1. The suit in which this appeal arises was brought by the plaintiffs, now respondents, for declaration of their right and title to hold possession on the basis of their purchase in execution of a decree on the original side of the High Court of the properties-mentioned in Ka, Kha and Gha Schedules to the plaint after setting aside' an order of the first Court of the Subordinate Judge of Dacca passed under Order 21, Rule 100, Civil P. C., on 16th February 1927. The plaintiffs further-prayed that they may be put in possession of all the properties except pro-perty No. 4 of Ka Schedule of which they were in possession at the date of the plaint and in case they were dispossessed pending suit they prayed for recovery of possession of the said property also. The suit was contested by defendants 1 and 4. The Additional Subordinate Judge of Dacca has decreed the suit on contest against defendants 1 and 4 and ex parte against defendants 2 and 3, by declaring plaintiff's title to the lands described in Schedules Ka, Kha and Ga of the plaint and by directing that they do get possession of the same. Hence the present appeal by defendants 1 and 4.
2. The material facts have been so fully dealt with in the judgment of the Subordinate Judge that it is unnecessary to recapitulate them except in the barest outline. It appears that Motilal Saha, an inhabitant of Sabhar died leaving him surviving three sons, Iswar, Adhar and Mohesh. These brothers lived as members of a Hindu joint family after their father's death and carried on seven joint businesses under different names including a money lending business in the name of Motital Iswar Chandra, Adhar Chandra, Mohesh Chandra Saha at 2, Jorabagan Street, in the town of Calcutta. Iswar died in Aswin 1296 B. Section corresponding to October 1889, being survived by his widow Basanta Kumari and his married daughter Kadambini. Kadambini was married to Bhabani and defendants 1 to 4 are their four sons. Basanta Kumari succeeded to the seven joint businesses after her husband's death as also to the other moveable and immoveable properties left by her husband and she possessed a Hindu widow's estate in the inheritance. The businesses were jointly conducted for nearly two and half years after her husband's death. The properties were divided by arbitrators who published their award on 14th Bhadra 1302 B. S. (1895). The money lending business at 2, Jorabagan Street, was divided in three equal shares and Basanta Kumari commenced a separate business on 1st Baisakh 1299 B. S., out of the assets received by her from one-third share of Iswar Chandra in the joint business on partition. This business was named Iswar Chandra Basanta Kumari and was managed by her son-in-law Bha-wani. This firm used to borrow when necessary from the firm of Kalicharan Girish Chandra Ray Chaudhury (defendant 6) owned by defendant 8 (who is a relation of defendants 1 to 4) and his co-sharers as also from Gosta Behary Roy, the maternal cousin of Bhawani Prasad.
3. The firm of Kalicharan Girish Chandra obtained a decree on the original side of this Court for Rs. 24,000 in 1921 and Susen, son of Gosta, obtained a decree for Rs. 8,900 against the firm of Iswar Chandra Basanta Kumari. The former decree was transferred to Dacca Subordinate Judge's Court for execution, and the plaintiffs purchased the properties described in Schedules Ka, Kha and Ga of the plaint along with other properties on 17th June 1922. It may be mentioned here that plaintiffs 1 and 2, that is Krishna Chandra and Ramlal, are the sons of Mohesh, plaintiff 3, Priyabala is the executor to the estate of Rakhal, son of Adhar; and plaintiff 4, Hiralal is another executor appointed by Rakhal's will. The plaintiffs claim that they purchased not simply the Hindu widow's estate possessed by Basanta Kumari at the-Court sale but the absolute interest in the properties in suit. Basanta Kumari died on 3rd June 1923 after making an application under Order 21, Rule 90 of the Code for setting aside the sale and died pending such application which was never prosecuted to the end by her defendants 1 to 4 with the result that the sale was confirmed. Plaintiffs obtained delivery of symbolical possession' and when they went to take actual possession, proceedings under Order 21, Rule 100 of the Code were started by defendants 1 to 4 alleging that the decree was a personal decree against Basanta Kumari and did not bind the reversioners. The defendants were successful in retaining possession although the Court held that the decree was not a personal decree against Basanta Kumari. The plaintiff's have accordingly brought the present suit praying for the relief above stated. It may be mentioned here that in para. 12 of the plaint, the plaintiffs alleged that Ka schedule properties were 'of the time of the husband of Basanta Kumari Dasya' and Kha schedule properties were purchased with the profits of the Ijmali Karbar carried on by Basanta Kumari with her husband's brothers, and the Ga schedule properties were purchased with the profits of her separate Karbar, that is, Iswar Chandra Basanta Kumari firm.
