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HussaIn Saib and ors. Vs. Hassan Saib and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1916Mad165; 31Ind.Cas.927
AppellantHussaIn Saib and ors.
RespondentHassan Saib and ors.
Cases ReferredMahomed Musa v. Aghore Kumar Ganguli
muhammadan law - navayat community--two brothers and their descendants living and trading together an members of undivided, family--rights of parties inter se, how determined--hindu law, how far applicable--hindu, family firm and muhammadan family firm, difference between--contract act (ix of 1872), section 24l--act how far applicable to hindu, and muhammadan family trading firms--custom, connotation of. - tyabji, j.1. this appeal arises out of suit which has been referred to as a suit for partition. in reality, its subject-matter consists of what might have given rise to several suits for partition, for administration and perhaps for dissolutions of partnership, relating to the estates of persons who lived and carried on business in the beginning and middle of the last century.2. it is not disputed that the parties are governed by the muhammadan law of succession and inheritance. whether their mode of life will affect the law applicable to the property acquired or inherited by them, is one of the many questions that will have to be considered.3. i will deal in the first instance with the history of the family; and will then consider the rights of the parties in the circumstances and events.....

Tyabji, J.

1. This appeal arises out of suit which has been referred to as a suit for partition. In reality, its subject-matter consists of what might have given rise to several suits for partition, for administration and perhaps for dissolutions of partnership, relating to the estates of persons who lived and carried on business in the beginning and middle of the last century.

2. It is not disputed that the parties are governed by the Muhammadan Law of succession and inheritance. Whether their mode of life will affect the law applicable to the property acquired or inherited by them, is one of the many questions that will have to be considered.

3. I will deal in the first instance with the history of the family; and will then consider the rights of the parties in the circumstances and events that are proved.

4. In referring to the names of the parties, I shall try to adhere to the same corrupt form which the parties themselves seem to have adopted.

5. One Shavaki Abdul Rajack is admitted to have been the common ancestor of the parties chiefly concerned in this litigation. Shavaki Abdul Rajack had four sons: (1) Shiddi Bave; (2) Ismail Saheb; (3) Haji Hassan and (4) Hammed Saheb.

6. The parties to these proceedings are mostly the descendants of (3) and (4). The plaintiff is descended from the fourth of these, Hammed, and the contesting defendants Nos. 9 to 13 are descended from the third, Haji Hassan. They may be referred to as members of the younger and elder branches respectively. On the 10th of March 1818 the four sons of Shavaki Abdul Rajack effected what is referred to as a partition. Inhibits VI, VII, VIII, XI and XIV evidence that partition. Certain specific properties were then allotted to each of the said four sons of Shavaki Abdul Rajack in the life-time of the father. It does not appear from the evidence whether these four sons or any of them inherited any other property from their father on his death. It must be assumed for the purpose of this suit that they did not.

7. Shortly after the partition, the third of these sons, Haji Hassan, established a trading firm on his own account. Later on, but at what exact time it is unnecessary to fix, his younger brother Hammed (the fourth son) worked in the firm established by the elder brother. Hammed brought no capital into the business, which was carried on exclusively with the property inherited or acquired by the elder brother through his own exertions.

8. Whether there were any clearly understood terms on which Hammed joined his brother's business, does not appear. There is, however, one circumstance to which great weight must be given; the terms in which several years after the two brothers had been working together in the firm the relationship between them is referred to by the elder with the unequivocal concurrence of the younger in Exhibit XVJ. This document has been called by the learned District Judge a Will, and though its operation is not expressly made to depend upon the death of the executant, it has some of the features of a Will.

9. The genuineness of Exhibit XVI was attacked, before us mainly on three grounds: (1) that it is not shown to have been produced on any occasion previous to this suit, though there have been disputes amongst the members of the family, notably in connection wit J the mutation of names on the deaths of Dodda Moidin, Dodda Hassan and Sanna Hassan, when the document may well be expected to have been relied upon had it then existed; (2) that admittedly it was never given effect to; and (3) that by a comparison of signatures on Exhibit XVI with the signatures in Exhibits V, VII, VIII and XII, suspicion is cast on the former. Having given all weight to these objections, I see no reason to doubt that Exhibit XVI is genuine. That was the conclusion at which the learned Judge seems to have arrived. A comparison of the signatures seems to me to strengthen that conclusion.

10. Exhibit XVI is dated the 3rd September 1845. It purports to be executed by Haji Hassan, when he was about to start on a pilgrimage to Mecca. He refers to the partition of 1818 and states that the property that then came to his share under Exhibit XIV) had been added to by his own self-exertions. He also mentions some other properties. The properties referred to in it, are altogether valued as equivalent of about Rs. 23,000. He then states: 'As my younger brother Hammed Saheb has been with me till now, doing such acts as I directed him to do, and as he should remain when I start for Mecca, he shall get' one-eighth of the property. At the bottom of Exhibit XVI, it is stated that it is written 'in the hand of Hammed Saheb with his own consent.'

11. It has been the case of both parties that on its true construction, Exhibit XVI must be taken to have been executed in contemplation of the probability that Haji Hassan would not come back to take charge of the properties; or the business and that, in any event, the younger brother would survive the elder. Neither of those expectations was realised. Haji Hassan did come back two or three years after he left, apparently before 1848; the accounts of 184-8-49 refer to him. He lived till 1870--for 25 years after Exhibit XVI had been executed. His younger brother, Hammed, predeceased him by four years, dying in 1866.

12. Before dealing with the significance of Exhibit XVI, I shall conclude my reference to the history of the family. After the death of Haji Hassan, the members of both branches lived amicably, just as they would have done if they had been members of a joint and undivided Hindu family. The family group came in time to have three living houses at Souda in South Canara, where the firm was carrying on business; but the home of the family (in the words of the District Judge) remained in Manki in North Canara, from where they originally came. The firm (as I have already stated) was managed (1) by Haji Hassan and Hammed; (2) after the death of Haji Hassan, the management of the firm seems to have been with Dodda Moidin, the son of Haji Hassan, at least the whole of the properties were transferred to his name; (3) after the death of Dodda Moidin, Abdul Rajack, the eldest son of Hammed and son-in-law of Haji Hassan, seems to have been in management; (4) thereafter, there appears to have been two managers (i) Dodda Hassan, the eldest paternal grandson of Haji Hassan and (ii) Sanna Hassan, the second son of Hammed and father-in-law of Dodda Hassan.

13. As to the manner in which the accounts stood: T. They stood solely in the name of Haji Hassan till 1870. II. Between 1871 and 1832, they stood jointly in the names of Dodda Moidin and Abdul Rajack. III. There seems to be no evidence as to the names in which the accounts stood between 1883 and 1897 (the learned Judge's remarks on page 37, lines 13--16, were admitted before us to be erroneous). IV. From 1897 to 1901, they stood in the name of the 9th defendant, Hussain Sahib, eldest male descendant of Haji Hassan, with the names of Muhammad Shiddik and Ali Sahib (who are the sons of Abdul Rajack, but who are also the maternal grandsons of Haji Hassan). V. From 1901, the name of the 11th defendant, a brother of the 9th defendant, is also inserted.

14. I shall have to refer in detail at a later stage to the evidence showing the feelings between the two branches of the family in 1897, when Dodda Hassan died leaving no sons but only a widow and daughter as his heirs. At present, I need not allude to them, as Mr. K. Srinivasa Aiyangar for the appellants conceded that the members of the younger branch were entitled to some share in the property, in question, and because there were admissions to that effect binding upon his clients.

15. The question remains, in which properties the plaintiffs are entitled to share and to what share they are entitled. In connection with this question, I will refer first to Exhibit XVI which in my opinion is clear evidence that the property mentioned in it belonged at its date to Haji Hassan alone. As it was not given effect to, and as Haji Hassan survived Hammed, it might have been argued that it became ineffective and Hammed or his heirs acquired no interest in the said property by reason of Exhibit XVI Cf. Oomuttoonnissa Beebee v. Areefoonnissa Beebee 4 W.R. 66. It was, however, conceded by the contesting defendants that Hammed and his heirs ought to be given one-eighth of the property mentioned in Exhibit XVI.

