1. This is a suit for partition by one Haridas Velji against his father Velji Chaturbhooj and his elder brother Jugjivan Velji. The eldest son of Velji, Popat, executed a release to his father in the year 1905, and has, therefore, withdrawn from all participation in the joint family estate.
2. It is contended on behalf of defendant Jugjivan that all the property, of which he is possessed, is his self-acquisition.
3. The family comes from Jamnagar in Kathiawar, and the plaintiff alleges that there is some joint ancestral immoveable property there. Such property cannot be made the subject of a partition suit in this Court.
4. The plaintiff's claim here is limited to a sum of money alleged to be standing to the credit of his elder brother Jugjivan in the books of a partnership known as Kalidas Nathu ; and it is to that property that I must confine my attention.
5. The evidence in the case consists, for the plaintiff, of his own and his elder brother Popat's testimony. On the other side there are the depositions of the father Velji and the defendant Jugjivan. The 3rd witness examined for the defendant, the Mehta, need not be considered. He speaks merely to making certain entries in the accounts of the firm of Kalidas Nathu, which are not disputed, except in one respect, namely, the time at which they were made. That point might have some bearing upon the general character of the defendants, but, apart from that, is of little importance. Thus, it will be seen that the evidence, upon which the Court has to base its decision, comes wholly from the members of the family. The family is split up by a religious difference of opinion, and there can, I think, be little doubt but that this litigation has been instigated and actually set on foot by the plaintiff's eldest brother Popat to harass his father and younger brother Jugjivan. I am unable to attach much importance to the oral evidence on either side. I certainly should not be disposed to believe either Popat 01 Haridas; but, bad though I thought their evidence was, I was forced to the conclusion that that of the defendant Jugjivan and his father was considerably worse. Fortunately, however, out of the accumulation of falsehoods, which these witnesses have offered to the Court, certain facts, which can hardly be disputed, do emerge. In the first place it is clear beyond doubt that the family, consisting of Velji and his two sons Jugjivan and Haridas, is a joint Hindu family. The eldest son Popat, as I say, actually signed a release to his father Velji in the year 1905. Velji has sworn that the family was separate long before that, but that is manifestly untrue. It is absurd to suppose that had the family been separate, the father would have taken the trouble to accept such a release as Ex. A from his eldest son ; and the father goes on to say that he also took a release later from his son Jugjivan. This is only one of many transparent falsehoods with which the evidence of Velji is studded. On the other hand, the story told by Popat and Haridas of the negotiations, which are supposed to have gone on in Jamnagar and Bombay and finally on the platform of the railway station at Dadar, is as plainly false. I cannot believe either Popat or Haridas upon this point. With witnesses of this kind to deal with, therefore, the Court is plainly confronted with an initial difficulty, because so far as the relations of the family while living in Bombay from the year 1949 up to Popat's separation in 1962 are material, it is almost impossible to say with any degree of certainty what those relations were. It is, however, common ground that certain immoveable property in Jamnagar descended to Velji Chaturbhooj and that ancestral property would be joint ancestral property between himself and his three sons. It is clear that no partition of that property has been effected. All that has been done is that the eldest son has renounced all rights to that and to any other joint family property, of which the family, as a family, may now be possessed. He was actuated doubtless by prudential considerations. This joint ancestral family property cannot be regarded as a very valuable nucleus for the purpose of introducing that doctrine. Velji's evidence (and he may possibly be speaking the truth here) is that the house-property came to him heavily incumbered and at most was of considerably less value than the share of his father's debts with which it was burdened. The plaintiff, however, here does not rely much upon the doctrine of nucleus. His contention is that whether the joint family possessed property or not when the father and his sons came to Bombay their acquisitions from that time onwards were thrown into a common fund and deliberately and intentionally treated by all the members of the family thereafter as joint family property. It is of course clearly established that members of a joint Hindu family may by their intention expressed in conduct impress upon , any property, of which they may be possessed, the character of joint family property. So that in cases of this kind the question to be answered, always a question I think of considerable difficulty, is: What was the intention as expressed in conduct of the member, who admittedly having himself earned the greater portion of the fund claimed as joint family property, resists that claim upon the ground that it was, and is, his self-acquisition In answering that question the intention of the member who claims to have