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Pl. Pn. Subramanian Chettiar Vs. P.L.P.N. Kumarappa Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberAppeal No. 161 of 1950
Judge
Reported inAIR1955Mad144
ActsLimitation Act, 1908 - Article 107; Evidence Act, 1872 - Sections 57; Hindu Law
AppellantPl. Pn. Subramanian Chettiar
RespondentP.L.P.N. Kumarappa Chettiar and ors.
Appellant AdvocateA. Sundaram Iyer, Adv.
Respondent AdvocateM. Murugappa Chettiar, Adv.
DispositionAppeal dismissed
Cases ReferredKazim Ali v. Sadiq Ali
Excerpt:
family - recovery of loans - article 107 of limitation act, 1908, section 57 of evidence act, 1872 and hindu law - joint family manager advanced money to joint family by his separate earnings - manager not intended to give money gratuitously but as loan - manager could file suit for recovery of loan within period of limitation prescribed under article 107. - - exhibits a-18 and a-19 as well as exhibit a-20 show that the 1st defendant received money from the plaintiff for the expenses of the father's medical treatment and funeral. this plaintiff throughout his pleadings has described himself as the joint family manager and he claims that the moneys covered by the e schedule were all his separate earnings advanced by him to the joint family and were not given as gifts or could be.....ramaswami, j.1. this is an appeal preferred against the decree and judgment of the learned subordinate judge of sivaganga in o. s. no. 29 of 1947.2. the facts of this case have been fully set out in the judgment of the lower court and need not be recapitulated because this appeal is confined only to e schedule moneys in regard to which the controversy is whether they were advanced by the plaintiff as deposits or loans which should be repaid only at the time of partition under an agreement pleaded or custom sought to be made out or under the general principles of hindu law as set out in two passages from mayne and raghavachari's hindu law and the further question is whether recovery of these amounts is barred by limitation under article 107, limitation act.3. the e schedule consists of.....
Judgment:

Ramaswami, J.

1. This is an appeal preferred against the decree and Judgment of the learned Subordinate Judge of Sivaganga in O. S. No. 29 of 1947.

2. The facts of this case have been fully set out In the Judgment of the Lower Court and need not be recapitulated because this appeal is confined only to E Schedule moneys in regard to which the controversy is whether they were advanced by the plaintiff as deposits or loans which should be repaid only at the time of partition under an agreement pleaded or custom sought to be made out or under the general principles of Hindu law as set out in two passages from Mayne and Raghavachari's Hindu Law and the further question is whether recovery of these amounts is barred by limitation under Article 107, Limitation Act.

3. The E Schedule consists of three Sub-schedules (a), (b) and (e) and the learned Subordinate Judge has given the following findings regarding them.

4. In regard to Schedule E (a) items 1 to 7, the learned Subordinate Judge states that It is quite probable that, as the plaintiff in his evidence states, he remitted moneys belonging to him: Items 1 to 6 of Schedule E(a) are moneys remitted by the plaintiff when he was employed as agent in the PL. RN. A. RM, firm and item 7 represents salary earned by the plaintiff in the PL. AV. SP. firm. In regard to these, amounts advanced of the plaintiff from 1919 to 1930 represented by the items in Schedule E(a), the learned Sub-ordinate Judge has held that the plaintiff is not entitled to recover the same because the plaintiff had no intention upto 1930 to keep his earnings separately and that these items got merged in the family assets toy reason of their being credited to the family in the accounts of the partnership and that they were not advanced either as loans or as deposits.

5. Items l and 2 of Schedule E(b) are two amounts which the plaintiff paid by honouring hundials which Valliappan drew for his own expenses. These hundials are Exhibits A-3 and A-4. Item 3 of schedule E(b) represents the hundiais honoured by the plaintiff for balance of stridhanam amounts due for Vailiappa's wife which had to be paid to her parents after her death without having any issue. Item 4 in Schedule E(b) represents money paid by the plaintiff for the funeral expenses of Valliappa's wife. For this purpose money had been borrowed by Valliappa from S. P.. A. Palaniappa of Neikuppai. Exhibit A-7 is a letter written by this person to the plaintiff at Aimbon enclosing the vaddi chittai. The learned Subordinate Judge held that there is no reason to disbelieve the plaintiff's evidence on the point that he paid this amount also. But while holding that these amounts represented payments by the plaintiff, the learned Subordinate Judge further found that items 1 to 4 of E(b) Schedule could not be held to be expenses Incurred by the plaintiff for joint family purposes.

