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Gauri Shankar Vs. Keshab Deo and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1929All148; 114Ind.Cas.881
AppellantGauri Shankar
RespondentKeshab Deo and ors.
Excerpt:
- - gauri shankar filed two suits for omnibus declarations that a large number of documents like simple mortgages, usufructuary mortgages, sale-deeds and releases and decrees obtained on the basis of other documents as well as certain auction-sales which have taken place are not binding on the plaintiff. several defendants also took the plea that the suit was bad for multifariousness inasmuch as numerous causes of action had been wrongly jointed together. it is, therefore, not possible for us to dismiss the suit in appeal on the preliminary ground that it is bad for multifariousness. it may, however, be taken for granted that the documentary evidence as well as the oral evidence on both sides go to show that salig ram did not get any share out of the profits of the business sham lal.....1. first appeals nos. 450, 101, 520 and 544 are all connected and we propose to dispose of them by one principal judgment. gauri shankar filed two suits for omnibus declarations that a large number of documents like simple mortgages, usufructuary mortgages, sale-deeds and releases and decrees obtained on the basis of other documents as well as certain auction-sales which have taken place are not binding on the plaintiff. some of the mortgagees have sued for their money. the persons interested in the various transactions which amounted to about 51 in number were numerous. about 65 defendants were impleaded in the court below in the first instance and the number has swelled considerably in consequence of the deaths of several of them, and their representatives having been brought on the.....
Judgment:

1. First Appeals Nos. 450, 101, 520 and 544 are all connected and we propose to dispose of them by one principal judgment. Gauri Shankar filed two suits for omnibus declarations that a large number of documents like simple mortgages, usufructuary mortgages, sale-deeds and releases and decrees obtained on the basis of other documents as well as certain auction-sales which have taken place are not binding on the plaintiff. Some of the mortgagees have sued for their money. The persons interested in the various transactions which amounted to about 51 in number were numerous. About 65 defendants were impleaded in the Court below in the first instance and the number has swelled considerably in consequence of the deaths of several of them, and their representatives having been brought on the record in the Court below and in this Court. Briefly speaking the plaintiff's case was that he was a minor, and during his minority his uncle Keshab Deo started an entirely new shop styled Keshab Deo Gauri Shankar in 1915 to which the plaintiff on account of his minority could not be legally made a partner so as to be liable for the obligations; that his uncle Keshab Deo has executed a large number of documents and raised money on the security of the plaintiff's share in the family property which is by no means liable. The plaintiff's case rested on the assertion that the plaintiff and his uncle were not members of a joint Hindu family. Although a long list of the various transactions was attached to the plaint they were not separately and specifically dealt with, and the necessary particulars were not supplied. The Court called upon the plaintiff to supply further particulars, which were given in the application dated 9th July 1923, but even there the plaintiff did not deal with the various deeds separately, nor point out the irregularities in the previous suits on which he was going to rely.

2. The defence raised by the various defendants had one common feature about it, viz., that there was an assertion that the plaintiff and Keshab Deo, defendant were members of a joint Hindu family and that the firm Keshab Deo Gauri Shankar, on account of which most of the debts were incurred, was a joint family business, the liability of which was binding on the plaintiff. There was of course a denial that there had been any irregularity in obtaining the various decrees, and also a denial that the plaintiff had in any way been prejudiced. Several defendants also took the plea that the suit was bad for multifariousness inasmuch as numerous causes of action had been wrongly jointed together.

3. The learned Subordinate Judge framed several issues including the one as to the question of multifariousness. Unfortunately he postponed the decision of the last mentioned issue till all the evidence had been recorded and then summarily disposed of it, holding that the suit was not defective.

4. No doubt the joining together of so many causes of action and impleading such a large number of defendants was very inconvenient and embarrassing. But now that the whole evidence has been recorded it is too late for us to consider the defect of multifariousness, as under Section 99, Civil P.C., an appellate Court cannot interfere on this ground unless the defect has affected the merits of the case or the jurisdiction of the Court. As regards some of the decrees the Court below has found that no cause of action has arisen within its jurisdiction, but the suit with regard to them has been dismissed and not decreed. It is, therefore, not possible for us to dismiss the suit in appeal on the preliminary ground that it is bad for multifariousness.

