Property acquired by Karta of the family having no source of income to be treated as property if the family.

Plaintiffs in O.S. No. 308 of 1981, on the file of Sub Court, Vridnachalam, are the appellants herein.

2. One Muthappa Udayar had two sons and a daughter, by name Chinnadurai, Subramania Udayar and Pattu Ammal. Muthappa Udayar died in 1965 leaving behind his widow Pakkiyam Ammal two sons daughter named above. Chinnadurai died in 1968 issueless and unmarried. The suit for partition was filed by the widow of Muthappa Udayar as first plaintiff and the wife of Subbmania Udayar and his children born in that marriage, as plaintiffs 2 to 4. Subramania Udayar is the first defendant and Pattu Ammal, daughter, is the second defendant. First plaintiff claimed half share and second plaintiff claimed 5/24 share in the property, and they wanted all the plaint schedule items to be divided by metes and bounds. In the B Schedule, there are 11 items of immovable properties. It is alleged in the plaint that all the items belong to the joint family of Muthappa Udayar, and after the death of Muthappa Udayar first defendant came into management of the same. 'C' Schedule items are movables. A claims as also made by third plaintiffs that he is entitled to get future maintenance from first defendant, i.e., her father. A further claim made that first defendant was bound to contribute for the marriage of third plaintiff. Plaintiffs claimed past mesne profits, and also future mesne profits to be decided under O. 20, R. 12, C.P.C.

3. First defendant remained ex parte, and the contest was mainly by alienees. It may not be out of place to state that there is also allegation in the plaint that the first defendant has borrowed huge amounts from third parties and the debts are not binding on the share of plaintiffs, and the creditors should be presented from realising the amount from the share of plaintiffs. The main reason for making such an allegation was that the debates were incurred for illegal and immoral purposes. It is alleged that the first defendant was keeping a concubine and he was a drunkard and the family was never benefited under his management as he was a spendthrift.

4. The lower Court, after a long trial, passed a preliminary decree in regard to all items except items 9 and 10 and also the immovable properties.

It also directed the first defendant to pay a sum of Rs. 5, 000/- for the marriage expenses of third plaintiff. No amount was awarded towards maintenance claimed by third plaintiff. Aggrieved by the preliminary decree, plaintiffs have come to this Court with regard to that portion of the decree which went against them.

5. In the various grounds taken in the Memorandum of Appeal, it is said that even in regard to B Schedule Items 9 and 10, the suit ought to have been decreed. It is further contended that the declaration ought to have been given that the debts incurred by first defendant are not binding on none of the plaintiffs, though such a declaration was given only in respect of first plaintiff. In regard to 'C' Schedule item also, a claim is made in the Appeal.

6. Even though notices have been served on all the respondents, I did not have the opportunity of hearing the case of respondents. I heard learned counsel for appellant/plaintiffs alone in this Appeal.

7. Learned counsel for the appellants put forward the following submissions :- In regard to Item No. 9, the lower Court went wrong in dismissing the suit and upholding the claim of the 16th defendant, which cannot be supported. It is contended that the first defendant was the manager of the family and when he purchased the property, he continued as Manager. He had no separate source of income, and the B Schedule items were in his possession and management during the relevant time. Being the manager, his possession towards the family is that of a trustee, and law presumes that his acts are consistent with his position as manager, i.e., his acts were to the benefit of the family. It was also argued that the defence was taken only by the alienee, and first defendant has not