6. Items 5 and 7 of the plaint E(b) Schedule represent repayments made by the plaintiff for the loan borrowed by the 2nd defendant for Vailiappa's marriage. Both these repayments are admitted in the written statement of the 2nd defendant. Item 6 of E(b) Schedule represents repayment of a promissory note debt incurred for the expenses of the plaintiff's father's funeral. At the time of the father's death the plaintiff was in foreign parts but the 1st defendant remained in the village. Exhibits A-18 and A-19 as well as Exhibit A-20 show that the 1st defendant received money from the plaintiff for the expenses of the father's medical treatment and funeral. In regard to the moneys paid by the plaintiff after Valliappa's marriage, the learned Subordinate Judge held -that there could not be any intention on the part of the plaintiff to make a gift of these moneys to the joint family as after Vailiappa's marriage there was a partition of some of the movables of the joint family and each brother was expected to meet his own expenses from out of his own earnings. The learned Subordinate Judge therefore held that items 5 to 7 were not moneys which were paid over by the plaintiff to the joint family with the intention of treating such moneys as joint family funds. But in regard to these items the learned Subordinate Judge further considered whether they could be treated as either deposits or loans repayable only at the time of partition as alleged by the plaintiff or whether these amounts were advanced only for expenditure incurred on behalf of the joint family and should be only treated as loans as contended by the 1st defendant and came to the conclusion that these amounts should be treated' only 'as loans and that therefore the period of limitation applicable for recovery is as prescribed in Article 107, Limitation Act. Therefore he held that the claim for recovery of these E(b) Schedule Items was barred by time.

7. Item 1 of Schedule E(c) represents the 'stridhanam' and 'struvaton' amounts due to the plaintiff's wife. Item 2 ot that schedule represents the claim put forward for the deficiency in value of jewels given by the joint family to the plaintiff's wife as compared with the value of the jewels given to the wives of Kumarappan the 1st defendant and Vailiappan. Item 3 represents a sum of Rs. 35.000/- credited by the plaintiff in the joint family accounts by hundial drawn on OA. OK. RM. firm in Madras and acknowledged in Exhibit A-29. This amount is shown to have been credited in the ledger of the joint family in Bogale firm. The learned Subordinate Judge held that there is no reason to disbelieve the credit of this item in the joint family ledger.

Item 4 of Schedule E(c) represents amount due on a promissory note executed by the plaintiffs father in favour of Pisall and subsequently renewed by the plaintiff after the debt had become time-barred. - A suit had been laid on this promissory note in S. C. S. No. 23 of 1946 against the plaintiff. This debt is also proved. Items & and 6 in the said schedule represent moneys expended by the plaintiff for the litigations lit O. S. No. 70 of 1940 on the file of the Sub-Court, Sivagana, O. S. No. 196 of 1942 and appeal there from oh the file of the Sub-Court, Devakottal, and O. S. No. 288 of 1941 on the file of the Chief Court. Pudukottai. The learned Subordinate Judge found that except the amount claimed as items l and 2 in Schedule E(c) and the amounts claimed for the expenses of litigations, the other items are proved to have been expended by the plaintiff. In regard to item 1 the learned Subordinate Judge found that it had not been proved and in regard to item 2 of Schedule E(c) he found that it had not also been established on the foot or the custom said to be prevalent among the Nattukottai Chettys to the effect that any difference in the value of the jewels given to the wives of sons of the family is an item to be adjusted at the time of partition. Item 3 is hot the subject-matter of appeal. Item 4 of Schedule E(c) wag held by the learned Subordinate Judge as not being debt which could be debited against the joint family because admittedly at the time when the plaintiff renewed the promissory note in favour of Pisali the debt due to her by the father had become time-barred and the plaintiff who was the manager of the family had no right to renew such a barred debt.

