1. The facts of this case are as follows. One Narajandas started business in Bombay as a piece-goods merchant many years ago. He commenced his venture without the aid of any joint ancestral nucleus and amassed considerable wealth. While he was carrying on the business, the present plaintiff, Haridas, was born to him, and when Haridas reached the age of eighteen or thereabouts, he was associated with his father in the business. The trial Judge remarked:
As the plaintiff grew to manhood and the father advanced to old age, more and more burden of the business was shouldered by the plaintiff and less by the father. The father and son lived and messed also jointly. All the property, and it is said by the son to be worth a lac, was acquired gradually from the profits of the business.
2. Then shortly before his death, Narayandas gave away a piece of land, the subject-matter of the present suit, to his daughter the defendant. The plaintiff was aware of the gift, and knew that his father, with whom he lived, had laid the foundation of the building in the land which had been gifted away. The trial Judge held that the property in dispute was his father's self-acquisition, and that the father had a right to gift it away to any extent. He thought that it was not proved that the gift was made with the plaintiff's consent; that the plaintiff was not estopped from disputing the validity of the gift and that the plaintiff was not entitled to possession. Incidentally the learned Judge held that, even if the property was joint family property, the gift of a small portion of the joint family property to the daughter by the head of the family would be good.
3. The appellate Judge held that, although the property was joint property in the hands of Narayandas and his son, it was not joint family property contended for by the plaintiff. He considered himself bound to follow the Common law rule adopted by this Court in Chatturbhooj Meghji v. Dharamsi Naranji 9 B. 438 : 5 Ind. Des. 290. In my opinion, the passage cited by the Judge on pages 445 Pages of 9 B.--[Ed.] and446 Pages of 9 B.--[Ed.] of the report does not lay down the correct principle to be followed where a Hindu father and son living together acquire property without any family nucleus. Mr. Justice Bird wood said (page 445 Pages of 9 B.--[Ed.]):
There is no evidence to show that the parties were members of an ordinary trade partnership resting on contract. If the sons had a joint interest with their father in the piece-goods business, it was apparently because they were members of an undivided family carrying on business jointly in that capacity. If the property of the family firm had been acquired by the equal exertions of the three members, without the aid of any nucleus of property other than acquired by themselves, then, no doubt, the property of the firm with its accumulations would be self-acquired property even though it was owned jointly. And on a partition such property would apparently remain self-acquired property in the hands of the several members, even though one of them was the father of the other two.
4. But that was the decision of a Single Judge. In Laldas Narandas v. Motibai 10 Bom. L.R. 175 it was held that where a father and his sons acquire their property by their joint labours and are besides joint in food and worship they must be regarded as having constituted a joint Hindu family even though there may have been no nucleus of property which has come down to the father from his father or grandfather or great-grandfather. For the formation of a co-parcenary in Hindu Law, such a nucleus is not absolutely necessary, provided the persons constituting it stand in the relation of father and son or other relation requisite for a co-parcenary system, and those persons by Jiving, messing and worshipping together, and throwing all the property acquired jointly into one common stock, manifest their intention to deal with one another and with outsiders as members of a co-parcenary system under the Hindu Law.
5. In Karsandas Dharamsey v. Gangabai 32 B. 479 : 10 Bom. L.R. 184 Beam an, J., pointed out that there was no distinction between ancestral joint family property, and that there was nothing either in practice or theory which excluded the possibility of members of the same family starting a family fortune, holding it as members of a joint family and thereby. clothing it with all the legal qualities and incidents of joint family property, chief amongst which was that every member born into the family after the property had acquired that character and before it had been divested of it by partition obtained by birth an interest in it.
6. It appears, then, that it depends in each case on the evidence whether the members of a family have lived separately or together, and if the latter, whether they have dealt with the property acquired by their joint exertions as joint family property. Ordinarily speaking, on the facts of this case, there would be a presumption that Narayandas and the plaintiff, Haridas, constituted a joint Hindu family, and the evidence would be sufficient for the plaintiff to establish that the property acquired by virtue of their exertions in the family business was held as joint family property.
7. This question has been discussed by Mayne, 9th Edition, para. 277, and in the note (o) at the bottom of page 360, he points out: 'In view of these cases, Laldas Narayandas v. Motibai 10 Bom. L.R. 175 and Karsandas Dharamsey v. Gangabai 32 B. 479 : 10 Bom. L.R. 184 the expression of opinion in Chatturbhooj Meghji v. Dharamsi Naranji 9 B. 438 : 5 Ind. Des. 290 cited with approval in former editions of this work, can no longer be regarded as correct.' There is no evidence, then, in this case, to rebut the presumption which arises on the facts proved that this family business of Narayandas and Haridas was a joint family business, and that all the purchases constituted joint family property.
8. Then a question arises whether, in the circumstances of this case, we should uphold the gift by Narayandas to his daughter. The trial Judge held that there was no independent evidence of the consent given by the plaintiff to the gift. But it is clear from his Solicitor's letter of June 24, 1921, written two years after his father's death, that he was prepared to abide by the gift and not object to it. The District Judge disagreed with the trial Judge on the question whether, under the Mitakshara Law, a manager and father of a joint Hindu family had power to make a gift of a reasonable portion of family immoveable property to a daughter. The trial Judge relied upon the passage in the judgment of the Privy Council in Ramalinga Annavi v. Narayana Annavi 68 Ind. Cas. 451 : 45 M. 489 : 30 M.L.T. 255 : (1922) M.W.N. 399 : 26 C.W.N. 929 : 43 M.L.J. 428 : 16 L.W. 639 : 24 Bom. L.R. 1209 : 20 A.L.J. 839 : A.I.R. 1922 P.C. 201 : 37 C.L.J. 15 : 49 I.A. 1687 in which their Lordships say (pages 494 Pages of 45 M.--[Ed.], 495 Pages of 45 M.--[Ed.]):
The father has undoubtedly the power under the Hindu Law of making, within reasonable limits, gifts of moveable property to a daughter. In one case, the Board upheld the gift of a small share of immoveable property on the ground that it was not shown to be unreasonable. In the present case, the gifts relate to sums of money. The only question is whether they were reasonable.
9. Unfortunately, no reference is given to the case referred to by their Lordships. But in this case, we think, we can uphold the decision of the Court below on this ground that the plaintiff was aware of the gift to the defendant. He was aware that his father had laid the foundation of a building on the land, and that would be sufficient to justify us in holding that he consented to the gift, and even if that were not sufficient, we have this fact that for two years after the death of his father the plaintiff took no steps to upset the gift and even within a few days of his filing the suit wrote a letter in which he stated that he was perfectly prepared to abide by the gift. We do not think it is open now, in the circumstances of the case, to the plaintiff to ask the Court to give him a decree restoring the land in his possession, and to allow the defendant to remove materials-, from the building, which would be of very small value to her.
10. We dismiss the appeal with costs.