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Bipra Charan Mohanty Vs. Mohan Sundar Mohanty and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberFirst Appeal No. 35 of 1952
Judge
Reported inAIR1960Ori109
ActsHindu Law
AppellantBipra Charan Mohanty
RespondentMohan Sundar Mohanty and ors.
Appellant AdvocateB. Mohapatra, ;L. Mohanty and ;H.M. Das, Advs.
Respondent AdvocateS.C. Das, Adv. for ;D. Mohanty, Adv., ;R. Mohanty and ;J.K. Mohanty, Advs.
DispositionAppeals dismissed
Cases ReferredSupreme Court Srinivas Krishnarao v. Narayan Devji
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....barman, j. 1. in this first appeal, the defendant no. 5 is the appellant from a decision of the second additional subordinate judge, cuttack, in title suit no. 25/ 1955 of 1951/50 (partition) whereby the plaintiff's suit was decreed on contest with costs against the defendants 2, 4 and 5 and without costs against the rest.2. the suit arose in the following circumstances: the parties belonged to a hindu mitak-shara joint family. the relationship between them appears from a geneological table set below : madhusudan mohanty | ------------------------------------------------ | | | | | krushna keshab- baman balkun- bipra charan charan =sabitri tha charan (dead) =ratna- (d.4 (d.5) 1938 moni ka) =window (d.3) | mono- | hari- rama | charan (d 1 ka) | (d.4) | | dibya- | singha (d.1) | |.....
Judgment:

Barman, J.

1. In this first appeal, the defendant No. 5 is the appellant from a decision of the Second Additional Subordinate Judge, Cuttack, in Title Suit No. 25/ 1955 of 1951/50 (Partition) whereby the plaintiff's suit was decreed on contest with costs against the defendants 2, 4 and 5 and without costs against the rest.

2. The suit arose in the following circumstances: The parties belonged to a Hindu Mitak-shara joint family. The relationship between them appears from a geneological table set below :

MADHUSUDAN MOHANTY

|

------------------------------------------------

| | | | |

Krushna Keshab- Baman Balkun- Bipra

Charan Charan =Sabitri tha Charan

(dead) =Ratna- (D.4 (D.5)

1938 moni ka)

=window (D.3) |

Mono- | Hari-

rama | charan

(D 1 ka) | (D.4)

| |

Dibya- |

singha (D.1) |

|

-----------------------

| |

Madan Mohansundar

(D.2) (Plaintiff)

The plaintiff Mohansundar filed the suit against the defendants for a decree for partition of the joint family immovables described in Schedule B, Schedule C (with the business standing thereon), Schedule D of the plaint and also moveables described in Schedule E according to shares stated in the plaint; if the defendants do not partition amicably within time allowed by the Court according to the said shares a Civil Court Commissioner may be appointed for partitioning the joint family properties according to those shares; costs and other reliefs. Separate written statements were filed by the defendants.

On the pleadings, several issues were raised before the trial Court, including issues Nos. 3 and 5; issue No. 3 being whether or not the defendants 1, 2 and 4 are the adopted sons of Krushnacharan, Keshab and Baman respectively referred to in the geneological table aforesaid; issue No. 5 was whether or not the Tata shop and business are the joint family properties as alleged by the plaintiff; if not, to whom the same belonged -- whether to defendant No. 2 or defendant No. 5 as alleged. In this appeal we are mainly concerned with these issues broadly stated above.

3. The trial court on the question of adoption of defendants 1, 2 and 4 held that they are the adopted sons of Krushna, Keshab and Baman respectively. As to the Tata shop and business, known as the Jamshedpur property, being Schedule C property mentioned in the plaint the trial court held that the said Jamshedpur property is the joint family property as claimed by the plaintiff and that it does not belong exclusively either to the defendant No. 2 or defendant No. 5 alone as claimed by them.

In the result, the trial court decreed, inter alia, the plaintiff's suit declaring that the plaintiff is entitled to a share of -/1/4 in the properties in dispute and that the defendants I and 1 Ka to a share of -/4/- defendant No. 2 -/1/4, defendant No. 8 -/1/4, defendant No. 4 and defendant No. 4 Ka -/4/- and defendant No. 5 to a share of -/4/-in the said properties.