7a. In regard to the expenses incurred by the plaintiff for defending O. S. No. 70 of 1940 the learned Subordinate Judge held that the sum of Rs. 400/- proved to have been expended would be a necessary expenditure because the 1st defendant who was a party to that litigation took up the attitude that the money borrowed for Valliappa's marriage from the 2nd defendant should be paid by one plaintiff alone but that the recovery of the amount was barred by limitation. In regard to the expenses of the litigation in O.S. No. '196 of 1942 the learned Subordinate Judge held that it could not be allowed because there was no necessity for this plaintiff to defend that litigation as it related to Valliappa's share in two items of joint family properties which he had mortgaged for consideration. In regard to the expenses incurred by the plaintiff for prosecuting O. S. No. 288 of 1941 the learned Subordinate Judge held that it could not be recovered entirely from the joint family funds because the plaintiff had been awarded costs as against the 1st defendant by the decree of the Pudukottai Chief Court and therefore in the decretal portion the learned Subordinate Judge has provided that provision should be made in the final decree for payment out of the joint family assets of the costs incurred by the plaintiff for prosecuting O. S. No. 288 of 1941 minus the costs allowed to him as against the 1st defendant and the other defendants in the case.

8. Analysing the findings of the learned Subordinate Judge, it is found that he has disallowed practically all the items under (a) to (c) of the E Schedule as being barred by limitation under Article 107, Limitation Act; and secondly, he has found in regard to particular items that the items in E(a) Schedule and item 3 in Schedule E(c) got merged in the family assets by reason of their being credited to the family in the accounts of the partnership firm and that the payments made by the plaintiff to Valliappa are not binding on the family and therefore the plaintiff is not entitled to claim items l to 4 of Schedule E(b) and that items 5 & 7 of the plaint E(b) Schedule were paid by the plaintiff to the 2nd defendant towards the 2nd Defendant's debts, that item 6 was paid to discharge the debt contracted by the 1st defendant for the funeral expenses of his father and the plaintiff had a right to get back the same but that these claims were barred by limitation and that in regard to items 1 and 2 of E(c) Schedule they have not been proved and that the plaintiff's claim of item 5 of E(c) Schedule is barred by limitation.

9. Therefore, the points which have got to be considered in this appeal are two-fold viz., whether the learned Subordinate Judge was justified in holding that all the items in E(a) Schedule and item 3 of E (c) Schedule got merged in the family assets and cannot be treated as loan or deposits; and secondly, whether the claim in regard to all the items in the E Schedule had become barred by limitation under Article 107, Limitation Act or whether these transactions have been saved from the bar of limitation by reason of (a) an agreement, or (b) custom, or (c) the general principles of Hindu Law pleaded by the plaintiff and negatived by the learned Subordinate Judge.

10. In regard to the items in Schedule E(a) and item 3 in Schedule E(c), the learned Subordinate Judge has given sound reasons in paragraph 16 of his judgment, with which we entirely agree and which need not be repeated, which establish beyond all doubt that the only conclusion that is possible is that all the moneys paid by the plaintiff till Valliappa's marriage were treated as joint family funds and there was thus a merger. It is unnecessary to expatiate further upon this aspect of the case because even assuming that they did not get merged, they could be treated only as loans and if they are looked upon as loans by the joint family manager, the Article of the Limitation Act applicable for recovery of the same is Article 107 and this will be dealt with presently.

