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Dhanuben and ors. Vs. Zaverbhai Kalidas - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 620 of 1967
Judge
Reported inAIR1973Guj194; (1973)0GLR527
AppellantDhanuben and ors.
RespondentZaverbhai Kalidas
Appellant Advocate S.N. Shelat, Adv.
Respondent Advocate R.N. Shah, Adv. for; N.R. Oza, Adv.
Excerpt:
- .....suit no. 599 of 1964 in the court of the civil judge, senior division, at surat for partition of joint family properties and for separate possession of his share.3. the defendants raised no dispute as to the plaintiff share in the joint family properties. there is also no dispute that the properties in which the plaintiff has been claming a share are joint family properties. the defendants raised only two small contention against the plaintiff claim. they claimed a sum of rs. 1,000/- from the joint family estate on the ground that they had spent the amount for obsequial ceremonies of kalidas to whom the estate belonged. they also claimed a sum of rs. 7,000/- from the joint family estate on the ground that the defendants nos. 2 and 3 had discharged the debt of the joint family to the.....
Judgment:

1. This appeal has been filed by the original defendants under the following circumstance

2. The plaintiff, the defendants No. 2 and the defendants No. 3 are the sons of the one Kalidas. The defendants No. 4 is the widow of Nanabhai, the deceased son of Kalidas. The defendants No. 1 is the widow of Kalidas. The document Nos. 5, 6, and 7 are the daughter of Kalidas. The plaintiff filled Regular Civil Suit No. 599 of 1964 in the Court of the Civil Judge, Senior Division, at Surat for partition of joint family properties and for separate possession of his share.

3. The defendants raised no dispute as to the plaintiff share in the joint family properties. There is also no dispute that the properties in which the plaintiff has been claming a share are joint family properties. The defendants raised only two small contention against the plaintiff claim. They claimed a sum of Rs. 1,000/- from the joint family estate on the ground that they had spent the amount for obsequial ceremonies of Kalidas to whom the estate belonged. They also claimed a sum of Rs. 7,000/- from the joint family estate on the ground that the defendants Nos. 2 and 3 had discharged the debt of the joint family to the extent.

4. The learned 5th Joint Civil Judge, Junior Division, at Surat, who tried the suit, passed in favour of the plaintiff preliminary decree for partition awarding to the plaintiff 3/16th share therein. He rejected both the claims made by defendants .

5. The defendants appealed to the District Court. The learned Assistant Judge who heard the appeal confirmed the decree of the Trial Court and dismissed the appeal.

6. It is that appellate decree which is challenged by the defendants in this Second Appeal.

7. Kalidas to whom the estate belonged died on 23rd April, 1962. There is no dispute before me in regard to the share which has been awarded by the courts below to the plaintiff.

8. Mr. Shelat, appearing for the defendants, has raised two contentions before me. One of them relates to the aforesaid sum of Rs. 1,000/- and another relates to the aforesaid sum of Rs. 7.000/-. So far as the defendants claim of Rs. 1,000/- is concerned, the learned Appellate Judge had recorded the finding that the defendants had spent that amount after the obsequial ceremonies of Kalidas. It is finding of facts and, therefore, it has not been assailed before me. So far as the sum of Rs. 7.000/- is concerned, the leaned Appellate Judge has found that the defendants have no proved that they paid joint family debts to the extent of Rs. 7.000/-. He has no facts held that the defendants paid only apart of the amount and no more. The question which has been raised for my consideration is whether the defendants are entitled to be reimbursed from the joint family estate to the extent of the amount they have proved to have spent, on those two counts. In my opinion, if member of a joint Hindu family has volunteered to pay funeral expenses for the performance of the obsequial ceremonies of his deceased father or mother, he cannot claim any contribution from the other member of the joint family because voluntary payment made by a member of a joint family for such a purpose does not give rise to any cause of action against other members of the joint family. In order to saddle the joint family estate or to her member of the joint family with the liability of such a payment is must be proved that there was can agreement amongst the members of the joint family to share such expenses or that the members who made expenses, did so under the circumstance which would bind the joint family estate or other members of the joint family. So far as the claim of the defendants Nos. 2 and 3 in regard to the discharge of the joint family debts but their payment is concerned, the learned Appellant Judge has found that there was no joint family debt existing at the date of partition. He has, however, found that some joint family debt existed prior to partition and that the defendants Nos. 2 and 3 had discharge it by paying it off. He has recorded a further finding that the defendants Nos. 2 and 3 have not proved that the payment which they made for discharging the joint family debt was loan advanced to the joint family. In may view, if members of joint family has purely voluntarily discharge a joint family debt by making payment out of his own funds, he is not entitled to any contribution from other members of the joint family because the unilateral exercise of a bare of mere volition by a person to do a certain thing does not create and obligation for another nor does it create any right in favour of the person with thus exercise his volition. In other words, there must be a link between the exercise of volition by a member of a joint family and the liability which is it supposed to produce for the joint family state or to her members of the joint family. It is this link which is missing in the instant case. Voluntary payment is one which fools from the free exercise of one's volition. The free exercise of one's cannot lead to the creation of liability for anyone else. In order to render other members of the joint family liable to contribute towards the payment made by one of them it must be shows that the debts was either discharged out of joint family funds of it must be show that on who discharged the joint family debt out of his own funds did so under the circumstance which would bind the joint family estate or other members of the joint family and create a right in his favour of the reimbursed from it. The Court below have not approached the question from this angle. It has, therefore, become necessary for me to set aside the finding recorded by the Court below on that point and to remand the suit to the Trial Court for taking further evidence on these two points in order to arrive at a correct decision.

9. Case remanded.


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