5. In his plaint the plaintiff admitted that a firm styled Sham Lal Gokul Chand was started about 1860 at Hathras and another one was opened at Patna. In para. 4 of the plaint it was admitted that both these shops are still going on. The plaintiff's case was that so far as this business is concerned it was the family business of the plaintiff and Keshab Deo, and there was no suggestion that it has been dissolved owing to the death of either the plaintiff's father or grandfather. In the Court below, as noted by the learned Subordinate Judge on p. 116, the plaintiff did not deny his liability to pay the debts of this firm Sham Lal Gokul Chand, nor challenged the transfers made to pay off the debts of that firm. His whole case was that a firm styled Keshab Deo Gauri Shankar was an entirely new firm, started by Keshab Deo at a time when the plaintiff was a minor, and though in that firm the plaintiff was a partner so as to be liable for its debts, the plaintiff could not be taxed with the indebtedness of this new firm.

6. There is no direct evidence to show when the firm Sham Lal Gokul Chand was established. Some of the defendants, however, admitted the plaintiff's allegation that it was started in 1860. We may take it that the plaintiff admits that it was started at least as early as that year. At that time admittedly the plaintiff was not born, but his grandfather Sham Lal was alive and so was his great-grandfather Ganga Ram. Sham Lal had three brothers Mukand Lal, Gokul Chand and Salig Ram. As to Mukand Lal, it is admitted on behalf of all the parties that he went out of the family on being adopted by a stranger. The oral evidence on behalf of the plaintiff is to the effect that there was a complete separation between Ganga Ram and his four sons, and there was an actual partition of the existing assets. This is alleged to have taken place some time about 1860, although no definite date is fixed, and there is no direct documentary evidence to prove any such partition. On the other hand, on behalf of the defendants it was alleged that there was no partition or separation at all, and that the family has continued to be joint and the plaintiff is still joint with his uncle Keshab Deo. It may, however, be taken for granted that the documentary evidence as well as the oral evidence on both sides go to show that Salig Ram did not get any share out of the profits of the business Sham Lal Gokul Chand.

7. The plaintiff's case is that Salig Ram actually separated at the time of the general partition of the family property. The suggestion on behalf of the defendants is that Salig Ram might himself have walked out of the family which did not involve a disruption of the joint status of the remaining members of the family. (Here the judgment discussing evidence found that a new firm styled as Keshao Deo Radha Ballabh was started, and concluded that the firm styled as Keshab Deo Radha Ballabh was a firm in which, to say the least, the main firm Shamlal Gokul Chand was a partner and for the liabilities of which that firm was responsible and proceeded). The plaintiff does not dispute that his grandfather Shamlal and he himself were interested in the main firm and were liable for the debts of the main firm.

8. The firm Keshab Deo Radha Ballab continued to exist up to the year 1915. This firm was closed down on Katik Badi 15, Sambat 1972. On that date a balance of the amount due by this firm to the main firm Shamlal Gokul Chand was struck in the account books of the latter firm and it was found that Rs. 11,042-4-3 were due. On the same date and at the same place a new firm styled Keshab Deo Gauri Shankar was started and the liability of Keshab Deo Radha Ballabh for Rs. 11,042-4-3 was transferred to Keshab Deo Gauri Shankar in the account books of the main firm. The learned Counsel for the appellant contended that this circumstance showed that the firm Keshab Deo Radha Ballabh had not been prosperous and there was a net loss of over Rs. 11,000 suffered by it. In the absence of the account books of the firm Keshab Deo Radha Ballabh we are not prepared to draw any such inference. The entry merely indicates the extent of the outstanding liability of Keshab Deo Radha Ballabh to the main firm Sham Lal Gokul Chand.

9. In other words it represents the capital invested by the main firm in this other shop. It does not in any way indicate that firm had no assets, nor does it show that it in any way represents the net loss. Had we the account books of these two firms we would then have been in a position to know whether that firm had any assets. We only know that the liability of the old firm Keshab Deo Radha Ballabh to the main firm was transferred to the firm Keshab Deo Gauri Shankar. This fact is consistent with the defendants' theory that the new firm was really a continuation of the old firm, the stranger partner going out.

