Beg, J. - (1.) This is a defendant's appeal by certificate granted by the Kerala High Court under Art. 133 (1) (a) of the Constitution as a matter of course before its amendment because the High Court had modified a decree in the partition suit and the subject-matter satisfied the requirements of the unamended Art. 133.
(2.) The parties to the partition suit are descendants of Narayana Prabhu (hereinafter referred to as Narayana). Krishna, the plaintiff (now dead) was the 3rd son of Narayana. The defendant appellant, Venkateswara, was the eldest of the four sons of Narayana. The partition suit related to 72 items mentioned in Sch. A to the plaint claimed by the plaintiff to be joint family property. It appears that there was no dispute with regard to certain items. but, the defendant-appellant claimed other items as his exclusive property on the ground that they had been purchased from his personal income due to his own enterprise and exertions and ability in carrying on business. The trial Court had accepted the case of the defendant-appellant that all items, except No. 35 and a part of item No. 52 which belonged to the 3rd defendant, were the self acquired properties of the defendant-appellant. The High Court reversed this finding on the ground that there was "little reliable evidence on record as to the exact source of the fund with which the first defendant started the trade." The High Court rejected the submission of the defendant-appellant that. when the tobacco business under consideration was started, Narayana being the karta of the family, the fact that the eldest son Venkateswara, the defendant-appellant, was carrying on the business, raised a presumption that it was the separate or self acquired business of Venkateswara. The High Court relying on certain documentary evidence, including the letter-heads showing the business as that of "P. N. Venkateswara Prabhu and Brothers" held that the business was joint family business.
(3.) The partition suit was filed originally in another Court but was sent to the Court of Second Additional Sub-Judge of Alleppey in 1957, and the preliminary decree was passed on 5th August, 1960. The High Court allowed the appeal, modifying the decree to the extent that 3/4th share of items 4 of 72 of the schedule, except item 35 and part of 52 standing in the name of the 3rd defendant, were held to be partible properties as part of joint family business, but it excluded assets which came into existence after the filing of the partition suit which operated as a clear unequivocal expression of intention to separate. It also left the extent of mesne profits of landed properties to be decided in proceedings for the passing of the final decree.;