16. I have already pointed out that Exhibit XVI refers specifically to identified properties, and that it is not intended to cover future acquisitions.

17. The property acquired by or on behalf of Haji Hassan between 1845 and 1870--for three years exclusively by the labours of Hammed, from 1848 to 1866 jointly by the two brothers, and for the last four years, exclusively by Haji Hassan--may be governed by one of three sets of considerations:

(1) On the basis, that the said property must belong exclusively to Haji Hassan and his heirs, because Exhibit XVI, however favourably it is construed, cannot be taken to affect future acquisitions: even to the extent to which it goes, it was not given effect to by Haji Hassan, though he survived Hammed; or

(2) On the basis that Hammed must be given one-eighth share in the said property on the analogy of the provisions of Exhibit XVI as quantum meruit for his work in the firm; or

(3) On the basis that Hammed must be taken to have acquired a one-eighth share in the property mentioned in Exhibit XVI in 1845, that he ranked as a partner after that date and that as such under Section 253(2) of the Indian Contract Act, he became entitled to share equally in the profits of the partnership business after 1845.

18. The following considerations must, it seems to me, be borne in mind in arriving at a conclusion on this point:

1. Hammed brought 110 initial property to the firm which was established by his elder brother, Haji Hassan. It is true that Hammed may have had some property of his own; Exhibit XIV gives particulars of what was given to him in the partition of 1818. But the properties mentioned in Exhibit XVI are, it is clear, exclusively Haji Hassan's. It was clearly for the heirs of Hammed to trace out and show the origin of property which, as it is now suggested, belonged to Hammed and was at some time or other thrown in by him into the assets of Haji Hassan. It seems to me much more likely that, as is usual amongst Muslim families, Hammed kept his own funds separate. Exhibit XVI certainly does not give countenance to the unusual course having been followed, of the elder brother having taken the comparatively small property of his younger brother into his flourishing firm, without there being any necessity for it. The accounts would have shown if this had been done and mention would in all probability have been made of it in Exhibit XVI.

2. Hammed worked with hi% brother as a dependent. No mention is made of his having brought any capital to the firm, or of his having been made a partner.

3. In 1845, the entire property was, with Hammed's consent, described as Haji Hassan's and only a one-eighth share therein is allotted to him as a favour by his elder brother.

4. Hammed does not seem to be made a partner of his elder brother by the terms of Exhibit XVI; it is merely provided that he shall get a part of the property in the same way in which the wife would get a similar part.

5. Hammed is spoken of as a dependent and, though it is contemplated tha+ the firm would in future, i.e., after Haji Hassan's death or retirement, belong to the son of Haji Hassan, the nephew of Hammed, yet the uncle is referred to as the manager of his nephew's firm, and not as a partner in that firm. It would rarely happen that a younger brother in a Muslim family should be spoken of as a dependent of his elder brother, though they are both partners. It is much more difficult to think that the uncle should, in similar circumstances, be referred to in this depreciatory manner.

6. The origin of the properties being traced to Haji Hassan, it is for Hammed's heirs to prove the means by which a portion of the property became transferred to themselves. Joint acquisition may no doubt give a title to co-ownership on grounds similar to those on which the law as to partnership is based. But the terms of Exhibit XVI do not indicate a joint acquisition in such a sense as to require an equal division of the property acquired. On the other hand, I must concede that there is no indication that the firm as a going concern was considered as any great asset in itself, and this fact might render it easier to bring in the operation of Section 253(2); for, where the good-will of the firm is deemed to be the main instrument of acquisition, it might be that the proportion in which the assets of the firm are owned, would have to be considered the main factor in determining the proportion in which the properties acquired, were to be shared, rather than the fact of joint exertion; consequently, where a person has a proportionately small share in the assets of such a firm, the good-will of which is the main instrument of acquisition, there is less reason (in the absence of clear evidence) to presume that the main instrument of acquisition is owned in unequal proportions.

7. Exhibit XVI does not refer to an immediate transfer of the one-eighth share of the property to Hammed. It is in the nature of directions that such a transfer should take place. It is sufficiently straining the effect of Exhibit XVI to say that Hammed's heirs are now entitled to get one-eighth of the property because Haji Hassan intended him to get as much; but it cannot, it seems to me, be construed to mean that the one-eighth had become Hammed's from its date. Hammed is mentioned in it as only one of the several persons entitled to share and that which he can claim under it, the widow and the rest can also claim.

8. Exhibit XVI clearly shows that whatever may have been the terms on which Hammed worked in the firm of his brother, they were not partners; and that in 1845, Haji Hassan, with the consent of Hammed, laid down that the interests of Hammed in the property referred to in Exhibit XVI, should amount to a one-eighth share of that property, neither more nor less. No reference is made in Exhibit XVI to future earnings and acquisitions; and in accordance with its terms, the said share of the properties then in existence, was to form the consideration also for Hammed's continuing to work in the firm after Haji Hassan left for Mecca.

9. The conduct of the two brothers and of the members of the family seems to me to have been such as would be expected from brothers between whom the business relations referred to in Exhibit XVI were continued, and the treatment of the younger brother by his elder together with their conduct towards the other members of the family, do not appear to me to require the inference that the younger brother was given the higher status of partner. My consideration of the question is not unaffected by the fear that to hold otherwise would in one sense penalise cordial and considerate relations between brothers. It would imply that if two brothers trade or otherwise work together, one of whom alone contributes the capital, he may not permit the fact of their being brothers to colour the terms upon which they associate in their work; any treatment different from that which would be expected from strangers, would in that case involve a division of the acquisitions between the two brothers, which but for such treatment would be the property of one alone.

19. On a consideration of all this, I am clearly of opinion that the two brothers were not partners on equal terms, but that Haji Hassan was the sole owner of the firm and that the proper remuneration to be paid to Hammed for his work was in 1845 fixed upon between them at one-eighth of the assets then existing; but that he was not entitled to rank as a partner from 1845, nor on that basis to claim half of the future acquisitions.

20. I feel, however, much greater difficulty in deciding whether he ought not to continue receiving one-eighth of the acquisitions between 1845 and 1870. I have arrived at the conclusion that he ought not, for reasons which 1 have already indicated, to which I may add that (1) however proper it might now appear that Haji Hassan should have provided for a division of the future acquisitions, as a matter of fact he did not so provide, and (2) that Hammed and his family were, it would appear, living with Haji Hassan, who was bearing their expenses.

21. Hence after very careful consideration, it seems to me that the most proper view of the matter would be to hold that Exhibit XVI should be given effect to, but as on the death of Haji Hassan, so that (1) as conceded by the defendants, Hammed should have one-eighth of the properties mentioned in Exhibit XVI and (2) the properties acquired between 1845 and 1870 should be exclusively Haji Hassan's and his heirs.

22. In this connection, our attention has been drawn to the fact that three of the properties are shown to have been purchased in the name of Hammed. Exhibits XVIII, XIX and XX refer to them. They are dated 1844, 1849 and 1848, respectively. The considerations for them were Rs. 280, Rs. 800 and Rs. 196. These properties were transferred to Hammed Sahib, younger brother of 'Hassan Saib, of Souda' and to 'Savada Hassan Sahib's brother, Hammed Sahib,' and they were in 1866 (on the death of Hammed) transfer red to the name of Dodda Moidin, the son of Haji Hassan It seems to me that these facts indicate that the properties must be taken to have been acquired on behalf of Haji Hassan. They are not to be considered Hammed's separate property.

23. The next question, therefore, is as regards the ownership of the property acquired after 1870.

24. As I have already said, Hammed Sahib's heirs became entitled on the death of Haji Hassan to one-eighth of the property mentioned in Exhibit XVI. The heirs of Haji Hassan and Hammed, therefore, became co-owners of the property in the proportion of seven-eighths to one-eighth. It seems to me that the evidence discussed by the learned District Judge in detail, on the basis of which he has arrived at the finding that the family consisting of the plaintiff and defendants is joint and undivided, is sufficient to show that the two groups of heirs, namely, those of Haji Hassan and Hammed were jointly entitled to the property on their death.