acquired the property for himself in his dealings with it is of paramount importance, but there are other considerations which cannot be neglected, for although it might have been the intention of a member of the family, who has earned, let us say, Rs. 5,000 by his own exertions, to throw that into the family chest, it might not be his F intention assuming that he continued to earn and had in fact earned another Rs. 10,000, to dispose of it in the same manner. Yet although his intention in respect of the latter acquisitions might be emphatically affirmed, and reasonably be inferred, to be such as he has stated, if notwithstanding he had in fact mixed up the later with the earlier sum, then upon the principle, which I think I expressed in my judgment in the case of Chabildas v. Ramdas (1909) 11 Bom. L.R. 605 the whole fund would be partible and have the character impressed upon the Rs. 5,000 of its origin. In all cases of the kind, a member of a joint Hindu family, desirous of retaining his self-acquisitions for himself, ought to be very careful to keep them entirely apart from any portion of the joint family funds, for once intermixed they can, in my opinion, be no more afterwards separated than particular drops in a given quantity of water can be afterwards separated again and given a different character as distinguished from the character of the whole. In all these cases what appears to me to happen is very much like what would happen on dropping a pinch of some colouring chemical into, let us say, a cistern of water. The whole water is tinged with the resultant hue, and tram that moment it becomes quite impossible to say this or that fraction of it was not intended to be so coloured. In like manner, once the family chest is started and there is a distinct family fund, any contribution or addition to it instantly partakes of its character and thereafter cannot be again separated and given a character of its own. It is upon this principle that I think the present case will have to be decided.
6. Now, the facts, which I began by saying emerged with sufficient clearness from the very unsatisfactory oral evidence, eked out by a certain amount of documentary evidence, are these. The family being joint, with a joint ancestral family estate, the father first came to Bombay in Samvat 1949. Here he plied his trade as a diamond-setter. Next came his second son Jugjivan, the defendant No. 2, at that time a minor. At a somewhat later period, Popat followed. Popat, like his father, was a diamond-setter and practised that art in Bombay. Jagjivan was first, at the early age of about fifteen, apprenticed to one Gagoo Damji to learn the business of a goldsmith. His earnings at that time were very small. At about seventeen years of age he worked for the firm of Jeram Odhavji at a somewhat larger salary, and later on he started a small business of his own with one Kallianji Nathu. The father returned to Cutch comparatively early in the story of the family as residents of Bombay. During the early days of Jagjivan's career, Popat, the elder brother, was doubtless earning considerably more than Jugjivan. By degrees other members of the family, a sister and the younger brother Haridas, also came to -live in Bombay; and there can, I think, be no doubt but that the brothers, when in Bombay together, always did live together ; and when the sister or any other female member of the family happened to be with them they took their meals at home and thus lived together jointly in food, worship and estate; not that much insistence need be placed on worship in this family because it is over a religious difference, as I said before, that the family has fallen out. But there can be no doubt that they did live and eat together whenever cooking was possible at home. At other times the brothers appear to have frequented the same eating house, but their bills were made out to each of them separately. This is not very important, except in one connection. It is contended on behalf of the plaintiff, with reference to what I call the doctrine of derivation, that Jugjivan's subsequent prosperity in the business of Kalidas Nathu is fairly traceble to the fact that his elder brother boarded and lodged him as long as they were in Bombay together and so let him accumulate his earnings in that firm to his own credit. Those earnings were the starting point of the fund, which the plaintiff Haridas now seeks to have partitioned as joint family property. Taking up Jugjivan's history at the point I left it, it is enough to say that the firm of Kallianji Nathu was very short-lived; and both the brothers, Popat and Jugjivan, left Bombay within about six months of that business being started. Plague had broken out and they, in common with thousands of others, returned to their native place. It was originally the plaintiffs case that this firm, like the other two small shops started by Velji when he first came to Bombay, was really Velji's and a part of the joint family estate. I think, however, that upon this point the defendant No. 2 is entitled to be believed. I have no doubt that that particular business was of his own making and had nothing to do with his father Velji. No profits, however, appear to have resulted from it. After a short absence, the plague abating, Jugjivan first returned to Bombay and began his connection with the firm of Kalidas Nathu. He was shortly afterwards followed by his elder brother Popat. In Samvat 1958 Jugjivan was