R.P. Mookerjee, J.
1. Defendants 1 to 3 have appealed to this Court against a preliminary decree passed by the Subordinate Judge, Second Court, Midnapur, directing partition of certain items of properties which had been claimed by the Plaintiffs PS joint family properties.
2. The plaintiffs' claim so far as the immoveable properties are concerned (described in Schedule Ka to the Plaint) has been allowed. The claim to moveables, mortgage bonds and decrees included in Schedules Kha and Ga has been dismissed as the plaintiffs failed to prove the existence of any of those items at the time of the filing of the plaint. Schedule Gha included the stock-in-trade of a brass metal foundry business and not the business itself. Such stocks also were found not to be in existence.
3. The immoveable properties which have been held to be joint family properties liable to partition stand in the name of different members of the family. For a proper appreciation of the conflicting claims we need refer to the relationship between the parties as it appears from the following genealogical table:
| | | |
Kunja Putibala Netai Gourhari
Dft. No. 1 (deed.) Plt. No. 1
| | Plt. No. 3
Gangaram Sayamapada |
Deft. No. 2 Dft. No. 3 Nemai
Plt. No. 2
Although the present appeal is limited to the immoveable properties only and the claim in respect of the stock-in-trade of the brass foundrybusiness has been dismissed we shall all the same be required to consider who had been running such business and whether any or more of the properties in suit were acquired out of the profits of such business. It is the common case of both the parties that a brass foundry business had been carried on in the family but the dispute is whether such business was started and/or developed by Kirtibas along with his sons or by Kunja alone.
4. I shall state in short the plaintiffs' case. According to them all the properties described in the different schedules to the plaint originally belonged to Kirtibas who had died in 1943 or thereabouts at the ripe old age of eighty. Kunja the eldest son was alleged to have become 'the Karta of the joint family' even during the lifetime of Kirtibas when the latter became too old to look after the business and the other properties which had been acquired by him. Kunja used to retain in his hands the usufruct of the properties including the business meeting therefrom the necessary expenses of the family and all outgoings, maintaining an account of such dealings. In course of such management and out of the income which came into his hands as aforesaid Kunja had acquired various items of properties in the names of the different members of the family including the two sons of Kunja. Such persons in whose names properties were being acquired had no separate or independent source of income. The primary source of income of Kirtibas had originally been from a brass foundry business carried on by him as a family business being helped by his sons as and when they became fit for work. Kirtibas was alleged to have had a money lending business which also was looked after by Kunja when his father became old. After the death of Kirtibas all the members of the family continued to live in joint mess, Kunja acting as the Karta. When it transpired that Kunja had been dealing with the Joint income in an improper manner the parties separated in mess in September 1946. The plaintiffs accordingly claim partition of all the items of properties as joint family properties. They also pray for a direction on Kunja to render accounts of the period he had been in charge.
5. Kunja pleaded a previous partition. He also contested the allegations made in the Plaint contenting inter alia that his father had never carried on any business of making brass utensils. Kunja had become an expert artisan; with the assistance of his sister Putibala who had got the training of a moulder, Kunja had through his own personal efforts and exertions earned a lot wherefrom he had acquired properties. He had never been the Karta of the alleged joint family. He, however, admitted that there were certain items of properties which had been acquired by his father Kirtibas and these constituted the joint family properties of the brothers. In Schedules B and C attached to the written statement he described such of the Plaint properties as were admitted by him to be ancestral properties. In Schedule A he described certain items of properties which had not been included within the Plaint but were admitted to be ancestral properties of the family. He further maintained that in Schedules D, E and P of his written statement were the properties which belonged to him and to his two sons Gangaram and Syamapada respectively. Although it is not necessary for the purpose of this appeal, we may indicate also that Kunja had denied the existence of Joint moveables and of either a money lending or the foun-dry business alleged to have been run by Kirti-bas. It was further claimed that whatever joint ancestral properties the family had at the time of the death of Kirtibas had already been partitioned between them. The claim for accounts was also resisted.
6. The two sons of Kunja, Defendants 2 and 3, supported generally the case as made by their father. It was further claimed by Gangaram that he had been brought up by his father's sister Putibala and he had with the funds given to him by her purchased the different items of properties which stood in his name. Syamapada claimed that he had acquired the properties which were in his name with the funds received from his maternal uncle and out of his marriage dowry.
7. Defendants Nos. 4 and 5 were transferees in respect of some items of properties from Netai, the father of plaintiff No. 2. They claimed that they were bona fide purchasers for value and had obtained the interest of Netai in those 7 items of properties.
8. As stated already the learned Subordinate Judge had decreed the plaintiffs' suit in respect of all the items of immoveable properties, whether they stood in the name of Kirtibas or one of his sons or of his grandsons. The plaintiffs' claims in respect of all other items including the business of money lending and brass foundry were dismissed.
9. The present appeal is on behalf of Defendants 1 to 3 contesting the decision of the trial Court about the immoveable properties. No appeal has been preferred by the plaintiffs in respect of the portion of the claim disallowed by the lower Court.
10. The plea of previous partition as made by the Defendants has been rejected by the trial Court and this has not been seriously challenged before us. We agree with that decision by the learned Subordinate Judge.