4. The contesting defendants Barada and Pranoda filed a joint written statement. The material defences were: (1) Money-lending Karbar which was carried on at Premises No. 2, Jorabagan Street, was never partitioned in equal shares, but that Basanta Kumari got from the Ijmali Karbar certain sums with which she started a new Karbar at No. 2, Jorabagan Street, as also other new Karbars and that the new Karbars were not in any sense, a continuation of the 'family Karbar left by her husband;' (2) that there was no necessity for borrowing any money for the purpose of the firm of Basanta Kumari Dasya at Jorabagan; (3) that the decree obtained by the firm of Kali Charan Girish Chandra was a personal decree against Basanta Kumari and that the decree-holders had no right to sell 'the absolute right, title and interest in the properties;' (4) that the (Properties described in Schs. Kha and Ga to the plaint have been acquired with the moneys left by Iswarchandra Saha and they were not acquired with moneys of the Karbar started by the late Basanta Kumari Dasi.
5. The issues which are material for the purposes of the present appeal are issues 1, 2 and 3 which really constitute one issue, viz., whether the decree was a personal decree against Basanta Kumari and if so, can it bind the estate in their hands absolutely? And issue 5 which runs as follows: Was the business named Iswar Chandra Basanta Kumari in Calcutta a continuation of the original family business or was it a new business started by Basanta Kumari Dasya? All these issues have been found in favour of the plaintiffs by the Subordinate Judge, who, as already stated, has decreed plaintiffs' suit.
6. On appeal against that decree by defendants 1 and 4, the following contentions have been raised. The first point taken is that the Subordinate Judge should have held that Iswar Chandra Basanta Kumari was really a new business and not a continuation of the old business. The second ground urged is that even if it is not a new business, the respondents are estopped from contending that it is a new business. Thirdly it is said that even if it is regarded as a continuation of the old business, the borrowing from the firms of Kalicharan was not for legitimate family purposes. The fourth ground on which the decision of the Subordinate Judge is challenged is that as Basanta Kumari lost very heavily in respect of businesses in Jute and Chilli started by herself, the reversioners are not liable as it has not been shown from which fund the losses were met, and lastly it has been urged that even if all the four above recited grounds fail, plaintiffs can hold the assets of the Iswar Chandra Basanta Kumari firm liable and not the other properties. In other words it is said that on the face of the plaint (Ka) schedule properties are not liable.
7. The second ground, namely that of estoppel, may be disposed of first. This ground is based on the proceedings in a suit which was started by Basanta Kumari in 1917 against the present plaintiffs for dissolution of partnership and account and for partition of innumerable properties. The claim was laid at four lakhs of rupees. The suit was ultimately numbered as Suit No. 487 of 1920 of the Sub-Judge, Sixth Court, Dacca. It is said that in that suit the plaintiffs (who were defendants) took the plea:
That it was decided by the arbitrators that the old Lahana business would be wound up and new businesses on the line would be started by the parties both at Calcutta and Savar: (see Paper book Part II, marked B, p. 149, line 30);
and issue 23 was to the effect 'whether the money-lending business closed at the end of 1298 B. S. and the business distributed according to their share3 between the parties in the course of their being wound up as is alleged in the written statement.' It is said that on this plea the suit of Basanta Kumari was dismissed, it being found that:
All the parties thought it necessary to have Lahana Tahvils at Savar and Calcutta. So it was found convenient to wind up the old Kar-bars and to allow the parties to start new Karbars in both the places.
