B.C. Mitra, J.
1. The first respondent Howrah Motor Co. Private Ltd. (hereinafter referred to as the company) is a distributor in the eastern region of India of several well-known concerns manufacturing motor spare-parts and components. According to the company the first and the second appellants and the fourth, fifth, sixth, seventh and eighth respondents constituted a Hindu joint family governed by the Mitaksihara School of Hindu Law. The third respondent Prakash Trading Company is, according to the company, a joint family business and in May, 1969, this firm approached the company for facilities of buying motor-parts on credit on a running and continuous account. The company's case is that Champalal Poddar and Gyan Prakash Poddar the fourth and fifth respondents represented to the company that all the Poddar parties to this appeal constituted a Hindu joint family governed by the Mitakshara School of Hindu Law of which Champalal Poddar the fourth respondent was the Karta and that this joint family was carrying on various types of business under several names. A further representation was made according to the company that the several joint family businesses were shown either as a proprietary or as a partnership concern and the members of the joint family were shown as proprietors or partners of the said different business concerns. Particulars of the several businesses alleged to be owned by the loint family have been set out under paragraph 6 of the petition. The three firms with which we are concerned in this appeal are Piki Trading Corporation, Prakash Trading Co. and Modern Chappal Manufacturing Co. The company's case is that representations were also made to it that all the businesses were started and were being run with the funds of the joint family and that Ban-warilal Kasera, the third appellant was an employee of the Poddar family and was the benamdar of the joint family in respect of the business of Modern Chap-pal Manufacturing Co.
2. Relying upon the representations made by the fourth and fifth respondents alleged to have been made on their own behalf as also on behalf of the other members of the joint family, the company delivered various motor spare-parts to the third respondent Prakash Trading Co. between May, 1969 and January, 1971. According to the company after giving credit for all payments made for the goods supplied a sum of Rs. 1,30,939.20 became due and payable to the company on December 30, 1971. A further sum of Rs. 32,000 is claimed to have become due for sales tax by reason of the failure of the third respondent to furnish sales tax declaration forms. There is also a claim for Rs. 26,197.80 on account of interest at 12% per annum.
3. It is contended on behalf of the company that the spare-parts purchased by the joint family in the name of the third respondent have been transferred to other joint family business carried on under different names. The company claims that the assets of all the joint family firms are available to it for realisation of its claim.
4. In January, 1973, the company instituted the suit out of which this appeal arises for recovery of its claims mentioned above. In this suit an application was made for an order directing the appellants and the respondents Nos. 2 to 8 to furnish security in Rs. 1,90.000 and in default of such security being furnished the amounts due from Bata Shoe Co. Private Ltd. of Rs. 68.658.33 to Modern Chappal . to Piki Trading Corporation and a sum of Rs. 10,000 due from Farinni's also to Piki Trading Corporation Ltd. be attached before judgment. In this application an order was made by the trial court on September 25, 1973, for furnishing of security on or before December 10, 1973 in the sum of Rs. 1.90.000 to the satisfaction of the Registrar, Original Side and in default of such security being furnished an order for attachment was made of the sum of Rs. 68,000 due from Bata Shoe Co. Ltd. to Modern Chappal . to Piki Trading Corporation. The appeal is directed against this order.
5. Mr. Dipankar Ghose appearing for the appellants contended that the first appellant was the sole proprietor of Piki Trading Corporation and that the second and third appellants were the partners of Modern Chappal Manufacturing Co., which is a registered partnership firm. He argued that before an order for attachment before judgment could be made . against the assets of other firms, there must be overwhelming prima facie evidence to support the respondent's case that the business carried on by his clients belonged to the joint family, and unless the court was satisfied that the assets sought to be attached prima facie belonged to the joint family, and also that the debts of the third respondent were the debts of the joint family, the order for attachment could not be made. Our attention was drawn by Mr. Ghose to the Partnership Deed dated April 1, 1970, between the third appellant Banwarilal Kasera, and the second appellant Sureah Kumar Poddar, whereby they agreed to carry on business under the name of Modern Chappal Manufacturing Co. He submitted that the joint family had nothing to do with this partnership firm as one of the partners, namely, Banwarilal Kasera was not a member of the joint family at all. Mr. Ghose relied on the following documents in support of his contention :
(a) a certificate of the Central Bank of India which shows that the partners of Modern Chappal Manufacturing Co. had an overdraft account with that bank,
(b) municipal trade licence granted to Modern Chappal Manufacturing Co. to show that the partnership firm was a distinct, separate and independent legal entity, having nothing to do with the joint family,
(c) the permanent account number allotted to the partnership by the income-tax authorities,
(d) the sales tax registration certificate issued to the partnership firm by the Commercial Tax Officer, Sealdah Charge, and
(e) certificate granted under the Central Sales Tax Rules to the second and the third appellants who were carrying on business as partners of Modern Chap-pal Manufacturing Co.
6. Relying on the materials mentioned above counsel for the appellants contended that there were no materials to support the contention that Modern Chappal Manuafcturing Co. was a joint family business. On the other hand, it was argued that there was overwhelming evidence to support his contention that it was a registered partnership firm of the second and the third appellants, who carried on business independently of the joint family, which had nothing whatsoever to do with the partnership business. It was argued that the only case made out by the company in support of its clam to an order for attachment, was the oral representation made by two of the members of the joint family to the effect that Modern Chappal Manufacturing Co. was one of several joint family firms, and that its assets belonged to the joint family although it was registered as a partnership firm one of the partners being the second appellant who was a member of the joint family and the other being the third appellant who was an employee of the joint family.