4. The defendant No. 5 Bipracharan is the sole appellant herein, namely challenging the said findings as to the Tata Shop and business and also as to the validity of adoption of defendants 1, 2 and 4. The defendant No. 5 Bipra Charan claimed Jamshedpur property as exclusively his own separate property.

5. On the question of adoption of defendant No. 1 Dibyasingha Mohanty, the learned counsel for the appellant Bipracharan, contended that the story of alleged adoption of defendant No. 1 Dibyasingha could not be believed having regard to the evidence. According to the defence, the defendant Dibyasingha was a stranger to the family. In support of his contention the learned counsel drew our attention to Ext. V-5, being C, S. Khatian, in respect of Khata Nos. 120, 121 and 600 in the name of Dibyasingha Mohanty, where his father's name is mentioned as Narottam Mohanty who was his natural father.

This document is dated January 21, 1931 whereas the adoption of defendant Dibyasingh is alleged to have taken place in the year 1918 when he was aged 18 years on the day of Kumar Purnima. There is indeed some controversy regarding the circumstances under which this land came to be recorded in the name of the defendant Dibyasingha in the current settlement (Ext. V/5). But this fact by itself is not sufficient to disprove the story of adoption.

There is evidence to show that the homestead of the natural father Narottam Mohanty is adjacent to the old homestead of the family of the parties herein and in fact there is at present no demarcation line between the two and that the homestead of Narrottam which was washed away in the flood of 1919 is in possession now of defendant No. 5 the other members of his family.

6. The other circumstance, on which the appellant strongly relied was that in Exts. B/5 and B/5-a two letters, which were admittedly in the handwriting of the adoptive father Krushnacharan find addressed to the defendant Dibyasingha, the writer (Krushnacharan) is described as the uncle (Dada) of the addressee (defendant Dibyasingha). It is contended on behalf of the appellant Bipracharan that if the defendant Dibyasingha was in fact an adopted son of Krushnacharan, the latter could not have been described as uncle (Dada) of the defendant Dibyasingha.

These letters by themselves, however, cannot be conclusive evidence to show that defendant Dibyasingha was not the adopted son of Krushnacharan. The adoptive mother Monorama (D.W. 35) widow of Krushnacharan clearly proved the factum of adoption -- Puja, Homa and giving and taking over of Dibyasingha as the adopted son. She stated in evidence that the defendant Dibyasingha, even after the adoption, used to call her husband as Dada and herself Bou.

The circumstance that the defendant Dibyasingha addressed the adoptive father as Dada, as we have indicated, is in no way decisive to disprove adoption. We must take into consideration the fact that the defendant Dibyasingha, when he was adopted was already 18 years old and by then he got used to certain forms of addressing these persons, in the manner he did, which of course after adoption, he could not completely forget or avoid. It is also common knowledge that in some ancient families, father is also addressed as Dada.

7. That apart, there are certain documents from which it is clear that the defendant Dibya-singha was treated as an adopted son and a member of the family of the defendant No. 5, Bipracharan in several transactions. From a mortgage deed Ext. A/1 it appears that it was executed in favour of certain creditor by Keshab, Baman and defendant Dibyasingha and though the defendant No. 5 Bipracharan was originally included as one of the executants, his name appears to have been subsequently scored through.

According to the defendant Dibyasingha, this was done because defendant No. 5, Bipracharan was then at Tatanagar and could not arrive in time and there was some urgent need for money. In this document the defendant Dibyasingha is stated, to be the son of Krushnacharan. The very fact that the defendant Dibyasingha figures as one of the executants jointly with Keshab and Baman is itself sufficient to show he was treated as a member of the family and a co-sharer of the properties covered by the mortgage.

8. Then again, there is also other satisfactory documentary evidence including a series of letters written by the defendant Bipracharan to the defendant Dibyasingha, which the defendant Bipracharan admitted to be in his handwriting (Ext. D/l series, and Ext. D/2 series). From all these it is clearly indicated that the defendant Dibyasingha was a member of the family and was looking after the family affairs. The learned trial Court discussed, both the oral and, documentary evidence from which the adoption of defendant Dibyasingha must be found to have been established beyond any doubt.

9. With regard to the adoption of the defendant No. 2, Madansundar, his adoption was also challenged by the defendant No. 5 Bipracharan. It is an admitted fact that the defendant Madan is an uterine brother of defendant Dibyasingha and that his adoption took place about one year before the adoption of the defendant Dibyasingha. As in the case of defendant Dibyasingha, so also in the case of defendant Madan, there are sufficient materials on record in support of his adoption into this family as the son of Keshab.