11. Before we deal with the specific grounds urged on behalf of the Defendants-Appellants we may indicate at once that the learned Subordinate Judge had not approached the case from the correct standpoint. The learned Advocate appearing on behalf of the plaintiffs-respondents also did not attempt to support all the reasons assigned by the lower Court. The learned Subordinate Judge had failed to take due note of the admitted fact that the acquisition of some of the items of properties in the names of different members of the family was during the lifetime of Kirtibas. Some stand in the name of Kirtibas while the rest are in the names of one or other of his sons and the grandsons. The lower Court had also overlooked to notice that a few of the items had been acquired after the death of Kirtibas.
12. The learned Subordinate Judge failed to appreciate that to ascertain whether certain properties were joint family ones or not the test would differ as between properties acquired during the lifetime of Kirtibas and those after his death.
13. Mr. Mitra appearing on behalf of the Defendants-Appellants has urged in the first place that the lower court has taken a wrong view of the law and misplaced the onus as he has observed that the defendants should have first established their case of self-acquisition and that if they failed to do so the only conclusion would be that all the items of properties had been acquired by Kirtibas and belonged to him.
14. It is, no doubt, true that jointness is the normal state in Hindu families. There is a presumption that members of a family are Joint unless and until It is shown to be contrary.
15. The parties in the present case are governed by the Dayabhaga School of Hindu Law and it is contended that under this school there cannot be a joint family, in the technical sense, if the family consists of the father and his sons. There is no presumption in the case of such a family that any property acquired by or in the names of the sons belongs to the father. In such a family the sons may acquire separate properties during the life time of the father, and unless proved to the contrary such properties are to be held to belong to the sons. Reliance was placed on certain decisions of this Court beginning from Sarada Prosad Roy v. Mahananda Ray, ILR 31 Cal 448 (A).
16. Before we proceed to consider the proposition whether there is in the technical sense a joint family consisting of a Dayabhag father and his sons and grandsons we need visualise the structure and component part of a joint family and of a coparcenary as envisaged in the original texts and to what extent the ideas propounded have been modified by Statutes and decisions.
17. There are fundamental points of difference between the Mitakshara and the Dayabhagh as to the constitution of a joint family and the rights of members in ancestral properties. Jimutavahana differed from the interpretation put in the Mitakshara on some of the original texts which had been interpreted in the latter giving the father and the sons co-equal rights in ancertral property.
18. Although it is now the accepted view that a Dayabhaga father is the absolute owner of his anscestral property a careful analysis of Chapter II of the Dayabhaga will not, however, support that view.
19. The following texts (stated by Jimutavahana, Sri Krishna in the Daya Karma Samgraha and Raghunandan in the Dayatatwa to be on the authority of Yagnavalkya, but in the Mitakshara to be an anonymous one) is quoted with approval :
Hkw;kZ firkegksikkk fucU/kks nzO;eso ok A
r= L;kr~ l'ka LokE;a firq% iq=L; pksHk;ks% AA
'Whatever land is acquired by the father's father, or a corrody or a chattel, therein the ownership of father and son is same.'
20. It was laid down by Jimutavahana that the sons, their wives and children are entitled to maintenance from out of the ancestral properties in the hands of the father. Such ancestral properties being the hereditary source of maintenance of the male descendants and their family are inalienable except for the purpose of providing such maintenance (Dayabhaga, Chapter II, 22-26). The father may deal with his share without reference to his coparceners if he is otherwise competent to do so (Dayabhaga, Chapter II. 27). The circumstances under which the consent of the coparceners is to be taken when the transfer is of the nature are detailed in the next passage (Dayabhaga, Chapter II, 28).
21. As regards the right to demand or effect partition of the ancestral properties it is provided that the sons are not during the lifetime of the father entitled to demand partition of the anscestral properties in the hands of the father. But if the father elects to partition his andestralestate he has no right to make an unequal distribution amongst his heirs deviating from the rules of ordinary succession. The father can on such a partition taking place initiated by himself take a double share. Jimutavahana then proceeds to consider the rights of the father in the family in his self-acquired property. Reference is made to the ancient text of Vyasa,
u p LFkkojL; leLrL; xks= lk/kkj.kL; p A
uSd% dq;kZr~ ;a nkua ijLija ra fouk AA
which limits the father's right over self-acquisition. This text is interpreted by Jimutavahana to impose only a moral duty on the father. It is stated that if the father actually effects a transfer of his self-acquisition as a legal incidence of ownership such transfer cannot be altered or modified by a hundred texts. This passage introduces the principle of factum valet only so far as self-acquisitions by the father are concerned.
22. Although the rights of a Dayabhaga father over his ancestral properties were clearly restricted and limited by Jimutavahana and this was so understood by the successive annotatovs it was on a wrong interpretation that the Sadar Dewani Adalat of Bengal and the Supreme Court of Bengal declared the Dayabhaga father to be the absolute owner of his ancestral property. Eshanchund v. Eshorechund, 1 SD 2 (B); Kumla v. Goroo, 4 SD 322 (410) (C). In Ram Koomar v. Kishen, 2 SD 42 (52) (D), the Sadar Court held in 1812 that a gift by a father of his whole estate, ancestral or otherwise, to his younger son during the life of the elder one was valid, though immoral, the gift of the whole ancestral property being forbidden.
