to the joint family. 43. The only question that now remains for consideration is whether the decree for accounting passed by the Court below in respect of the property in schedule B (a) was proper? The relevant portion of the decree reads at follows: “that the first defendant be and is hereby liable to account for the income in schedule B (a) and B (f) properties mentioned hereunder”. As the properties in schedule B (f) have been held to be the separate properties of the first defendant, there is no question of any accounting by him. As far as the properties in schedule B (a) are concerned, it is settled law that in the absence of proof of misappropriation or fraudulent and improper conversion by the manager of a joint family estate he is liable to account on partition only for assets which he has received, not for what he ought or might have received if the family money had been profitably dealt with. Further, in the absence of any proof of malfeasance, a coparcener seeking partition is not entitled to require the manager to account for his past dealings with the family property. A coparcener seeking partition is only entitled to an account from the manager of the joint family assets as they exist at the time he demands partition and he cannot call upon the manager to account for his past dealings or to defend the propriety of his past transactions in respect of the family property, unless it is established that he had fraudulently misappropriated the family funds for his own benefit. See Balakrishna v. Muthusami1and also Jonnagadla Seethamma and another v. Jonnagadla Veeranna Chetty and two others2. See also Mulla's Hindu Law, Fourteenth Edition, paragraph 238, page 297 and N. R. Raghavachariar's Hindu Law, Seventh Edition, paragraph 280, page 297. As there is no malfeasance made out on the facts herein, the decree for accounting for the past profits is, therefore, wrong. The plaintiff would be entitled to accounting from the date of the suit in respect of the family properties in respect of which a preliminary decree is passed. 44. The result is that the appeal is allowed accordingly; but in the circumstances with no order as to costs. 45. The plaintiff would be entitled to accounting from the date of the suit in respect of the family properties in respect of which a preliminary decree is passed. 44. The result is that the appeal is allowed accordingly; but in the circumstances with no order as to costs. 45. After the judgment was pronounced, the learned counsel for the first respondent Mr V. Venkataraman asked for leave to appeal to Supreme Court under Article 134 (A) read with 133 (1) (C) of the Constitution of India. The whole case had to deal only with the question whether certain properties were joint family properties or the individual properties of one of the members. The entire discussion is based only on the evidence and it is a question of fact that was decided by this Court. The question of onus is well-settled, as the discussion would show. Learned counsel referred to the discussion on adverse inference to be drawn by reason of the non-production of the account books etc. by the first defendant-appellant based on the cases cited by him. Even here, we have relied on the first respondent not establishing the existence of the account books and the vague nature of the evidence bearing on this aspect. We do not consider that this is a case in which leave to appeal to the Supreme Court can be granted, as there is no substantial question of law of general importance that requires to be decided. The oral application Is rejected. R.S. ----- Appeal allowed.