D.Ws. 12, 14 and 36 proved the factum of adoption. They were the eye-witnesses to the adoption and proved that there was giving and taking and necessary Homa. D.W. 12 Satvabadi Patra said that there was Satyanarain Puja after which the natural mother of the defendant Madan made him over to Keshab. Since adoption the defendant Madan lived at the house of Keshab. D.W. 14 who was admittedly the family priest, said that Satyanarayan Puja and Homa were performed. The witness also proved giving and taking over in, adoption of Madan by Keshab.

The positive evidence of the adoptive mother D.W. 36, Ratnamani, the widow of Keshab is that the defendant Madan was taken in adoption by her husband on one Srpanchami day while he was aged nine years. There is no reason to discard her evidence, especially when it is against her own interest and against the interest of her natural bom son, the plaintiff Mohan.

10. Apart from the oral evidence there are a series of documents including a registered will (Ext. A/2) dated September 8, 1944, executed by the adoptive father Keshabcharan, sometime before his death, in favour of the plaintiff and the adopted son Madan. In the said will the defendant Madan is described by the executant (the adoptive father) as his adopted son. This admission by the adoptive father in the will is itself conclusive to prove the adoption of the defendant Madan.

There is also in evidence several letters written by Keshab to the defendant Madan (Ext. C 2) series) in some of which Keshabcharan described himself as the father of the defendant Madan. That apart, there are also certain letters said to have been written by the defendant Bipracharan himself to the defendant Madan (Ext. D/2 series) in which there are recitals here and there showing that the defendant Madan was a member of the family. In one of the letters (Ext. D/2(c)) the defendant Bipracharan referred to the wife of Keshab, whom he called Majhiani Bhouja, as the mother of defendant Madan.

The learned trial court went into this question of adoption of defendant Madan in details, by reference to the evidence both oral and documentary. Having regard to the evidence we find no reason to interfere with the learned trial Court's finding that the defendant Madan was the adopted jinn ot Keshab.

11. Then with regard to the adoption of the defendant No. 4 Haricharan into the family, as the adopted son of Bamacharan, it is the common case that Bamacharan had no natural son and that he adopted a son. The only controversy is whether he took in adoption the defendant Haricharan or Purasundar, a son of the defendant Bipracharan. It was contended on behalf of the defendant Bipracharan that his brother Bamacharan adopted his son Purasundar but later on there was some misunderstanding over the custody of the boy, as the natural mother of Purasundar did not like to part with her child during his infancy and the boy continued to live with the natural parents.

On this point the evidence of the adoptive mother defendant No. 4 Ka Sabitri Kumari Devi (D.W. 37), with whom the defendant Haricharan had been living, -- gave evidence that her husband Bamacharan adopted the defendant Haricharan and Purasundar, as sought to be set up by the defendant Bipracharan. The evidence of the adoptive mother is very important, particularly when she made a statement which is adverse to her own interest, Admittedly the defendant Haricharan is the natural son of defendant Dibyasingha (D. W. 10) who asserted that he gave away his natural son Haricharan in adoption to Bamacharan.

The adoption of the defendant Haricharan is stated to have taken place on the 21st day of his birth at the Guttack residence of the defendant Dibyasingha. The family priest D.W. 14 also stated on oath that ho officiated as the priest in the adoption ceremony, and that there was giving and taking and necessary Homa and Puja. It is quite clear from the judgment of the trial Court that, --for his finding that Haricharan was adopted by Bamacharan and that the alleged adoption of Purasundar by Bamacharan did never take place as sought to be set up by the defendant Bipracharan,-- the learned trial Court relied on both oral and documentary evidence which he fully considered in his judgment.

The whole question rests on whether to believe or not to believe the witnesses. We are, however, satisfied that there was satisfactory evidence in this regard, which established beyond any doubt the adoption of the defendant Haricharan by Bamacharan.