11. The point regarding limitation which we shall now consider is briefly this. This plaintiff throughout his pleadings has described himself as the joint family manager and he claims that the moneys covered by the E Schedule were all his separate earnings advanced by him to the joint family and were not given as gifts or could be merged in the joint family funds and that therefore he is entitled to recover them just like a stranger creditor of the family. Now it is well settled law that where a manager sues for partition, after his right to contribution in respect of certain moneys expended by him on account of the estate is barred by limitation under Article 107, he is not entitled to set off this amount in adjustment of equities between the parties. In -- 'Vellayappa Mootham v. Krishna Mootham', AIR 1918 Mad 258 (A), (decided by Sadasiva Iyer and Phillips JJ.) Sadasiva Aiyar, J. observed as follows :

'I do not think that, where a statute law (in this case Article 107, Limitation Act) expressly treats a debt due even to the Manager of the joint Hindu family as one to be sued for by him just as if he was a complete stranger and, if not, to have his remedy barred, it is permissible (apart from an agreement, express or implied) to defeat the intention of the Legislature by allowing it to be treated as an item of account or as a debt to be discharged from the joint family funds when partition takes place, it may be, after several years. Of course, the creditor member of the family whether a manager or a junior member, may, before his debt is barred, take it out of any family money which came to his hands before his debt is barred, but he cannot do it after his claim for recovery is barred.'

In cases not coming under this Article 107, however for instance, in a suit by a junior member of a Hindu joint family for partition, a claim by such member for contribution by the other members in respect of moneys spent by him for the joint family would not be barred although the period of limitation for an independent suit for contribution by such member may have expired : -- 'Chidambaram Chettiar v. Nachiappa Chettiar', AIR 1939 Mad 70 (B). In other words, Article 107 expressly treats a debt due even to the manager of the joint Hindu family as one to be sued for by him just as if he was a complete stranger and if not to have his remedy barred. Article 107 shows that a managing member is entitled to sue for contribution in respect of a payment made by him and is not bound to sue for or wait till partition to get his claim against the Joint family adjusted : AIR 1918 Mad 258 (A)'.

12. This decision has been followed by Spencer and Ramesam JJ. in -- 'Subraya Bhandary v. Janardana Bhandary', AIR 1921 Mad 688 (C), and the learned Judges observed as follows:

'This case resembles that of AIR 1918 Mad 258 (A)', in which it was held that a debt of a joint family to a partnership in which some of the members of a joint family were partners could not be treated as an item of account in the partition suit, when the debt had become barred Several cases have been cited in which equitable set-offs have been allowed when taking accounts at the time of partition even though those claims were barred, by limitation, but they are all cases in which the claims arose out of the same transaction or were so closely connected together that in taking accounts it became necessary to set off some debit items against the other credit items. In this case there is no such connection between the separate title of the defendants ancestor under the mortgage and the present right of the members of the family to have an equal division of the family property. The liability of a joint family to individual members is not assets or property to be brought into the hotchpot at division : See observations of Sadasiva Aiyar, J. in AIR 1918 Mad 258 (A)'.'

13. In order to avoid the mischief of beinghit by Article 107, the plaintiff pleads alternativelyor cumulatively (a) an agreement, (b) custom,and (c) general principles of Hindu Law as supported by two extracts from the standard commentaries of Hindu Law by Mayne and Raghavachariar.

14. The agreement is set out in paragraph 9 of the plaint as follows :

'The plaintiff was sent to serve as an agent In the P. K. N. A. RM. firm at Kualakangsar in 1918-1919. The said firm was a partnership run by the plaintiff's father Palaniyappa Chettiar and Raman Chettiar of Vegupatti and Valliappa Chettiar the second defendant and Avadayappa Chettiar, father of the second defendant. Plaintiff's father who represented himself and the first defendant who was then a minor requested the plaintiff to allow the earnings of the plaintiff as salary and by way of bonuses which were his self-acquisitions and over which the joint family had no claim as per custom mentioned above) to be used in the family, and promised that such credits will be paid to the plaintiff with interest as and when he required the same or at least when the family partition took place. In accordance with the said request, the plaintiff's earnings then and later on were received as plaintiff's credits in the family accounts.'