25. I have mentioned in an earlier part of the judgment the disputes between the elder and younger branches of the family. The documents bearing on this point, may all be grouped together as arising from the proceedings relating to the mutation of names on the deaths of Dodda Moidin, Dodda Hassan (son and grandson of Haji Hassan) and of Sanna Hassan (son of Hammed). They establish in the first place, what is no doubt contested in some of the written statements but what, as I have already said, was not denied before us, that the plaintiff is entitled as of right to some share in the property which is the subject-matter of the suit and that the allowances paid for maintenance and otherwise were not merely in the nature of charitable allowances. I shall consider them now in some detail.

(1) The genealogy, Exhibit D, was accepted by the members of both branches, who agree in representing themselves as belonging 'to an undivided family (avibaktha kutumba).' This description would, if it is interpreted in its strict sense, exclude the females mentioned in the genealogy from any share in the family property. It is clear that their inclusion, in a family governed by the Hindu co-parcenery law, is meaningless, and in any case, such inexactness in referring to the status of the family and of the rights of the members constituting it, cannot prevail against the clear statement of all parties that the law of succession governing them is Muhammadan Law, according to which the females must be given their rights of inheritance. At the same time, these expressions do amount to an admission that all the males mentioned in the genealogy have an interest in the immoveable property; that such property was held in common; and that the fact that the pattah relating to it stood in the name of Haji Hassan who belonged to the elder branch of the family, was net considered by the members of that branch itself as assertive or indicative of the sole right of that branch in the properties concerned.

(2) In Exhibit E1 (September 1897), the 9th defendant, a member of the elder branch, says:

as shown in the annexed genealogical tree, we are all heirs, and there are heirs of the second branch, and being members of an undivided family not only the management of the lands but all the remaining managements are conducted jointly as a whole as family--concern. The kathi standing in the name of my father (Dodda Moidin) had been, after his death, transferred to the name of the eldest son of the deceased. As I alone am, after him, the senior member and as there remains property belonging to an undivided family, I alone am the hukdar for kathi.... Therefore as had been done from the time of our ancestors out of respectability, kathi should be entered in my name so as to be convenient to conduct all our proceedings....

(3) In Exhibit E2, dated 4th October 1897, Souda Hussain, the 9fch defendant says:

as given in the genealogy herewith attached, the deceased has got near heirs. And there are heirs of branch two. The heirs of both the said branches are undivided.... Alli Sahib vallad, [i.e., the son (of Abdul Rajack) the 15th defendant], being in Souda, manages the shop] n the undivided family of the two branches and in our household, my father looked after the management till his death and all the members of the family (i.e., both branches) are supplied with necessaries from our household.

(4) Again when the patta for the five properties in Kundapur taluk, was transferred to the name of the 8th defendant who was the paternal grand-daughter of Hammed Sahib, but married to Dodda Moidin, the paternal grandson of Haji Hassan acid the elder brother of the 9th defendant, the 9th defendant put in an appeal petition, Exhibit F, in December 1897 in which he said:

'That in consideration of personal status and property qualification, appellant has been appointed a member of Taluk Board and in deference to personal status of appellant even the elderly members, sons of Abdul Rajack, have given their consent to the kudthala being changed in the name of the appellant for the reason that the said properties both in Honnavar and Cundapoor Taluks, were acquired by appellant's grand-father, Haji Hassan Saiba, and appellant's father, Moidin Saiba.' 'That the said Sanna Moidin Saiba, though the eldest male member in the family, has been abandoned by other members of the family in his endeavours to secure the kudthala in his own name, because, he is not a well-wisher of the family and much less qualified to be kudthaladar and his consent to have the kudthala in the name of respondent is purely an act of vengeance and resentment, tending to the destruction of family properties.'

Then followed a mediation. In the result out (if five properties paying a total assessment of Rs. 451-8-10, properties bearing an assessment of Rs. 173-2-0 were agreed to be transferred to the 9th defendant's name and the remaining properties, bearing an assessment of Rs. 278-6-10, were agreed to be transferred to the 15th defendant's brother's name. The order Exhibit F2 was passed accordingly in October 1898.

(5) The 8th defendant herself in Exhibits E5 and E9 seems to admit that the 9th defendant has a 'right to manage' even: in the very application by which she desires that the patta should be transferred to her name. But as the parties are governed-by Muhammadan Law, the 8th defendant could not be under the necessity of having the properties to which she was entitled by inheritance managed by the 9th defendant. The reference to management by the 8th defendant and the terms in which the reference is made, throw light on the mode of life adopted by the partieg.

(6) Finally, the abstinence on the part of the 9th defendant to assert any superior title in the ownership of the properties as against the members of the junior branch is specially noteworthy.

26. On a consideration of all the circumstances my conclusion with reference to the properties acquired by the firm after 1870 is that they must be taken to have been acquired by the joint labours of the heirs of both the brothers. It seems to me, therefore, that Section 253, Clause (2), of the Indian Contract Act is applicable, and that the said acquisitions must be divided equally between the elder and the younger branches.

27. I must state here that it is conceded that at least one-eighth should be given to the heirs of Hammed Sahib. Moreover, the learned Pleaders for all the parties before us stated on behalf of their clients that none of them desired to claim anything either on their own behalf or on behalf of their ancestors by way of remuneration for conducting the affairs of the partnership firm originally established by Haji Hassan, and that all were agreed that they would claim only on the basis of inheritance from their ancestors and on the basis that in all other respects, the rights of all the parties concerned, stood on the same footing. If my view of the case is correct, this concession was very properly and wisely made. Otherwise it might have become necessary to determine:

Who were entitled to share the acquisitions of property of the firm from time to time, after the death of Haji Hassan until the date of the suit

(a) as partners under Section 253(2) of the Indian Contract Act,

(b) as having been admitted partners under Section 447,

(c) as representatives of a deceased partner under Section 241,

(d) as lenders under Section 240, and

(e) as annuitants or receivers of portions of the profits under Section 243.

28. The determination of these questions would have required a detailed examination of complicated accounts, and would probably have resulted in greater delay and expense than gain to any of the parties.

29. On the conclusions of fact at which I have arrived, and on the waiver by the parties of any claims they might have had on basis other than that of inheritance, it seems to me that the shares of the various members of the family will have, to be determined in accordance with the Muhammadan Law of inheritance, in a mode similar to that adopted by the learned District Judge in paragraph 24 of his judgment. Owing to the admissions to which 1 have referred, the parties will be entitled to a proportionate share of all the properties acquired on behalf of the family group up to the time of the suit, as the share of Hammed in the properties by the aid of which acquisition after 1870 has been made has continued to remain in the firm.

30. I might have concluded my judgment here; but owing to the fact that my learned brother and I take different views, I must consider in the first instance the method of decision adopted by the learned District Judge and state in some detail my reasons for differing from him and my learned brother.

31. The learned District Judge has considered on the evidence whether the family of which the plaintiff and defendants formed members was a 'joint family,' and after-a very careful examination of the evidence, no has answered that question in the affirmative. With great respect, however, it seems to me that this is an erroneous basis. In speaking of parties governed by the Muhammadan Law of succession, the expression 'joint family' presumably refers to a group of persons belonging originally to one family, and living together without having partitioned such property as they have inherited from some common ancestor. Their continuing so to live does not make their status different from what it would have been, had they not done so. Nor does the fact that they have not partitioned the property in any way, affect their rights therein, or the legal incidents applicable to the property.

32. No person can, by birth, derive an interest in the property belonging to his father during the letter's life-time. The members of the group of persons so living together (whether or not they are collectively styled a joint family) do not form any legal unit: they are not necessarily heirs of one another; property acquired by one of them does not necessarily form the property of the whole group. The group as constituted at any particular moment, is not the legal representative, or the continuous successor in law, of the persons who constituted the group in a previous generation. The result of this is, that it cannot be said that all the property which at any time in the past belonged to the group as a whole, continues to belong to the persons now included, whether arbitrarily or according to agnatic descent, in the group. The property may have devolved upon some members of the group to the exclusion of others, and may have partly devolved on strangers to the group. Strangers not forming members of the group, may be interested as heirs (even by marriage) of those who form the group, or be entitled to demand their share in the property possessed by the group. Hence, to hold that a person forms a member of such a group, does not necessarily imply that he has any share in all the property possessed by each of the other members, or kept in the possession of some person as the manager on behalf of all the group, whether such possession is held at their request, or with their consent, or merely with their acquiescence.