employed at a good wage in the firm of Kalidas Nathu. In Samvat 1960 he became a partner in it, and from that time onwards the account to his credit appears to have steadily increased. In Samvat 1962, or 1905, a sum of some Rs 2000, nominally at any rate, belonged to Jugjivan in the firm of Kalidas Nathu. This was the year in which Popat severed his connection with the family. He relinquished all claims not only to the family property in Cutch but upon any other moneys of which the joint family members might be possessed elsewhere. It has been explained that the reason for this was that he had been twice married at the family expense and that in the existing circumstances of the joint family property he only acted fairly and reasonably in renouncing all claims to share further in it. The truth probably is that he thought that the debts would be at least equivalent to any share he may obtain on partition. What has actually happened is that no doubt owing chiefly to the assistance given by Jugjivan, the father Velji has redeemed the mortgaged houses in Jamnagar and now claims them as his own self-acquisition. That fact may supply a motive for his attitude in this case. It is to his interest, as it is to the interest of Jugjivan, to insist that in respect of the properties in their respective possession no other member of the family has any right to participate in them. However that may be, we find that in Samvat 1962 the elder brother Popat has ceased to be a member of the family and the younger brother Haridas is learning his trade in the firm of Kalidas Nathu. Jugjivan has been a partner in that firm for two years. The books of the firm show (and Jugjivan himself cannot deny this) that Haridas very soon earned a small salary. This salary appears to have commenced at about Rs. 12 a month and was raised, according to the last entry in the books, to Rs. 22 a month. This salary is credited in the books of Jugjivan. Two of the entries are somewhat curiously worded, having regard to their place in the books of the firm of Kalidas Nathu & Co. In both these entries, unlike all the others, it is particularly stated that the salary of Haridas is credited to Jugjivan for the maintenance of Haridas. This explanatory statement is not to be found in any of the other entries. Compare Exs. C. 4, 5, 9 and 10. The defendants' case has always been that these entries were made under a distinct arrangement come to between himself and Haridas, namely, that he would maintain Haridas on condition that Haridas would give him all the salary he earned in the firm. There is certainly no antecedent improbability in such an arrangement having been made. Haridas himself says that his present expenses are Rs. 22 a month exclusive of rent; so that taking his salary at the highest there would have been no surplus for himself, and taking it over all the period, from the date of his apprenticeship to the date of his leaving the firm in 1910, it is clear that Jugjivan could not have made any profit for himself out of the transaction. Nevertheless it is upon this part of the case that I think the defence is wrecked. It is clear that if two members of a joint Hindu family are living together and one of them credits the earnings of the other in a fund which he always claims to have been his self-acquisition, he is confronted with the insuperable difficulty I have pointed out in an earlier part of this judgment. It is true that if the accounts were kept entirely apart from the first, that difficulty might not arise, but once it has arisen I have never been able to see in what manner it can logically be surmounted. And again we must go back to some less direct considerations. Thus, assuming that the family were joint and assuming for the sake of this argument that Jugjivan was the managing member of it in Bombay, it would be his duty to provide for the expenses of the other members living jointly with him, and if he provided for those expenses out of any common family fund, not- withstanding that he himself had up to that time contributed the whole of it, then it would be very hard to say that he had not deliberately impressed upon that fund the character of joint family property, and that is in reality what Jugjivan has done in this case by these book-entries. Excluding the last two, which I think have certainly been prepared for the purposes of this case, all they show on the face of them is that the earnings of the younger brother were carried over to and incorporated with the earnings of the elder. In applying the principle I have stated the quantum of contribution is, in my opinion, entirely immaterial. But there are other points in the manner in which this fund has been dealt with, which also require consideration in much the same logical relation. Thus, there are the wages of payments due to Jugjivan before he became a partner in the firm. These were allowed to accumulate to his credit, and this, I think, only because the actual expenses of his living were being at the time defrayed by Popat, the elder brother, on the understanding that the family was a joint family. The savings allowed to accumulate might or might not be proveable after wards to have been self-acquisitions. But on a correct analysis, I think, they would have to be set off against the corresponding outlay from the family fund which made the accumulations possible. So that from the first they too might be thought to have the impress of joint family property.