This agreement Is denied in the written statement of the 1st defendant in paragraph 8 as follows :

'The agreement alleged in paragraph 9 of the plaint is denied. This defendant believes that there would have been no such agreement and the subsequent conduct of the parties and the custom of the community are against the existence of any such agreement. It is not plaintiff alone who has put in his salary and bonus into the hotchpot. This defendant and his brother have also put in their earnings by way of salary and bonus. In fact all the earnings of the brothers have been treated as joint family property. The earnings have merged into joint family property and have become part of the corpus of the joint family. Hence neither the plaintiff nor this defendant can now have any claim to the same on a debtor and creditor basis. So far the plaintiff has never even indicated to this defendant the existence of the alleged agreement, which conduct by itself (especially when the agreement is alleged to be on this defendant's behalf also) gives the lie to the agreement alleged by the plaintiff. Further even if the alleged agreement is found to be true, It will not bind this defendant. Further there is no question of claiming back amounts once they are given to the joint family.'

In his evidence plaintiff stated:

'When I went out as agent in 1918*1919 to P. L. K. N. A. RM. firm my father asked me to pay over my salary and bonus to the family since the family, was in need of funds. He said that funds would be treated as deposits and would be repaid to me at the time of partition with interest.'

The 1st defendant in his evidence contradicted the plaintiff as follows :

'There was no agreement between plaintiff and my father about repayment of any salary money paid by plaintiff into joint family coffers.'

In regard to this agreement the learned Subordinate Judge has found as follows :

'It is stated by the plaintiff that soon after thejoint family of PL.KN.A.RM. was started in 1919* * there was an agreementbetween himself and his father to the effectthat as the joint family had no sufficient fundsthe plaintiff should advance his separate earnings to the joint family and should be repaidthose amounts with compound interest at thetime, of partition. The 1st defendant was aminor in 1919. Obviously he could have noknowledge of any such agreement. No writingis produced to evidence this agreement. Theplaintiff himself admits that none exceptinghimself and his father knew about this agreement. This agreement is not set forth in Exhibit A-32 the notice issued by the plaintiffdemanding partition except in a bald form.This agreement is set forth in that notice asbeing in accordance with the custom obtainingamong Nattukottai Chettiars.

Really if there Is any custom well recognised and known to the father there was no necessity for entering into any agreement regarding this matter. There is no independent proof of this agreement. The conduct of the plaintiff in paying sums earned by him as salary to the joint family without obtaining any voucher or without seeing that such amounts are entered to his credit in the joint family account books is inconsistent with the case of agreement set up by him. The evidence available in the case regarding utilisation of monies earned by the members including the plaintiff * * clearly shows that there was no intention at least upto 1930, when Valliappa's marriage was celebrated, on the part of plaintiff to claim back moneys paid by him and expended for joint family purposes. This conduct is inconsistent with the plaintiff's case that there was an agreement between him and his father regarding repayment of these amounts. For all these reasons I find that the agreement alleged in paragraph 9 of the plaint is not true.'

On this state of evidence we agree with the learned Subordinate Judge that this agreement set up' by the plaintiff at a late stage and uncorroborated by any oral or documentary evidence and obviously to get out of the mischief of Article 107, Limitation Act, cannot be accepted as true.

15. The custom set up by this plaintiff is as follows: Every son of a joint family among Nattukottai Chettiars should pay his separate earnings till his marriage and the first salary received after marriage to the Peria Veedu. The subsequent earnings by the members either by way of salary or bonus would be self-acquisitions of the earning member and such earnings if paid over to the joint family would be credited in the ledger of the family in the name of the earning member and would be repaid to him with interest at the time of partition.

This custom is set up in paragraph 4 of the plaint. It is denied by the 1st defendant in paragraph 2 of the written statement as follows:

'The custom alleged in paragraph 4 of the plaint is absolutely false and baseless. The general rule and custom obtaining among the Nattukottai Chettiar community is that so long as the brothers remain undivided all their earnings belong to the joint family. Even apart from such custom, as per Hindu Law, if the self-acquisitions of the coparceners are thrown into the common hotchpot and treated as a part of the joint family property, then such self-acquisitions also become joint family property. The allegations to the contrary in paragraph 4, that subsequent earnings if paid into the family will be marked as credit of the earner which will be paid back first to him, at the tune of the family partition are all false and are denied.'