33. The question elaborately discussed by the learned Judge, whether or not the various members of the family considered themselves joint, and whether the plaintiff has been treated as a member of a joint family, may, no doubt, be important for the purpose of deciding whether the defendants have any property in their possession in which the plaintiff is entitled to share by inheritance or otherwise, and whether the plaintiff's rights are prevented from being barred by limitation. For, the fact that the plaintiff has been receiving maintenance and other allowances from the defendants till within a recent date of the suit, is evidence of the fact that the defendants have been admitting the existence, in their hands, of the property in which the plaintiff is interested. Before us, however, the plaintiff's right to some share in the property held by the contesting defendants, has not been questioned, and it has been conceded that his right is not barred except with reference to some particular classes of contentions to which I need not now allude, though both these questions were raided in the lower Court.

34. The view taken by the learned; District Judge and accepted by my learned brother is that because there is a good deal of evidence pointing to the conclusion that the parties have considered themselves to be, and acted as though they were, members of an undivided Hindu family, therefore their rights must be similar to those of the members of a joint undivided Hindu family. I regret that I am unable to accept this conclusion. It is the case of neither party that the Hindu Law governs their property. It is expressly stated in the plaint as well as in the written statements of most of the defendants that Mubammadan Law governs them. In these circumstances, it seems to me difficult to see how the Hindu Law can be applicable. The Hindu Law of joint family property is also difficult to be applied on general grounds for two reasons:

In a Mussalman family, daughters, wives and mothers become entitled to shares in the properties and not merely to maintenance. When a childless widow becomes entitled to a share in the property, her estate would entirely go out of the ownership of the family group, and after her death, her heirs would be her parents, or her sisters and brothers, or even remoter relations.

35. Apart from this difficulty, however, and even if we had only Hammed and Haji Hassan to consider, I am unable to understand, when once it is conclusively shown that certain properties belong to only one of them how it is possible for the other to acquire a share of it unless it is by means of transfer (with or without consideration) or devolution as heir. Hammed was not the heir of Haji Hassan and, therefore, the only way in which he could become entitled to a share in the property of his brother, would be by transfer in his life-time or bequest. There never has been any suggestion that Haji Hassan made a gift of half his property to Hammed.

36. My remarks do not refer of course to the question whether a property jointly acquired by the exertions of two persons, should not from the very start belong to them both jointly. I am not dealing with property so acquired, but with property such as is referred to in Exhibit XVI, which is shown to have been at the start the property of Haji Hassan alone.

37. I do not understand how in Muhammadan Law the mere fact that one person allows another to live with him and treats him as though he were co-owner with himself of property which is shown initially to belong to him alone, can make the other a co-owner. Such circumstances may raise a presumption of co-ownership when the origin and ownership of the property is not traced and when it is not known whether one is the owner or the other. But how can these circumstances avail to transfer the ownership, or to convert sole into joint ownership?

38. The presumption arising in Hindu Law from such facts as I have alluded to, is based, it seems to me, on incidents of the law which cannot be imported into Muhammadan Law. If two Hindu brothers after partition again live together, and throw their property together, the property may no doubt acquire new incidents in Hindu Law. From the fact of joint living, it may be inferred that the brothers had re-united and intended to hold property with rights of survivorship, etc. But how can a similar conclusion be drawn with reference to Mussalmans? Even if they were to throw together their property, each would, in the eye of the law, be entitled to his one half. If they have children, one cannot be the heir of the others; and the incident of survivorship cannot be introduced in the ownership of the property.

39. Hence it seems to me to be difficult to conceive by what process Hammed or his heirs can have acquired half a share in the property which is shown to have been Haji Hassan's sole property, as distinguished from property which was acquired by the joint exertions of Hiji Hassan and Hammed or their heirs with the aid of joint property.

40. It seems to me with great respect that on the principles suggested by my learned brother, though it is admitted that Muhammadan Law governs the parties, in the same breath with which that admission is made the Hindu Law is in fact applied; and the reason that is alleged is that Haji Hassan and Hammed lived like members of a Hindu joint family. But in the first place, the mode of living cannot affect the law to which they are subject, and secondly the mode of life does not seem to me to be peculiarly Hindu, as I do not see how it differs from the mode in which Muslim brothers would live together, except that their heirs died without partitioning their estates. Such a state of circumstances is contemplated in the Fatawa Alamgiri, Cf. Baillie's Digest, Book XI, Chapter XI. Nor am 1 able to appreciate how there can be any estoppel. If I am right in taking Exhibit XVI as evidence that the property mentioned in it was Haji Hassan's, Hammed certainly knew that fact. Can Hammed then turn round and say to his brother, 'True, this property was yours and I knew as well as you or any one else that I had no right over it, but you have been such a kind brother to me and been treating me as though I were co-owner of the property with you. Now, therefore, you are estopped from denying that I am entitled to half of the property.' If this is the law, hospitality and kindness are virtues reserved to those who are willing to give away a moiety of their property to every guest whom they ask to make himself at home in their houses. As we are dealing with Muhammadan Law, it would not be merely brothers who would be able to claim this advantageous result from hospitality. It would be open to every stranger.

41. I now come to deal with the question how, when the parties are governed by Muhammadan Law and have been living together without partitioning their property, the interest of each member must in my opinion be determined. In doing so, it seems to me that the following considerations have to be borne in mind: (1) Whether the plaintiff is entitled to any of the properties which are the subject of the suit by (a) inheritance, or (b) by acquisition, because the properties in the hands, of the defendants were acquired by the exertions either of the plaintiff alone or of the plaintiff and the defendants; (2) whether the rights arising under these two heads, have to be. diminished to the extent of any advances or payments that have to be debited to him. For, in Muhammadan Law co-owners of property, notwithstanding that they live together, would be expected to pay for their own maintenance, and other expense out of their own shares in the property held in co-ownership. This effect can, of. course, be negatived by agreement and the existence of such an agreement may be presumed, from the conduct of the parties and their mode of life in any particular case. It is conceded before us that in the present case such an agreement may be presumed.

42. Before I deal with joint acquisitions, I must distinguish acquisitions made exclusively by the exertions of any individual member which would ordinarily be his own property. The fact that the property in the hands of a person belonging to the group is obtained by inheritance and would under the Mitakshara Law be styled ancestral property, does not by itself fix with any special character fresh property acquired with the assistance of such 'ancestral' property. Such fresh acquisitions do not of necessity belong to the group described as the joint family. If they belong to the group, it is only by-reason of some such causes as I am going to mention. It is on this ground that it seems to me that the property acquired prior to 1-70, must be considered to be Haji Hassan's, with merely a claim on the part of Hammed or his heirs to be given some remuneration for having assisted in the acquisition, a claim, which owing to the existence of Exhibit XVI and the concession of the defendants, is taken by me as amounting to one-eighth of the properties mentioned in Exhibit XVI. The question to which I have' just alluded, may also arise in connection with properties claimed to have been acquired separately by the 11th and 22nd defendants amongst others.

43. Distinct from such separate acquisitions, are acquisitions made by the members of the family working together (e.g., by carrying on a joint trade) with property of which they are co-owners: such co-ownership may arise from the property having been inherited from a common ancestor, or from the fact that the parties are the legal Representatives of those who were in the past partners in a firm. Acquisitions by co-owners, made with the assistance of property held in co-ownership, it seems hardly necessary to say, themselves become property held in co-ownership. It may also be that contribution to the funds necessary for making the acquisition possible was on the implied condition that the persons so contributing were to share in the fruits, even though they may not have actively or otherwise assisted in making the acquisitions. Such a contract may be implied from the conduct of the parties and their mode of life may supply evidence of such conduct., For, though no person can claim to be entitled as of right to carry on a business carried on by his father in partnership with other persons (in the same way as in a joint family or ancestral firm, amongst Hindus governed by the Mitakshara Law), yet where a number of persons are living together united by ties of kinship and where the persons so living together, depend for their livelihood upon the profits of the business carried on by them or some of them, the relationship of partners can hardly be prevented from arising. Owing to the statements made to us by the learned Pleaders in Court, I have assumed that the parties in the present case admitted the existence of such implied contracts.