7. Then, there is the item of Rs. 500 brought into the firm when Jugjivan became a partner in Samvat 1960 (Ex. B.) Here the plaintiff insists upon the language of the entry. It is stated that the money was brought in from the house. The defendant would explain that by saying that it means no more than that he brought the money into the firm from his private dwelling. The plaintiff on the other hand contends that it can only mean that the money was contributed from the family house meaning the family fund. And that I think is certainly the more natural construction of the two. Now there can be no question that if that sum of Rs. 500, upon which the resultant fund in dispute was principally founded, was really joint family money, then the whole of the fund growing thereout could never be divested of that character.
8. Other considerations, all pointing the same way, are the undeniable fact that all the family expenses from the marriage of Popat to the time when this dispute became acute appear to have been consistently paid out of this fund standing in the sole name of Jugjivan in the books of Kalidas Nathu. Taking the two items only of the sum of Rs. 2,000 paid for the second marriage of the eldest son Popat in 1960 and Rs. 1700 or so on the marriage of the present plaintiff Haridas, it is clear that expenditure of that kind ought to have been made, if it could have been made, from a common family fund. I believe that in fact it was. Perceiving the damaging character of such a fact, the defendant No. 2 in collusion with his father has now invented the transparently false and absurd story of the two loans evidenced by the two Khatas, Exs. 6 and 8, in this case. Jugjivan's evidence upon the first of these Khatas needs only to be read to reveal its utter absurdity. Not only seven years after what these witnesses now declare to have been, a loan was made, does the lender take the trouble of asking an acknowledgment from the borrower, but he asks it about the very same day as he asked for a similar acknowledgment of a later loan of Rs. 1,700 alleged to have been made to meet the marriage expenses of Haridas. The whole of this part of the defendant's case is utterly false and supported by false documents. But the defendant No. 2 himself does not deny that he paid other family expenses such as the costs of pilgrimages, which would naturally be paid out of common family funds.
9. Having regard to all these facts, I think the conclusion is almost forced and inevitable that whatever Jugjivan may now wish to say, about this fund from the first and during the period of its growth, he did intend to, and did in fact, treat it as joint family property and thereby indelibly imprint upon it that character. This conclusion in this particular case is very distasteful to me because I cannot see that the younger brother Haridas has, apart from the technicality of the Hindu Law, any moral claim whatever to share in this property. But while that might be so in this case, it would be just as easy to put other cases, in which any departure from the same principle would involve conclusions equally distasteful and seemingly unjust. It appears to me that the particular fund, of which partition is claimed in this suit, is shown to be joint family property, although I have no doubt that its accumulation has been due almost exclusively to the skill and industry of Jugjivan. As joint family property it is liable to partition. I assume for the purposes of this judgment that the fund can be ascertained without the need of dissolving the partnership of Kalidas Nathu or taking any partnership accounts between Jugjivan and the other partners in that firm. But if be done, I should not be able to say with confidence that a suit for a partition of this kind could properly be decreed. I am told that the amount liable to partition is a definite and ascertainable sum which can be withdrawn without in any way affecting the partnership rights of the partners in Kalidas Nathu & Co. If that is so, then I think that the plaintiff's claim to partition of so much, and so much only ought to be decreed.
10. There must be a reference to the Commissioner to ascertain the amount of the fund in the hands of Jugjivan Velji to be partitioned between himself, his father, and the plaintiff Haridas.