8. It is argued that after having got Basanta Kumari's suit dismissed on this ground, the plaintiffs cannot now turn back in this suit and plead that the Iswar Chandra Basanta Kumari business is a continuation of the old business. They cannot, it is argued, approbate and reprobate. Whether this decision operates as res judicata or not, it is clear that the plaintiffs should not be allowed to take up a position inconsistent with that taken up in the Suit No. 487/20. At any rate that decision is very strong evidence to show that there had been a partition of the old business and Basanta Kumari got one-third share of the Calcutta money-lending business. The plaintiffs should not be allowed to go back on the position that there had been a dissolution of all the old joint Karbars; but the question as to whether notwithstanding the dissolution of the old Karbars or rather the division of Jorabagan Karbar into three shares had the effect of making the new Karbar in Basanta Kumari's name
not a continuation of her inherited Karbar in the sense that it was an altogether new venture was not in issue in this suit of Basanta Kumari.
9. On the other hand, the following passage in the judgment of that case at p. 174, line 30 of the Paper book Part II marked B that:
the entries together with the note made apparently on the representation of the parties concerned clearly go to show that the old firm of Motilal Iswar went into liquidation and the two separate firms of Adhar Mohesh and Iswar Basanta Kumari rose out of the ashes of the firm,
would rather seem to suggest that the new Karbar of Basanta Kumari was regarded as a relic of the old joint business. The estoppel available against plaintiffs is available to the extent of preventing them from urging that there had been no partition of the Karbars and does not preclude them from urging that the effect of the division is not to make it a new karbar which had no connexion with the past-one of Basanta Kumari's own creation. It is a well accepted principle that a party cannot both approbate and reprobate. He cannot at the same time blow hot and cold. The plaintiffs cannot say at one time that there had been a partition of the joint karbar and at another say that there had been no partition, but they can certainly canvass the question of the effect of the partition.
10. I will now deal with the first ground taken, namely that the firm of Iswar Chandra Basanta Kumari was really a new business. In support of this contention apart from the finding in the judgment of suit No. 487/20 to which I have already referred, it has been strenuously contended by Mr. Mitter that the admitted fact that the business of the new Iswar Chandra Basanta Kumari was being carried on side by side in the same house at Jorabagan with the old joint karbar shows beyond doubt that the former was a new business, that there has been a cessation of continuity of the old business and if money was necessary for carrying on this business, the reversioners are not liable. Reference has also been made to the letters Exs. 2, 3 and 4 (Paper book Part 2, marked B, p. 43) as supporting the case that Durga Charan was to collect the debts of the old firm and distribute the same to the partners. The first letter Ex. 2 is dated 26th Chaitra, 1298 and stress is laid in particular on the deposition of one of the plaintiffs, Krista Chandra to show that Basanta Kumari got about a lakh of rupees in 1298 and 1299 from the money lending business at Shabar and Jorabagan: see paper book marked A, p. 35, lines 17 to 20, to show that with this money she started the new money-lending business. It is argued for the respondent that this deposition is not to be construed to mean that Basanta Kumari got a lakh in cash, she got it from the debtors who were allotted to her share on division and the respondent has referred to certain entries in the books of debtors of the joint firm to show this allotment of one-third of the debts due from debtors of the firm to Basanta Kumari on the one hand and two-thirds to her husband's brothers on the other. Reference has been made in support of this fact to Exs. 14 (a) and 14 (b), a book of the firm of Nilmohan Kailas Chandra Shaha paper book marked (B, pp.55, 56 and 57,) and to Ex. 45 (b), book of another firm Radhikamohan Shaha regarding a debt of Rs. 8,079-10-0 and to 45 X (a), p. 1-A Book C and Book D, p. 19 (Ex. 6.E). Krishnachandra says further:
The arbitrators prepared a list about the allotment of Paikars, Beparis and debtors. I do not know where the list is.
