1. There was one Sankaranarayana Iyer who had two sons by name Sundaram Iyer and Ganapathi Iyer. Sundaram Iyer is the second defendant in the suit and Ganapathi Iyer the third defendant. Ganapathi Iyer has two sons by name Sankaranarayanan and Subramaniam. Sankaranarayanan is the first plaintiff and Subramaniam the minor through his mother and next friend is the second plaintiff. The suit was filed for partition of their (Plaintiff's) one-third share. On 10-11-1961 in I. P. 9 of 1961 defendants 2 and 3 were declared insolvents. The Official Receiver was also, therefore, impleaded as the first defendant in the suit.
2. There are tow items of properties set out in the plaint. The first item of the suit properties is ancestral in character. The second item was said to have been purchased by the second defendant from out of the cash left by his father. Defendants 2 and 3 were said to have started an entirely new business with the cash left by their father and contracted debts. According to the plaintiffs, the debts were avyavaharika in character so as not to bind them or their shares. The first defendant-Official Receiver was said to have brought the whole of the joint family properties including the shares of the plaintiffs for sale for realising the decree debts against defendants 2 and 3 which, according to the plaintiffs, were not binding on them. Hence the suit for declaration of their right to one-third share in the suit properties and for partition was filed.
3. The first defendant I. e., the Official Receiver filed a written statement taking up the position that on the adjudication of defendants 2 and 3, the entire properties inclusive of any share of their sons vested in him and that the plaintiffs were not entitled to ask for partition. It was claimed that the debts of the insolvents were binding on the sons and that the sons were bounded to discharge the same on the principle of pious obligation. The case of the Official Receiver was that item 2 of the plaint schedule properties was the absolute property of the second defendant and that the third defendant or his sons, plaintiffs 1 and 2 had no right thereto. The Official Receiver denied that the debts contracted by defendants 2 and 3 were in any manner liable to be classified as avyavaharika debts. The properties including the shares of the plaintiffs were said to be insufficient to pay the debts in full and that, therefore, provision had to be made by the Court to order the sale of the entire properties including the shares of the plaintiffs for payment of such of those debts which had been proved by the Official Receiver.
4. The fourth defendant to the suit is the unmarried daughter of the second defendant. She was subsequently married during the course of the present suit. The Official Receiver contested her right to claim for the marriage expenses or her right of residence. as the properties were not sufficient to meet the debts of her father. He wanted a declaration that the debts of defendants 2 and 3 were binding on the plaintiffs and their shares and that a direction should be issued that the entire family properties should be sold by the Official Receiver including the shares of the plaintiffs for payment of the debts of defendants 2 and
5. Defendants 2 and 3 were ex parte, while the fourth defendant, the daughter of Sundaram Iyer, claimed a sum of Rs. 5000 towards her marriage expenses and also provision for her residence.
6. The learned Subordinate Judge, who tried the suit, held that the plaintiffs had one-third share in the plaint schedule item No. 1, that the entire properties in the plaint schedule had vested in the Official Receiver on the adjudication of defendants 2 and 3 as insolvents, that item No. 2 of the plaint schedule was not the joint family property, that the plaintiffs had no share in it and that the debts incurred by defendants 2 and 3 were not avyavaharika debts so as not to bind the plaintiffs. He held also that no provision need be made towards the marriage expenses of the 4th defendant much less for her residence inasmuch as she had since been married. He directed that item 1 of the plaint schedule properties should be directed to be sold as the last lot by the Official Receiver and if any surplus was left out after discharging the debts, the said surplus should be paid to the plaintiffs towards their one-third share in item 1 of the plaint schedule. In the result, he held that the plaintiffs were not entitled to the relief of partition and separate possession prayed for and he therefore, dismissed the suit with costs.
7. On appeal, the learned District Judge concurred with the conclusion of the trial court as far as item 2 of the plaint schedule was concerned. In other words, he also held that it was not a joint family property. He agreed with the trial court, in the conclusion that the plaintiffs had failed to prove that the debts were avyavaharika debts so as not to bind them. In his view, in a partition suit filed by the sons, the Official Receiver could get himself impleaded and seek provision to be made for the debts of the insolvents. As regards the marriage expenses claimed by the fourth defendant he held that she was not entitled to it and he relied on the decision in Laximi Sundaramma v. Suryanarayana, , wherein it had been held that a
Hindu father was under no legal obligation to get his daughter married and that a wife who had expended money on her marriage was not entitled to recover it from her husband. In the result, he confirmed the dismissal of the suit.
