(1) This appeal arises from the decision of the earned Judge ( Senior Division ) at Belgagum, in Defendants 1 and 2 in that suit are the appellants in his Court. Plaintiffs 1 and 2 are respondents 1 and 2 respectively and third defendant there in is the third respondent. The suit is for partion and possession of half share in the properties detailed in the plaint schedules a, b, c, and D. It has been decreed as prayed for. Aggrieved by the decree and Judgment of the Court below defendants 1 and 2 have come up in appeal to this Court .
(2) The second plaintiff is the daughter-in-law of the first defendant. Her husband Balappa, the only son of the first defendant died on 9-12-1945. She claims that she had adopted the first plaintiff to her deceased husband on 11-6-1952. The second defendant is the wife of the items of property included in the plant schedule ( City Survey No. 1295 ). Hence he has been made a party to the suit. The right of way claimed by him was recognized by the Court. Hence whenever reference is made to 'defendants' hereinafter it refers only to defendants 1 and 2.
(3) There is no dispute as regards the genealogy of the plaint family. It is as follows:.................................................................................................................... CHANVEERAPPA (died in 1911)___________________________________________________________| | | Veerabhadrappa Shudlingappa Basappa(died in about 1887) |Shidramappa = Savantrewa(Deft. 1.) (Deft. 2)________|_____________| |Balappa (born = Shivagangwain 1918 : died on 9-12-1945) (plaintiff 2. )|| Babajappa (adopted on 11-6-1952).....................................................................................................................
In the court below the factum Association well as validity of the adoption of the first plaintiff was disputed but the Court came to the conclusion that the first plaintiff's adoption is both true and valued. That finding has not been challenged in this Court. Hence it necessary to go into that question.
(4) The controversies in this Court are confined that to two questions : (1) Whether all or any of the properties detailed in the plaint schedules A, B, C and D are joint family properties in which the plaintiffs can claim a share? (2) To what share the plaintiffs are entitled to under law? The Court below came to the conclusion that all the properties detailed in the plaint schedules are joint family properties, and that the plaintiffs are entitled to a half share in those properties.
(5) Most of the facts in the case are undisputed or at any rate do not admit of any serious disputed. The first defendant's father Veerabhadrappa died in about the year 1887, very soon after the birth of the first defendant. The family of Chanveerappa was more or less a poor family. The family properties were partitioned on 12-2-1900 as seen from Exhibits 79 and 80. As per that partion, the family properties were dived into four shares, one share was given to Chanveerappa, another to the first defendant, the third share to Shidlingappa and the fourth to Basappa. In the partion proceedings, the first defendant, who was about 3 years old at the time, was represented by his grandfather Chanveerappa. Under the partion in question the first defendant got Rs. 175/- and that amount was paid over to Chanveerappa. He got no other property. The first defendant as well as his mother lived with Chanveerappa till his death and they were maintained by him. He gave the first defendant a little education as well.
According to the first defendant, Chanveerappa had utilised the sum of Rs. 175/- received at the time of the partion for his (first defendant's) maintenance as well as the maintenance of his mother. Hence did not return the money in question. Chanveerappa bequeathed all his properties to the first defendant as per his will Exhibit 76 dated 11-4-1911. Three or four months after the execution of that will Chanveerappa died. According to the evidence of the first defendant which has not been controverted in any manner, his father had no occupation; nor had he any occupation till about the year 1911 or 1912; thereafter he took to dyeing clothes and in about the yielded him considerable profits. He claims that trade was his private trade in which his family had no claim or interest. According to him the suit moveable and Immoveable properties made by him are evidenced by Exhibits 53,54,55,56,57,59,60 and 61. They all stand in his name. The internal evidence available from these documents does not lend any assistance to the contention that they acquired for and an behalf of the family.
(6) Under Exhibit 53, he (defendant 1) acquired an open site in Somawar peth in Kasaba Gohak Town on 11-8-1914 for a sum of Rs. 20/- That was a very small a plot of land measuring 4 1/2 hands by 4 1/2 hands. Under Exhibits 54, he acquired two small house sites in Gokak Town on 19-1-1917 for a sum of Rs. 190/-. On 4-12-1922 as per Exhibit 55 he acquired an open site in Gokak Town under in Exhibit 56 for a sum of Rs. 200/-. Under Exhibit 57, he acquired a shop in Gokak Town for Rs. 800/- on 25-9-1933. Another shop was purchased for Rs. 1,000/- under Exhibit 59, on 9-2-1934. An open site for Rs. 250/- was purchased on 14-4-1952 under Exhibit 60. Lastly under Exhibit 61 a shop building in Gokak Town was purchased for Rs. 3471-10-0 on 7-8-1942.