12. Thus we come to the bone of contention between the parties, which is with regard to the Jamshedpur property and business. The defendant No. 5 Bipracharan claims it to be his self-acquired property exclusively; and the defendant No. 2 Madan also claims the same to be his exclusive property. The Jamshedpur property consists in a sweetmeat stall described as 'Annapurna Bhandar', though as to its name there is some controversy between the defendant No. 2. Madan and defendant No. 5 Bipracharan as to whether it is locally or popularly known as 'Madan's shop, (defendant No. 2's shop) or the shop ot B, C. Mohanty (referring to defendant No. 5 Bipracharan). There are different rival versions regarding the genesis of the Jamshedpur property as to whether the shop property was originally purchased by defendant No. 1 Dibyasingha or by defendant No. 5 Bipracharan.

According to defendant No. 1, Dibyasingha, he was the first member of the family to go to Tata-nagar and was serving as a clerk under the Tata Iron and Steel Company, Ltd. in the year 1923, when he took defendants Nos. 2 and 5 to Tatanagar to find out employment for them; that at the time of the purchase of the shop, the defendant No. 2 Madan was serving as an office boy under the Tata Iron and Steel Company, while the defendant No. 5 Bipracharan was without any employment; that the shop was acquired in the name of defendant No. 5 Bipracharan as under the Rules, he (defendant No. 1, Dibyasingha) having been an employee, was debarred from holding any site.

The defendant Dibyasingha, however, does not claim to be the exclusive owner of the property in question. The main contest is between defendant Bipracharan and the defendant Madan. The defendant Bipracharan claimed that by the time of the purchase o the shop, he was already serving in Timplate Company; that he had taken a partner, one Nobin Sahu in the shop, which the defendant Bipracharan claimed to be his own exclusively.

The defendant No, 2 Madan, on the other hand, while admitting that the premises of the building described in Schedule C of the plaint belongs to the joint family, claims that he is the sole owner in possession of the business that is being run in the said premises. This is also the subject matter of the defendant Madan's cross appeal herein. At the trial Court, both sides adduced evidence in support of their respective rival claims.

13. The defendant Bipracharan relied on certain documentary evidence in proof of his claim that the land was acquired by him. For determination of the character of the Jamshedpur property, whether it was a joint family property or exclusive property of one of the members of the family or the other, three aspects of the question involved --namely, the land, the house and the business --have to be considered.

The defendant Bipracharan relied on Ext. D/5 dated October 20, 1943 described as Nadabi Patra referring to defendant No. 5, Bipracharan Mohanty as proprietor of 'Annapurna Bhandara.' But it has to Be noticed, however, that this nadabi patra which appears to have been executed by one Nabin Sahu shows a mere recital by a third party which will not be necessarily binding on the parties to the dispute herein. The appellant Bipracharan's answer to this question, however, is that this document binds everybody, in view of the fact, according to him, that the executant of the document, namely Nobin Sahu was called as a witness as D.W, 13. However, we have to consider the implication and effect of this document, in the light of other circumstances.

14. Then the defendant Bipracharan also relied on Ext. E/5, handnote by the said Nabin Sahu and the defendant Bipracharan Mohanty jointly, appearing to bave been executed on April 15, 1942; and Ext. P/5 described as accounts on the letter head paper of Annapurna Bhandar showing defendant No. 5 B. C. Mohanty as proprietor of the business. The defendant Bipracbaran further relied on Ext. G/5 (a), loan bond by defendant Bipracharan in favour of the National Insurance Company, Ltd. dated September 14, 1940 purporting to show that this loan money was utilised for the purpose of his business at Jamshedpur.

He further relied on Ext. R-5/a, a letter from the Chief Town Engineer, Tata Iron and Steel Company Ltd. to defendant No. 5, B. C. Mohanty granting sanction for erection of kutcha building and directing to construct the sewer line dated January 15, 1938, purporting to show that the sanction was given in the name of defendant Bipracharan. Then Ext. T-5/f, a letter from the land Officer, Tata Iron and Steel Company, Ltd. to defendant No. 5, B. C. Mohanty regarding permission for mortgaging the shop premises for further one year dated August 16, 1946, wherein the defendant No. 5 was described as a shop-keeper of 'Annapurna Bhandar.'

15. It was contended On behalf of the appellant Bipracharan claiming the Jamshedpur property to be his own exclusive property, that there is satisfactory documentary evidence to show that he alone had established the business on land which he himself took lease in 1937. In support of his contention, the defendant Bipracharan relied on Ext. P/5, a notice given by the Tata Iron and Steel Company, Ltd. to defendant No. 5, B. C. Mohanty to vacate and to deliver up possession of the land situated in the Tinplate Basti to the Company immediately after November 30, 1936.