44. Mr. K. Srinivasa Aiyangar for the appellants strongly urged that no question of partnership can arise in the present case, the pleadings being on the footing of co-ownership and not of partnership. But the origin of partnership has itself been explained in Roman Law to be the 'Consortium' of coheirs. The exposition of this class of partnership in Roman Law is so suggestive that it may be here referred to with advantage.

45. Thus I find that Professor Roby, in his Treatise on Private Roman Law, Volume II, pages 127, 128, after defining 'a partnership' as 'a contract whereby two or more persons agree to work together for common profit, or to acquire and hold property in common, sharing the gains and the losses,' continues: they may combine only for one particular piece of business, or to carry on a continuous trade or enterprise, or they may even agree to put all they have, into a common stock and share each other's fortunes of whatever kind.' He adds in a foot-note:

it is probable that this thoroughgoing partnership sprang from the position of brothers and sisters living together as joint heirs to their father. Consortes appears to have this special application. Gellius (i. 9) speaking of the Pythagoreans says, quod quisque familise, pecunise, habebat, in medium debat, et coibatur zocietas inseparabilis, tamquam illud fuit anticum consortium, quod jure atque verbo Romano appellabatur 'Eroto non Cito' (erctum non-cito)

46. 'Where there was no summons to divide the inheritance.' Then Professor Roby's text continues:

In the absence of any wider intentions clearly shown, the partnership will be taken to relate only to business matters and to the gain and loss thence arising, in which case inheritances, legacies, gifts will be outside the contract.

47. This illustrates, first, that where a group of persons belonging to a family governed by Muhammadan Law, work together for the purpose of earning their livelihood and acquiring properties, the transition leading up to the formation of such a thoroughgoing partnership is extremely easy, and secondly, it indicates limitations on the scope of the partnership and points out a means for limiting the assets and liabilities of the firm, even in regard to the rights of members directly participating in the labours of carrying on the firm, or holding possession of its assets or profits or adding to its liabilities.

48. Here again, there is a certain analogy with the law governing a Hindu family firm, but it seems to me that the analogy is not complete. It is true that Hindu family firms are the partnerships which in India have the closest resemblance to such 'thoroughgoing partnerships' amongst Mussalmans as we have to deal with in the present case. Their analogy is alluring, because the Hindu Law furnishes a simple method of determining the rights of the parties: under it the whole group continues to be a single legal entity making it unnecessary to trace out the legal results on the decease of each ancestor of the claimant. For reasons, however, which I shall state, it seems to me that this easy process is not available unless the parties are willing (as they are in the present case) to have each one of themselves treated as though he or she were a partner with the right to share in the profits of the firm (or future acquisitions) in the proportion of his or her interest in the assets of the firm, irrespective of Sections 240, 241, 243, 247 and 253(2) of the Indian Contract Act.

49. The learned District Judge has referred to Khatija v. Ismail 12 M.P 380 in the beginning of his judgment in the following terms:

The parties are Navayats the customs of which race are recorded in Khatija v. Ismail 12 M.P 380. Ordinarily Navayats follow the joint family system of the Hindus but conform to the Muhammadan Law in succession. The evidence in this case shows that these parties do the same and there is absolutely nothing to prove otherwise. I, therefore, find that they follow this custom.

50. The result of the decision in Khatija v. Ismail 12 M.P 380 seems to me to be stated too broadly in this passage. All that is there laid down is that amongst the Navayats 'though the devolution and distribution of the property were regulated by the rules of Muhammadan Law, the Hindu system of managing joint family property by a male co-parcener was in vogue.'

51. It need hardly be pointed out that the fact that a particular custom is relied upon and held by the Court to have been proved in one case, does not empower the Court to take judicial notice of it in another case; judicial notice may be taken only of a custom that has been repeatedly proved. In this case, no special custom was pleaded; nor is any general custom referred to in Khatija v. Ismail 12 M.P 380. But the word 'custom' frequently invites a confusion of ideas. In its legal sense, custom must of necessity connote only such rules of conduct as affect rights and liabilities. Evidence of the peculiar ways of living adopted by any class of persons may have to be adduced for an elucidation of the facts existing in any particular case. But this does not make those ways of living, or observances customary rules of law. There may, however, be sufficient evidence in the present case for holding that the particular family concerned, has adopted a way of living which is similar to that adopted by members of a joint Hindu family. But what is far more important is that the parties are agreed that their rights are to be governed by Muhammadan Law and that they have not adopted the Hindu Law of succession.

52. Is there any reason why the assets of the firm originally established by Haji Hassan and carried on by the ancestors of the plaintiff and the defendants, in which-members of these branches have acted as, partners or managers, should be governed; by the law applicable to a Hindu joint family or ancestral firm governed by the Mitakshara Law? In order that this question. may be answered, I must refer to rules governing such Hindu firms which may be, relevant to the questions involved in the present litigation, and consider the reasons why such firms are governed by what in effect must be considered to be special rules of law.

53. The leading case relating to a Hindu joint family firm, seems to be Ramlal Thakursidas v. Lakhmichand Muniram 1 B.H.C.R. App. 51. It does not seem to have been expressly noticed in the decisions following that case that it was decided in 1861, long prior to the passing of the Indian Contract Act. The learned Judges who decided the case say:

Being a matter of contract between Hindus, the laws and usages of Hindus must govern the decision.

54. The principles laid down in the leading, case seem, however, to have been given effect to in later decisions in the same way as if they were unaffected by that Act; Be this as it may, it seems to me that if the provisions of the Indian Contract Act were applied to the case of a joint family firm governed by the Hindu Law, the same result may be arrived at, at least in the great majority of the cases, as that to which the decisions lead us. The most important decisions seem to me to be reconcilable with the view that the Indian Contract Act applies to a Hindu family firm, but that the incidents of the Act are affected by the peculiar doctrines of the joint Hindu family, which doctrines are incorporated in the law of Hindu ancestral firms, just in the same way as the provisions contained in the articles of partnership relating to any particular firm may be incorporated. The Indian Contract Act in this view governs Hindu family firms as much as any other firm; but the incidents of a Hindu joint family firm are different from those of a 'firm not subject to the Hindu joint family law, just as, under the Act, a firm having one set of articles of partnership, will have different incidents from a firm having another set of articles. Thus, for instance, Section 241 of the Act lays down that 'a contract to the contrary' may prevent a particular result following. That same result is prevented from following in the case of a Hindu joint family firm by the fact that by the operation of the Hindu Law, the sons of a father become partners with him in his life-time by birth, and may continue to be partners after his death. If, on his death, they continue to carry on the business, the same results follow as though they had agreed to continue the firm as such partners. See Samalbhai Nathubhai v. Someshwar 5 B.P 38. Similarly, the contract referred to in Section 245, must have reference to the law governing the parties; and under Section 247, a minor may be admitted by operation of the law to the benefits of the partnership, and may have his share in the property of the firm, but be free from personal liability for any obligations of the firm. See Raghimathji Tarachand v. Bank of Bombay 2 Ind. Cas. 173 : 34 B.P 72 : 11 Bom. L.R. 255.

55. Thus I take the decisions relating to Hindu joint family firms to show that the Indian Contract Act lays down that the relations between the members of the firm must be presumed to be to a certain effect, in the absence of a contract to the contrary; that the contract to the contrary may be an implied contract; that such an implied contract may be presumed from the mode on life resulting from the general personal law of the parties, especially when not presuming such an implied contract, would bring about inconsistencies, and results unexpected by the parties themselves.

56. If this is so, then in any event, the Indian Contract Act must be looked to primarily for determining the incidents of the firm established by Haji Hassan, even though the mode of life adopted by the members of the family was that prevalent amongst members of a joint Hindu family. That fact, however, must be brought to bear upon the rules contained in the Indian Contract Act, and must not be made a medium for conducting all the incidents of a Hindu family firm into the present case. Thus the law of survivorship among co-parceners by which sons acquire an interest in the ancestral property of their father during the life-time of the father, does not find a place in Muhammadan Law; and widows and daughters take definite fractions in the estates of the deceased, and the property represented by those fractions, is not liable to be diminished by any subsequent conduct of the partners of the firm. The right of such ladies may under certain circumstances differ from the rights of those male members who assist in the business, and in the acquisition of property, because the latter would under the Indian Contract Act be entitled to be considered partners in regard to the acquisitions made by efforts in which they have joined, whereas females and such males as have not contributed their efforts in acquiring new properties, would not be partners.

