The main legal point established in the judgment is that the mingling of separate funds, one being joint family property and the other separate property, leads to the inference that both funds become joint family property if the intention to treat them as such is evident.

Phillips, Offg. C.J.

1. The finding of the lower Court which has been especially attacked in this appeal is a finding that the defendant (appellant) mingled his earnings as a vakil with the income from the admitted joint family property and thereby must be deemed to have thrown his self-acquisition into the common fund. Admittedly there was an income of at least Rs. 280 from the joint family property and this came into the defendants hands on the death of his brother who was the husband of plaintiff 1. The main contention raised in appeal is that this income from the joint family property was insufficient for the mere maintenance of the defendant, his wife, his mother and four children and that therefore, he utilized other moneys to provide such maintenance and it is argued that there can be no inference from that fact that he intended to make these other moneys, or rather his self-acquisition, joint family property. This contention has been specifically negatived by the Privy Council in Rajani Kanta Pal v. Jaga Mohan Pal A.I.R. 1923 P.C. 57, where they say:

Indeed, the fact urged on behalf of the respondents that joint family expenses exceeded all the property which, according to their contentions, was properly joint, in their Lordships opinion tells against the respondents instead of in their favour.

2. That remark is equally applicable to the facts of the present case.

3. It is contended that beyond the amount of money taken from the defendants self-acquisition and spent on the joint family there is no inference that the rest of the self-acquisition was similarly treated. This is quite a possible state of affairs and it was open to the defendant to prove it by showing that he did not treat his two sources of income as one and that he treated his self-acquisition as a separate fund and the income from the family property as another separate fund. This he evidently did not do and he has not produced any accounts to show how he has dealt with the two funds in his hands. He says that he keeps no private accounts, but he must keep an account for his profession and even that might have been of some assistance in determining the manner in which the moneys have been appropriated. He has admittedly mingled a portion of the one fund with the other thereby raising a presumption that he has treated the whole of that sum as joint family property, and the presumption must be carried further, in the absence of proof to the contrary, that the two funds which have been mingled were treated as bearing one characteristic, namely, that of joint family property Many cases have been cited by the appellant, but they all embody the same principle that, where two separate funds are mixed, one being joint family property and the other separate property, the mingling makes them both joint family property. The facts of those cases are no doubt quite different from what we have before us, but the principle is the same all through. The lower Courts finding on this point must, therefore, be accepted.

4. The next question that is raised is in regard to arrears of maintenance. Plaintiff 1 has claimed just over 8 years arrears of maintenance. She is legally entitled to do so, and, in fact, Courts will not disallow the claim, unless abandonment or waiver is expressed or can be implied from the circumstances of the case. There is no plea in the present case that there has been abandonment and, although it is curious that plaintiff 1 should have kept quiet for so many years without suing for her maintenance, we have the evidence of P.W. 11 who is an uncle of the defendant that demands had been made from 1914 onwards but to avoid unpleasantness in the family no suit was filed. Finally plaintiff 2 attained an age when she was about to be married and for this purpose plaintiff 1 has not sufficient funds and has now come forward not only for her maintenance but also an allowance for the marriage expenses. That is a very plausible explanation for her not suing e