1. This is an appeal by the plaintiffs, Chiranji-lal and Chitarmal, against the judgment of the District Judge, Alwar dated the 24th May, 1951, dismissing the suit of the plaintiffs for partition of coparcenary properties.
2. The facts of the case, alleged by the plaintiffs are that Ram Pratap, who was living at the time of the filing of the suit, was thefather of Chiranjilal and Chitarmal, who are the plaintiffs and also of Gordhan who is the defendant No. 1. The family consisting of the father and three sons was alleged to be joint and the properties specified in the plaint were alleged to be joint family properties. The plaintiffs claimed 2/3rd share in the joint family properties.
The defendant, Ram Pratap, filed a written statement saying that there were no ancestral properties left by Jhuntaram, the grandfather of the plaintiffs, and that the properties of which partition was claimed were his own self-acquired properties, and the plaintiffs had no share in them. He had made a gift of those properties in favour of Kalu Ram the son of Gordhan, and had got the gift-deed 'duly registered.
It was in the alternative pleaded that if the plaintiffs be considered to have any share in the properties Gordhan was also entitled to l/3rd shore as he was one of the sons of Ram Pratap and as his adoption to Ganga Shahi, brother of Ram Pratap set up by the plaintiffs was not a fact. Replies of Gordhan and Kalu Ram were to the same effect as that of Ram Pratap. Ram Pratap died after filing his written statement and the proceedings in the suit continued between the sons of Ram Pratap along with Kalu Ram who was his grandson. The findings of the trial court were that no ancestral properties came to the hands of Ram Pratap after the death of Jhunta Ram, his father and grandfather of the plaintiffs. It was further held that the properties of which the partition was claimed were acquired through the earnings of Ram Pratap during his life time and the plaintiffs who were the sons of Ram Pratap could claim no interest in those properties merely be-cause they may have assisted their father in the conduct of his business by sitting on his shop and by helping him in the discharge of his trade. The suit of the plaintiffs was therefore, dismissed.
3. In this appeal two points have been urged by the learned counsel who appeared for the plaintiffs:
4. (1) that the piece of land on which Haveli was constructed by Ram Pratap was the ancestral property and when Ram Pratap built a house on it he must be taken to have treated it as making an addition to the ancestral pro-perty.
5. The finding of the lower court on this issue is challenged by the appellants on the basis of the evidence of Mangilal (P. W. 3) who stated that the land of the Haveli belonged to Ram Pratap's father.
6. (2) that even assuming that Jhunta Ram left no property on his death and that the pro- perties of which partition is claimed were acquired subsequently during the life time of Ram Pratap as it has been proved by the evidence that Chiranjilal and Chitarmal assisted Ram Pratap in the conduct of his business, the properties so acquired should be considered to be joint family properties and the suit of the plaintiffs should, therefore, have been decreed.
7. Reliance in this behalf is placed on the decisions in Haridas Narayandas v Devkuvarbai Mulji, AIR 1926 Bom. 408 (A), Harkesh Singh v. Mt. Hardevi, AIR 1927 All 454 (B), and Sanwal Das v. Kuremal, AIR 1928 Lah 224 (C).
8. There are no comments on the evidence of Mangilal (P.W. 3) in the judgment of the lower court. The age of the witness is stated to be of 50 years only and it is conceded by the learnedcounsel of the appellants that Jhutaram died about 40 to 50 years before the date of the filing of the suit. Obviously, the witness must have been very young at the time Jhuntaram died and it cannot be concieved that he had an opportunity to know the state of things which prevailed at the time of Jhuntaram's death.
Much value therefore, cannot be attached to the statement of this witness. Contrary to the statement of Mangilal we have the statement of Isarmal (P. W. 2) who is plaintiffs' witness and who has admitted that Ram Pra-tap's father left no property. Durga Prasad (P. W. 5) has also stated that the condition of the family was not very happy before Bam Pra-tap started his business and the properties were acquired by Ram Pratap out of his own earnings.
The statement of Jai Narain (P. W. 6) is also to the same effect. There is no evidence except that of Mangilal on the record to show that the piece of land on which Haveli was constructed by Ram Pratap belonged to his father Jhutaram. The first point of the learned counsel of the appellants, therefore, fails and the finding of the Court below cannot be regarded as wrong in this behalf.
9. The evidence of Durga Prasad (P. W. 5) goes to show that Chiranjilal and Chitarmal used to sit on the shop of Ram Pratap at Thana Ghazi and they also went occasionally to Lahore with their father. There is no other evidence to show that in what other respects the plain-tiffs helped Ram Pratap in the conduct of his business. We can, therefore take it that the sons of Ram Pratap while they were living with him used to sit on his shop and to do business under the guidance and instructions of their father.