23. In 1831 the Supreme Court of Bengal referred the question to the Judges of the Sadar Dewani Adalat who gave the following opinion as quoted by Mayne 11th edition (Sec. 353 page 451).
'On mature consideration of the points referred to us, we are unanimously of opinion that the only doctrine that can be held by the Suddar Dewani Adalat, consistently with the decision of the Court, and the customs and usages of the people, is that a Hindu, who has sons can sell, give or pledge without their consent, immovable ancestral property situated in the province of Bengal; and that, without the consent of the sons, he can, by will, prevent alter or affect their succession to such property'. Juggomahun v. Neemoo, Morton, 90 (E), Motee Lal v. Mitterjeet, 6 SD 73 (85) (F).
24. This view has been accepted ever since and has settled and regulated dispositions of property for over a century and a half.
25. It is, however, to be remembered that while under the Mitakshara the sons get an interest in the ancestral properties on birth, under the Dayabhaga and with the interpretation as referred to above, the sons, grandsons and great grandsons have no rights in the property in the hands of the father even though such properties are ancestral once. Under the Mitakshara there is no presumption that a family because it is joint possesses joint property. Nisar Ahmad Khan v. Raja Mohan Manucha 0043/1940 , Shadilal V. Lal Bahadur .
26. In Janakiram v. Nagamoni : AIR1926Mad273 , it was held that it was not necessary that a Joint family should have any immovable property or property of appreciable value.
27. Possession of property is not under the Mitakshara a pre-requisite for the constitution of a joint family, though where persons live Jointly in food and worship they have at least common household articles which alone they enjoy in common there being no other properties.
28. Who were, under the original texts, the members of the Mitakshara co-parcenary? There is no limit of the number of persons of whom a Hindu Joint family consists, or to the remoteness of their descent from the common ancestor. But there is a distinction between a Mitakshara coparcenary and the body of an undivided family Mayne, (11th Edition, page 324, Section 264).
'When we speak of a Hindu joint family as constituting a coparcenary, we refer not to the entire number of persons who can trace descent from a common ancestral, and amongst whom no partition has ever taken place; we include only those persons who, by virtue of relationship, have the right to enjoy and hold the Joint property, to restrain the acts of each other in respect of it, to burden it with their debts and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu Law by legislation'
Mayne Hindu Law llth Edition, page 324, Section 264 see also Mt. Draupadi v. Vikram, ILR 1939 Nag 88: (AIR 1938 Nag 423) (J).
29. The Hindu Women's Right to Property Act 1937 has seriously affected the rule of survivorship under the Mitakshara and the constitution of Hindu joint families. Although no individual member of a family, so long as it remains undivided, can predicate of the joint and undivided property, that, that particular member has a certain definite share (Appovier v. Rama Subba Aiyan, 11 Moo Ind App 76 (PC) (K)), a widow under the 1937 Act comes into the coparcenary on the death of a male member of that coparcenary, her interest accrues on the death of a male member as contra-distinguished from the rights on birth of the male coparceners. Moreover, so long as the family remains joint and the members continue to belong to a coparcenary the interest of common members of the coparcenary remains a fluctuating one increasing by deaths or decreasing by births. The rights of the male members are not definitely ascertained until there is a disruption of the joint family. The rights created in favour of a female under the 1937 Act falls under a different category. The effect of the provisions contained in the 1937 Act on the structure and tights of a Mitakshara coparcenary are being evolved by decisions in different courts.
30. Although in the case before us the family is governed by the Dayabhaga School of Law we have referred to the Mitakshara coparcenary only to appreciate how modern inroads statutory or by Case Law into the old conception raise difficulties and anomalies which require careful handling for a proper solution.
31. So far as a Dayabhaga family is concerned according to the original texts in the Daya-bhagh the descendants had certain rights during the lifetime of the ancestor in the ancestral properties of the latter. The rights of the father were also circumscribed to a certain extent. But the law as it now stands is that the Dayabhagh father has got an absolute right of disposal over the ancestral properties of his. There is no difference between ancestral and self-acquired properties. It is because of this new conception of absolute rights of the father in his ancestral pro-parties that this Court held in ILR 31 Cal 448 (A), that a family consisting of a person and his sons, though living jointly, if governed by the Daya-bhagh law is not a true joint Hindu family.
32. The presumption with regard to a joint family and Joint family property which applied to cases under the Mitakshara would seem to apply also to cases under the Dayabhaga but the difference is that when properties purchased by a son in his name in the father's lifetime there is no presumption under the Dayabhaga law that such property is a joint family property. The burden of proof in such a case lies on those, who deny the ownership of the son. Sarada Prasad v. Mahananda Roy (A) (ante) is an authority to this limited extent. The proposition as stated in the headnote of the Report had been too widely put as was pointed out by this Court in Rama Nath Chatterjee v. Kusum Kamini, 4 Cal LJ 56 at pp. 61-62 (L).