(7) The Court below has come to the conclusion that the properties bequeathed by Chanveerappa under Exhibit 76 are the individual properties of the first defendant. There is nothing in Exhibit 76 to indicate that the bequest in question was made to the family of the first defendant. On the date of the bequest the first defendant had no children. His son Balappa was born only in 1918. In C. N. Arunachala Mudaliar v. Muruganatha Mudaliar, : 1SCR243 the Supreme Court has laid down that in cases where there are no clear words describing the kind of interest which the done is to take, the question would to be one of occupation and the Court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction. That decision lays down that in view of the settled law that a Mitakshara father has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants it is not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the done in which his son would acquire co-ordinate interest.
It was also observed that to find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder law the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the only if the present holder has got it by virtue of his being a son or descended of the original owner. But when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he co have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. Their Lordships repelled an opinion sometimes held in the past that when a bequest was made by a father or by a close relation of the done the law raise, a presumption that the bequest is for and no behalf of the family of the done. They stated the law thus:
'There is no warrant for saying that according to the Mitakshara, an affectionate gift by the father to the son constitutes 'ipso facto' ancestral property in the hands of the done. In other words, a property gifted or bequest by a father to his son cannot became ancestral property in the hands of the done or ligature simply by reasons of the fact that the done or legatee got it from the father or ancestor.'
In view of this decision there is no further room for controversy as regards the true character filed the gift under scrutiny.
(8) Any income realised by the first defendant from out of the properties bequeathed to him by Chanveerappa cannot be considered as family nucleus. The only family nucleus pointed out in this case is the sum of Rs. 175/- allotted to the share of the first defendant during the family partition in 1900. The plaintiff have not adduced any evidence to show that that amount case into the hands of the first defendant at any time. The explanation that that amounts was likely to have been utilised for his 1st defendant 's as well as his mother's maintenance cannot be rejected as unsatisfactory, Hence the disappearance of that amount is satisfactorily explained and the said sum cannot be considered a being in existence on the date of the death of Chanveerappa. In plaint paragraph 3, it is alleged that:
'The family of the plaintiffs and defendant Nos. 1 and 2 is a trader's family since, immemorial times. In the family of plaintiffs and defendants. Nos. 1 and 2 since the time of the father of defendant No. 1, there was cloth business and defendant No. 1 continued that very business. After the husband plaintiff it became a major, he and defendant No.1 jointly carried on the ancestral business of their family. The property in suit is ancestral property and some property is property acquired with the aid of ancestral property. Defendant No. 1 is the manager of the family and sale deeds pertaining the said properties have been executed in his matter. Defendant No. 1 and his son Balappa were making vahivat of all the properties included in this suit as the property of the joint family.'
Even according to these agreements the suit properties were acquired out of the profits of the trade. It is not alleged that these was any other joint family property or nucleus. Hence the only question that falls for determination is whether the trade carried on by the first defendant is a joint family trade. From the plaint averment it is seen that the father of the first defendant had cloth trade and that cloth trade was constituted by the first defendant . Our attention has not been drawn to any evidence in this case to show that the father of the first defendant at any time had cloth trade or for that matter any other trade. According to that first defendant he start his own trade in the year 1917 and that there was no joint family trade to be continued. His evidence shows that Chanveerappa, his grandfather, was merely doing dyeing work and that he had no trade an any time. There is absolutely no evidence on record to whom that the family of the parties at any time in the past traded in cloth. The only evidence available is that the parties belonged to Bangar Lingual Community, the members of which community ordinarily carried on the professors of dyeing clothes. The evidence on record discloses that Chanaveerappa was a dyer by profession and the first defendant also took to that profession for some time. But after 1917 he was mainly a trader in clothes.
(9) It is urged on behalf of the plaintiffs that dyeing is the Kulchara of the community trading in cloth is only an extension of that Kulchara: hence when the first defendant took up to dyeing he took to a family trade and when began to trade in clothe, he merely extended the family trades consequently the trade in question was originally family trade or not the same became a family trade when Balappa became a major and began to participate in that trade. It is contended that the available circumstances indicate that whatever individual rights the first defendant had, he gave it no after his son became a major and the trade carried on by him thereafter assumed the character of a family trade. According to the first defendant his son Balappa was willing for two or three years prior to his death: he died at the young age of 26 or 27, he never took part in the trade and he was only attending to household work. It is asserted on his behalf that there is not even a title of evidence in this case to share that he gave up his individual rights.