8. In the present appeal, by the unsuccessful plaintiffs, the first submission is that the conclusion of the courts below that item 2 of the plaint schedule properties was not a joint family property is wrong. The learned counsel brought to my attention the decision of the Supreme court inMallesappa v. Mallappa, . In that
case, it was laid down that where a manager of a joint family claims that any immoveable property had been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it was for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case, it was held, be placed on the manager and not on his coparceners. In the present case, the learned District Judge has referred to the purchase of the property under Ex. B-14, dated 26-3-1945 for a sum of Rs. 2000 in the name of the second defendant. He has also mentioned that the plaintiffs' grandfather Sankaranarayana Iyer had left behind him a cash of Rs. 20000. He has, however, pointed out that there was absolutely nothing in evidence to show that the amount left by Sankaranarayana Iyer was utilised for purchasing item 2 under Ex. B-14. The learned District Judge had obviously not borne in mind the law regarding the onus in a case like this as laid down by the Supreme Court in the case cited above. He has, in the course of his judgment, referred to the depositions of defendants 2 and 3 as recorded by the Official Receiver and marked as Exs. B-18 and B-19. However, it may be noticed that defendants 2 and 3 did not appear in the witness box and have not given evidence in the present proceedings. Therefore, any statement made by them before the Official Receiver cannot be taken as conclusive in the present proceedings especially when there was no chance for cross-examination. The onus lay on the second defendant, when he purchased the property under Ex. B-14 in March 1945 for Rupees 2000 that it was purchased out of his separate funds. The intervening insolvency cannot affect the onus of proof. Either the second defendant must have himself appeared and given evidence in the present case or the Official Receiver should have summoned him for the purpose of giving evidence in order to support the proposition that the property bearing item 2 had been purchased out of any separate funds of the second defendant. In the absence of any such proof and in the context of the fact that the family had a sum of Rs. 20000 at the time of the death of Sankaranarayana Iyer, it follows that the property belongs to the joint family and defendants 2 and 3 would be entitled to a share in the suit properties. The conclusion f the courts below on this point is, therefore, reversed.
9. The next point taken by the learned counsel was that the debts incurred by defendants 2 and 3 are not binding on the plaintiffs. The family has not been shown to be a trading family as such. The family had a garden land a house and some cash. It is defendants 2 and 3, who it appears from the evidence, had started advancing moneys as a result of which losses appear to have been sustained. The question to be considered is whether in respect of this new business, which was started by defendants 2 and 3 and the obligations incurred therein, the plaintiffs could be held liable. The law on this point does not appear to be in doubt at all. In Sanyasi Cheran Mandal v. Krishnadhan Banerji, ILR 49 Cal 560: (AIR 1922 PC 237), in the case of a joint Hindu family governed by the Dayabhaga consisting of four adult brothers and a minor brother, the question arose as to whether there could be an alienation of joint family property so as to bind his minor son to raise money for the purpose of a new business which was not ancestral. The family owned two business, one for fuel wood and another for rice and other articles. The two business had been carried on by the father and devolved on the five sons and were carried on by the eldest of the brothers as the Kartha. After the father's death a new business in rice was started by the Kartha in a different place. There was a suit for recovery of the money borrowed exclusively for the purposes of this new business. The Privy council observed that the Kartha of a joint family could not impose on a minor coparcener the risks and liabilities of a new business started by himself. This case arose under the Dayabhaga law. In Benares Bank Ltd. v. Harinarain, ILR 54 All 564: (AIR 1932 PC 182), the Privy Council had again to deal with the same problem in relation to a Mitakshara family. The adult members of such family on behalf of themselves and their minor sons mortgaged family property for the purpose of paying off two previous mortgages and to carry on a business which had been started by the manager. The Privy Council found as a fact that the business in question was started by the manager of the family and, therefore, could not be held to be ancestral so as to render the minor's interests in the joint family property liable for the debt. Sir Dinshaw Mulla, who delivered the judgment of the Judicial Committee, observed