33. This is due to the fact that according to the interpretation as now accepted during the lifetime of a Dayabhaga father the sons have no right in the properties held by the former, whether such property be his ancestral or self-acquired ones. There can be no question of there being a coparcenary consisting of the father and his sons and grandsons. It has, therefore, been held in Jasoda Sundari v Lal Mohan 42 Cal LJ 486: (AIR 1926 Cal 361) '(M) and in Nanilal v. Nut Behari, 38 Cal WN 861 at p. 872 (N), that the presumption of Hindu Law that while a family remains Joint all properties including acquisitions made in the names of individual members of the family are Joint property does not apply to such a family.
34. The sons may acquire separate properties in such a family during the lifetime of the father. The onus in such a case to prove that the properties belonged to the father will be on the party who asserts it.
35. In Hem Chandra v. Motilal : AIR1934Cal68 , one of the sons had purchased a property with his own monies in the name of his father. In a suit for partition by the heir of such a son it was held that there was no presumption that the property had been acquired for the benefit of the family and that there was no onus of the plaintiff to prove that his father had treated the property as his self-acquired property but that the onus was on the defendants to show that it was a Joint property.
36. Mr. Roy Chowdhuri appearing on behalf of the Respondent did not dispute the proposition of law that in the present case there was no onus on the defendants and that there was a presumption in their favour that the properties acquired in their names were their properties. He however argued that such a presumption would be displaced by slight evidence to the effect that the defendants, namely Kunja and his sons, had no independent source of income or funds of their own. Even if the plaintiffs had offered no positive evidence in this case that the consideration money for the acquisitions in their names had been supplied by Kirtibas, it would be sufficient if there be evidence to show that Kirtibas had funds and means to acquire such properties and that Kunja and his sons had no such means, apart from the income from the admitted properties of Kirtibas and his brass utensils business.
37. The plaintiffs in the present case, therefore, are to discharge the initial burden of proving that the acquisitions made in the names of the sons and grandsons are all benami transac-tions and that it was Kirtibas, who made the acquisitions. This onus always lies on the person. who asserts that the apparent is not the real state of things Just as it was held in Bhuban Mohini v. Kumudbala : AIR1924Cal467 , which was a case of an acquisition in the name of a Hindu female in a Dayabhaga family. There is no presumption that a property standing in the name of a female member of a joint Hindu family, belongs to the Joint family and is not her Stridhan property. This rule must be coupled with the elementary principle that the burden of proof lies upon the person who asserts that the apparent is not the real state of things.
38. In such cases the important test to be applied is to ascertain the source of the consideration money. As explained in : AIR1924Cal467 and Chunilal Khemanl v. Nilmadhab Barik : AIR1925Cal1034 , the decision of the Judicial Committee in Parbati Dasi v. Baikuntha Nath Das, 19 Cal LJ 129 (PC) (R), laid down no new proposition of law but simply reiterated the earlier pronouncement by Lord Campbell in Dhuramdass Pandey v. Mt. Shama Soondery Dibiah, 3 Moo Ind App 229 (PC) (S) and by Knight Bruce L. J. in Gopee Krist Gosain v. Gunga Persad Gosain, 6 Moo Ind App 53 (PC) (T).
39. In Parbati v. Baikuntha (R) (supra) the family consisted of the father and his sons governed by the Dayabhaga School of Hindu Law. The Courts in India had found that one of the sons, in whose name the property had been acquired, had no separate funds and that there was no evidence that the property had been purchased with money belonging to him and their Lordships of the Judicial Committee pointed out that it was not the rule to interfere in any case in which there were concurrent findings of facts. In repelling the argument advanced by the Appellants that as the conveyance stood in the name of one of the sons the Court ought to have presumed that such properties were his self-acquired properties until it is proved otherwise by the defendants, it was pointed out that both the Courts below having found that there was no evidence that the son had any separate funds or the property in dispute had been purchased with money belonging to him on the earlier decisions of the Judicial Committee referred to above the conclusion is clear and decisive that they were acquired by the father in the name of the sons and that they were not self-acquired properties of the latter. This decision therefore lays down the law as to benami transactions as in Mt. Bilas Kunwar v. DeshraJ Ranjit Singh, 42 Ind App 202: (AIR 1915 PC 96) (U).
40. In Parbati v. Baikuntha (R), the Judicial Committee did not rely upon a presumption of law in conflict with the general presumption that a property acquired in the name of a person should be deemed to be his property and that the initial onus lay on the person who asserts that the apparent is not the real state of things.
41. As was explained in 42 Cal LJ 486: (AIR 1926 Cal 361) (M), the presumption referred to in Parbati v. Baikuntha (R) (supra) was founded on the principle that where the question was whether a property standing in the name of a junior member of a Hindu joint family was his self-acquisition the matter for enquiry among others was from what source did the consideration money come. The onus is on the party who contends that the property was not a self-acquisition. Evidence to the effect that such junior member had no funds of his own or had paid the considera-tion money and that the rather had the financial capacity to advance the amount being before the Court, the latter will be justified in drawing the conclusion that the father had advanced the consideration money. In such a case, however, it would be necessary to consider whether the father had made a gift of the amount to his sons or that he was making a benami transaction. As We proceed to consider the evidence in the instant case We shall have to bear in mind the principles enunciated above. On the admitted case of Kunja, Kirtibas had acquired some properties. The extreme case as attempted initially to be made by Kunja that Kirtibas had never been a brazier has not been accepted by the trial Court and we think rightly. The other extreme case as made by the plaintiffs that Kirtibas alone ran a very successful business and that Kunja was throughout working under him is not borne out by the evidence.