(10) In support of their case of treating the trade the only evidence adduced by the plaintiffs is that sometimes Balappa was sitting in the ship and conducing business and on occasions he used to accordingly his father when he went out selling clothes. At this stage the question arises whether even if this evidence others believed in full, can it be said that it is sufficient to upheld the theory propounded on behalf of the plaintiffs? We shall advert it this question little later. From the contentions advanced by the parties noticed above, three questions of law fall for decision, i.e. (1) is the dyeing work done by the first defendant can be said to be a family trade? (2) If so, is his clothes trade an extension of that trade? And (3) Alternatively is the evidence on record sufficient to come to the conclusion that the individual trade carried on by the first defendant assumed the character of family trade due to the participation of the decreasing Balappa to that trade?
(11) We shall take up the last question first. The only witnesses who have given relevant evidence on this point ate plaintiff 2 (Ex. 65) who is examined at P.W.I. and her brother-in-law Mahadevappa (Ex. 66) who is the natural father of the first plaintiff . Without doubt both these witnesses are interested witnesses. The second plaintiff stated in her chief examination that 'her husband was trading in cloth; trade was mainly of saris; saris were prepared in their house where 30 or 40 looms carrying on the trade; the family expenses were met from the income; trade is ancestor' She further stated that they are Bangar Linguist and their occupation is to dye yarns. In cross-examination she admitted that she had no knowledge about her husband's family before her marriage she was not related to that family before. She also admitted that the that defendant had a big trade in series when she was married; he is a hard worker, an expert in trade and he acquired a lot in trade'' When she was asked us to the part taken by her husband in the trade in question she stated that 'He need to trade along with defendant No. 1 by sitting in the shop'. She has also deposed that the first defendant had told her that the suit properties rate joint family properties. This evidence was tightly not relied on by the Court below. So far as Kabban 65 is concerned, he merely stated that 'The family (plaintiff's family) s Bangar Lingayat. Their hereditary trade is of dyeing yarn and selling series. I came to know Balappa when he and defendant No.1 had come to purchase yarn and series in my village.'
Even if we accept the entire evidence adduced by the plaintiff . bearing on this point, as true still it is wholly insufficient to uphold the theory of treating the business of the first defendant as family trade. The burden of proving that assertion in heavily on the plaintiffs, the presumption being that every individual would like to maintain his individual right. The evidence adduced in support of such a contention should be trade-worthy, clear and unambiguous. If that evidence is circumstantial the circumstances as are only consistent with the contentions advanced. If they are reasonably capable of two interpretations then the interpretations which is consistent with the continuance of the existing legal rights has to be preferred. Viewed that way the evidence in question is wholly insufficient to hold that the first defendant consciously and deliberately gave up the individual rights in the wit properties and agreed to treat the same as joint family properties. The fact that his son - in this case has only son - who maintained and looked after by him was giving him assistance in his trade is by no means a circumstances inconsistent with the fact that the trade continued to be the individual trade of the first defendant. It may be that if Balappa had survived the first defendant would have left the entire estate to him. Even if we assume - though there is no evidence to support such an assumption - that defendant No. 1 in traded to leave all his properties to his son Balappa after his death, then also it cannot be concluded. That his (defendant 1) gave up his individual rights.
(12) In a somewhat identical case a Bench of the Allahabad High Court held that
'If a business is started by an adult member of the family separately the mere fact that his sons who are defendant on him and are being continued by him gave him some help in the carrying on of that business would not necessarily make the business cease to be his own business and make it the joint business of himself and his sons. No doubt when the sons grew up the father and the sons may so conduct themselves that from their conduct it may be apparent that it was either expressly or impliedly agreed that the business which at its start was a separate business of the gather became the joint business of the father and the sons by some arrangement between them. The matter should be decided on the circumstances and facts of each case.' See Kailashi v. Shankar, AIR 1945 All 164. Similar was the view expressed by the Rajasthan High Court in Chitanjilal v. Gordhan. . I respectively agree with those decisions.
(13) The proved facts of this case do not lend any support to the contention that the suit properties were acquired by the joint exertion of the first defendant and his deceased son. Hence the line of cases dealing with that branch of the law do not come up for consideration.
(14) Now we come to the true character of the trade carried on by the first defendant . There is no presumption that a business carried on by a member of a joint family is joint family business nor is there a presumption that a business standing in the name or started by even a manager is a joint family business. In this case we have earlier come to the conclusion that no joint family funds were utilised either for the starting of the business or for carrying on the same.