7. Counsel for the appellants also drew our attention to the affidavit affirmed by Santi Ranjan Sanyal on January 22, 1973. In this affidavit Sanyal said that in April. 1968, he was employed as a part-time Accountant of different business concerns of the Poddar family. According to him, Champalal Poddar, the fourth respondent is the managing member and his sons including Gyan Prakash (respondent No. 5), his nephew Raj Kumar (respondent No. 8) and his son-in-law Giridharilal Jajodia were looking after the several business concerns of the Poddar family. He worked for the Poddar family between 5-30 p. m. and 6-30 p. m. at a salary of Rs. 80 per month at 4, Chandni Chawk Street. At this office there were four tables and the business of Elphinstone Leather (Plastic Clothing Agency), Poddar Auto Traders and Prakash Trading Co. which were businesses of the Poddar family were carried on from this office. In 1970, the joint family business of Modern Chappal Manufacturing Co. was started and carried on from the same premises. According to him, Champalal, his sons and son-in-law regularly visited the said office premises and looked after the several business concerns of the Poddar family. He further says that all the persons used to look after the business concerns and they were authorised to sign documents and papers for any of the said business. The Poddar family, according to him, had other business addresses viz. 40B, Princep Steet, 7, Sooterkin Street and 20, Chanditala Main Road. In paragraph 3 of this affidavit Sanyal says that in August 1970 Gyan Prakash and Champalal told him that henceforth he would be shown on record as proprietor of Prakash Trading Co., because they were finding difficulties in the matter of managing the tax affairs. He was also told that he would not be entitled to profits and would not be held liable for the loss. A Deed of Transfer was prepared and he signed the same. The nominal consideration for the transfer was Rs. 2,000 and this was paid by Gyan Prakash. Even after this transfer Gyan Prakash and the other members of the family continued to look after and manage the affairs of Prakash Trading Co. as before. On May 4, 1970, Gyan Prakash Rave him a letter in which it was stated that although the business was transferred to Sanyal, Gyan Prakash was himself conducting the business of the company and that Sanyal was the proprietor in name only and the risk of purchase, sales and payments rested on Gyan Pro-kash and the day to day business regarding purchase and sales was conducted by . Gyan Prakash from 40B, Princep Street. Another letter was given to Sanyal by Gyan Prakash on January 16, 1971. in which it was stated that he understood the cause of Sanyal's disturbed mind after seizure of the books of accounts by the Bureau of Investigation, and he gave an undertaking to Sanyal that in the matter of Prakash Trading Co. he and the other members of his family would bear all the liabilities and Sanyal would be free from the same. There was also a promise to pay all the debts of the firm. Mr. Ghose disputed the authenticity of these two letters. He argued that the documents prima facie showed that the business of Prakash Trading Co. was transferred to Sanyal for a consideration and it was quite clear that for some reason or other Sanyal had gone out of his way to support the case of the company. He also argued that except for a sum of about Rs. 23,000, the whole of the balance claimed by the company from Prakash Trading Co. became due for supply of goods after the transfer of the firm to Sanyal. It was quite plain, he further argued, that the whole object of Sanya! in affirming the affidavit to support the contention of the company was to avoid his liability, if possible.
8. Turning to the question of Piki Trading, Mr. Ghose referred to a challan dated May 31, 1966, which is annexed to the affidavit of Sanyal. This challan showed that instead of being signed by Ratan Poddar who claimed to be the proprietor of that concern, it was signed by S. K. Poddar who might be either Suresh Kumar Poddar or Sushil Kumar Poddar. All that this challan showed, according to Mr, Ghose, was that one of the members of the Poddar family was assisting Ratan Poddar in his business. The challan dated June 7. 1966, of Piki Trading showed that four pieces of Axle Shaft was supplied to Prakash Trading. This Mr. Ghose contended, was not evidence of transfer of materials by Piki Trading to Prakash Trading, but of ordinary commercial transaction between two firms. The same comment was made with regard to the challans dated June 6, 1966, April 30, 1966, May 3, 1966 and June 18, 1966. There are several other challans which showed that Prakash Trading was supplying goods to Poddar Auto Traders. Mr. Ghose submitted that these represented commercial transactions between two firms, and did not show that goods obtained by Prakash Trading from the company were being transferred to other firms in which members of the Poddar family were interested.
9. Counsel for the appellants thereafter referred to a letter dated August 14, 1970, signed by S. K. Poddar for C. L. Poddar. In this letter it is stated that as discussed with C. L. Poddar the sum of Rs. 15,000 is paid to Suresh Kumar Poddar in full and final settlement of the amount received from Elohinstone Leather and Plastic Cloth Agency on 2-1-66 and 14-2-66 as capital of Prakash Trading Co. This letter was criticised by counsel for the appellants firstly on the ground that the signature of S. K. Poddar is a forgery, and secondly on the ground that even assuming that the letter was a genuine document, it merely showed that Prakash Trading was a joint family business, as its capital or part of it came from another joint family concern, namely, Elphinstone Leather and Plastic Cioth Agency. It was contended that the question whether Pra-kash Trading was a joint family business, was not material in this appeal, as the subject-matter of challenge in this appeal was the right of the company to attach moneys belonging to Modern Chappal and Piki Trading on the ground that these two firms were joint family business.
10. Mr, Ghose thereafter contended that the partnership of Elphinstone Leather and Plastic Cloth Agency was constituted on June 12, 1962 when Kamalabati put in Rs. 11,000 ss her share of the capital as partner of the firm. This firm is one of the firms witn regard to which the company prays that it should be declared to be a joint family firm. Such a declaration Mr. Ghose contended, could not be granted because neither Kamalabati nor Hari Bux, two of the partners of the firm were parties to the suit. It was argued that the mam plank of the company's case was that the capital of the several firms came from the joint family nucleus being the profits of Elphinstone Leather and Plastic Cloth Agency, but as the partners of that firm were not parties in tne suit, no relief could be granted by the court with regard to this oartnership firm. The next criticism of Mr. Ghose was that although it appeared from a conveyance earlier executed that a sum oi Rs. 11,000 was received by Kamalabati. there was no evidence that this amount remained intact upto 1962, for investment in Elphinstone. Secondly from the partnership deed relating to Eipm'nstone dated June 12, 1962, it was clear that the sum of Rs. 11,000 contributed by Kamalabati was her own personal money and was not part of the joint family funds. It was further argued that it was clear from the conveyance of October, 1949, that certain joint family properties had to be sold to meet the debts due from the joint family and this proved according to Mr. Ghose, that there was no surplus left with the joint family for investment.
11. Counsel for the appellants next contended that the various firms claimed to be joint family firms were not such, but were either partnership firms constituted by Deeds of Partnership or proprietary firms belonging to individual members of the family. There was no evidence that these firms were started with a nucleus of joint family assets or that the income and profits earned by these firms were mixed up with joint family assets. Then again, it was further argued the existence of the joint family itself was denied. The evidence on record showed that the members of the Poddar family resided at different addresses and were not living in a joint mess. The ration cards relied upon by the company before the trial court, it was argued, showed the residence before the change of address, and the addresses in those ration cards were corrected later on and now showed that the members of the Poddar family had different residential addresses.
12. The next contetnion of Mr. Ghose was that he was in no way concerned with the other firms alleged to be joint family firms but was concerned with Modern Chappal Manufacturing Co. and Piki Trading Corporation whose assets have been attached by the order under appeal. The partnership of Modern Chappal Manufacturing Co. was registered with the Registrar of Firms on November 23, 1970. The partners of this firm are Banwarilal Kasera and Suresh Kumar Poddar. The former admittedly was not a member of the joint family and, therefore, quite apart from the fact that it was registered as a partnership firm, it could not be said that the business of this partnership firm belonged to the joint family. The certificate of the Central Bank dated January 17, 1973, supported the contention that Modern Chappal Manufacturing Co. was a partnership firm of which the partners were Banwarilal Kasera and Suresh Kumar Poddar.
