Backewell, J - (1.)The question in this case is whether the property disposed of by the Will of one B. Madurai Chetty, is property over which he had a power of testamentary disposition or whether it was joint family property. The testator had been engaged in a business in piece-goods in which his immediate family ancestor had been engaged for some years. His father, Lakshmiah Chetty, and his uncle, B. Munuswami Chetty, carried on business together as hawkers of piece-goods for some time and after Lakshmiah s death in 1876 or in 1877, B. Munuswami Chetty and the testator carried on the same hawker business. In 1885, the testator, B. Munuswami Chetty, and the 1st witness for the plaintiff, C. Munuswami Chetty, opened a piece-goods business with one Ramaswami Chetty, the testator s brother, a child about 9 or 10 years old. The 1st witness for the plaintiff stated that the testator and his relations brought in a capital of about Rs. 2,000 for the business but no accounts have been produced. That business was carried on for 12 years and in 1897, the 1st witness for the plaintiff separated from the business and the testator, B. Munuswami Chetty and one Narayanaswami Chetty, the 1st witness for the defence, who was the son of B. Munuswami Chetty, carried on the piece-goods business up to the year 1903. In that year, these three persons executed a Muchilika appointing arbitrators for the partition of their properties which was carried out by means of a partition-deed, Exhibit D, dated 4th July 1903.
(2.)With regard to the allegation of the 1st witness for the plaintiff that a capital of Rs. 2,000 was brought into the business in 1885, no accounts have been produced and his evidence is highly partisan and I am not inclined to put much faith in that statement. Obviously, the previous business that had been carried on by Lakshmiah and his brother was a small hawker business and it is quite possible that it was carried on with borrowed capital. With regard to any capital that might have been required for the business which was started in 1885, no accounts have been produced and the statement of the first witness for the plaintiffs that the testator and B. Munuswami Chetty carried large capital of Rs. 60,000 into the new business must also be regarded with considerable doubt. I think it, therefore, safer to assume that when business was commenced in 1897, it was with little or no capital. There is no reliable evidence to prove what the new capital of the business consisted of. The accounts of the business from 1897 to 1903 have not been put in but Narayanaswami, the first witness for the defence, has given a general description of the accounts that were kept. He said: "There are not several accounts of drawings in the firm books. There is one account of household expenses. There is no capital account. There is nothing to show division of profits. We did not divide profits. What was taken was for household expenses and that was not divided. No individual accounts were kept for what was expended." He then says that immovable properties were largely purchased out of the profits of the business in the names of Munuswami and Madurai, the testator. It is admitted that all but two out of 13 properties are in the names of Munuswami, representing one branch of the family, and Madurai the other.
(3.)Then, with regard to the family life of the parties, the same witness says: "I have lived there (i.e., the house which stands in the name of Muthialammal, his grandmother) ever since I can remember. It is one of the family properties included in the division (in Exhibit B). We all lived there before any business was started as owners. There was a passage between two houses. After I came of age, the next house was bought. There was one cooking, one food."