42. It is admitted by Kunja that Kirtibas had some ancestral property and had also Required some more which are described in Schedule 'C' of his written statement. Kirtibas had also a money lending business on a small scale though not to the absurd extent of Rs. 80,000/- to Rs. 90,000/- as claimed by the plaintiff Gourhari, Money lending was his profession according to Kunja and he was a well-to-do man according to Putibala.
43. Several Bonds and Mortgage Deeds have been produced showing that he used to lend monies to different persons and the plaintiff's case is that he used to do so both in his own name and in the names of his sons. Kunja has denied it.
44. Some of these Bonds stood in the name of Kunja and one in the name of Netai. The earliest Bond in the name of Kunja is Ex. 6F dated 16th February, 1916 by which Rs. 97/- was advanced to the debtor for repayment of certain loans which had been incurred by the latter from Kirtibas. The learned Subordinate Judge has rightly observed that in 1016 Kunja had certainly no funds of his own and this document had been taken by Kirtibas in the name of his son. This is corroborated by the debtor's son Tuniram (P.W. 8).
45. Another Bond in the name of Kunja (Ex. 7) dated 7th March, 1921 shows that a sum of Rs. 125/- was advanced. From an endorsement on the back of this document it appears that the loan was repaid to Kirtibas who endorsed the payment under his own signature, not even purporting to sign on behalf of his son Kunja who was mentioned as the Mortgagee, Kunja has not offered any explanation of this endorsement but has merely denied his father's signature. Shyama Prosad (P.W. 3) the son of the Debtor lias deposed to the effect that this loan had been advanced by Kirtibas though the document was taken in the name of Kunja,--a statement which must be believed.
46. Similarly on a Mortgage Bond taken in the name of Netai on the 2nd November, 1922 (Ex. 6 (i)) Kunja endorsed payment on behalf of Netai, It is not claimed that this loan had been advanced by Netai. In this case also the advance was by Kirtibas, the Bond being taken in the name of Netai.
47. On the 20th April, 1921 a Mortgagee Bond was purchased by a Kobala taken in the name of Kunja for Rs. 550/- (Ex. 6 (d)) the debtor being one Mohesh whose son Tuniram (P.W. 8). States that the loan had been repaid bv him and the real purchaser of the Bond was Kirtibas.
48. So far the plaintiffs' case is corroborated by independent and circumstantial evidence it may be accepted; but it is difficult to accept their further case that Kirtibas also purchased properties in the names of his sons in those days and subsequently also. There is no evidence in support of such a state of things. Simply because in some cases Kirtibas had taken Bonds for loans advanced by him in the names of his sons it does not automatically follow that the Kobalas standing in the names of the sons and grandsons throughout his life had been benami transactions the consideration being paid by him. If that had been the usual practice we would have expected Kobalas being taken in the names of his sons during the earlier years when the Bonds referred to above were taken. In the earlier period during 1904 to 1916 the Kobalas produced all except one stand in the name of Kirtibas. Besides no reason can be assigned why he should have excluded his other sons and preferred Kunja and Kunja's sons only. It is significant that there are no Kobalas in the names of the other sons. It is not until 1941 that we come across a Kobolas Ex. 7 (A) in the joint names of Gourhari and Gangaram, but if this property had really been purchased by Kirtibas there is no evidence and there is no reason suggested why he should have taken the document in the names of a son and a son of another son. To draw an inference therefrom that Kirtibas was purchasing properties in that mariner would be very unusual and Gourhari himself could give no explanation for this Kobala.
49. Mr. Mitra has next challenged the finding of the learned Subordinate Judge that Kunja had no independent source of income. It is the common case of both the parties that Kunja carried on the business of a brazier and brass moulder, and made brass utensils and supplied them to Calcutta firms. On the other hand the plaintiffs' case is that such business was that of Kirtibas which Kunja looked after and managed. The defence case is it was Kunja's personal business.
50. There is no reliable evidence however that Kirtibas carried on such a business and sent supplies to Calcutta firms. He was of course a brazier by caste and it appeared that in some of the documents taken by him during the years 1904 to 1916 his occupation was described as business in brass, bellmetal etc., but in the Kobala Ex. 7 in 1916 he was described as a business man and shop-keeper, though it is not the case of anybody that he maintained a shop. In the Mortgage Bond of 1921 (Ex. 6) he is described merely as a money lender.
51. Such recitals in documents are not all of very great evidentiary value and in the absence of more reliable evidence we cannot hold that Kirtibas did carry on any extensive and lucrative business of this type. It is significant that Gourhari could not say when his father commenced this business and when he closed it. Nor could he say if his father had dealings with Calcutta firms. One witness appearing on behalf of the plaintiffs aged only 36 stated that Kirtibas continued to do his business till 8 or 10 years before his death which is not the case even of the plaintiffs.
52. Another witness Hemanta P.W. 6 Dhara stated that he used to sell brass jugs to Kirtibas, but he admitted that he actually delivered them to Kunja who sold them in Calcutta.