13. With regard to the challan of Piki Trading dated 31-5-66 it was said that the goods were supplied to Prakash Trading and the signature of S. K. Poddar was appended on behalf of Prakash Trading who received the goods. Regarding the challan of Piki Trading of June 7, 1966, it was said that this also was signed by S. K. Poddar on behalf of Prakash Trading to whom the goods were supplied. The bill of Piki Trading bearing two dates, namely, 31-5-66 and 7-6-66 was signed by Ratan Poddar though it was checked by S. K. Poddar. These documents, counsel for the appellant submitted, did not support the company's claim that Piki Trading was a joint family business and, therefore, its assets could be attached to meet the liability of another joint family firm, namely, Prakash Trading Co.
14. Mr. Ghose thereafter referred to Champalal's application for membership of the Ordnance Club in which he mentioned that he was connected with Elphinstone. The signature of Champalal on the application was disputed by Mr. Ghose. It was argued that although Champalal was a member of the club the signature on the application was not his. It was next argued that neither Hari Bux nor Kamala Bati were parties to the suit and, therefore, no declaration could be granted that Elphinstone was a joint family firm. With regard to the letter of August 14, 1970, signed by S. K. Poddar for C. L. Poddar in which it is stated that Rs. 15,000 was paid to Suresh Kumar Poddar in full and final settlement of the amount received from Elphinstone on 2-1-66 and 14-2-66 as capital of Prakash Trading Co., counsel for the appellants contended that quite plainly it was a loan by a partnership firm to Prakash Trading Co. This document it was argued, did not show that the capital of Prakash Trading Co. was contributed by Elphinstone. It was a purely commercial transaction of loan and the document was evidence of repayment of this loan. The same argument was advanced with regard to the certificate granted by Champalal for Elphinstone Leather (Plastic Cloth Agency) on May 3, 1967, that a loan of Rs. 6,000 was granted to Prakash Trading Co.
15. Mr. A. Mitter appearing for the company on the other hand firstly contended that in paragraph 23 of the petition it was alleged that Banwarilal Kasera was an employee of the Poddar family in respect of the business of Modern Chappal and in paragraph 7 of the plaint and petition it was alleged that he was a benamdar. Kasera and Raj Kumar Poddar had affirmed a joint affidavit on January 22, 1973. In paragraph 8 of this affidavit which deals with the allegations in paragraphs 4 to 34 of the petition, Kasera has not denied that he was an employee of the Poddar family in the business of Modern Chappal . This appears from a declaration signed by Ram Niranjan Das Poddar on July 10, 1941. The name of this company was changed t'o Poddar Commercial Co. Ltd. The next business name adopted by the joint family was Champalal Ratan Kumar as appears from a letter dated January 15, 1960, addressed in the name of that firm by Champalal Poddar, a proprietor. From a letter of January 15, 1960, it appears that business was carried on under another name, namely, Ram Kishore and Sons and this is the new business which was started and Champalal Poddar, for and on behalf of another, firm Champalal Ratan Kumar stated that he was a partner of the new firm and requested a change in the name of tenancy to Ram Kishore & Sons.
16. Relying on these materials Mr. Mitter contended that there could be no doubt at all that the joint family was from time to time starting a new business, and after some time closed the same, or left it in a moribund condition to start a new one. This Mr. Mitter submitted was the uniform practice of the joint family.
17. Mr. Mitter also contended that the allegations in the affidavits of Ratan Kumar, Suresh Kumar, Gyan Pra-kash and Champalal that there were no ancestral properties and no joint family assets were altogether false. The Deeds of Conveyance and the recitals therein amply prove that the joint family had acquired substantial assets, developed the same and by disposing of the same obtained large sums of money.
18. He thereafter referred to the affidavit-in-opposition jointly affirmed by Ratan Kumar and Suresh Kumar in which it was alleged that Champalal was a service-holder in various concerns, namely, Hind Coke Supply Co., Sree Krisna Rubber Works, Bharat Motors, Cuttack. It is alleged that Champalal is still employed in the Last named firm at a salary of Rs. 500. Champalal in his affidavit has also said the same thing with regard to his income and his present employment under Bharat Motors, Cuttack. Champalal has further gone on to say that his sons started earning their livelihood quite early and in view of his second marriage in 1954, his sons left his house and established their separate residences. Mr. Mitter contended that it was strange that a man with an income of only Rs. 500 was maintaining a motor car, two flats at 6/1 Sarat Chatterji Avenue and 214/16, Lower Circular Road and also two office premises at 4, Chandni Chawk Street and 21A, Canning Street.
19. On the question of residence of Champalal as the head of the joint family Mr. Mitter referred to the transfer deed dated August 13, 1969, by which Prakash Trading Co. was transferred to Sanyal, in which it is stated that Champalal resided at 6/1, Sarat Chatterji Avenue. Reference was also made by Mr. Mitter to the ration cards of Ratan Kumar Poddar in which the name of head of the family was mentioned to be C. L. Poddar. With regard to the allegation made by Champalal that his sons left him in 1954 shortly after his second marriage, counsel for the company submitted that it was altogether false, as in 1954 all the sons were minors and there could be no truth in the allegation that minor sons left the father's residence to establish independent households. Our attention was also drawn to the list of directors of Poddar Commercial Company as on 29-6-64, in which the address of Champalal Poddar is mentioned as 6/1, Sarat Chatterji Avenue. In 1972, Cham-palal's address is also shown as 6/1. Sarat Chatterji Avenue in the application made by him for the membership of the Ordnance Club. Relying on these documents it was contended by Mr. Mitter that the joint family had one residence only although one or another member of the joint family may have shifted to a different address.
20. For the purpose of this application it is not necessary for us and indeed we cannot express any final and conclusive opinion on the merits of the case made by the parties. The decision on the application out of which this appeal arises, as also the decision of this appeal must depend on the materials, such as they are, on the record of this appeal. Some of the documents relied on by counsel for the company in support of his case that the business carried on under the name and style of Modern Chappal Manufacturing Co. and Piki Trading Corporation are joint family business, have been disputed on behalf of the appellants on a grave charge of forgery of the signature on the documents. Whether these documents are genuine or forged must depend on oral testimony to be adduced at the hearing of the suit. No doubt the genuineness and correctness of the documents relied on by the parties would be tested by cross-examination of witnesses at the trial of the suit. In this appeal the question is whether the company has made out a prima facie case for the order for attachment made by the trial court. The views expressed by us in this appeal must necessarily be prima facie views, on the pleadings and documents referred to and relied upon by the parties, and we accordingly refrain from expressing any final and conclusive opinion on the documents relied upon by the parties.