10. It was also suggested on behalf of the plaintiff that from the very start the new firm Keshab Deo Gauri Shankar was suffering loss and that the liability to the main firm went on increasing. For this reliance is placed on the entries, not in the account books of Keshab Deo Gauri Shankar, but in the account books of Sham Lal Gokul Chand. For the reasons above-mentioned such entries cannot be conclusive. They cannot in any way show the exact position of the firm Keshab Deo Gauri Shankar. As a matter of fact the entries on pp. 353 to 354 rather indicate that the balance on the credit side of Keshab Deo Gauri Shankar increased in the course of the first year and not decreased. In any case that point is not very material for the purposes of this appeal.

11. It is important to note that in 1915 when the firm Keshab Deo Gauri Shankar was started Sham Lal, the plaintiff's grandfather, was alive. The evidence led on behalf of the plaintiff is to the effect that Sham Lal had become very old and was incapable of looking after his business, and there is a suggestion that this shop was started without the consent of Sham Lal. On the other hand the defendants have led positive oral evidence that at the inauguration ceremony of Keshab Deo Gauri Shanker, Sham Lal was himself present and blessed the ceremony and that this shop was started with his advice and consent. The learned Subordinate Judge, after having heard the witnesses for both the parties, has come to the conclusion that it is not established that this firm was started without the knowledge and consent of Sham Lal. On the other hand he believes that Sham Lal was responsible for this new firm. We see no reason to take a contrary view of the oral evidence on this point. We have no reason to suppose that while Sham Lal was alive, a firm styled Keshab Deo Gauri Shankar was started in which Gauri Shankar was made a partner without the knowledge and consent of his natural guardian and grandfather Sham Lal.

12. The position then is that in 1915 there was liability on the main firm Sham Lal Gokul Chand on account of the outstanding debts of the firm Keshab Deo Radha Ballabh. For those debts the main firm, of which Sham Lal and Keshab Deo were partners, was liable. The main firm could not get rid of this liability by merely dissolving the other shop. Ram Gopal witness has stated that the stranger partner Radha Ballabh became indebted to the extent of Rs. 30,000 or 40,000 and became blind, so as to be incapable of looking after the business; and as he had no funds, both Sham Lal and Keshab Deo consulted together and decided that the best thing was that Radha Ballabh should be removed and the firm should thereafter be styled Keshab Deo Gauri Shankar. So far as the circumstances under which Radha Ballabh ceased to be a partner are concerned, our attention has not been drawn to any other oral evidence on the point except that of Ram Gopal. If Radha Ballabh had become heavily indebted and was useless as a partner, it was no wonder that the plaintiff firm decided that the business should be run without him. Inasmuch as the family business was liable for the debts of that firm there could be no objection to the transference of the liability to the firm styled Keshab Deo Gauri Shankar.

13. The firm Keshab Deo Gauri Shankar commenced its business on the very day on which the firm Keshab Deo Radha Ballabh was closed, and it carried on its business on the same premises (Ram Sarup p. 83, line 47). It carried on its business at that place for several years, and when the business became slack it was transferred to a room in the shop of Sham Lal Gokul Chand (Sham Sundar p. 70 line 13). We also find from the evidence of Ram Sarup p. 83 that the nature of the business carried on by Keshab Deo Gauri Shankar was similar to that carried on by Keshab Deo Radha Ballabh as well as the main firm Sham Lal Gokul Chand. We have already noted that even the plaintiffs' witnesses admit that this firm was started out of the funds of the main firm. We have therefore no hesitation in coming to the conclusion that the interest of Sham Lal's family in the firm Keshab Deo Gauri Shankar was similar to the interest of the family in Keshab Deo Radha Ballabh. Thus in 1915 to 1916 while Sham Lal was alive he was liable for the debts of the firm Keshab Deo Gauri Shankar, inasmuch as the family business was interested in it in the same way as before. It is impossible to hold that the firm Keshab Deo Gauri Shankar was a new business, started independently of the family by Keshab Deo, to which Gauri Shankar a minor had been for the first time admitted as a partner. On the other hand we accept the view of the Court below that the firm Keshab Deo Gauri Shankar was the firm in which the plaintiff's family was interested. The learned Subordinate Judge has recorded his finding on p. 118 on this point in the following words:

The plaintiff's own evidence therefore goes to prove that the firm Keshab Deo Gauri Shankar is an ancestral firm in which originally his father was a partner and had started the business under the name of Keshab Deo Radha Ballabh which itself was a branch of the ancestral firm Sham Lal Gokul Chand and that the plaintiff is a partner in the firm Keshab Deo Gauri Shankar.

