The mere fact that a son gives assistance to his father in business without remuneration does not necessarily make the business a joint family business.

RAMANUJAM, J. :- The first defendant in O. S. No. 11124 of 1960 on the file of the City Civil Court, Madras, is the appellant. The first respondent herein filed the suit for partition of plaint A and B schedule properties and for separate possession of her one-fourth share therein and for rendition of accounts of the income derived by the first defendant from the properties from 19-4-1958. Her case was that the properties set out in the plaint A and B schedules belonged to her husband, Chellappa Naicker, the father of defendants 1 to 3 and grandfather of defendants 4 to 8, that the said properties were acquired by Chellappa Naicker out of his own earnings, that Chellappa Naicker died on 19-4-1958, that the plaintiff and defendants 1 to 3 have succeeded to his properties each being entitled to a one-fourth share in them, that the first defendant refused to comply with the plaintiff's demand for partition and separate possession of her one-fourth share, that he set up a will, alleged to have been executed by the said Chellappa Naicker bequeathing all the suit properties to him exclusively, that the will set up by the first defendant was not true and valid and that, therefore, she has been compelled to file the suit for the reliefs abovementioned.

2. The first defendant resisted the suit contending that himself and his father Chellappa Naicker constituted an undivided Hindu family, that even at the age of 15 he gave up his studies and joined his father to help him in his trade as tinker and steel trunk manufacturer from 1930 onwards, that the A schedule properties were all acquired out of the earn ing of the said joint family trade, that his father threw the earnings into the common family pot and the properties were acquired out of the earnings of the joint family business and that in any event the acquisition of properties were out of the joint exertions of himself and his father. He further contended that his father has executed a will under which the properties have been bequeathed exclusively to him and that the plaintiff and defendants 2 and 3 have no rights therein. He also pleaded that even if his father is taken to have died intestate, the properties being joint family properties, he is entitled to a half share in his own right and to a one-fourth share in the share left by his deceased father. The first defendant also pleaded that even during the lifetime of his father the said business had been gifted to him. Thus the substantial defence taken by the first defendant is that the plaint A and B schedule properties are not divisible and that they belonged exclusively to him and that the business conducted in the name of the father also belonged to him exclusively.

3. Defendants 2 and 3 supported the case of the plaintiff and they prayed for allotment to them of one-fourth share each in the plaint schedule properties as also the business.

4. Defendants 4 to 8 who are the sons of the first defendant contended that the business and the properties set out in A and B schedules are ancestral and joint family properties as they have been acquired with the help of ancestral nucleus and by joint exertions of their father and grandfather. They also pleaded that the business of 'Dhanalakshmi Brand Steel Trunk Works' is a joint family business and not the exclusive business of their grandfather.

5. On these rival contentions the court below had to consider (1) whether the properties set out in the plaint A and B schedules as also the business of Dhanalakshmi Brand Steel Trunk Works belonged exclusively to the first defendant as a result of the will said to have been executed and the gift said to have been made by his father Chellappa Naicker in favour of the first defendant and (2) whether the suit properties and the business continued to be the exclusive properties of Chellappa Naicker at the time of his death or whether they belonged to the joint family of the first defendant and his father.

6. Though a will has been set up by