21. Prima facie it seems to us that the transfer of Prakash Trading Co. by Gyan Prakash to Sanyal was a sham transaction. It seems to us that the transfer of the business was made for some ulterior purposes, not quite clear to us on the materials on record. It is also clear to us that whereas the amount claimed by the company from this firm on the date of transfer was a comparatively small sum of Rs. 23,000, the transaction between the firm and the company went up by leaps and bounds with the result that a sum of Rs. 1,30,989.20 is . claimed by the company against this firm by the end of January 1971, on account of price of goods sold and delivered, apart from the claim for sales tax and interest. It is difficult to understand why the company should have extended such a large credit to the firm, knowing that it was transferred to Sanyal, who was a petty employee of the Poddars and who had purported to acquire the business of this firm for a paltry sum of Rs. 2,000. In our view it is clear, at any rate prima facie, that the credit was extended to this firm on the understanding that the members of the joint family would remain liable to meet its obligations. No other conclusion is possible on the materials such as they are. I will deal with the question whether Modern Chappal Manufacturing Co. and Piki Trading Corporation were joint family firms later in this judgment.
22. I will now proceed to deal with the oases on which reliance was placed by the parties.
23. Mr. Ghose relied upon a decision of the Judicial Committee-- Bhuru-mal v. Jagannath AIR 1942 PC 13. In that case it was held that though a business, which belonged to a joint Hindu family was an item of joint family property special consideration applied to the question whether or not the business belonged to the family or to the individual member who carried it on. It was further held that the presumption that a property in the hands of an individual member was joint family property did not apply to a business, and that the question whether a business carried on by a member of a Hindu joint family was begun or carried on with joint family funds was a question of fact. It was observed also that a joint family business was an item of joint family property but nevertheless special consideration applied to the question whether the business belonged to the joint family or to the individual member who carried it on. The Judicial Committee relied upon the observations of Lord Buckmaster in AIR 1929 PC 1 as follows:
'A member of a joint Hindu family can make separate acquisition of property for his own benefit and, unless it can be shown that the business grew from joint family property, or that the earnings were blended with joint family estate they remain free and separate.'
24. On the same question reliance was placed by Mr. Ghose on a decision of the Supreme Court in G. Narayana Raju v. G. Chamaraju, : 3SCR464 in which it was held that it was well established that there was no presumption under Hindu Law that a business standing in the name of any member of a joint family was a joint family business even if that member was a manager of the joint family and that unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family funds or that the earnings of the business were blended with joint family estate the business remained free and separate.
25. On the question that a partnership deed is a strong piece of evidence against a business being a joint family business reliance was placed by Mr. Ghose on a Bench decision of the Madras High Court reported in AIR 1933 Mad 920. In that case it was held that a Hindu joint family was a special form of partnership and the members concerned in such a joint family firm including minors have certain rights and liabilities by virtue of such membership and a joint family business need necessarily be the business of a whole joint family or a whole branch of a joint family. In that case a joint family consisted of father and four sons but the materials showed that there was a document in which it was set out that it related to business jointly conducted by only three brothers and the firm was referred to not as a family firm but as a company and later paper was issued showing three brothers as partners of the firm and the fourth brother never claimed any part of the profits. It was held that the business was not a joint family business but an ordinary partnership business of three brothers. The facts in this case are entirely different, inasmuch as, admittedly one of the brothers did not claim any part of the profits and the father and the fourth brother were not members of the partnership. In this appeal on the other hand, the company's case is that all the different businesses are joint family firms, the different members of the family managed and participated in the firms' business which was carried on from the same address as other joint family firms using the same telephone. Reliance was also placed by Mr. Ghose on a Bench decision of the Lahore High Court reported in AIR 1940 Lah 90. This decision was relied on for the proposition that under Hindu Law there was no presumption that a business carried on by a member of a joint family in partnership with a stranger was joint family business and that the presumption of Hindu Law that where a nucleus was proved, properties standing in the name of joint family members were acquired out of the family funds and belonged to the family could not be extended to a case of partnership with strangers. The bank account in that case was not in the name of the joint family nor in the name of the partnership but in the individual name of the member who had entered into the partnership. It was for that reason held that the business was not a joint family business. This decision is of no assistance to the appellants because the stranger in this case who is a partner is shown to be an employee of the joint family and not a complete stranger and it is also claimed that Kasera represented the interest of the joint family in the firm of Modern Chappal and was a benamdar of the joint family. Reliance was next placed by counsel for the appellants on a decision of the Supreme Court reported in : 3SCR245 for the proposition that there is no presumption that a Hindu family merely because it is joint possessed any joint property and the burden of proof that any property is joint family property is in the first instance upon persons who claim it as coparcenary property. It was held that if the possession of a nucleus of the joint family property is admitted or proved any acquisition made by a member of the joint family is presumed to be joint family property and that it was only after the possession of an adequate nucleus was shown that the onus shifted on the person who claimed the property as self-acquired to affirmatively make out that the property was acquired without the aid from the family estate. This decision is of not much assistance to the appellants in this case as the question that arises for decision is not whether there is joint family property but whether a business claimed to be a partnership business is in fact a joint family business. Reliance was next placed by Mr. Ghose on a decision of this court reported in : AIR1960Cal81 . In that case the question was whether when a decree was obtained against persons in their individual capacity not as partners of a firm nor against the firm, the attachment could be made under Order 21, Rule 46 of the Civil Procedure Code. It was held that the proper mode of execution which should have been resorted to was Order 21, Rule 49 (2) of the Civil Procedure Code. This decision is of no assistance to the appellants because there was admittedly a partnership firm and the decree was obtained against the individuals. But in the instant appeal the attachment is sought against the assets of a firm claimed to be a joint family firm. Reliance was next placed by Mr. Ghose on a decision of the Madras High Court reported in : AIR1965Mad212 on the question of attachment before judgment. Reliance was placed on this decision for the proposition that attachment before judgment was an extraordinary relief and if granted it casts an obligation on the party against whom it is made even before he was heard and, therefore, the court should act with utmost circumspection and with maximum care and caution before issuing such an order to avoid it becoming a weapon of oppression. We respectfully agree with these views in this decision that the remedy of an attachment before judgment is an extraordinary remedy and should be granted with utmost care and caution.
26. The next case relied upon by Mr. Ghose was a Bench decision of the Patna High Court reported in : 66ITR347(Patna) . In that case an assessee claimed that the business carried on by him belonged to the Hindu undivided family of which he was a member and not to him personally. The claim, therefore, in that case was just opposite of what has been made by the appellants in this appeal. It was held that if the new business was started in the name of a particular member of the family, the presumption would be that it was his own business, as in the case of a new business something more than the capital was needed, namely individual skill and exertion. This decision to our mind is of no assistance to the appellants because it was found as a fact that a sum of Rs. 70,000 which was put into the new business was part of Rs. 4,39,124 which was the undisclosed income of the claimant. It was held that if the capital of the new business came out of the undisclosed income, it could not be from joint family sources but must be treated to be income from speculation and odd jobs done by the assessee himself. It was in these facts that it was held that the business was not a joint family business but belonged to the assessee himself.
