The burden of proof in establishing separate property and the admissibility of statements in a will were central to the judgment.

Varadachariar, J.

1. The appellant instituted the suit on the footing that he had become entitled to the suit properties by the rule of survivorship, on the death of his uncle, one Subbarayudu, in July 1919. Subbarayudu left a will, Ex. XVIII dated 12th July 1913 and defendants 1 to 6 claim as legatees under that will. Questions were raised in the lower Court as to the genuineness of this will and after elaborate trial, the learned Subordinate Judge found that the will was genuine; but as the plaintiffs claim by survivorship, if well founded, would by itself suffice to defeat the operation of the will even if it were true, his learned Counsel here did not attack the lower Courts finding on the question of the genuineness of the will and confined his arguments to the plaintiffs claim under the rule of survivorship.

2. The question argued before us is substantially that raised by the 4th issue in the case. The latter part of that issue related to a contention that even if the suit properties were in any sense and to any extent the self-acquired properties of Subbarayudu, he had thrown them into the common stock and thereby made them joint properties. This aspect of the matter has not been pressed before us. On behalf of the appellant Mr. Kothandaramayyas main argument was that at a. time when the plaintiff was only an Infant, Subbarayudu must on the death of the plaintiffs father have come into possession not merely of the 5 acres of ancestral lands admittedly belonging to the family in their native village but also of a substantial sum of cash which must have formed a nucleus for Subbarayudus subsequent earnings. In the lower Court, an argument seems to have been advanced to the effect that even the income from the family lands in the village could have been substantial, but the learned Subordinate Judge has found that the lands did not yield anything more than a few rupees in those days and even these few rupees were not shown to have come into the hands of Subbarayudu at any time, as he was serving as a public servant in a place far away from his native village. This part of the lower Courts finding has not been challenged before us either.

3. The story sought to be developed on the plaintiffs side in the course of the evidence was that about the time of the plaintiffs fathers death, i. e., in 1876, some amount, put by one witness at about Rs. 1,600 and by another witness at about Rs. 5,000 stood in deposit in the plaintiffs fathers name with a merchant of Cocanada known as Chinna Gopalam and that some years after the plaintiffs fathers death this amount was withdrawn by Subbarayudu. It is contended that the evidence of P. Ws. 1 to 3 read in the light of Ex. D clearly establishes this part of the story. It may be conceded that if it is proved that this sum of Rs. 5,000 or any similar amount stood in deposit in Somarajus name at about 1876 and came into Subbarayudus hands after Somarajus death, it will be a very important circumstance sufficient to throw upon Subbarayudu and those claiming under him the onus of proving that Subbarayudus subsequent acquisitions are not traceable to that fund and have not been mixed with that fund. Attention has therefore been directed to a critical examination of this part of the plaintiffs story.

4. At the outset, it seems to us that the learned Subordinate Judge was justified in looking upon this part of the story with great suspicion, because it was not suggested even in the rejoinder statement filed by the plaintiff on 24th August 1928. It seems to us that the lower Court rightly suspected that this part of the story must be an after thought suggested by Ex. D, which is a letter purporting to have been sent to Subbarayudu in November 1884 wherein reference is made by Chinna Gopalam to some deposit standing with him in Subbarayudus name and asking him for directions as to its disposal.

5. We may mention in passing that an attempt was made in the lower Court to lead further documentary evi