It is also admitted by the plaintiffs that Chiranjilal started his own separate shop first at Thanaghazi and then at Alwar in the name of Ram Pratap Chiranjilal some 10 or 12 years before the date of the filing of the suit. Similarly Chitarmal also started a separate shop at Thanaghazi in the name of Chiranjilal Chitarmal. The point which, has been raised is whether by helping the father in this manner they can be held entitled to claim a share in the business and in the properties acquired by the father through the earnings of that business.
The learned counsel has sought the authority of the following observations of their Lordships of the Bombay High Court in Hari Das's case (A), referred to above :
'Ordinarily speaking on the facts of this case, there would be a presumption that Narayandas and the plaintiff Haridas constituted a joint Hindu family, and the evidence would be sufficient for the plaintiff to establish that the property acquired by virtue of their exertions in the family business was held as joint family property'.
It may be pointed out that the learned Judges further observed that it depended in each case on the evidence whether the members of a family had lived separately or together, and whether 'they had dealt with the property acquired by their joint exertions as joint family property.
In the present case, though sons were living with their father yet it is difficult to assume that they jointly acquired any property alongwith their father or that they dealt with the property acquired by the father as their joint property. While the sons of Ram Pratap were living with him it was but natural that they should sit on the shop of Ram Pratap and undergo a training under him so as to acquire the necessary knowledge of the technique of the business.
Both the sons after they had acquired su-fficient knowledge to start their own business in fact set up their own separate shops and pursued their business independently. The facts of the Bombay case (A) were that the father when he had grown old left the business in the hands of his son who carried on the business himself and acquired the properties gradually from, the profits of the business. No such circumstances are pleaded in the present case.
The father in the present case is admitted to have carried on his business throughout and the sons only worked under his superintendence before they started their separate business. The Bombay authority therefore, does not help the case of the plaintiffs in the present case even assuming that the law laid down in that case was the correct one. The next case referred toby Mr. Saxena is of Sanwal Das v. Kuremal (C) and the relevant observations are as follows :
'I may also observe, with due respect to the learned Judge who delivered the judgment in Ram Kishen Das v. Tunda Mal, ILR 33 All 677 : 10 Ind Cas 543 : 8 All LJ 723 (D) that even if there is no nucleus of ancestral property, but we find two members of the family who are joint in worship and live in commensality and carry on a business jointly and treating that business as that and acquiring property with the proceeds of that business, that such property would be deemed to be the joint Hindu family property.
In my humble judgment this proposition is in consonance with the genius and habits of mind of the vast majority of Hindus governed by the law of Mitakshara. I am supported in this view by the High authority of Mr. Justice Beaman, a very distinguished and learned Judge of the Bombay High Court, who, in Karsondas Dharamsey v. Gangabai, ILR 32 Bom 479: 10 Bom, LR 184 (E), laid down that there was nothing either in practice or theory which excluded the possibility of members of the same family starting a family fortune holding it as members of a joint Hindu family, and thereby clothing it with all the legal qualities and incidents of joint family property'.
It may be observed that in that case there was, as has been observed by the learned Judges, ample evidence on the record to show that the property had its origin in the business of a small shop which the grandfather of the parties was carrying on and which prospered later on under the wise management of the father of the plaintiff. The nucleus of joint family property being there, the observations referred to above, were only obiter dicta. In the present case, we do not find any nucleus of joint family property at the time of the death of Ram Pratap's father. The position of law has been put in more appropriate terms on this point in Kailashi v. Shankar, AIR 1945 All 164 (P), and the relevant observations are as follows :
'But if a business is started by an adult member of the family separately the mere fact that has sons who are dependent on him andare being maintained by him give him some help in the carrying on of the business would not necessarily make the business cease to be his own business and make it the joint business of himself and his sons. It is no doubt true thatwhen the sons grow 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 father had become the joint business of the father and the sons of some arrangement between them'.
We are in agreement with the aforesaid proposition of law. In the present case there is no evidence to show that the father and the eons at any point of time conducted themselves in such a way as to warrant an inference of making the business joint family property.
10. Much stress was laid by Mr. Saxena on the fact of the business of the father at Thana-ghazi being in the name of Ram Pratap Chiran-jilal. We do not think that keeping of a name under the circumstances of this case would be sufficient to gave rise to a presumption for holding that the business was a joint family business specially when it is found that the sons while starting independent business of their own borrowed the name of the father as well along with their own names in the styles of their businesses. P. W. 6, Jai Narain has stated that the name of Chiranjalal was added in the firm name by way of the prevalent practice in the locality merely because he was the eldest' son. No significance under the circumstances can be attached to the name of the business so as to reflect the intention of the members of the family to treat the business as a joint family one. We cannot accept the argument of the learned counsel that the business carried on by Ram Pratap became a joint family business. The finding of the Court below appears to be correct that the properties which are sought to be partitioned were acquired by Ram Pratap out of the earnings of his business and the sons had no interest therein.
11. This appeal fails and is dismissed withcosts.