27. Mr. Ghose thereafter referred to two cases in support of his contention that an adverse inference under Section 114, Illustration G of the Evidence Act ought not to be drawn against his clients. The first of these cases was Devidas v. Sri Shailappa, : 3SCR896 . This case was relied on for the proposition that where there was no evidence on record to show that a particular document was with a party and that he had deliberately withheld the seme from the court, the court would refuse to raise an adverse inference against the party in default. This decision is of no assistance to the appellants in this case because it would be futile to suggest or argue that books of accounts and other documents relating to Piki Trading are not in the possession of Ratan Kumar and that such books relating to Modern Chappal are not in the possession of Suresh Kumar and Banwarilal Kasera. The next case relied on bv Mr. Ghose was another decision of the Supreme Court-- The Bihar State Board of Religious Trust v. Mohanth Sri Bisweshwar Das, : 3SCR680 , in which it was held that when the burden of proof that the properties of the temple were held by the Mohanth on trust for public purposes of a religious or a charitable character, was on the Board of Religious Trust, the court could not draw an adverse inference for failure of the Mohanth to produce certain documents whereunder the properties had been gifted to the founding Mohanth. This decision again is of no assistance to the appellants in this case because although the burden of proof is on the company to prove that the two businesses, namely, Modern Chappal Manufacturing Co. and Piki Trading Corporation are joint family businesses, the company has produced materials to show that prima facie it seems that the two businesses belonged to the joint family. The onus, therefore, shifts on the persons claiming that the businesses are not joint family businesses but self-acquired businesses, and in our view Suresh and Banwarilal on the one hand and Ratan on the other, have failed to discharge that onus. Furthermore, they clearly have withheld from the court the materials in their possession which would have been decisive namely the source of capital of the two business and we see no reason why prima facie at any rate, the conclusion should not be drawn that the capital of the two businesses came from the nucleus of the joint family funds. On the question of presumption that a firm is a joint family business reliance was placed by Mr. Ghose on a Bench decision of the Lahore High Court reported in AIR 1931 Lah 429 in which it was held that the mere fact that a brother took a lively interest in the business carried on by another brother was not sufficient for the presumption that it was a joint family business, to make the brother liable for the business debts as there was no presumption that a business carried on by one who was a member of the joint family was the joint family business. In that case, however, a firm entered into a contract with one individual for supply of sleepers and advanced Rs. 11,000 to the supplier. The individual died and his brother with a view to complete the contract obtained a further advance of Rs. 2,000. The firm thereafter filed a suit against the father and three minor sons of the deceased for recovery of the sum of Rs. 30,000, the total amount advanced. It appeared from the evidence that there was no joint family business and, therefore, there could be no presumption that a business carried on by a member of the joint family was a joint family business. In that case also the business admittedly was carried on by the deceased member of the joint family though his brother took a good deal of interest in the business. It seems to us that the observation of the Division Bench was made in the context of the facts in that case and in our view these observations are of no assistance to the appellants. On the question whether a business can be said to be a joint family business where one member carries it on with borrowed capital reliance was placed by Mr. Ghose on a Full Bench decision of the Mysore High Court reported in AIR 1950 Mys 33. In that case it was held that if a business was started with the assistance of the joint family property the property acquired might be regarded as joint family property but where a member of a joint family commenced and carried on a business in his own name with the help of money borrowed by him and his father and later discharged the debt, he could not be said to have started his business with the help of any joint family property. This decision is of no assistance to the appellants because there was positive evidence that money was borrowed by the father and the son from third parties for carrying on the business and, therefore, it was established that no assistance was received from the joint family funds.
28. Turning next to the question whether the attachment order was valid it is to be noticed that the order was made as the trial court must have been satisfied that Prakash Trading which was a joint family concern had closed its busi-ness and the joint family carrying on business in the name of Modern Chappal and Piki Trading had been trying to collect its assets with a view to delay or obstruct execution of a decree that may be passed against it. Mr. Ghose had contended that the order ought not to have been made as there was no evidence that the joint family was trying to remove or dispose of its properties with a view to delay or obstruct execution of a decree. In support of this contention reliance was placed by counsel for the appellants on a Bench decision of the Patna High Court reported in AIR 1924 Pat 312. In that case it was held that the power to attach a defendant's property before judgment was not meant to be exercised lightly or without proof of existence of a mischief aimed at in the Rule. It was also observed that to attach a defendant's property before his liability has been established in the decree might seriously embarrass him in the conduct of his defence as such properties could not be utilised for the purpose of putting him in funds for defending the action. As a proposition of law there can hardly be two opinions on the observations mentioned above. But the question in this case is whether in the facts of this particular case where the joint family has been shown to have started different businesses at different times, closed the same and started a new business and where as in this case the joint family firm from which a large amount is claimed to be due has closed its business, the trial court was justified in making the order of attachment before judgment.
29. Mr. A. Mitter, counsel for the company on the other hand relied on a decision of the Judicial Committee-- Ap-palaswami v. Suryanarayana Murti, AIR 1947 PC 189. In that case it was held that proof of existence of a joint family did not lead to the presumption that property held by the members of the family was joint and the burden rested upon anyone asserting that any item of property was joint to establish that fact, but where it was established that the family possessed joint property which from its nature and value might have formed the nucleus from which the property in question might have been acquired the burden is shifted to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. Relying on this decision Mr. Mitter contended that it was proved beyond doubt that the joint family acquired, held and disposed of valuable immovable properties and the sale proceeds or at any rate part of it remained in the joint family. It was, therefore, for the appellants to prove affirmatively that Modern Chappal and Piki Trading were not started with joint family funds but with self-acquired assets without the aid of joint family property. In our view there is a good deal of force in this contention of counsel for the company. Reliance was next placed by Mr. Mitter on another decision of the Judicial Committee-- K. L. S. V. E. Annamalai Chetty v. K. L. S. V. E. Subramaniam Chetty, AIR 1929 PC 1, for the proposition that a member of a joint undivided family could make separate acquisition of property and unless it was shown that the business grew from joint family property or that the earnings were blended with joint family estates they remained free and separate. It is to be remembered that it is these observations of the Judicial Committee which were quoted with approval in the case reported in AIR 1942 PC 13.