Thereafter, as appears from Ext. Q/5, letter dated October 1, 1937, the Tata Iron and Steel Company, Ltd., -- on the defendant No. 5 Bipracharan's application for a plot of land for sweetmeat shop purposes in the junction of Kadri road and Pindra Road Basti, -- allotted to him a plot of land for the purpose of erecting thereon a hut. The defendant Bipracharan was required to deposit a sum of Rs. 132/- as security deposit for the due performance of the terms of the said monthly house building tenancy. By 1939 the house was constructed.

On these facts, the appellant Bipracharan claims that the property is his exclusive property. 'The original lease of land which was taken in the name of defendant No. 5, B. C. Mohanty for the purpose of business was as early as 1924 as appears from Ext. C/l receipt granted by Tata Iron and Steel Company, Ltd. to the defendant Bipracharan on account of transfer fee dated March 10, 1924. This also is supported by Ext. C/5, deed of acknowledgment for the sale of shop at Tinplate and Company dated March 10, 1924 being a receipt for a sum of Rs. 180/- from the defendant No. 5 Bipracharan Mohanty for the cost of the shop at Tinplate and Company at Tatanagar together with articles therein.

16. The back ground of the family at this point of time was that the defendant No. 1 Dibya-singha was getting only Rs. 30/- per month and is alleged to have been not in a position to contribute anything to the business. As regards defendant No. 2 Madan, he claims only the business and not the property. As hereinbefore stated, another plot of land was subsequently taken on lease in 1938 after ejectment from the said Tinplate Busti. Admittedly Rs. 1,000/- was contributed by Keshab, the father of defendant No. 2 Madan.

This admission by itself undoubtedly weakens the alleged claim of defendant No. 2 Madan that the building was constructed at his own exclusive cost. It is evident that the costs of the construction were met from the joint family funds and amounts advanced by different members of the family. In this context, the defendant Bipracharan relied upon a decision of the Supreme Court Srinivas Krishnarao v. Narayan Devji, AIR 1951 SC 379, where it was held that proof of the existence of the joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact.

Their Lordships, however, made it clear in the judgment that where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. This decision rather supports the plaintiff's case that the Jamshedpur property was acquired out of joint family funds.

The plaintiff, on this point relied on that portion of the judgment of the trial court, where the learned Judge discussed the nucleus out of which the Jamshedpur property was acquired and grew. The plaintiff appears to have clearly established the nucleus in that Rs. 1,000/- was contributed by Keshab, the father of defendant No. 2 Madan, apart from other contributions to the business by way of capital and meeting of other expenses as discussed in the judgment.

With such nucleus as established, the onus undoubtedly shifted to the party or parties claiming the said property as their exclusive self-acquired property. Furthermore, there is also the circumstance that this joint family had income producing 15 acres of land as appears from the plaint schedule, including Puri property.

17. Mr. Banchhanidhi Mohapatra, learned Advocate General appearing for the defendant-appellant Bipracharan, contended that the trial court had wrongly put the onus on the defendant Bipracharan. He relied on the well-settled position in law that there is no presumption that a family, because it is joint, possesses joint property or any property; when in a suit for partition, a party claims that any particular item of property is joint family property, as in the present case, the burden of proving that it is so, rests on the party asserting it, though circumstances may readily cause the onus to be discharged; to render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour; none of these alternatives is a matter of legal presumption; it can only be brought to the cognisance of a court in the same way as any other fact, namely, by evidence. (Mulla's Principles of Hindu Law, Twelfth Edition, 1959 p. 342).

18. It was contended on behalf of the defendant-appellant Bipracharan that the approach of the trial court appears to have been wrong in his decision on the point. Indeed, there must be evidence to show that some money came from the joint family to form the nucleus. In the present case, we find that both parties led evidence. It appears that the defendant No. 2 Madan was also at Tatanagar, at all relevant times. It further appears, as hereinbefore discussed, the nucleus of the joint family property, out of which the Jamshedpur property originated and grew up, had clearly beenestablished.