57. Again, in the case of an ancestral firm whose members are governed by Muhammadan Law, one of the members may die leaving no heirs within the group of persons living together and working in the ancestral firm. His heirs, in the absence of descendants, may be collaterals who have had no dealings with the firm, or with the family group in which the deceased was included. In such a case the share of the deceased partner would nonetheless devolve upon the strangers, and would be subject to the provisions of Section 241 of the Indian Contract Act, whereas in the case of a Hindu joint co-parcenary property (whether or not consisting of a family firm), on the death of any of the members, his estate must necessarily devolve upon persons within the co-parcenary itself. Where one of the partners dies, the firm would ordinarily be considered to be dissolved. [Indian Contract Act, Section 253(10)]. But since the firm has been continuously carried on, there must, in the eye of the law, be considered to have been, on the death of each partner, a fresh contract, express or implied, to continue the firm. On the other hand, it does not follow that the heirs of the deceased partner should become partners in the firm by the very fact of such continuance of the firm, or by the fact that the assets of the firm include the share therein of the deceased partner which by his death has devolved on such heirs. The reason why the sons of a partner in a Hindu ancestral firm are on the death of their father taken to be partners in the firm, is that the sons are co-sharers and partners with their father in his life-time, that in fact, though as between the father and the other members of the firm, the father was one unit, that unit consists of himself and his sons who are co-parceners with him in the family property. Samalbhai Nathubhai v. Someshwar 5 B. 38. Even in regard to a firm governed by the Hindu joint family law, the limitations as to the liability incurred by a partner are indicated in Bishambhar Nath v. Fateh Lal 20 A.P 176 and Chalamayya v. Varadayya 9 M.L.J. 3. The result of these two decisions seems to be the same as would have been arrived at by applying Section 241 of the Indian Contract Act, though the section does not seem to have been expressly referred to and the circuitous method is followed of considering, in the first instance, persons to be partners, though they have not taken any active part in, nor had any concern with, the management of the firm directly or indirectly. See Bishambhar Nath v. Fateh Lal 20 A.L 176 : 4 A.L.J. 95 and then limiting the liabilities of such persons in a manner which could not be available to partners, but which would result from the application of Section 241. If the liabilities of a partner are not incurred, then it would follow that the rights under Section 253(2) cannot be claimed.

58. In the case of Mussalmans, Section 241 of the Indian Contract Act has, it seems to me, a direct operation in their case there is 'no contract to the contrary,' nor does their personal law operate so as to make them partners to any extent, or otherwise to minimise the effect of Section 241 on their rights.

59. After it is determined, who from time to time are partners in such a firm, it is possible to say how the acquisitions and additions from time to time to the property of the firm are to be divided. As I have already said, all the heirs of Haji Hassan and Hammed were interested in the assets of the partnership, but they were not necessarily partners. The rights of the two different classes of persons would have had to be determined on different bases, but for the concessions to which I have referred. The rights of those who are held to be partners, would have been subject to the rule contained in Section 253(2) of the Indian Contract Act; and those of the heirs of Haji Hassan and Hammed who would Have been held to be partners in the firm would have been considered under Section 241 of the Indian Contract Act to have given a loan of their portion of the property to the partnership. But these details are not necessary in the present case. I have only stated these for making my view of the case clear, and for showing that there are no inherent insurmountable difficulties in the way of applying Muhammadan Law to the assets of the firm as well as adopting the Muhammadan Law of succession.

60. The result seems to be, therefore, that such cases must be considered, as indeed they are, a series of suits for administration, partition, and dissolution of partnerships. The rights of the parties must be determined with reference to the Muhammadan Law of inheritance and succession, and to the law contained in the Indian Contract Act relating to acquisitions made with joint labour, or by means of property in which more persons than one are interested or with property originally jointly acquired and held in co-ownership and subsequently continued to be held and utilised for further acquisitions by the survivors of the original co-owners on an implied agreement with the heirs of the deceased co-owners.

61. It will be convenient to record the findings that should in my opinion he given on the issues:

On issue; (1), my answer would be, the parties are the heirs of two brothers who held certain properties in co-ownership; as such heirs, the parties are themselves co-owners of the properties originally owned by their ancestors, and properties acquired with the aid of those properties.

(2) The parties as such heirs, are entitled to share in the properties mentioned in the schedules to the plaint except in the shop of the 12th defendant.

(3) In the affirmative.

(4) In the affirmative.

(5) In the affirmative in the terms stated in my judgment.

(6) These issues are argumentative,

(7) and I think my judgment, gives a sufficient answer. In my opinion, amongst parties governed by Muhammadan Law, there cannot be such undivided members of a joint family as to prevent their holding private property.

(8) In the affirmative.

(9) In the affirmative.

(10) Not barred.

(13) In the affirmative.

(12) I agree with my learned brother's

(14) remarks on the District Judge's view with reference to these two issues (see page 23 of the District Judge's judgment) and answer these two issues in the negative.

62. In my opinion, for the reasons which I regret I have not been able to state at less length, the case ought to be referred back to the District Judge for accounts being taken on the following basis:

(1) That Hammed Sahib was entitled to one-eighth of the properties referred to in Exhibit XVI;

(2) that seven-eighths of the said property and all other properties acquired prior to 1870, belong exclusively to Haji Hassan and his heirs;

(3) that the property acquired by the firm established by Haji Hassan after 1870 must be equally divided amongst the heirs of Haji Hassan and Hammed Sahib in accordance with Muhammadan Law.

63. I would make the costs of the parties come out of the estate, but with liberty to the learned District Judge to declare that any particular sets of costs were unnecessarily incurred and should be borne by the parties themselves.

64. On this basis, a preliminary decree for partition should, in my opinion, be made, which would be followed in due course by a final decree.

Sadasiva Ayyar, J.

65. As my learned brother's judgment deals with the preliminary facts and the relationship of the parties at length, I shall not repeat them. Whatever may have been the nature of the understanding between Hammed and Haji Hassan at the time when they commenced to work together, they agreed in 1845 that the interest of Hammed in the property referred to in Exhibit XVI, should amount to one-eighth share of that property. Exhibit XVI further shows that it was only if Haji Hassan failed to return from his pilgrimage that Exhibit XVI was intended to have effect.

66. Was the interest of Hammed in the assets of the firm that of a partner after Haji Hassan returned, that is, between 1848 and 1866, so that Section 253(2) of the Contract Act is brought into operation?

67. The conduct of the two brothers and of the members of the family after Haji Hassan's return in about 1848, seems to me to have been such as would be expected from brothers who consider themselves as equal partners of the business and equal co-owners of all their properties. If Haji Hassan and Hammed Saheb had been Hindu brothers, I think their conduct and the conduct of their descendants and heirs could lead to only one conclusion, namely, that they were equal partners and co-owners. In Sudarsanam Maistri v. Narasimhulu Maistri 11 M.L.J. 353, Sir V. Bashyam Aiyanggr, J. uses the following expressions (in that case two out of five Hindu brothers carried on a business jointly):

'It is not alleged that there was any express agreement of partnership, but that as the plaintiff regularly combined his labour with that of the 1st defendant in carrying on the contract business, an agreement of partnership should be implied between them, especially as they were related as brothers.' 'There being no express agreement between the brothers in regard to the contract business, the question that presents itself for consideration is whether, under the above circumstances, a contract of partnership should be implied or whether the proper inference to be drawn is that there was no legal relation between the brothers in respect of the business, but that the plaintiff regularly and systematically assisted his elder brother in carrying on the work in...expectation that his elder brother would deal with him generously if profits were realised from the business.'

In deciding this question one should of course have special regard to the social customs of the Hindus and to the fact that the plaintiff and the first defendant were brothers...that the nature of the business was such that combination of labour was more important for success than contribution of capital and that the plaintiff's association with his brother in the business for a period of nearly six years was not casual but regular and continuous.