30. Mr. Somenarth Chatterji continuing the argument on behalf of the company strenuously argued that all the decisions relied on by counsel for the appellants were cases where evidence had been concluded on the question of source of funds for the business and also about all particulars regarding the business carried on either by the joint family or its members. In this case, Mr. Chatterji argued, the only question was whether a prima facie case had been made out by the company for the order of attachment. He also argued that on the materials on record it was amply clear that the joint family was financing the different businesses carried on by its members sometimes under the garb of a partnership between its members or a partnership between a member and an outsider who happened to be an employee. The appellants and the other members of the joint family have failed to prove the source of income nor have they produced any evidence to assist the court in coming to a conclusion on the question whether the business was a joint family business. The only occasion where a plausible attempt was made to prove the source of income, it was argued was in the case of Ratan, who claimed to have received a salary of Rs. 500 from Sree Krisna Rubber Works. It was amply clear, Mr. Chatterji argued, that this was entirely false as appeared from the income-tax return in which it was stated that the story of investment of Rs. 2,000 in Piki Trading could not be accepted and Ratan had also invested a sum of Rs. 10,000 in Sree Krisna Rubber Works. In support of his contentions Mr. Chastterji relied on a decision of the Judicial Committee-- Murugesam Pillai v. M. Pandara, 4 Ind App 98 : AIR 1917 PC 6. In that case dealing with the question of inference that the court will draw against a person who has not produced relevant materials in his possession that the court will draw the necessary inference where materials are not produced. In that case money was borrowed for a Math and the question was whether the debt was a necessary expense for the Math. It was observed that when holder after holder of the Headship dealt with the debt as a necessary expense the court would be satisfied that the debt was properly incurred for the purposes of the Math. For several years the debt was treated as a debt of the Math and, therefore, the question of necessity of the expense was beyond dispute. In this connection it was observed as follows :
'A practice has gone up in Indian procedure of those in possession of important documents or information lying by. trusting to the abstract doctrine of the onus of proof and failing, accordingly, to furnish to the court the best material for its decision. With regard to third parties, this may be right enough -- they have no responsibility for the conduct of the suit; but with regard to the parties to the suit, it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written ev'dence in their possession which would throw light upon the proposition.'
31. On the same question reliance was placed by Mr. Chatterji on a decision of the Supreme Court reported in : 3SCR862 . In that case also one of the parties did not furnish documentary evidence in his possession and the Supreme Court observed that as the party had not produced the necessary accounts of income it was no answer for him to say that he will not produce the accounts unless he was called upon to do so and that the onus was upon the other side. In this connection it was observed that even if the burden of proof did not lie on a party the court might draw an adverse inference if he withheld important documents in his possession which could throw light on the facts at issue and that it was not a sound practice for those desiring to rely upon a certain state of facts to withhold from the court the best evidence which was in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In making these observations the Supreme Court quoted with approval the observations of the Judicial Committee quoted earlier. Mr. Chatterji also relied upon a Bench decision of the Lahore High Court reported in AIR 1940 Lah 90 which was relied upon by Mr. Ghose. In that case it was held that under Hindu Law there was no presumption that a business carried on by a member of a joint family in partnership with a stranger was a joint family business and that the presumption that where a nucleus was proved properties standing in the name of its members were acquired out of joint family funds could not be extended to the case of partnership with strangers. In that case evidence was fully gone into and it appeared from the evidence that the claimant failed to prove that the partnership was entered into on behalf of the family or that the loan was otherwise applied for family purposes. Mr. Chatterji argued that in this case evidence has yet to be taken and the question was whether on the materials there was ample evidence of a prima facie case that both Modern Chap-pal and Piki Trading were joint family business. It appears to us that there is a good deal of force in the contention of Mr. Chatterji. Admittedly neither the appellants nor the other members of the joint family have produced any materials to show how the firms were started, that is to say, what was the source of its capital. Documents undoubtedly are in the possession of the members of the joint family and it was upto them to satisfy the court that the two firms were not started with the assistance of joint family funds. In our opinion it cannot but be held that the company had made out a prima facie case that the different businesses carried on by the members of the joint family were joint family businesses. This is the only prima facie conclusion possible on the materials on record.
32. Counsel for the company drew our attention to a decision of the Judicial Committee-- Choudhury Ganesh Dutt Thakoor v. Musst. Jewatch Thakurain, (1903) 31 I. A. 10 . Reliance was placed on this decision for the proposition that cesser of commensality might properly be considered in determining whether there has been a partition of Hindu joint family property, but it was not conclusive. This decision was relied upon in support of the contention that even assuming that the members of the joint family had separate residence, that by itself did not indicate that there was a rupture of the joint status. Counsel for the company next relied upon a decision of the judicial Committee in Rameshwar Singh v. Bajitlal Pathak, AIR 1929 PC 95. This decision was relied upon for the proposition that where evidence which is available and which if produced would be decisive of the question before the court if withheld, the court would draw the inference that the evidence if produced would go against the party in default and that where evidence is so withheld the party in default should not be allowed to take advantage of the abstract doctrine of burden of proof.
33. Our attention was also drawn bv counsel for the company to an un-reported decision of the Supreme Court Mulshankar Ojha v. Chunilal Ojha reported in the unreported judgments of the Supreme Court (1969) I, 711, in which it was held that in the absence of evidence to prove that a particular business was started with the aid of ioint family nucleus it could not be held that the business belonged to the ioint family. Reliance was also placed by counsel for the company on another unreported decision of the Supreme Court Biltu Ram v. Jainandan Prasad (Civil Appeal No. 941 of 1965, D/- 15-4-1968) (SC). In that case a partition decree was claimed on the footing that the properties belonged to a joint Hindu family of which the parties were members. The decree was resisted on the ground that the joint family status was severed and the existing properties were partitioned among the three branches who were in separate possession. The trial Judge rejected the contention that there was a partition in 1941 or severance of the joint family. It also held that certain properties acquired by one branch were so acquired with separate funds of that branch and joint family had no interest in them. The High Court upheld the view of the trial Judge. The Supreme Court found that evidence relating to the assets and income of the ioint family was unsatisfactory. The head of one branch who alone had knowledge about the source of income and assets did not assist the court by producing material evidence which was in his possession. There was evidence, however, that the heads of the three branches carried on a brief business and also a business of contractors. The head of the branch which acquired separate properties contended that the properties were acquired out of the separate business carried on bv that branch which was not the original ancestral business but was a new business started by that branch after closure of the ancestral business. This contention was rejected by the Supreme Court as there was not sufficient evidence to support this case and it was held that the contract business of the joint family alleged to have been closed was joint familv business. With regard to the claim by one branch that Rs. 18,000 was advanced by it and this sum was the source of money for the separate business it was held that the accounts relating to this advance were not produced and the failure to produce the best evidence which would have supported the case of advance led to the inevitable inference that the story of advance of Rs. 18,000 out of separate earnings for construction of houses must be discarded and that the inference, therefore, arose that ioint family assets were utilised for construction of the houses for the family. It was further held that if the plea that the amount was not part of the joint family funds was rejected the only source of money used for constructing the nouses was the joint family estate. It was further held that if the plea of one of the branches that a separate business was carried on by one branch, it was held, that if there was any substance in this plea that the business was cairied on by that branch by its members and not as part of the joint family business it could be expected that the claim would be supported by documentary evidence which was in their possession. The conclusion drawn on the materials was that best evidence which was in the possession of the party claiming that the source of money was the separate business was withheld and. therefore, the claim that the source of money was not the ioint family estate must be rejected.