53. Similarly the witness Provas P.W. 10 stated that Kirtibas had such a business but hehad to admit that he did not see Kirtibas sell any goods to Calcutta firms and that Kunja used todo it. That Kunja had been doing such business for a long time in his own name is admitted by Gourhari. According to him Kunja is an expert in brass moulding and had been doing this business for a long time past. This witness further said that he had been seeing Kunja carry on this business from the dawn of his intelligence, which suggests that he never saw his father do this business. He further admitted that he and Netai had never had any account with any Calcutta firm and that the accounts stood in the name of Kunja, who had dealing with such firms. Kunja has produced some hatchitas to show that he used to receive materials from Calcutta business men for making utensils and that he used to supply finished products to them on receipt of the charges, for fabricating them. He had also an assistant named Laksman whose name appears in some of the hatchitas. It was a business in which the skill and craftsmanship of the maker were of great importance. Mr. Mitra has contended it was not really a business requiring much capital or organisation.
54. If Kunja was an expert in that line, as admitted by Gourhari, it is quite possible and it can well be believed that he received large orders from Calcutta firms who had confidence in him and entrusted him with materials for making such utensils. It cannot be said that in such circumstances he was carrying on his father's business, if any, and there is nothing to show that he. was running a family business. An employee of a Calcutta firm was examined by Kunja but it was not suggested to him that the business stood in the name of Kirtibas and had been started by him and that Kunja dealt with the firm as a representative of that business.
55. The learned Subordinate Judge has not properly considered the evidence on this point and was not at all justified in rejecting it and holding the hatchitas to be spurious documents. He was unnecessarily harsh on the defendants' witnesses and disbelieved them for no adequate or sufficient reasons.
56. Preonath Rana (D.W. 11) who is the sister's son of Kirtibas and as such a common relation and was aged 70 years at the time of his deposition stated that Kunja started the work of brass moulding on his own account in 1322 or 1323 B.S. and that his father had no such business. Kunja's evidence also is that he started the business about that time. This witness sold brass materials to Kunja as did many others of the village some of whom have been examined. Some of the plaintiffs' witnesses also did so, as has already been pointed out. Kunja employed two or three workmen and also distributed the orders received among his co-villagers who produced such finished articles but it was he who received such orders from the Calcutta firm on account of his skill and reliability. The business carried on by Kunja must be held to have been his. Even though we have come to the conclusion that at one state Kirtibas had carried on the work of a brazeer that business was of a limited character restricted within the village. That business also stopped though the evidence does not indicate when. The plaintiffs' witnesses even could not give the date. The business run by Kunja has not been shown to be a part of or a continuation of his father's business. There is no evidence whatsoever of Kunja's brothers participating in this business at any time.
57. From the evidence as referred to above the conclusion is Irresistible that Kunja had a Brass-Utensil business carried on by himself and not on behalf of his father. This is supported even by the witnesses examined on behalf of the plaintiffs. It must therefore be found that Kunja had an independent source of income and funds of his own. The onus in such circumstances is on the plaintiffs to prove that the consideration for the Kobalas standing in the name of Kunja had actually been supplied by Kirtibas or came out of the funds of the latter. In a family as of the parties now before us no regularly kept account books are expected and none have been produced. There is no reliable evidence which will be sufficient to discharge the onus which lies on the plaintiffs. There is also no reliable evidence to prove that Kunja had the custody of the funds of his father or had been placed in charge of the same, though suggestions have been made by the plaintiffs. From the materials available it appears that Kunja had started the business in 1322 or 1323 B.S. and in the latter year he has purchased a property for Rs. 100/- (Ext. (a) dated 2nd July, 1916). It was not impossible or unusual for him to have saved Rs. 100/- only after about one year's business for purchasing this item of property. From an examination of the Kobalas produced it appears that the bulk of his purchases began from 1923 corresponding to 1330 B.S. by which time he had been admittedly well established in the business. On the other hand there arc no sufficient materials to indicate that Kirtibas had been earning more and more by 1923, Kunja had therefore, means and funds enough to advance the consideration for these purchases. It must therefore be held that the properties which stand in the name of Kunja have not been proved to have been acquired with the funds advanced by Kirtibas. Unless it can be shown that Kunja had treated these properties as joint properties with his brothers or had thrown them into the common stock they must be held to have been the separate properties of Kunja.
58. There is no evidence that the properties purchased by Kunja had been treated by him as joint properties. There are no materials to indicate that Kunja had intended to throw them into the common stock either during the lifetime of Kirtibas or after his death.