At Tatanagar the defendant No. 2 Madan was looking after the business as appears from the evidence. His labour may also be treated as contribution to the shop, along with certain materials which were purchased in the concern of the business. It is also in evidence that the defendant Bipracharan Mohantv had asked for some money raised by mortgage of the Puri property which was and found to be joint family property in this suit. It is also in evidence that the defendant No. 2 Madan's father, Keshab had contributed Rs. 1000/- as aforesaid which all may be treated to have formed the nucleus out of which the Jamshedpur property had initially come into existence and bad gradually grown up. That apart, the circumstance that the income of the Jamshedpur property was utilised for the purpose of joint family business goes to show that it was a joint family business.

19. It was contended on behalf of the appellant Bipracharan that the joint family property was not sufficient even to maintain the family. In fact, according to the appellant Bipracharan, there was no surplus, left out of the income of the joint family property, which could be available for Jamshedpur business to form the nucleus as alleged. The evidence however shows the contrary. It is clear from evidence that the joint family property was large enough and had such sufficient income as to be able to give a start to a business on a small scale, as the parties herein did at Jamshedpur, all the family members in their own way participated and helped in the growing up of the business which subsequently appears to have prospered from year to year. Everybody appears to have contributed to the business.

As regards the circumstance that the income from the Jamshedpur business was utilised for the joint family purpose, the learned trial Court found that the shop was treated as a joint family were (sic) equally interested as the defendant Madan and the defendant Bipracharan. In one of the letters, Ext, D/2-Z(1) letter dated January 7, 1940, the defendant Bipracharan suggested to the defendant Madan that instead of paying the entire amount arranged by Baman (defendant No. 4 Haricharan's father) for payment to a creditor a portion should be paid to him and the balance diverted to the shop. It further appears from some of the letters (Ext. D/2 scries) that the defendant Bipracharan directly asked the defendant No. 2 Madan to send money from the shop account for family expenses at their village home at Urali and that money was actually being remitted for the purpose.

It is also in evidence that some of the lands were purchased at their village borne Urali jointly in the name of Krishna Chandra, the eldest brother of defendant No. 5 Bipracharan and Nabin Sahu. This joint purchase appears to have been made as the consideration was paid from the account of the shop and as Nabin Sahu was taken by the joint family as a partner, in their joint family business. Jn this context, it also appears from Ext. D/2-j, dated November 1, 1934, letter from uncle (Sanadada --referring to defendant Bipracharan) to the defendant No. 2 Madan relating to certain Nat Mandir belonging to the family. All these go to show that the income of the Jamshedpur property was also utilised for the purpose of the family.

20. On this point, it was, however, contended on behalf of the defendant Bipracharan that these stray circumstances, showing that the income of the Jamshedpur business was utilised for joint family purposes, are not conclusive for finding that the business belonged to the joint family. It is no doubt well settled law that property which was originally the separate or self-acquired property of a member of the joint family may become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it; a clear intention to waive his separate rights must be established and it will not be inferred from the mere fact of his allowing the other members of the family to use it co-jointly with himself nor from the fact that the income of the separate property was used to support a son nor from the mere failure of a member to keep separate accounts of his earnings; so also acts of generosity or kindness should not be construed as admission of legal obligation separate property thrown into the common stock is subject to all the incidents of the joint family property. (Mulla's Principles of Hindu Law, Twelfth Edition, 1959 p. 332).

Thus, there must be something to show blending of such income with the joint family funds. In] the present case, there is documentary evidence to show that defendant No. 2, Madan had paid interest on mortgage loan on account of the said joint family business of 'Annapurna Bhandar'. Ext. U/2-a, receipt dated January 12, 1949 to defendant Madan relates to payment by him towards dues on registered mortgage bond dated August 6, 1941 purporting to show that the mortgagee had received Rs. 105/- from Madan of 'Annapurna Bhandar' as interest from August 6, 1948 to January 6, 1949 (five months) against the said mortgage.

Similar receipts namely, Ext. U/2 and Ext. U/2-b also show payment by the defendant Madan of several sums of money as interest towards payment of the mortgage dues. These, indeed, are circumstances showing that the whole business was treated as a joint family business. On this point, the evidence of the defendant Madan himself as D.W. 15 was that he borrowed Rs. 1,000/- from one Bhola Marwari by pledging gold; that about Rs. 3,000/- in all was spent in the construction of the house at Jamshedpur; that he got Rs. 1,000/-from the father of Keshab in two instalments; that be borrowed Rs. 500/- from another Marwari against pledge of gold.