(15) It is a misnomer to call the vocation of dyeing as a trade. When one speaks of a family trade he means 'shop keeping or commerce or buying and selling'' In that content the word 'trade' is not used as being equivalent to a craft. If we bear in mind the fact that a family trade is but an asset of the family just as any other asset it goes without saying that it must be an asset possessed by the family -may be it is something physical or even a goodwill - but all the same it must be something belonging to the family. In the very nature of things, it cannot be the skill, or the labour of the individual members constituting the family. Obviously the word 'trade' in the contest is not used as a term of law but should be understood in its popular sense. The fact that the first defendant took to the profession of his ancestors for some time - a profession into a family trade. In aid of his vocation he got nothing from his family excepting his blood and possibly the special knowledge gathered from his surroundings. These are insufficient to dub his vocation as a family trade. A lawyer's son or a doctor's son may have similar advantages. If he takes to the profession of his father. For that reason it has not been said, and it cannot be said, that he entries on a family trade.
Mysore attention has been drawn to the decision of Courtney Terrsell, C.J. in Ghasiram BiseswarLal Firm v. Otla General Otla Basaraj Firm. AIR 1956 Pat 485, wherein it was held that where a member of a Hindu joint family carries on a business which is appropriate to the caste to which he belongs it may be properly inferred that that business is part of the joint family property. With great respect to the learned judge I do not think that this a correct statement of the law. The law, as I understand it is that when trade is the Kulachar or the hereditary vocation of a family. If a member of that family continuous an existing trade of the family or he commences a new trade with family funds then it assumes the character of a family trade, and thereby entailing certain rights and consequences. Therefore, it cannot be said that when the first defendant took to dyeing of clothes he was carrying on a family trade.
(16) A trade in clothes cannot be considered as an extension of the vocation of dyeing even if that vocation is considered as a trade. The business of dyeing does not in solve any risk whereas cloth trade does involve new hazards. One test to find out whether a given trade in an extension of business entails larger and new kinds of hazards than the old business. So tested the business in clothes cannot be reasonably considered as an extension of the old business of dyeing viewed in any way it is not possible to uphold the contention that the cloth trade carried on by the first defendant was a family trade. In view of the above conclusion it is unnecessary to go into the question as to what share the plaintiffs are entitled to.
(17) One subsidiary contention remains to be considered . Some years before the death of Balappa a life Insurance policy for Rs.. 1000/- well taken in his name. The evidence on record shows that the premiums, in respect of that policy were paid by the first defendant. The question that arisen for decisions is whether the deceased Ballappa was the owner of the Policy or whether the same belonged to the first defendant. Taking into consideration the close relationship between the parties and the normal course of human conduct it cannot be said that when the first defendant insured his son Balappa, he did so for his own benefit. It is reasonable to assume that the first defendant paid the premiums in question out of love affection for his son and not as an investment on his own behalf. From the proved facts, it is reasonable to assume that policy was intended for the benefit of Balappa. That being so, the deceased Balappa should be held to be the owner of the policy which means that after his death the right to the amount covered by that policy devolved on the plaintiffs. Hence I hold that the first defendant is liable to pay this amount to the plaintiffs. No doubt in considering this claim I have been constrained to some what deviate from the strict rules of pleading. But bearing in mind the equities of the case and with a view to avoid multiply of lingation, I thought it just and necessary to go into the merits of the case.
(18) In the peculiar circumstances of this case and particularly , in view of the unfortunate position to which the second plaintiff is placed, the first defendant (appellant 1) adjudication's our suggestion, has agreed to give to the plaintiffs a sum of Rs.. 3000/-. On his behalf a memo has been filed which reads as follows:
1. The 1st defendant- appellant No.1 is willing and prepared to pay to the respondents - plaintiffs Nos. 1 and 2 without reference to their contentions on the merits of the case a sum of Rs. 3000/-(Three thousand only).
2. During the pendency of the top-noted appeal in the Bombay High Court as per order of the High Court a sum of Rs. 800/- was paid to the said plaintiffs 1 and 2 as interim payment and the plaintiffs have withdrawn the same on furnishing security.
3. Defendant No. 1 therefore submits that the decree may be passed against him for Rs.. 2200/- with interest thereon from the date of decree of this Hon'ble High Court at per annum'.
We do undoubtedly approached his geniture and make this offer a part of our decree.
(19) In the result, there will be a decree in favour of the plaintiffs for a sum of Rs.. 3,200/- (three thousand and two hundred) with future interest from this date at 6 per cent per annum. In other respect the suit is dismissed. The parties will hear their own costs both in this Court and in the Court below.
(20) Order accordingly.