11. It is argued that the plaintiffs have been considerably handicapped by the non-production of the books of the year 1299 by the defendants which would have shown that the sum of one lakh was received by Basanta Kumari not in cash but by the allotment of one third of the debts of debtors of the firm from whom the sums were realized. The deliberate withholding of the books by the defendants makes us suspect that the books if produced would have supported plaintiff's case; indeed it would be a legitimate in ference to draw that the books if produced would have destroyed defendants' case. Much reliance has been placed on behalf of the appellant on the previous deposition of plaintiff Kristo Chandra, Ex. K, p. 139, Book B, line 40 where he stated
the plaintiff (Basanta Kumari) also started separate karbar of hers at Calcutta;
the old Lahana Tahabil was entirely stopped and on realization of its dues, one-third was given to the plaintiff and two-thirds to Adhar and Mohesh,
but this witness says in the very next line
the old Lahana Karbar at Calcutta was stopped, one-third of the Paikars was given to the plaintiff and two-thirds being given to Adhar and Mohesh: (p. 140, Book B.)
12. So the effect: of the evidence of this kind is to my mind this: that the old karbar was divided and out of the nucleus of the old karbar, the present Is-war Chandra Basanta Kumari business was started. The evidence of Chand-mohan in the previous suit No. 487/20 (Ex. H), Book B p. 126, has been relied on to show that both the karbars, namely, Ijmali firm and Iswar Chandra Basanta Kumari new firm were in the same Gadi. That is not exactly what he says. He first refers to the new La-hana firm of Basanta Kumari and the new Lahana firm of Adhar and Mohesh and then says:
Both the karbars were carried on in the same premises No. 2, Jorabagan, and from the same Gadi, the two firms were in two sides of the same Gadi. The old ijmali Lahana Tahbil was in the same Gadi.
13. This evidence does not mean that the old ijmali Lahana firm was continuing; it has been wound up and with a view to winding up an office had still to be kept. The net result of the evidence is that this ijmali money-lending business was divided into two money-lending businesses. The business does not cease to be an inherited business merely because of the division of the business into two parts. The distinction between an ancestral business and a new business is pointed out by Sir Lawrence Jenkins when delivering the judgment of their Lordships of the Judicial Committee in the case of Sanyasi Charan v. Kristodhan AIR 1922 P C 237. In that case, the appellant, a minor and his four adult brothers formed a joint Hindu family governed by the Dayabhaga. The family owned two ancestral businesses. The adult brothers started and carried on a new business and were declared insolvents under the Provincial Insolvency Act, and it was held that the Karta of a joint family cannot impose on a minor member of it the risk and liability of a new business started by himself and other adult members. Sir Lawrence Jenkins said this:
The distinction between an ancestral business and one started like the present after the death of the ancestor as a source of partnership is patent. In the one case these relations result by operation of law from a succession on the death of an ancestor to an established business with its benefits and obligations. In the other, they rest ultimately on contractual arrangement between the parties.
14. Applying this principle to the present case, it appears clear that the business descended to Basanta Kumari by inheritance and did not lose the character of an inherited business by mere division among the co-sharers. This business cannot be regarded as a new business. In a later case where the facts are slightly different, it was pointed out by their Lordships of the Judicial Committee, after adverting to the fact that one of the partners retired from the partnership business that
nor did the fact that Kalyan Mal had ceased to be a partner with the joint Hindu family in the business, and that the name was changed, have the effect of converting the business which theretofore had been carried on for the benefit of the joint family into a new business: Ram-krishna Murarji v. Ratan Chand
and again their Lordships said: that is another way of stating the dissolution of partnership which occurred when Kalyanmal retired from the partnership, which consisted of the two partners Kalyanmal and the joint Hindu family. It did not necessarily mean that the business carried on in the name of the old partnership came to an end (p. 183 of 58 I A).
15. There was no break of continuity in the business. Instead of the business being carried on by Adhar, Mohesh and Basanta Kumari together, the first two carried on the business to the extent of two-thirds and Basanta Kumari dealt with the remaining one-third of the business. This disposes of the first ground and we are of opinion that this ground must fail, and we agree with the conclusion of the Subordinate Judge on this point.