Although Bhola Marwari had not been called and there was no other evidence in corroboration of the said statements of Madan in his evidence; hut the fact remains that there is ample evidence to show that these members of the family were all contributing towards the business; and it also shows that the joint family was drawing from the income of the said business for purposes of joint family expenses in their village home.

21. The appellant Bipracharan also relied on the circumstances that after the land was purchased in his name, he bad also paid rents and taxes throughout up to 1943. The non-production of accounts by the defendant No. 2 Madan who was looking after it as servant as alleged, was seriously commented upon, on behalf of the appellant Bipracharan. It is also alleged that the defendant No. 5 Bipracharan was prevented from going to the shop since 1949.

22. It was sought to be contended, on behalf of the defendant Bipracharan, that the very fact that Nabin Sahu was taken in as a partner in the business by the defendant Bipracharan, goes to show that it could not have been joint family business in which the other members of the family could have been interested. In this regard, the evidence of Nobin Sahu himself as D.W. 13 was this : He said that he and the defendant Bipracharan, jointly borrowed money for the shop from one Ramdayal Narsingdas by jointly executing hand-note (Ext. E/5 dated April 18, 1942); that he also obtained goods on credit for the shop from some persons in the name of himself and defendant Bipra-charan.

These and other circumstances on which the witness Nabin Sahu deposed were strongly relied upon on behalf of the appellant Bipracharan. In this context, the evidence of defendant Madan as D.W. 15 was that he, Nabin Sahu and defendant Bipracharan all three jointly hired the room tor their store house; that defendant Bipracharan also joined with them in hiring the house as he was the guardian and the business in his shop was run in his name as Karta; that some of the bills for articles purchased for the shop were in bis (Madan's) name and some in the name of Nobin Sahu and defendant Bipracharan; that bills were received by him (Madan) as proprietor of the shop, hat there was no express mention in the bill that he was the proprietor; that as a matter of fact, there was never any mention in any bill in the names of Nabin Sahu and defendant Bipracharan showing them as proprietors.

The circumstance, that Nabin Sahu was taken in as a partner in the business for a short period until he relinquished his interest in the business cannot in any event destroy the joint family character of the business. There is no bar to a particular joint family taking in an outsider as a partner of the joint family business. Keeping this in view, the part played by Nabin Sahu in the business as a partner for certain period loses its importance to affect the essential joint family character of the business.

23. In the ultimate analysis, it comes to this, that either the Jamshedpur property was the joint family property or the exclusive property of one or the other of the rival claimants. When it is found that it is not the exclusive self-acquired property of either or any of them, then it is claimed, that it should necessarily follow that it is a joint family property belonging to the family. The property was initially purchased in the name of defendant Bipracharan showing him as proprietor and there is the further fact that Nabin Sahu had relinquished his interest in the business in favour of Bipracharan alone.

These indeed are circumstances showing that the defendant Bipracharan had played an important part in the building up of the business at Jamshedpur. But that by itself is not sufficient to make it the exclusive self-acquired business of his own. It is also in evidence that defendant No. 4 Haricharan's father Baman also used to go to Jamshedpur and supervise the work of construction of the house there. Similarly, Baikuntha one of the brothers of the defendant Bipracharan was also there for some time at Tatanagar.

From the evidence on record, and the circumstances of the case we are satisfied that the business at Jamshedpur was started on behalf of the Joint family and with the funds or contributions of different members, and there is no satisfactory evidence to come to a finding that the said business is the exclusive self-acquired business of either the defendant No. 2 Madan alone or of the defendant No, 5 Bipracharan alone.

24. Mr. S. C. Das, learned Counsel appearing for the defendant No. 2 Madan in the cross-appeal herein contended that defendant No. 2 Madan, while not laying any claim on the landed property at Jamshedpur, however, claimed the business there to be his own exclusively. His stand on the point was on this; As early as 1920, it was his brother defendant No. 1 Dibyasingha who went to Tatanagar and worked there as a clerk on a salary of Rs. 30/- per month. In 1923, it was the defendant Dibyasingha who took their uncle, defendant No. 5 Bipracharan and his natural brother, defendant No. 2 Madan.