34. On the question whether the business of Modern Chappal was a joint family property as no source of capital was disclosed reliance was placed by counsel for the company on another decision of the Supreme Court, Malappa Girimalappa Betgiri v. R. Y. Putil, AIR 1959 SC 905 in which it was held that where the manager of a ioint Hindu family acquired properties in his own name and there was sufficient nucleus of joint family property out of which those properties might have been acquired and apart from those properties the manager had no other source of income, the presumption arose that the newly acquired properties were the properties of the joint family. Relying on this decision it was argued that neither Suresh nor Ban-wari who was alleged to be a benamdc' and an employee of the joint family had disclosed any source of income to start the business of Modern Chappal and, therefore, the presumption should be drawn that the business was started with the joint family funds and was in fact a joint family business.
35. I now turn to the question whether Modern Chappal Manufacturing Co. is a partnership firm as claimed by the second and third appellants or it is a ioint family business and also whether Piki Trading Corporation is a sole proprietary concern of the first appellant or that firm is also a joint family business. Counsel for the appellants made it clear that he was only concerned with the question whether these two firms were joint familv businesses as claimed bv the companv. He also made it clear that if these two firms formed part of the joint family business, the company would be entitled to an order for attachment, if it satisfied the requirement ot law.
36. The materials on record show that the business of Modern Chappal Manufacturing Co. was carried on at No, 4, Chandni Chowk Street from where admittedly other joint family businesses were carripd on. There are allegations in the plaint and in the petition that Ban-warilal Kasera. the third appellant was an employee of the joint family and also that representations were made that he was a benamdar who represented the interest of the joint family in Modern Chappal Manufacturing Co. There is no denial by Kasera of these allegations against him. Kasera is supposed to have contributed Rs. 12,500 towards the capital of the firm and Suresh Poddar contributed Rs. 7,500. Kasera has not even attempted to prove the source from which his share of Rs. 12.500 came, and as to the attempt of Suresh to explain the source of his contribution of Rs. 7,500, no reliance can be placed on the same for reasons shortly to be mentioned. In the affidavit filed by Sanyal there is a clear and categorical allegation that this firm was started in 1970 and was one of the business concerns of the Poddar family. It is true that this affidavit had been filed by Sanyal as one of the respondents to the application, and ordinarily the other respondents to the application do not get a chance of controverting the allegations made in an affidavit in opposition. But nothing prevented the appellants and the Poddar respondents and also Kasera from asking for leave from the court to file an affidavit for the purpose of controverting the allegations made by Sanyal. If leave was asked for and refused, the position would have been different. But no attempt appears to have been made by the appellants and the Poddar respondents to controvert the allegations made by Sanyal. In paragraph 6 of the afndavit-in-opposition affirmed by the second appellant he claimed to have contributed the capital of Rs. 7,500 of the said firm out of his savings from Poddar Auto Traders. which he joined as a working partner in 1968. The partnership of Modern Chappal came into existence on April 1, 1970. The second appellant, who claims to have obtained the capital contributed by him from his earnings as a working partner of Poddar Auto Traders, has neither disclosed the accounts of Poddar Auto Traders to show that in two years' time his shares of profits were such as enabled him to make a saving of Rs. 7.500, nor has he disclosed his personal accounts to show that he had this sum at his disposal. Nor has the third appellant who was an employee of the Poddar family chosen to disclose the source of his income which enabled him to contribute the sum of Rs. 12,500 towards the capital of the firm. As against these materials is to be considered the account of the partnership with Central Bank and the certificate granted by that bank, the trade licence obtained by that firm, the permanent account number allotted to the firm by the income-tax authorities, the seales tax registration under the Central and the State Act. There is no doubt that a partnership deed was executed between the second and the third appellants to constitute the firm and since it was a registered partnership firm in the ordinary course of business this firm must have a bank account, sales tax registration certificate and trade licence to carry on business in its name. Indeed a partnership firm as a legal entity must necessarily have a trade licence to enable it to carry on its business and also sales tax registration certificate and a bank account to enable it to carry on its business.
36-A. On the materials on record, such as they are, we cannot but come to the conclusion, prima facie at any rate, that the business of Modern Chappal Manufacturing Co. is a Ioint family business. It is amply clear to us that the joint family was carrying on business in various names and for reasons obscure to us at the moment, was changing the name of its business from time to time, closing down one, to start a new one in a different name. The second appellant has not chosen to disclose the source of his income beyond making a bald statement that the capital contributed by him came out of his savings from his partnership in Poddar Auto Traders. The third appellant's claim to partnership in his own right appears to be still more dubious. Prima facie it appears to us that he was an employee of the Poddar family and for such an employee to make a contribution towards the capital of the firm which exceeds by Rs. 5,000, the contribution made by one of his employers cannot be lost sight of. Then again the business of the firm was carried on at a place where admittedly other joint family business was also carried on. These taken together with the conduct of the appellants and also the Poddar respondents in not seeking to controvert the allegations made bv Sanyal in his affidavit that this firm was a joint family business in our opinion can but point to our prima facie conclusion, namely that the business was a joint family business.