16. The third and fourth grounds are taken up together. It is argued that even if it is a continuation of the old business, the plaintiffs must show that the borrowing was for legitimate purposes and was necessary to carry on the business. It is pointed out that Basanta Kumari started two new businesses, one in chillis at Karimganj and the other in jute and both were speculative businesses and she lost heavily in these businesses and debited the loss to the money-lending business, and the inherited business was depleted of its funds, and if in such circumstances, the money-lending business had to borrow, such borrowings cannot affect the reversionary estate. It is argued that even in the case of an inherited business it is not any loan or commitment which would be binding on the estate, that it must be shown that the debts were not improperly incurred and that it is for the purchaser to show either that there was pressing necessity for the loan or that there was inquiry by the lender about the legitimate purposes of the loan. It is said that there is no evidence in this case that any such inquiry was made. It is argued that a distinction has been drawn between the powers of a Hindu widow and the manager of a joint family to bind the estate by bor-rowing for trade purposes and reference is made to the following passage in Lord Davey's judgment in the case of Sham Sundar v. Achan Kunwar (1898) 21 All 71, at p. 189 (of 25 I. A):
The position of a Hindu widow or daughter is not by any means the same as that of the head of an undivided family.
17. I am of opinion with regard to this point that by these observations it was not intended to disturb the principle laid down in the ease of Rameswar Pershad v. Bun Bahadur Singh (1881) 6 Cal 843 that the ability of a widow to charge the in-heritance so as to affect it in the hands of reversioners is judged by the same principles as are applicable to a charge fay manager, for as Sir Lawrence Jenkins points out in Sakrabhai v. Magan Lal (1902) 26 Bom 206 (at p. 249) that it appears from the rest of the judgment that as in the case of a manager so in relation to a widow the touch-stone is necessity. The borrowings in this case by Basanta Kumari, were made through her Ammuktar and Manager the son-in-law as will appear from the entries in the books of Kalicharan Roy Chowdhury pp. 67, Book B, pp. 81-95, Book B. It is settled now that the managing member of a joint family business has authority to raise money not only for the payment of debts incurred in the course of such business but also for the purpose of carrying op the business. As Sir John Wallis delivering the judgment of the Judicial Committee in the case of Niamat Rai v. Dindayal observed, after adverting to the rule that the onus was on the purchasers to show that the sale by a managing member of a joint family business was justified:
that it is within the powers of the managing member in a proper case to sell immoveable as well as moveable property for the purpose of discharging such debts in enabling the business to be carried on.
18. The Subordinate Judge has given very cogent reasons for holding that the debts of business incurred by Basanta Kumari were properly incurred and with those reasons we entirely agree. The nature of the money-lending business was such that money used to be borrowed at small rates of interest from capitalists and lent at higher rates and in this way large profits used to be made. The condition of the business was indeed very good till 1315 B. S. and out of these profits defendants 1 to 4 and their father used to be maintained. The business declined after 1315 and had to be closed in 1322 or 1323 B. S. The deliberate-withholding of the books by the defendants had made it impossible for the Court to come to a conclusion on the question as to bow the condition of the business changed for the worse. At the time when Basanta Kumari inherited this business it was in a flourishing condition and its condition improved with the good management of the father of the contesting defendants It was in these circumstances not obligatory on Basanta Kumari to close the old joint family business. It is now settled be-yond controversy that a trade or business belonging to the husband is heritable by the widow and she is entitled to carry it on: see Pahalwan Singh v. Jiwan Das AIR 1920 All 345. She carried it on suc cessfully for years and when ultimately it became necessary for her to borrow certain sums of money for carrying on the business, it cannot be said that the borrowing was not for necessity. As pointed out by the Subordinate Judge, the accounts show that Rs. 1,62,000 were taken in several instalments from the business in 1301 and Rs. 1,50,000 were-repaid in several instalments in the same year, that moneys were taken and repaid in several thousands year after year, that the balance of debt in 1315 amounted almost to a negligible sum, that the amount of debt rose to more than Rs. 15,000 in 1318 B Section and 1319 and the transactions were stopped in 1321. In there circumstances, it can-not be said that the borrowing was not for necessity and was not prudently incurred. For these and other reasons given by the Subordinate Judge, we are of opinion that the conclusion arrived at by the Subordinate Judge is right and these two grounds of appeal must fail.