This custom was sought to be made out by the plaintiff in two ways viz., by putting forward an extract from Thurston's Castes and Tribes of Southern India and examining himself and another witness. In regard to the Extract from Thurston it is as follows:

'Of all the Chettis * * perhaps themost distinctive and interesting are the Nattukottai Chettis, who are wealthy money-lenderswith headquarters in the Thirupattur andDevakottai divisions of the Sivaganga and Ramnad Zamindaris in the Madura District. They are the most-go-a-head of all the trading castes in the south, travelling freely to Burma, the Straits Settlements and Ceylon (also Saigon, Mauritius, and South Africa), and having in some cases correspondents in London and on the Continent. As long as their father is alive, the members of a Nattukottai Chetti family usually all live together. The caste is noted in the Madura district for the huge houses, to which this custom has given rise. Married sons have a certain number of rooms set aside for them, and are granted a carefully calculated yearly budget allotment of rice and other necessaries. On the father's death, contrary to all ordinary Hindu usage, the eldest son retains the house, and the youngest his mother's Jewels and bed, while the rest of the property is equally divided among all the sons. When a male child is born, a certain sum is usually set aside, and in due time the accumulated interest upon it is spent on the boys' education. As soon as he has picked up business ways sufficiently, he begins life as the agent of some other members of the caste, being perhaps entrusted with a lakh of rupees, often on no better security than an unstamped acknowledgment scratched on a palmyra leaf, and sent off to Burma or Singapore to trade with it, and invest it. A percentage on the profits of this undertaking, and savings' from his own salary, form a nucleus which he in turn invests on his own account.

* * * *Concerning the Nattukottai Chettis, Mr. P. R. Sundara Aiyar writes as follows. The first and chiefest aim of a Nattukottai Chetti is to make as much money as possible. He does not regard usury as a sin. As a little boy of ten or twelve, he begins to apply himself to business, learns accounts, and attends the shop of his father. As soon as he marries, his father gives him a separate home, or rather compels him to live separately, though often in the same house as his parents. This makes his self-reliant, and produces in him a desire to save as much money as possible. He is given a certain allowance out of the paternal estate, but, if he spends more, he is debited with the excess amount. Every one consequently tries to increase in a stock of individual savings. Even the women earn money in a variety of ways. Every rupee saved is laid out at as high a rate of interest as possible. It is commonly stated that a rupee, laid out at the birth of a child at compound interest at 12 per cent., will amount to a lakh of rupees by the time he attains the age of a hundred. The habits of a Nattukottai Chetti are very simple, and his living is very cheap, even when he is rich. So strict are the Chettis in pecuniary matters that, if a relation visits them, he gets only his first meal free, and if he stays longer, is quietly debited with the costs of his stay'.

It will be seen from the above extract that the present custom set up by the plaintiff derives no support from it, apart from the fact that Thurston cannot be considered to be a conclusive authority in regard to the second hand information collected by him and hot un often found to be at variance with actual experience. There have also been marked changes in the customs and distinctive characteristics of all communities in South India since Thurston Compiled his monumental work on the other hand as pointed out by the learned Subordinate Judge, if this custom were true the plaintiff would have more tangible evidence than that of this extract. Numerous instances of partition among Nattukottai Chettis by registered deeds must be available and hundreds of similar claims must have been advanced in the Ramanathapuram and Pudukottai Courts and judicial adjudications made and yet no judgment of any Court of law upholding this custom was cited either in the Lower Court or here.

Then turning to the oral testimony, it has been analysed by the learned Subordinate Judge as follows:

'The only witness examined by the plaintiff on this point besides himself is P. W. 2. He is a Nattukottai Chetty of Nachiapuram. According to him there was a partition suit in his family O. S. No. 71 of 1934 on the file of this Court. This suit was filed by his younger brother in which this witness claimed repayment of moneys earned by him and paid over to the joint family. In the compromise decree passed in that case this claim is said to have been recognised. The pleadings in that case and the compromise decree passed in that case are not produced. It is not therefore possible to verify if the assertion of this witness is true or note. This witness also speaks to other instances proved in O. S. No. 71 of 1934. He examined one Valravan Chettiar and Raman Chettiar as his witnesses in that case.