68. The learned Judge refers to several other circumstances, and then says: 'Under these circumstances an agreement of partnership would be implied by law,' and adverting to the principles of the law of estoppel embodied in Section 115 of the Indian Evidence Act which is the same as the English Law, the learned Judge held that the first defendant in that case was estopped from denying that the plaintiff was an equal co-owner or partner. In the present case, there is no doubt one circumstance against Hammed Sahib, namely, that he agreed in 1845 to take one-eighth share of those properties belonging to his brother which were in existence in 1845 when his brother started on holy pilgrimage. It does not, however, appear that Hammed had not then other properties of his own. It is further clear that Exhibit XVI which seems to have been unearthed from old forgotten records, was never acted upon, evidently because the elder brother returned in 1848 and the relations between the two brothers became still more cordial than it was before in 1845, the son of the younger brother marrying the daughter of the elder. All that appears afterwards is that the two brothers lived together as if they were members of a Hindu joint undivided family and that both equally managed the affairs of the business and conducted the transactions connected with the immoveable properties which were acquired mostly in the elder brother's name, though some properties of substantial value were also purchased in the younger brother's name. I do not forget that they were Mussalmans and not Hindus, but they were Mussalmans who belonged to a small sect called Navayats. Their customs are thus recorded in Khatija v. Ismail 12 M.L 380 by the late Mr. C. Gopalan Nayar, who was in his days one of the ablest members of the. Subordinate Judicial Service:

It has to be remembered that, though these people are Muhainmadans by religion, they conform to Hindu customs and manners to a very great extent. They belong to a class called 'Navayats' or new comers, being the descendants of a party of Arab merchants who Migrated to Bhatkal near Goa some 770 years ago and took for their wives converts from, the Hindu Konkanis of the place. Konkani is still the home language of these people, and it is clear from the evidence of several witnesses that, like their Konkani neighbours, they are not over-fond of division. Though...the common ancestor died in 1856, his estate was never divided among his heirs, but managed quite in the Hindu fashion by his eldest son., till his death in 1866 and since by the 1st defendant. That such management was for the benefit of all the heirs of Sayyad Mahomed Sahib (the common ancestor) is indeed clear from the admission of the parties.

69. The learned Judges of this Court on appeal adopted the same view, namely, that many of the incidents of the joint family system obtained by custom among the Navayats. The evidence in the present case also clearly points to the same conclusion.

70. My learned brother Mr. Justice Spencer had in 1913, as District Judge of Tanjore, to consider a case between the members of a Rowther family in Negapatam, the Rowther community, while following the Muhammadan Law of inheritance, having also adopted many of the customs of the Hindus. (See pages 96 to 100 of the printed papers in Second Appeal No. 983 of 1913). In Vellai Mira Ravuttan v. Mira Moidin Ravuttan 2 M.H.C.R. 414 the High Court observed:

Although the technical rules of Hindu Law are not applicable to families of this tribe, the same presumption must arise from, facts of a similar hind and the same principle must be equally held to govern cases of family-partnership among Hindusand Muhammadans. The first defendant, having been managing member of the joint estate for a long series of years, must be presumed to have made these additions to the property from the joint estate, unless the contrary were shown.

71. In Suddurtonnessa v. Majada Khatoon 3 C.P 694 : 2 C.L.R. 308, Markby, J., observed:

When a Muhammadan family adopts, the customs of Hindus, it may do so subject to any modification of those customs which the members may consider desirable; and it must rest with the Judge who has to decide each particular case how far he should apply the rules of a Hindu joint family to the case of any Muhammadan joint family that comes before him.

72. Mr. Justice Spencer approved as District Judge the following remarks of the Subordinate Judge who tried that case which came up as Second Appeal No. 983 of 1913 to this Court:

All the circumstances of this case show that living in the midst of a country where Hindu usages prevail, and being probably also of Hindu origin, the family has been following the Hindu usage in practice, with regard to joint living and joint enjoyment of property. In this state of things, the Courts have a discretion to apply such of the rules and presumptions of Hindu Law which are dictated by the circumstances of the case. It must, accordingly be held that in this case, the plaintiff and the other sharers will be bound to contribute their shares of the debts which may be found to have been incurred for the family benefit and still outstanding. Although there is no rule of Muhammadan Law imposing such a charge, it may be fairly presumed that it is one of the incidents of the commensality that obtained in the family.

72. Myself and Mr. Justice Bakewell confirmed on second appeal the above decision of Mr. Justice Spencer given by him as District Judge of Tanjore.

73. In the present case not only did the two brothers Haji Hassan and Hammed Saheb live and conduct business amicably together between 1848 and 1865 when Hammed died, but the properties purchased in the name of either, were enjoyed by both. Exhibit XIX is a title-deed of a property purchased in the younger brother's name in 1849. Exhibits XVIII and XX are title-deeds of properties purchased in Hammed Saheb's name in 1844 and 1846. All these properties were treated as joint family properties by both brothers. As even their Lordships of the Privy Council have used the expression 'joint family' in more senses than one as pointed out by Sir C. Sankaran Nair, J., in Rama Row v. Raja of Pittapur 29 Ind. Cas. 356 : 28 M.L.J. 624 : (1915) M.W.N. 369 I have ventured to use the expression ' joint family properties in the case of the Mussalman families without intending' the expression to involve all the usual implications when applied to an undivided Hindu joint family. Upon the death of Haji Hassan in 1870, the whole property of the family, including these three properties, was registered in the name of Dodda Moideen, the son of Haji Hassan who was then the manager in Manki. The accounts of the business which had stood in the name of Haji Hassan alone, were carried on from 1871 to 1882 in the joint names of Dodda Moideen, son of the elder brother, and Abdul Rajack, the son of the younger brother. The names of other male members of the family were introduced into the accounts in subsequent years. In the genealogical tree, Exhibit B, prepared by the village officers of Honawar Taluk in 1889 and in the statement Exhibit C, taken from all the member of the family, it is implied that Haji Hassan and Hammed were co-owners, just as if they were two Hindu brothers who carried on business and acquired properties together. It is further implied that there should be a manager selected from among the members of the family consisting of the heirs of the brothers as if those heirs constituted a joint Hindu family. The trade business was carried on at Souda, while the properties were acquired mostly in Manki. As the District Judge says:

Numbers of documents relating to the plaint properties have now been produced to show in whose names they were purchased and it is noticeable that the man on the spot and managing the business often took the document. Exhibit R of 1891 shows that Sanna Hassan received an amount decreed to Abdul Rajack. Exhibit Q of 1893 shows that Sanna Hassan who was then conducting the trade in Souda, obtained in his own name a succession certificate to collect the trade debts. Exhibits Y, BB and CC are documents to Sanna Hassan for old debts due to the trade and for rents due to the family. Exhibit DD is a document of 1904 to the 11th defendant, then managing the trade, in renewal of an old document, Exhibit Z, of 1886 to Abdul Rajack, showing that the manager for the time being, regardless of his branch, got documents in his own name; Exhibit T is similarly a document to Alli Sahib (15th defendant), reciting a prior debt due to his father Abdul Rajack; Exhibit AA, a document to the 11th defendant, refers to his uncle Abdul Rajack as the manager at Souda; and Exhibit W similarly refers to the 15th defendant.

74. These Exhibits distinctly tend to show that the two branches regarded themselves as equally entitled to all the properties standing in the name of any male member in either branch. The oral evidence is also to the same effect.

75. In the account XXII Series (See pages 100, 107, 108, etc., of the printed papers), salutations to Ganapathi and sometimes salutation to 'Sri' occur, showing that the influence of Hindu customs has permeated the community to a rather extraordinary extent. Even in the case of Hindu joint family business, the law applicable is rather complex and by no means quite settled. In Bishambhar Nath v. Fatch Lal 20 A.K 176 : A.W.N. (1907) 1 : 4 A.L.J. 95 it is said in page 183:

A joint ancestral family business under the Hindu Law managed by the adult members of the family differs from an ordinary contractual partnership. In the case of the latter, each partner is a contracting party, all the partners holding themselves cut as trading on the credit of their combined and separate funds, whereas in the case of a joint family ancestral business, there is no contract of partnership whatever between the members of the joint family. The family frequently contains amongst its members, minors who acquired their interests in the business by birth. Indeed it may be safely assumed that in most of the existing Hindu joint family trading firms, the parties, now interested in them acquired their interest by birth and not by contract. Admittedly, minor members are liable to the extent of their respective interests in the joint family property for the acts of the managers of the joint family business. But we do not think that their liability extends further. If any of the members of a joint family, happen to have separate estates, we know of no good reason why such separate estates should be held so liable.