59. The properties which were acquired after the death of Kirtibas have to be considered separately. Before we proceed to consider those items we may indicate that the learned subordinate Judge has arrived at a wrong conclusion that Kirtibas had died in Magh 1351 B.S. It is the common case of both the parties that he died in Magh 1350 B.S. It is also clear from the documentary evidence that he had died before 24th January, 1944. In Exbt. (A) (1) (2) a Kobala executed by Nitai in favour of defendants 4 and 5, the father of Nitai was described as the 'late Kirtibas'. He died sometime in January or February, 1944. Six of the kobalas of Kunja and his sons were taken after that period. Immediately after the death of Kirtibas the sons remained joint in food, worship and estate but that did not continue long. It is the defence case that the brothers separated within a month of the death of the father. The plaintiffs' case however is that they had separated in 1353 B.S. but Gour's evidence to that effect has not been corroborated by any witness. On the other hand, Mahendra P.W. 7 has stated that the brothers did business Jointly for only a few days after the death of Kirtibas. Thereafter they started separate business. If the plain-tiffs commenced to do business on their own and separate accounts a few days after the death of Kirtibas it cannot be believed that they and Kunja continued to remain in joint mess and constituted a joint family till 1353 B.S. In the kobalas executed by Nitai in the early part of 1945 there are recitals to the effect that funds were necessary for his separate business. Gour also had admitted that after the death of Kirtibas in 1350 he got no money from Kunja of from the ejmali fund which also supports the view that the brothers had separated within a very short time after the death of the father. The period during which the joint family consisting of the brothers continued was so very short that no presumption can arise that the properties acquired after the death of Kirtibas by Kunja and his sons or for the matter of that by any of the plaintiffs were acquired from any joint funds or were joint family properties.
60. Neither of the parties have produced kobalas in respect of some of the items of properties in dispute and it will be necessary to consider as to what the effect is because of the non-production of the kobalas. Before we deal with this aspect we shall take up the items of properties which stand in the name of Kunja's sons Gangaram and Shyamapada.
61. As has been stated already the specific case as made by Gangaram was that he had obtained funds from his father's sister Putibala from which the purchases were effected. Shyamapada on the other hand alleged that he had got funds from his father-in-law out of which the consideration for his kobalas had been paid. This special defence had been rightly rejected by the learned Subordinate Judge and had not been pressed before us.
62. But would there be any presumption in such a case that the properties were acquired by Kirtibas? The constitution of the family at the relevant time was that Kirtibas was still living. Kunja had been plying a profitable business. Kunja's two sons Gangaram and Shyamapada had no independent source of income from which they could have purchased the items of properties in question.
63. It is argued that Gangaram and Shyamapada were not technically speaking junior members of the family of Kirtibas since they were not the sons of the latter. They were the sons of Kunja. Would that make them the junior members of their father's family as distinguished from the family of Kirtibas? If the original texts in Chapter II of the Dayabhaga had been correctly interpreted by the Sadar Dewani Adalat there could not have been any doubt that Gangaram and Shyamapada would be considered to be junior members of family of Kirtibas as the ancestral property, if any, in the hands of Kirtibas would have been liable for the proper maintenance not only of Kunja but of his wife and children as well. The interpretation which has now been put on the texts make the ancestral properties in the hands of Kirtibas to be his own property in which neither his son Kunja nor his grandsons had rights as indicated by Jimutavahana. The new interpretation would lend support to the theory that Kunja's sons Gangaram and Shyamapada primarily belonged to the family of Kunja, They might not have taken a true defence but even on such defence failing it does not follow from the mere fact that they had no independent source of income that the consideration must have been supplied by the grand-father Kirtibas. Kunja has not specifically claimed these properties as his own; on the other hand, he has admitted and sup-ported the claim of his sons that those properties were owned by the latter.
64. Shyamapada had admitted in course of his deposition that he knew nothing of the purchases in his name and that his father had the lands purchased for him. Gangaram admitted that some of the kobalas in his name had been taken during his minority. Apparently Kunja did every-think in the matter of these purchases. It would not matter that the case as set up by the defence regarding these purchases had failed because there was no onus upon them. The onus is on the plaintiffs to show that it was Kirtibas who had made these purchases or that the consideration had come from his funds. There is no evidence to that effect. The fact remains that Kunja had separate funds of his own and those funds might have been the source for the consideration. It is not the plaintiffs' case nor is there any suggestion that Gangaram and Shyamapada had any access to the funds of Kirtibas or that they had any occasion to deal with them. They were subordinate members of the family and did not become coparceners of the plaintiffs after the death of Kirtibas.
65. It has been indicated already that when the properties were acquired in the names of the sons during the lifetime of the father various considerations would have to be taken note of. Even if the sons had no independent source of income and there is some possibility of the father advancing the amount, that would not by itself lead to the conclusion that it was a benami transaction. Whether the father had meant it as a gift or had allowed the property to be treated as belonging to the sons would be pertinent questions. In the present case, the parties did not adduce any evidence from this standpoint. Such items of properties as were acquired in the names of Gangaram and Shyamapada must accordingly be held to be their personal properties. This would be the position in respect of the items acquired before the death of Kirtibas.
66. As regards the kobalas in favour of Gangaram or Shyamapada subsequent to the death of Kirtibas the position is simpler. While discussing the cases of kobalas subsequent to the death of Kirtibas and standing in the names of the sons, we have already held that the very short period within which the members started separate businesses after the death of the father and absence of any evidence that the items of properties which had been acquired had been thrown into the common stock the conclusion is irresistible that such items of properties were the separate properties of the sons. The same test being applied in the case of the kobalas subsequent to the death of Kirtibas and standing in the names of Gangaram and Shyamapada, it must be held that the plaintiffs have failed to prove that they were joint properties.