'They are said to have deposed to the existence of this custom. Raman Chettiar is how dead. But Vairayan Chettiar is alive though he is said to be 80 years old Vairavan Chettiar is not examined as a witness in this case. Copies of depositions of these two witnesses in O. S. No. 71/34 are not produced. The account books of the joint family of this witness are not also produced. In the absence of any documents It is Impossible for me to accept the evidence of this witness as establishing the custom alleged in paragraph 4 of the plaint'.

This custom is denied by the 1st witness for defendants who is the natural younger brother of the plaintiff and who was given in adoption in 1919 into another family. He states that in his own adoptive family the salaries earned by all the members were treated as joint family properties. The 1st defendant examined as D. W. 2 also denied this custom categorically and has given a reasonable explanation for putting his salary for the first three years after his marriage into the joint family and appropriating the excess salary for the remaining period as well as his salary for the subsequent agency for himself. In fact the accounts themselves are not forthcoming and which should have been produced by the plaintiff. Therefore, the denials of D. Ws. 1 and 2 are not in any way shaken by the evidence of P. Ws. 1 and 2.

Now, the essentials of a valid family custom are: A custom is a rule which in a particular family or in a particular district, has from long usage obtained the force of law. It must be ancient, certain, and reasonable, and being in derogation of 'the general rules of law, must be construed strictly: --'Hurpurshad v. Sheb Dyal, 3 Ind App 259 (D). It is further essential that it should be established to be so by clear and unambigous evidence, for it is only by means of such evidence that the Courts can be assured of its existence an of the fact that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends. It must not be opposed to morality or public policy and it must not be expressly forbidden by the legislature: -- Ramalakshmi Ammal v. Sivanantha. Perumal', 14 Moo Ind App 570 (E); 'Gopalayyan v. Raghupatl Ayyan', 7 Mad HCR 250 (F); 'Mira Bivi v. Vellayanna'. 8 Mad 464 (G); Harnabh Pershad v. Mandil Das'. 27 Cal 379 (H); 'Rupchand v. Jambu Parshad', 32 All 247 (I); 'Abdul Hussein Khan v. Mt. Bibi Sona Dero', AIR 1917 PC 181 (J); 'Ram Narain v. Bar Narinjan Kaur', AIR 1924 Lah 116 (K); 'Mookkakone v. Ammakuttl Ammal', AlR 1928 Mad 299 (L); 'Bhikubhai v. Manilal', : AIR1930Bom517 (M); 'Gulabchand v. Mannilal', AIR 1941 Oudh 230 (N). The burden of proving such a custom is upon the person asserting it. In this case applying these tests it is clear that the plaintiff has not proved the custom and discharged the burden lying upon him.

16. The plaintiff therefore relies upon the following extract from Mayne's Treatise on Hindu Law and Usage (llth Edition-- Reprint 1953) at p. 517:

'Money laid out by one member of the family upon the improvement or repair of the property, or for any other object of common benefit, would constitute a debt to him from the rest of the family only if the money which he had expended were advanced out of his separate property, without an intention of making a present of it to the family. He would then be entitled to reimbursement for his outlay as well on partition as before it'.

The authorities cited in the foot-note for this proposition are -- Muttuswamy Gaundan v. Sub-bramaniya Goundan', 1 Mad HCR 309 (O); -- 'Mt Bholi Bai V. Dwarka Das', AIR 1925 La 33 (P); --'Ramabhadra v. Virabhadra', 22 Mad 470 (Q).' The extract from N. B. Raghavachariar's Hindu Law, Principles and Precedents (3rd Edition) Is to be found at page 389:

'So also where a coparcener spends his own personal savings for the benefit of the joint family not intending to do so gratuitously, for instance, for the marriage expenses of the daughter of another coparcener, the former is entitled to be reimbursed for the amount thus spent, at the time of the partition.'

