Judgment

BEG,J. - This is a defendants 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 & 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.

4. It appears that the defendant-appellant had also filed a money suit in the Court of the Munsif only against defendant No. 3, one of the four brothers, but all of them were impleaded in the partition suit. The money suit was, however, transferred to the file of the Additional Sub Judge and tried together with the partition suit and was also decreed by the Additional Sub Judge of Alleppey on the same date as the partition suit. The plaintiff-respondent had appealed against both the decrees in the High Court. The two appeals were heard and decided together by the High Court. The High Court, after pronouncing judgment in the partition suit, proceeded to give judgment, under a new heading and number of the appeal in the money suit. It said, in this separate judgment:

"The suit that gave rise to this appeal has been instituted by the respondent against the appellant for money due on 14-10-1123 on account of tobacco delivered to the latters shop. The defence was that the trades run by both the brothers were parts of the joint family trade, and not separate to foster such a claim by the respondent on the appellant. The court below, having found in the other suit the shops run by the parties to belong to the concerned individuals, has decreed the suit. As we have reversed