67. As stated already we have not before us the kobalas in respect of all the items of properties which are the subject matter of the present litigation Eighteen of the Items of Schedule D to the written statement of Kunja, viz., items Nos 2 3, 4, 6 to 14, 16 to 18, 20, 29 and 34, and seven Items of Schedule E of the same written statement, viz. Items Nos. 1, 3. 7, 8, 15, 20 and 21 are not covered by any kobala. There is also no evidence as to how and when and by whom these items had been acquired or that they had been acquired by Kunja and Gangaram respectively.
68. The properties described in Schedule C of Kunja's written statement are stated to be theonly acquisitions of Kirtibas, but their total area is 16 bighas 18 cottas 8 chitaks while Kunja had admitted in his deposition that his father had acquired 20 bighas though he could not or would not say which of the properties his father had purchased and from whom. So there must have been other properties acquired by Kirtibas in addition to those described in Schedule C. Kunja had also stated that all the title deeds of Kirtibas remained with him till his death, and that after his death some title deeds came into Kunja's custody and some were given to Gour and some to Nitai. So far as Kunja is concerned, he has not produced any kobala or title deed of his father though admittedly he got some of his father's title deeds. He has withheld some of the title deeds of his father in order to claim the properties covered thereby as his or Gangaram's acquisitions.
69. Reference was made to the counterfoils printed on pages 235 to 237 of part II of the paper book, but the total area of the jamas of Kirtibas record therein is only 121/2 bighas, and so it could not have been a complete list of his Jamas or properties.
70. We must, therefore, hold that such of the Items of property in respect of which no kobalas have been produced were acquired by Kirtibas, the necessary documents having been withheld by Kunja. They cannot be regarded in the circumstances of this case to be the acquisitions by Kunja and Gangaram.
71. As already stated we have not before us the title deeds in respect of the items of property which are the subject matter of the present litigation. Certain documents were produced in the Lower Court. An application was filed on behalf of the defendants-appellants in this Court purporting to be under Order XLI, Rule 27 of the Code of Civil Procedure praying that certain documents which had been produced in this Court for the first time might be taken into consideration. The statements made in the application do not, in our view, give sufficient reasons for admitting such documents at this late stage. There is one further difficulty. Such documents will have to be proved and the identity of plots included in such documents is to be established with reference to the description given in the plaint. The suit was filed in December, 1949 and the appeal was filed in this Court in March, 1952. The documents were not produced in this Court until February, 1956, when the appeal was being heard. The prayers made for the reception of the additional evidence must, therefore, be rejected.
72. The principles enunciated and the findings reached by us will lead to the following result. The decree as passed by the Lower Court will be modified. Such items of properties which were purchased after 1350 B.S. will be excluded from partition. Such items are :
Name of the partyExhibitNumber of item in the plaint
Kunja Behari RanaA(4)83Kunja Behari RanaA(3)55
Ganga Bam RanaAIII/282Ganga Ram RanaAIII/381Ganga Ram RanaAIII/480
73. Certain other items of properties which have been proved to have been acquired In the names of different parties during the life-time of Kirtibas will also be excluded from the partition as they are found to be personal properties of the persons in whose names the documents stand. These items are as follows :
Nameof the partyExhibitNumber of item in the plaint
Kunja Behari RanaA57 A(1)45 A(2)70 A(5)14 A(6)64 A(7)52 A(8)10 A(9)58 A(10)53,61,63,71 A(11)54 A(12)64 A(13)61 B49
Ganga Ram RanaAIII/5) AIII/6)25 AIII/729,30 AIII/821 AIII/955 AIII/1027 AIII/1127,28,68 AIII/1226 AIII/1321 AIII/1420,24 AIII/158 7(a)65 (Half-share)
Gour Hari Rana7(a)65 (Half-share)
74. Excluding the above items, the plaintiff will be entitled to a decree for partition as indicated by the learned Subordinate Judge.
75. As we nave found on the evidence that Kunja has not been proved to be in charge of either the business or the properties belonging to Kirtibas during the life-time of the latter, the decree for accounts as passed against him must be discharged. We have also found that a very short period elapsed between the death of Kirtibas and the disruption of the Joint family. It has also been found that the business which was run by Kunja was his personal business and not a joint family business There will be no decree for accounts against Kunja for any period.
76. It has been pointed out further by the Lower Court which has not been controverted before us that the defendants Nos. 4 to 7 are transferees In respect of certain items of properties mentioned in their conveyances. Properties purchased by defendants Nos. 4 and 5 are Items Nos. 4, 36 73, 74, 75, 76 and 86 of the plaint. Properties purchased by defendants Nos. 6 and 7 are in the Schedule A to the written statement. Such items are to be included within the allotments of the respective transferors for making up their shares. Out of such shares defendants Nos. 4 to 7 are to be indicated as allottees of the respective items purchased by them.
77. The plaintiff's two-thirds share in the properties in Schedule Ka of the plaint excluding Items mentioned above will be decreed in a preliminary form. A Commissioner for partition willbe appointed to effect partition in items of the directions and the preliminary decree.
78. The decree of the Lower Court is modified and the case is remitted to that Court to be dealt with by that Court in accordance with the directions given above.
79. The parties will bear their respective costs in both the Courts up to this stage. Subsequent costs will be according to the shares.
P.K. Sarkar, J.
80. I agree.