In 1924, the land was purchased as appears from Ext. C/l which was produced by defendant No. 1 Dibyasingha while giving evidence. The evidence of defendant No. 1 Dibyasingha as D.W. 10 on this point was that when he purchased the shop at Tatanagar he had to pay Rs. 27/8/- to the Tata Company including Rs. 25/- as transfer fee and Rs. 2/8/- as part rent and then the defendant Dibyasingha produced in court the receipt which he had obtained after making payment which was marked as Ext. C/l. The defendant No. 2, Madan claims that the money which was paid by Dibyasingha was in fact advanced by him.

As we have already discussed, the defendant Madan mentioned having borrowed some money from Bhola Marwari and also borrowed by pledging of gold, as aforesaid. In this context, two documents namely Exts N/2 and N/2a being the two handnotes stated to have been executed by Madan dated April 24, 1937 and May 16, 1941 respectively, were relied upon in support of the alleged claim of the defendant Madan that he had borrowed moneys from creditors, which are suggested to have been utilised for the purpose of the Jamshedpur business.

In fact, subsequently suit was filed against Madan for recovery of the said dues. The defendant No. 2 Madan further relied on a letter from defendant No. 5 Bipracharan addressed to himself dated December 12, 1936 (Ext. D/2-q) in support of his claim to the said business.

25. With regard to defendant Bipracharan's contention that the defendant No. 2 Madan was a mere servant or manager for looking after his business, it was submitted on behalf of the defendant No. 2 Madan that he was not a paid servant; and in fact, correspondence being Ext. D/2-a, Ext. D/2-j, Ext. D/2-q and Ext. D/2-r, all letters written by the defendant Bipracharan to defendant Madan clearly show that defendant Madan was not a servant as alleged. That apart, it also appears in evidence from Ext. W/2 being a receipt granted by the Tinplate Company of India Ltd. to Madan's confectionery shop for supply of water dated September 30, 1938 clearly showing that water tax was paid by Madan as proprietor of the said confectionery shop.

The defendant Madan also claims that he had paid income-tax and sales-tax as he said in his evidence. While on this aspect of the case as claimed on behalf of defendant Madan, it clearly shows that defendant Bipracharan could not alone claim the business to be his own exclusively.

26. Mr. R. Mohanty, learned counsel appearing for the plaintiff-respondent submitted that all the documents regarding the Jamshedpur land, stand in the name of defendant Bipracharan; and the documents relating to the business are in the name of defendant Madan. The very fact that defendant Madan was there at Jamshedpur and was looking after the business and the part that he took in the growing up of the business by contributing either money or by putting labour for the business considered along with other surrounding circumstances discussed above, are sufficient for holding that it could not be the self-acquired exclusive business of either the defendant Bipracharan or of the defendant Madan.

27. In this context, the plaintiff relied on the evidence of the defendant Madan himself as D.W. 15 where he stated that he used to send money from the shop account for joint family expenditure; that if any member of the family went to Tatanagar he stayed at the shop and took his meals there and bring money from the shop funds for his journey expenditure. It is further in evidence, as aforesaid, that Baikuntha, brother of the defendant Bipracharan stayed in the shop for about 4 to 5 years and used to sell articles in the shop during this period; defendant No. 4, Haricharan's father, Baman being the third brother of defendant Bipracharan also went to Tatanagar while the new shop house was under construction and he supervised the construction works.

In this context, the evidence of P.W. 3 Mani Moharana is worth noticing where he stated that he worked as a carpenter when the house was constructed and the doors were fitted. There is further the evidence that the house was constructed by defendant Madan; that defendant Bipracharan used to supervise the work there for some time; the father of defendant No. 4 (Baman) also used to go now and then to supervise the works of construction; that to his knowledge the house at Tatanagar was constructed by defendants Madan and Bipracharan. The witness further said that the house was constructed when defendant No. 5 Bipracharan and his brothers were all joint.

28. The plaintiff also relied on the evidence of defendant No. 1 Dibyasingha as D.W. 10 saying that he had purchased the shop at Tatanagar and in support thereof the defendant Dibyasingha had produced in Court Ext. C/l as aforesaid. The custody of the document of a date as early as March, 1924 and its production in Court about more than 27 years thereafter was intended to be and in fact was a joint family business.

29. In this view of the matter, we must uphold the decision of the learned trial Court on all points. Both the appeal and cross-appeal are, accordingly dismissed.

30. Each party to bear own costs.

Das, J.

31. I agree.


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