The court's discretion in allowing the payment of fee under Section 149 and the lack of evidence to support claims of joint acquisition or ancestral property were the central legal points established in the judgment.

1. The true question is as to whether the appeal is out of time. The appellant under Order 44 presented an application for leave to prosecute his appeal in forma pauperis accompanied by a memorandum of appeal as required by the order. The application for leave was two months out of time and was filed on the last day allowed for filing the appeal. Eight days later the court returned the application and the memorandum on the ground that the application was out of time and gave two days time to explain the delay. Two days later the appellant again presented the memorandum of appeal with the full Court fee and applied under Section 149 that the delay should be excused. In the case of plaints insufficiently stamped Order 7, Rule 11 (Section 54 of the old Code). the Court is bound to give a few days to pay the correct fee. Delay could be excused if the insufficiency was caused by a mistake as to the amount of the requisite stamps. But under Section 149 it is now left to the discretion of the Court.

2. In Balkaran Bai v. Gobind Nath Tiwari (1890) I.L.R. 12 A. 129 at 151 the opinion was expressed that these provisions of Section 54 as regards a plaint were not made applicable to a memorandum of appeal by virtue of Section 582. To meet this decision a new Section 582-A was inserted which allowed the admission of insufficiently stamped memorandum of appeal presented within proper period of limitation provided the insufficiency of the stamps was caused by a mistake on the part of the appellant as to the amount of the requisite stamps. This enactment appears to us to recognise the correctness of the Allahabad ruling that Section 54 did not apply to memorandum of appeals as, if it did, there would have been no need for the new section. Then we come to the present Code which for Section 582-A substituted anew Section 149 not confined to memoranda of appeals but giving the Courta discretion in all cases to allow the payment of the fee at anytime. This in our opinion is the section which governs the present case, and with respect we are not satisfied as to the correctness of the ruling in Achuta Ramchandra v. Nagappa Bab Balgya (1913) I.L.R. 38 B. 41 that under the present Code Order 7, Rule 11 is rendered applicable to memoranda of appeals by Section 148 so as to make it incumbent upon us to admit memoranda out of time where the conditions of the rule are complied with. In the present case we are not prepared to differ from the exercise of the single judges discretion in admitting the appeal. A.S. No. 227 of 1910.

3. Akkaraja Rama Doss had two sons, Sitaramayya and Janakiramayya. The plaintiff is the grandson of Sitaramayya. The defendant is the widow of Janakiramayya, who died in 1907. This suit is for the recovery of his property on the ground that the plaintiff and the deceased were members of an undivided Hindu family and that by survivorship the plaintiff has become entitled to it. The case for the defendant is that the properties were the self-acquisition of Janakiramayya.

4. The Subordinate Judge upheld the defendants plea and dismissed the suit. Hence this appeal.

5. The plaintiff bases his claim on two grounds : (a) that Ram-doss the common ancestor of himself and Janakiramayya acquired large property with the aid of which the latter purchased the properties in suit and (b) that his grandfather Sitaramayya and Janakiramayya had thrown their earnings into a common stock, and that the properties sued for represent the savings and accumulations from the joint acquisition. We have heard Mr. Prakasam at considerable length and we are not satisfied that either of these allegations has been made out in this case. Ramdoss was apparently a man of methodical habits : he kept accounts and although owing to lapse of time, all of them are not available, Exhibit E which relates to the period immediately preceding his death shows that he left only Rs. 84 and odd at the time of his death. This sum has been proved to have been spent for his fune