that there was no distinction in principle on this subject between a case under the Dayabhaga and under the Mitakshara law to alienate immoveable property had been defined in Hunooman Prasad Pandey v. Mst. Babooee Mundraj Koonwaree, (1856) 6 Moo Ind App 393 (PC). The Privy Council observed that a new business was not within the purview of the verses from the Mitakshara which formed the basis of the said decision and that it did not make any difference that the manager starting the new business was the father. The balance of authority in India was found to be in accordance with this view. Therefore, even assuming that the third defendant was a party to the starting of the new business, the plaintiffs as his sons would not be bound by the obligation created by the new business. These decisions of the Privy Council have been considered and applied in a number of later decisions of which it is enough to refer to two, namely, Kumbakonam Bank v. Shanmugam, AIR 1956 Mad 306 and Canara Banking Corpn. v. S. L. Bank, AIR 1958 Mad 132. The law on this point has been discussed in Mulla's Hindu Law, 14th Edn. at page 289 para 234. It does not take the matter further. There is of course a slight difference of opinion with reference to a business started by the sole surviving coparcener. The Allahabad High Court has taken the view in Angney Lal Naraindas v. Angneylal Munnilal, , that the principle laid down by the Privy Council in relation to a new business would not be applicable to a new business started by the sole surviving coparcener. The Patna High Court took a different view in Ganpatrai v. Sukhdeoram, AIR 1938 Pat 335, namely, that only an ancestral business could be joint family business. This court in Canara Banking Corpn. v. S. I. Bank, AIR 1958 Mad 132, was inclined to accept the view taken by the Allahabad High Court. It is, however, unnecessary to go into this aspect in the present case because the business is not shown to have been started by the sole surviving coparcener as such. Though there is perhaps no proof that defendants 2 and 3 incurred any debts which could be classified as avyavaharika debts, still in view of the fact that they had started a business which is not the kulachara of the family and have incurred obligation therein the minor coparceners in the family cannot be held to be bound by any such obligation.
10. The lower appellate court has found that the institution of a suit for partition would, of course, put an end to the joint family status and the right of the father to sell his son's share for his debts would also be put an end to. It, therefore, accepted the proposition that the institution of a suit for partition disrupted joint family status extinguishing also the right of the Official Receiver to sell the son's share for the father's debts. The lower appellant court, however, found that the Official Receiver could either institute a suit against the sons for realising the debts due to the father's creditors or might apply to be jointed as a party to the son's suit for partition and by proper procedure could obtain a decree which could be executed against the son's share. The view that the Official Receiver could proceed against the son's share cannot be supported in view of the fact that the debts had been incurred in respect of a new business which is not a kulachara the family. The sons are not bound by the debts and, therefore, they could not be proceeded against.
11. The last point taken before me was with reference to the provision for the marriage expenses of the 4th defendant. A Full Bench of this court has held in Subbayya v. Ananda Ramayya, ILR 53 Mad 84: (AIR 1929 Mad 586), that in a coparcenary consisting of father and sons, the obligation of maintaining and marrying the daughters was not only on the father and through him on the coparcenery but it was also an obligation on the coparcenery itself. It was pointed out that the obligation to marry was only a historical remnant of the daughter's original right to a share in the coparcenery property created by birth. Hence if a son instituted a suit for partition against his father and brothers, his share in the family property could not escape the liability for the expenses of the marriage of a daughter who was married after the institution of the suit. Applying this clear principle laid down by the Full Bench, it would follow that in the present case even though the 4th defendant was married after the institution of the suit for partition, still the obligation of the joint family to bear her marriage expenses could not be left out of account. It is in evidence that a sum of Rs. 5000 has been incurred for the marriage. There is nothing to show that this evidence is liable to be disbelieved. Accepting the evidence, I am satisfied that a provision for a sum of Rs. 5000 should be made towards the marriage expenses to the mother of the 4th defendant.
12. The second appeal is allowed. There will be no order to costs. No leave.
13. Appeal allowed.