76. Of course, 'the legal individuality of a co-parcener is not merged in the manager; so far as the co-parcener's self-acquired or other separate property is concerned.' See Chalamayya v. Varadayya 22 M.K 166 : 9 M.L.J. 3. Thus in a Hindu joint family business in which the minor agnates get interests as soon as they are born, the sections of the Contract Act relating to the dissolution of a partnership by the death of a partner and the necessity of the consent of a male member to make him liable as a partner even to the extent of the interest of his deceased father in the family partnership, business for debts contracted after his father's death, are not applicable. In a Hindu joint family partnership business, it is only the male agnates that become partners (though not in the full sense of the expression 'partner') liable to the extent of the funds of the partnership business. The matter is further complicated in the case of this Navayat community by the female heirs and the numerous members of each heir (whether male or female) under the Muhammadan Law, of a member of the original partnership, obtaining an interest in the partnership business on the death of each member of the family firm and of any heir of that member. But I think that till an heir or the heir of an heir repudiates all further rights and liabilities arising from the future transactions of the firm, he or she becomes and continues a partner in the sense that though he or she may not be personally liable for the debts of the firm, his or her interest in the partnership assets, continues liable till a partition is effected or till a repudiation takes place. As said in some cases, the minor who gets an interest in a Hindu partnership firm by birth, cannot be considered a partner in the sense that he becomes personally liable on his attaining majority for the debts of the firm contracted during his minority, but still he might be termed a partner in a real sense as his share and interest in the family business is liable for the debts contracted by the managing partners. In the case of Navayat families, I think that the expressions 'joint family' and 'undivided family' are used in a very loose manner as if female heirs also are members of the 'joint family' or 'undivided family.' But, so long as the family business is continued without break and though female heirs and minor heirs and heirs belonging to other families, may not be partners in the strict sense of the term, their interests in the firm's assets continue liable and the value of their interests fluctuates according to the prosperity or otherwise of the firm. I, therefore, venture to think that Sections 241, 249 and 253, (Clause 10) and similar sections of the Contract Act may not be inapplicable to the business carried on by a Navayat family as a family business though the principle of survivorship and that of right by birth, ought not to be imported in considering the rights and liabilities of the persons to whom the business of a Navayat family has descended as heirs. I think that in most other respects, the principles and considerations applying to the business of Hindu family firms can be made applicable. On a careful perusal of Exhibits El and E2 and several other documents in this case, it seems to me clear that not only males in the family but all the members (male and female) in the two branches and all the heirs and the heirs of the heirs of the original two brothers Haji Hassan and Hammed Sahib have been treated by all the interested persons as members of a 'joint undivided family' that is, that as the heirs and heirs of heirs in both branches have been always recognised as jointly interested in the partnership business and in all the properties acquired forming the assets of the business. I am inclined to think that if accounts have to be taken and if only working male partners are to be treated as partners in the future business on the death of each male heir, it might become a hopeless task for even the most clear-headed Judge to find out the facts and settle the rights on anything like a satisfactory basis after the lapse of even a single generation. I believe it is not quite a secret that I am not over fond of the Mitakshara joint family system with it's the owes as to rights by birth, survivorship, exclusion of females from inheritance (speaking generally), discouragement of claims to separate and self-acquired properties, etc., nor am I at all for the Mussalmans adopting the modern Hindu Laws of succession and inheritance or the Marumakkattayam family system, still less am I for the Muhammadan Law (which follows more closely the religious rules laid down in the Holy Quran) being given up by the Mussalmans for the later Hindu Law which has departed (through the influence of decadent custom) far from the original religious sources of the same law. While I do not agree with the District Judge that the words 'undivided family' could be properly used as regards members of these two Mussalman families, I have no doubt that the business at Souda should be treated on the analogy of the business of a joint Hindu trading family, that all the properties must be treated as if they were partly belongings of the two brothers Haji Hassan and Hammed as equal co-owners and partly the accretions to such properties held in co-ownership. I am aware that neither the principle of survivorship which was introduced by the Mitakshara in the case of joint Hindu family where one of the coparceners dies without a male issue, nor the principle of exclusion of females (with some exceptions) from succession in Hindu Law can be applied to these Mussalman families. There is also No. question of right by birth. But other presumptions of common sense arising from the mode of their living, might, in my opinion, be safely applied. That customs, even modifying the Muhammadan Law, can be applied to Mussalmans is clear from Muhammad Umar Khan v. Muhammad Niaz-ud-Din Khan 13 INd. Cas. 344 : 126 P.R. 1912 : 39 I.A. 19. It was argued that the properties which had been acquired before 1870, should be divided between the two branches in the proportion of seven-eighths and one eighth. Bat in respect of even some of the properties acquired before 1870 in the name of Hammed, the pattah was transferred to Hassan's son's name, thus showing that no distinction was made even as regards those properties between the rights of the two branches.

77. It was finally argued that at least the properties which belonged to Haji Hassan in 1845, should be divided into seven-eighths and one-eighth. But it seems to me that all the properties were treated as if they belonged to two Hindu brothers after 1848 and it is not wholly improbable that Hammed might have mixed up whatever properties he had in 1848 (there is no evidence worth the name to show that he was an absolute pauper when he began to assist his brother) with his brother's properties inextricably. I think that this is a case in which both equity and convenience require that the principles on which Scottish Courts act and which were approved of in the recent case in Mahomed Musa v. Aghore Kumar Ganguli 28 Ind. Cas. 930 : 2 L.W. 258 : 19 C.W.N. 250 : 13 A.L.J. 229 : 17 M.L.T. 143 : 17 Bom. L.R. 420 : 42 C.P 801 : 21 C.L.J. 231 : 28 M.L.J. 548 should be applied in this case. Actings and conduct of parties might give rise to estoppel where such actings and conduct have produced alterations of circumstances so great that without great loss and inconvenience, the parties cannot be put back in their original positions. I think that from 1848 till this suit was brought, the two brothers, their heirs and the heirs of their heirs have acted in such a manner that the decree passed by the District Judge can be fully justified on the basis that all parties have understood their rights as following from the properties being held in common ownership between the two branches for more than 60 years and the imperfect understanding or agreement between the two brothers which began in 1848, has become fully perfected by their own conduct and the conduct of their heirs.

78. The learned District Judge, while admitting that the plaintiff has not proved that any debt was incurred by his father in building a house which is now treated as family property, and that the 22nd defendant also has not proved that he has incurred certain debts in acquiring property treated as family property, has allowed these two parties to prove in execution proceedings that they have incurred such debts. I think he was wrong in allowing those claims to be proved afterwards, and he ought to have disallowed those claims for want of proof. As regards the debt alleged to have been incurred for maintenance (after the date of this suit) by the plaintiff's branch, this also cannot be allowed as the 9th defendant's liability, after the suit is brought, is only to be held accountable for half the net income of the family received by him after the date of suit and not to be tendering maintenance amount to the plaintiff's branch. The decree passed by the District Judge is further defective in not providing for the necessary accounts to be taken and in not reserving liberty to the parties to make applications connected with the taking of the accounts, the issuing of the necessary commissions for making partition and so on. Subject to the modifications above referred to, I would confirm the lower Court's decree with costs to be paid by the appellants to the contesting respondents.

79. Under Section 98 of the Civil Procedure Code, the decision of the District Judge on issues 12 and 14 is set aside and the issues are decided in the negative. The District Judge's decree will also be modified by adding directions to take the necessary accounts and by giving permission to the parties to make applications in connection with the taking of accounts. In other respects, the decree will stand confirmed with costs of the contesting respondents. The clerical errors pointed out in grounds 38 and 40 of the Appeal Memorandum will also be corrected by the lower Court.

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