19. In support of the fifth and the last ground it has been said that as the plaint distinctly states in para. 12 that Ka schedule properties were the properties which descended independently of the money-lending business from Iswar, the sale of Ka properties cannot be justified for they do not constitute assets of the Iswar Basanta Kumari business and reliance has been placed on two decisions Sakra Bhai's case (1902) 26 Bom 206 and Pahla-wan Singh v. Jiwan Das AIR 1920 All 345 in support of the proposition that trade debts properly incurred by the widow on the credit of the assets inherited by her from her husband are recoverable after her death out of the assets of the business as against the reversioners who have succeeded thereto even in the absence of a specific charge on the estate. This point was not raised in the Court below, no issue was joined on it and it has not even been taken in the grounds of appeal in this Court. Speaking for myself, I consider it a principle of wisdom and prudence that the Court of final appeal should be very chary of entertaining an argument which has not been sifted in the Court below on the question more particularly when there is no complete uniformity of opinion in all the Courts in India. The learned advocate for the respondents has referred to a decision of the Madras High Court reported in the unauthorized reports Maniyam Kuppanna Gounden v. Kuppana Goundan AIR 1916 Mad 14 where it has been held that the liability is not limited to the assets of the business but binds the entire reversionary estate. It seems also that in Sakrabhai v. Maganlal (1902) 26 Bom 206, Sir Lawrence Jenkins was careful enough to say,
that his answer to the reference is more qualified than the question proposed, but that is because before us the case has been argued on the basis that what is stated in the answer is sufficient for the purposes of the case.
20. The question proposed was whether in the absence of a specific charge the trade debts properly incurred by a Hindu widow for the purposes of a business to which she has succeeded as the heiress of her deceased husband are recoverable after her death out of the family property, or any apart thereof, as against the reversioners who have succeeded thereto. And the answer was in the qualified form as stated by Sir Lawrence Jenkins because it was not necessary to answer the larger question in the circumstances of that case. The Allahabad case merely follows the Bombay decision, and here again all that was necessary to be considered was the question of resale of property not inherited from her husband but purchased by her in the course of business. Mr. Mitter has argued that the Madras decision is wrong. I cannot say that I have found this point free from difficulty or that my mind has not been in suspense during a considerable part of the argument as to whether this point should be allowed to prevail; but after giving the best consideration to the matter,' I am of opinion that the point should not be entertained not having been submitted to the Court below and not having been raised in the grounds of appeal here, specially as there is conflict of opinion on the point and the Bombay case does not really touch the present question as the answer to the larger question was in the qualified form. Besides it appears from the evidence that Iswar had immoveable property only of the value of Rs. 125 and it may be that this property Ka was acquired out of the profits of the joint money-lending business of Iswar and his brother which descended to the widow. The facts have not been investigated and the argument on this point suffers from the infirmity that necessarily attaches to a belated plea advanced for the first time when the stage for investigating the necessary facts had passed. The defendants have trusted too much to the abstract doc-trine of the burden of proof which is on the plaintiffs and have not produced the documents in their possession which would have thrown fuller light on the questions at issue in this case. The result is that all the points raised by this appeal fail and the appeal must be dismissed with costs.
21. I agree and would only add a few words regarding the very difficult question raised with regard to the Schedule Ka properties. As at present advised I should be inclined to hold that the decision of the learned Subordinate Judge on this point was correct. But in my view it is not necessary to decide the point in this case. While the properties in Schedule Ka are said to have been acquired out of the business during the lifetime of Basanta Kumari's husband, the other properties were acquired during the management of Basanta Kumari herself. If I have understood the argument of the reason-dent's advocate this distinction correctly was made by the plaintiffs not because they have any doubt as to the liability of the properties in Schedule Ka but because they wanted to argue that even if it be held that Basanta Kumari started a new business, all the properties in Schedule Ka would still be liable. As we have come to the conclusion that Basanta Kumari did not start a new business, I do not think the question arises.