37. Turning now to Piki Trading Corporation it should be remembered that the first appellant claims to be the proprietor of this firm in his own right, and also claims that the joint family has no interest in this business. This firm was started by the first appellant in 1964 and it is alleged in the joint affidavit affirmed by the first and second appellants on January 22, 1973, that its business was started in 1964 for manufacture of wooden boxes with a paltry sum of Rs. 2,000. From the assessment order for the year 1965-66, relating to the income of the first appellant, it appears that he declared the business to be one for the manufacture of typewriter boxes. The business was started with Rs. 2,000 out of his past savings. In his affidavit the first appellant stated that he was drawing a sum of Rs. 500 per month as an employee of Sree Krisna Rubber Works. The Income-tax Officer, however, noted that he invested a sum of Rs. 10,000 in the shares of his employer, namely, Sree Krisna Rubber Works Ltd. and rejected the first appellant's contention regarding the source of initial capital of Rs. 2,000 of the business of the firm of Piki Trading Corporation. It appears, however, from the salary certificate of the first appellant that he was drawing a salary of not Rs. 500 per month as alleged by him but Rs. 350 per month and the certificate shows a payment of Rs. 1,400 only on account of the salary for four months from April 1962 to July, 1962. The first appellant has not cared to place before the court documentary evidence to show that out of his salary income of Rs. 1,400 how he could have saved Rs. 2,000 for commencing this business. It also appears from some of the chalians and bills that one of the business address of this firm was 5, Dharamtalla Street from where the business of other joint family firms was also carried on and the chalians are signed by other members of the joint family. The other business address of this firm was No. 20, Chanditala Main Road from where the other business of the joint family was also carried on. If the firm was the proprietary concern of the first appellant, there is no explanation as to w,hy R. K. Podd-ar should sign bills of Piki Trading Corporation. Rent receipts granted by this firm to Prakash Trading Co. dated February 27, 1966, and June 21, 1966, also bear the signature of S. K. Poddar who signed one of the receipts as proprietor of the firm. There is one other significant fact to be noticed, namely, that it appears from the challan dated June 7, 1966, that this firm which was manufacturing wooden boxes only was supplying 4 pieces of axle shaft to Prakash Trading Co. It clearly indicates that the firm purporting to manufacture and deal in wooden boxes, was also dealing with motor spare parts which was one of the businesses of the joint family. The axle shafts appear to have been supplied to Prakash Trading Co. on June 7, 1966 and the challan number is FA/305. It appears from bill dated June 2, 1966, that although the material was supplied on June 7, 1966, the bill for the same was sent even earlier on June 2, 1966, and although the challan was for 4 pieces axle shaft the bill which refers to that particular challan is only for a sum of Rs. 28.42. Our attention was also drawn to bills and chalians which were prepared by another member of the joint family, namely, S. K, Poddar, All in all it seems to us that on the materials on record there can hardly be any doubt, prima facie at any rate, that Piki Trading Corporation was a joint family business. The claim by the first appellant that he was the sole proprietor of the business and commenced the business with a paltry saving of Rs. 2,000 only for the purpose of manufacture of wooden boxes, has not been substantiated prima facie at any rate, on the materials on record. On the other hand it is clear that the business of Piki Trading Corporation was run and looked after by other members of the joint family who freely participated in the same and that this firm dealt with automobile spare parts which cannot ba reconciled with the contention of the first appellant that it was a business for the purpose of manufacture of wooden boxes only.
38. Keeping in mind the various decisions to which I have referred earlier in this judgment, It seems to me prima facie that the source of capital of the two firms, namely, Modern Chappal Manufacturing Co. and Piki Trading Corporation was the nucleus of the joint family assets. The joint family acquired and sold immovable properties, and there can be no doubt that assets were available to the members of the family to enable them to start different businesses at different times. Beginning with the story of transfer of Prakash Trading Co. to Sanyal and ending with the signing of the chalians of Piki Trading, the granting of rent receipts on behalf of Piki Trading by other members of the joint family, it seems to us that the whole object of the members of the joint family was to obtain large consignments of goods and materials from the market on credit, and thereafter defeat, if possible, the claims of the creditors. That appears to be the motive of the transfer of Prakash Trading Co. to Sanyal, followed by the letters addressed to him assuring him that he would be free of all liabilities and obliga-tions of that firm. It is also significant, as I have noticed earlier, that the volume of business on credit with this firm went up by leaps and bounds after the transfer of the firm to Sanyal. After obtaining goods on credit for a very large sum, the members of the joint family found it convenient to close down the business of Pra-kash Trading Co. which had no assets worth the name. The appellants have singularly avoided disclosing the source from which the capital of the two firms came. No doubt at the trial of the suit further documents will be forthcoming relating to the transaction of the members of the joint family and also of the two firms of Modern Chappals Manufacturing Co. and Piki Trading Corporation. No doubt also that the evidence adduced by the parties would be supported and tested by cross-examination of witnesses. But on the materials on record, such as they are, there is prima facie evidence that the joint family still continues to be a joint family, at any rate in estate and that businesses in the names of various firms have been commenced, carried an and sometimes closed by the members of the joint family and were in fact joint family businesses It was strenuously argued on behalf of the appellants that the partnership deeds, the bank accounts. the sales tax certificates all go to show that these businesses were separate businesses. But in our opinion these materials do not go far enough to establish the appellants' contention in this appeal.
39. On the materials on record it appears to us prima facie that the family possessed valuable immovable property in Calcutta and also at other places. Calcutta property at any rate was developed by building a house and this was later on sold. Part of the sale proceeds even after meeting the liabilities remained in the hands of the joint family and prima facie it seems to us to have formed the nucleus which provided the capital for various joint family businesses. The partners of Modern Chappal Manufacturing Co., namely. Suresh Poddar and Banwarilal Kasera have not disclosed the source of capital of the partnership firm as I have already noticed. They have not placed before the court relevant material to enable the court to determine the vital auestion namely, whether the business started by them in co-partnership was a separate business or a joint family business. So far as Kasera is concerned there are allegations in the plaint and the petition that he was an employee of the Poddars and that representation was made to the company that he was a benamdar of the joint family in the partnership. The partners knew that the allegations made by the company in the plaint and the petition were directed towards establishing a case of joint family ownership of the partnership business, yet they have withheld from the court the source of capital of the partnership business. In these facts it seems to us prima facie that the source of capital if disclosed would have gone against the contention of the appellants and the business was started with a nucleus of the joint family funds. As to Piki Trading Corporation the claim of Ratan Kumar that he started the business with a paltry sum of Rs, 2,000 saved by him from his salary cannot be accepted for reasons already discussed by me earlier. Quite apart from the source of capital of this firm it is clear that other members of the joint family were freely participating in the business of this firm. Prima facie, therefore, we are satisfied that Piki Trading Corporation is also a joint family business. As I have noticed earlier there is ample eyidence of possession of a nucleus of joint family assets and, therefore, the onus of proving that the two firms did not form part of the joint family business, but were separate businesses of the appellants was upon them, and prima facie they have failed to discharge this onus
40. For the reasons mentioned above this appeal fails and is accordingly dismissed. Costs of the appeal will be costs in the suit. Having regard to realisation of two sums of Rs. 75,000 and Rs. 15,000 as hereunder mentioned, the order under appea! is modified as follows :
41. Under orders of this court the appellants' solicitor has received a sum of Rs. 75,000 from Bata Shoe Co. Ltd., and another sum of Rs. 15,000 from Philips India Ltd. These two sums aggregating Rs 90,000 have been deposited in bank under orders of court The appellants' solicitor is directed to invest the said sum of Rs. 90.000 in a nationalised bank in short call deposit for a term not exceeding 6 months at a time, to be renewed from time to time and to hold the said sum together with interest free from lien and subject to further orders of court. The appellant will be at liberty to withdraw the said amount or any portion thereof upon furnishing security to the satisfaction of the Registrar. Original Side.
42. I agree.