14. It has been strongly contended on behalf of the plaintiff that, although Sham Lal was interested in the business Sham Lal Gokul Chand, he was interested in his individual capacity as a mere partner, and his family consisting of his son and grandson was not at all interested. It is impossible to accept this position. There are many circumstances indicating that it was Sham Lal's family that was interested in the firm and not Sham Lal in his individual capacity. We may for instance mention the fact that several shops and branches were opened in the name of the descendants of Sham Lal, viz., Kishen Lal and Gauri Shankar. We may also point out that the expenses of Kishen Lal and Gauri Shankar were incurred out of the funds of the main family firm. Indeed separate khatas exist in their names. The plaintiff in para. 4 of the plaint did not suggest that this business was the exclusive business of Sham Lal which he inherited for the first time on his death in 1916. Had that been so the partnership would have been dissolved on the death of Sham Lal, but the plaintiff admits that the shops at Hathras and Patna are still going on, and he is liable for its outstanding debts. It is therefore impossible to accept the position that the present plaintiff became interested in the main firm for the first time on the death of his grandfather, and that although so far as the main firm is concerned he admits his liability, the partnership in Keshab Deo Radha Ballabh, even if Sham Lal was interested in it, must be deemed to have been dissolved in 1916 when he died, and that the plaintiff being a minor could only be admitted to the benefits of it and not its liabilities. The view of the learned Subordinate Judge is that even the firm Keshab Deo Gauri Shankar is a mere offshoot of the family business Sham Lal Gokul Chand with no stranger partner in it at all, and it is therefore on the same footing as the joint family ancestral business Sham Lal Gokul Chand. We accept that funding.

15. It follows that as a joint family does not die on the death of its managing member there could be no dissolution of the partnership, even if it was a mere partnership, when Sham Lal died. That a joint family can be a partner is well established in this Court. Mewa Ram v. Ram Gopal : AIR1926All337 .

16. In order to determine the extent of the liability of the plaintiff to the debts of this firm it is also necessary to consider whether the interest of Sham Lal in the main firm was that of a member of a joint Hindu family with Gokul Chand and Keshab Deo or was that of a mere partner. As already pointed out the plaintiff's case is that there was a complete separation and after that Sham Lal Gokul Chand carried on this business jointly as mere partners and not as members of a joint Hindu family. On the other hand the defendants' case is that they continued to be members of a joint Hindu family.

17. There is of course the initial presumption against the plaintiff that the two brothers Sham Lal and Gokul Chand were members of a joint Hindu family. The fact that Makund Lal went out of the family owing to his adoption did not have the effect of any disruption. The circumstance that Salig Ram separated would undoubtedly have considerable bearing on the question, but his going out of the family might be the result of a complete partition between all the members or his individual separation. The oral evidence on both sides is not independent and reliable so that implicit faith could be placed on it. The learned Subordinate Judge has not based his conclusion on the oral evidence. He is of opinion that the evidence produced by the plaintiff as the actual partition having taken place is not convincing. He heard the witnesses and has disbelieved them, and we are not prepared to say that he was wrong in not being satisfied with the plaintiff's case of an actual partition among all the members of the family. The position then is that the evidence is nil on either side. We have the fact that Salig Ram did separate. If there had been a general partition, then the burden would lie on the defendants to establish that there was a subsequent reunion. The defendants might then have to show that there was some agreement between Sham Lal and Gokul Chand to reunite, though that agreement may be inferred from their subsequent conduct, Bhima Rout v. Dasarathi Das [1913] 40 Cal. 323 16 I.C. 908. On the other hand, if Salig Ram alone separated then there would be no presumption that the remaining members remained united, but the fact of their having continued to remain united might, without proving any special agreement, have been inferred from the subsequent course of conduct. We may quote in this connexion the observations of their Lordships in the case of Palani Ammal v. Muthuvenkatachala Moniagar .