The authority cited for this proposition is AIR 1925 Lah 32 (P). This proposition, in our opinion, has been broadly stated and does not bring our the distinction pointed out in AIR 1918 Mad 258 (A) between a case where a member of a joint Hindu family as an individuar member gets an advance of money 'from the joint funds for his individual separate benefit and the case of a member having himself made the advance from his separate earnings to the joint family. In the former case the. money advanced might be treated as joint family funds in the hands of the person to whom the advance was given which therefore ought to be brought into the hotchpot at division and no question of limitation would then arise as regards such property. In the latter case the joint family's liability to an individual member cannot be treated as assets or property to be brought into the hotchpot at division. Equitable considerations would not alter this distinction because as pointed out by Sadaslva Ayyar J. in the above decision, when this argument based on equity was advanced before him relying upon certain passages in Freeman on Co-tenancy, Sections 505 and 512 such an argument in the face of the statute law. Article 107, Limitation Act, cannot be countenanced. The decision in AIR 1918 Mad 258 (A) has been' followed by another Bench in AIR 1921 Mad 688 (C).

Incidentally, on an examination of the authorities cited for this proposition reproduced above, we find, as pointed out by Sadasiva Ayyar J. in AIR 1918 Mad 258 (A) in regard to an ancillary passage from Mayne's Hindu Law at page 654, 8th Edition, they cannot be stated as fully supporting the proposition laid down so broadly, l Mad HCR 309 (O) held that while the members of a Hindu family enjoy in common undivided property, money expended in its improvement or repair is considered as spent on behalf of the members alike, and all have the benefit of the outlay when a division takes place and that there is no rule of law precluding one member of an undivided Hindu family, though living together, from entering into an agreement with his coparceners in respect of the expenditure on family property and repayment of self-acquired funds and that such an agreement is rendered more reasonable and probably where portions of the family property are occupied and enjoyed by each of the members living separately. .

22 Mad 470 (Q), the well known Merangi case, dealt with a case where three Hindu brothers agreed that their shares of the joint estate, excluding the separate share which was of a fourth brother, should be kept Joint, that the eldest, should manage the same, and that after twelve years a division should be effected after settling profit and loss upto that date but that any one brother, might obtain division during that terms by giving up his share of the profits, and therein it was held that the true effect of this agreement was not to leave the family status untouched, but to render the eldest accountable for receipts and expenditure on the footing of ordinary agency, and not of joint family management. AIR. 1925 Lah 32 (P) was a case arising under Hindu Law. It was a claim for partition by one heir against a coheir who had borne the expense of maintenance of deceased's widow and daughter and of the daughter's marriage. The question was whether the claimant must pay his share in such expenditure and also in the estimated expenses of he marriage of the co-heir himself when no marriage has as yet taken place It will be seen how this case can throw no light whatsoever on the point now sought to be made out

17. Kazim Ali v. Sadiq Ali was a case arising under the Mahomedan Law in which the point involved was right of contribution between co-heirs respecting debts of deceased. There was a decree for dower under Section 52. Civil P. C., against all heirs of a deceased taluqdar in Oudh. The decree amount was realized only out of non-taluqdari property. A suit for contribution was laid against the succeeding taluqdar. There was a declaration by the taluqdar of portion of his property as subject to Section 15, Oudh Settled Estates Act. It was held by their Lordships of the Privy Council that the right and duty of contribution is founded on doctrines of equity and it did not depend upon contract and the taluqdar was held liable to contribute according to the value of his property at the date of death of the deceased. It will be seen how this decision has no bearing upon the proposition so broadly stated.

18. Therefore, following the two Bench decisions of this Court in AIR 1918 Mad 258. (A) and AIR 1921 Mad 688 (C), we hold that this joint, family manager, if his claim is rested on the foot that he advanced his separate earnings to the joint family not Intending to give them gratuitously but as loans, he should have filed his suit within the period of limitation prescribed by Article 107, Limitation Act.

19. In the result, the learned SubordinateJudge having correctly decided all the issues, weaffirm his findings and decree and judgment anddismiss this appeal without costs.


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