It is also beyond doubt that a member of such a joint family can separate himself from the other members... and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to join as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them.

18. Thus, even if we assume that Salig Ram separated, the defendants can show from the subsequent conduct of Sham Lal and Gokul Chand that they continued to remain united. (Here the judgment discussed evidence and proceeded.) Having considered the entire oral and documentary evidence we have come to the conclusion that the finding of the learned Subordinate Judge that the plaintiff has failed to prove that his family was separate from that of Keshab Deo's must be accepted, and that it must be held that the plaintiff and Keshab Deo formed members of a joint Hindu family which had been carrying on the business styled as Sham Lal Gokul Chand, and which later on had an offshoot called Keshab Deo Gauri Shankar.

19. In this view of the matter the plaintiff's liability for the debts of both these firms is on the same footing as the liability of a minor member of a joint Hindu family for the obligations of an ancestral family business. For debts contracted for the purpose of such business, not only the property of the firm but the joint family property of the firm would be liable: Mahabir Prasad Misir v. Amla Prasad Rai A.I.R. 1924 All. 379 and Raghunathji Tarachand v. The Bank of Bombay [1910] 34 Bom. 72. Gauri Shankar, minor, however, cannot be liable personally for these debts, nor can any self-acquired property of his be liable.

20. Had the plaintiff brought separate suits against each set of defendants in respect of the various alienations, the questions of fact which arose in each case would have been considered separately and threshed out in detail. The plaintiff, however, has chosen to bring one multifarious suit, and the allegations in the plaint, even after they were supplemented by his application dated 9th July 1923, were by no means specific or exhaustive. He has alleged generally that the alienations made by his uncle Keshab Deo were not for legal necessity or on account of any business in which the plaintiff was interested, and he has further alleged vaguely and generally that he had not been properly represented. One would have expected the plaintiff to allege specific irregularities in respect of each decree which he wanted to challenge. A mere general and sweeping allegation that he was not properly represented was by no means sufficient. In order that the defendants should meet the plaintiff's case it was necessary to allege what particular irregularities were committed which vitiated those decrees. In the absence of such irregularities the judgments operate as res judicata and the plaintiff cannot be allowed to go behind them, The learned Subordinate Judge in his findings on issues 10 and 11 has remarked that the only ground on which the plaintiff alleged that he was not liable for the decretal amounts was that he was not a member of the firm Kashab Deo Gauri Shankar, and has noted that 'the decrees were not questioned on any other ground.' If that he the true position then the plaintiff's case in respect of these decrees breaks down a finding that he was liable for the debts of the firm Keshab Deo Gauri Shankar.

21. We are further of opinion that it is impossible in the absence of sufficient materials to come to the conclusion that the plaintiff had not been properly represented in any of the previous suits. In order to show why the Court appointed a particular party in one case, one must see the application which was filed by the then plaintiff, the affidavit which supported it and the reasons which influenced the Judge in appointing a particular guardian to represent the present plaintiff. The plaintiff has not taken the trouble to produce copies of applications, affidavits or orders of the Court, and in the absence of such documents we are unable to hold that the appointment of his guardians in various cases was irregular and unauthorized by law.

22. We may, however, refer to two particular decrees on which special stress is laid on behalf of the plaintiff. In one case it is said that he was impleaded as a major, whereas he was a minor and a proper guardian ought to have been appointed. This decree is printed on p. 283. The learned Subordinate Judge has pointed out that this objection was neither taken in the plaint nor in the supplementary application, and that the plaintiff did not allege this as a ground of his attack. Apart from that the decree on p. 283 shows that the defendants were being sued as partners of a firm carrying on business in the name of Keshab Deo Gauri Shankar. Keshab Deo was the elder member of the firm who was managing the business, and the firm itself could be sued in its own name under Order 30 of the Code. We therefore think that this circumstance does not vitiate this decree.

23. In another case it was alleged on behalf of the plaintiff that his mother, whose real name is Mt. Jai Dei, was wrongly described as Mt. Barfi Dei, and that no summons was actually served on her. The only witness on behalf of the plaintiff, besides his mother, who has deposed that the plaintiff's mother's name is Mt. Jai Dei and not Mt. Barfi Dei, is Balu Mal, but he is not definite as to whether she is called by some other name or not. On the other hand there are witnesses on behalf of the defendants who say that her name is Mt. Barfi Dei also. The learned Subordinate Judge considered that the oral evidence adduced by the defendants was more reliable and the plaintiff had failed to prove that Mt. Barfi Dei was not the name of his mother. As the question is one of fact we accept the finding of the Court below on the point, and, therefore, hold that no irregularity on this account has been made out. This disposes of all the decrees which are impugned in this appeal. Four auction sales also have been challenged, but the learned Counsel for the plaintiff has not pressed the plaintiff's case as regards them. Indeed, as the sales have taken place in execution of decrees against the firm Sham Lal Gokul Chand, for which the plaintiff admits liability, the sales must stand and cannot be disputed in this case.

24. Now remain 19 simple mortgage-deeds. The plaintiff attacked these transactions on the ground that he was not a partner of the firm Keshab Deo Gauri Shankar and was not liable for the debts of that firm. Neither in the plaint, nor in the supplementary application was there any express mention that these debts had not been contracted for the purposes of this firm or that they were bad for want of legal necessity. The main ground of attack was that they were not binding on the plaintiff because he was not a partner of that firm, nor was joint with Keshab Deo. The effect of our findings is that this ground of attack fails entirely. We may mention that no specific issue was framed by the Court below as to the existence or absence of any legal necessity for any of these transactions, or as to whether they were incurred for the purposes of the firm Keshab Deo Gauri Shankar. The learned Subordinate Judge also has not dealt with these transactions individually, but has lumped them together and dismissed the plaintiff's suit on the common ground that he was a member of a joint family and was bound by the debts of the firm of that family.

25. The learned advocate for the plaintiff has urged before us that these transfers by Keshab Deo cannot stand unless it is established either that they were supported by legal necessity or that the money had been required for the purposes of the firm or that at any rate representation to that effect had been made and acted upon. This line of attack was not adopted in the Court below, and it seems to us that it would be unfair to the defendants if we were to accept this new ground and decree the plaintiff's suit against those defendants, who have omitted to lead evidence to show that the money advanced by them had been required for the purposes of the business. On the other hand, there are some documents which show on the face of them that the money advanced was probably not advanced for the purposes of the firm but was advanced to Keshab Deo himself. If we simply dismiss the plaintiff's suit in respect of this class of transactions we would be doing so although there is nothing to show that they were or that they were not required for the business. Having considered this point carefully we have come to the conclusion that would be inequitable and unjust to allow the plaintiff to raise this point in this appeal against those defendants who were absent in the Court below and the recitals in whose documents show that at least a representation had been made that the money was required for the purposes of the business. As regards those defendants whose deeds contain no such recitals and who were absent in the Court below, we think that the best course would be to leave this point open, so that the plaintiff, if he is so advised, may raise the question over again and call upon them to justify the transfers in their favour. But as against those defendants who were either present in the Court below and contested the claim and have succeeded, or those who were absent but the recitals in whose documents do contain some evidence of a representation having been made, it would not be fair that the decrees which they have been able to secure should be modified and the question allowed to be reopened in future. We are therefore of opinion that we should not allow the plaintiff to raise the question of absence of legal necessity or the objection that the money taken by Keshab Deo had not been required for the purposes of the business. Those cases where the defendants were represented in the Court below or are represented here, as well as where the mortgagee plaintiffs are suing are cases where the recitals in the deed impugned show that the money was acquired for the purposes of the business. The plaintiff's suit fails against them. In particular we may mention that the deeds in favour of defendants in first appeal No. 440 of 1925 who were absent in the Court below do contain recitals of the nature indicated above, and the suit must be deemed to have been finally decided with regard to the validity of the transfers in their favour. We might also mention that with regard to the mortgage-deed dated 8th November 1917 (p. 177) the mortgaged property has already been attached in execution of a money-decree against the parent firm Sham Lal Gokul Chand, and has been sold at auction and purchased by a stranger. As the plaintiff does not deny his liability for the debt of that firm, the auction sale stands and, therefore, he has no longer any right to challenge the validity of the mortgage deed. Subject to the observations made above all the appeals must fail and are dismissed with costs.


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