Patna High Court
Gobind Dubey And Ors. vs Parmeshwar Dubey And Ors. on 27 April, 1921
Equivalent citations: 62IND. CAS.83, AIR 1921 PATNA 487(2)
JUDGMENT Das, J.
1. This appeal is directed against the final decree made by the learned Subordinate Judge in a suit for partition; and there is a cross-appeal in regard to Plot No. 1397 which it will be convenient to dispose of first. Plot No. 1397 happens to be the only khalihan in the neighbourhood, and Mr. Kulwant Sahay complains that it should not have been allotted wholly to the plaintiffs, Mr. Susil Madhab Mullick agrees to give to the respondents two-thirds of Plot No. 1397 on the respondents' giving to his client 10 1/2 cottahs from the western side of Plot No. 1867 which has been allotted to the respondents. The actual partition made by the learned Subordinate Judge is, by consent of the parties, modified to this extent. Subject to this modification, the partition made by the learned Subordinate Judge will stand.
2. I now come to the appeal, and the only substantial question that arises for discussion is, to what sum, if any, are the plaintiffs entitled as their share in the savings effected from the income of the joint family properties? In passing the preliminary decree, Fletcher, J., in the Calcutta High Court, said as follows:--"The result of these authorities I think is that in an ordinary suit for partition, in the absence of fraud or other improper conduct, the only account the Karta is liable for is as to the existing state of the property divisible. The parties have no right to look back and claim relief against past irregularity of enjoyment of the members or other matters." His Lordship then made these significant observations: "But of course this does not mean that the parties are bound to accept the statement of the Karta as to what the properties consist of. That would not be an account at all. The Karta is the accountable tarty and the enquiry directed by the Court must be conducted in the manner usually adopted to discover what in fact the property (not what the Karta says it) now consists of." In the result his Lordship, with the concurrence of Richardson, J., directed an account to be taken as to the existing state of the joint family property.
3. These observations made by the learned Judges of the Calcutta High Court were completely misunderstood by the Commissioner who was appointed to take the account. He took the view that he had no power to take an account of the income and disbursements as in an enquiry for mesne profits. From one point of view the Commissioner was quite right, the Karta of a joint Mitakshara Hindu family is not accountable for the rents, issues and profits which came into his hands during his management of the properties as Karta. But he is still bound to keep true and correct accounts and to show the savings effected from the income of the joint family properties. Now in this case the defendant No. 1, who was the Karta of the joint family properties, has suppressed his books of account with the result that it is impossible to discover what are the savings effected from the income of the joint family properties. The only possible way, therefore, to discover those savings is to see what was the income of the joint family properties and what expenses were incurred by the joint family year by year. The enquiry directed by the Calcutta High Court was, in my view, an enquiry charging the defendants with the utmost value of the whole net produce deducting therefrom what is proved by the defendants to have bean spent for the joint family. Such an enquiry is always directed against trustees and agents who do not keep true and faithful accounts: See Lupton v. White (1808) 16 Ves. 432 : 83 E.R. 817 at p. 820 : 10 R.R. 94; Gray v. Haig (1854) 20 Beav. 219 : 52 E.R. 587 : 109 R.R. 396. The rule is founded on the principle that every presumption consistent with established facts ought to be made against a trustee or an agent who, by his tortious acts, has made it impossible for the plaintiff to discover his property, I am aware that a Karta of a joint Mitakshara Hindu family is neither a trustee nor an agent in the strict sense of those terms; but, as it is his duty to conserve the joint family properties and to disclose those properties to the members of the joint family at the time of partition, there is no reason why we should not apply the rule stated above in his case. This method of investigation is hardly a satisfactory one, and may even lead to injustice so far as the Karta is concerned; but it is well to remember the principle on which the Court acts in dealing with one who occupies a position of trust and confidence. That principle was stated in these words by Sir John Romilly in the case last cited; "It cannot, however, be too generally known or understood, amongst all persons dealing with each other, in the character of principal and agent, how severely this Court deals with any irregularities on the part of the agent, how strictly it requires that he, who is the person trusted, shall act in all matters, relating to such agency, for the benefit of his principal, and how imperative it is upon him to preserve correct accounts of all his dealings and transactions in that respect, and that the loss, and still more the destruction of such evidence by the agent, falls most heavily on himself."
4. The learned Subordinate Judge adopted this method of investigation in theory; but in practice he departed from it, in so far as he throughout accepted the mere statement of the Karta as to the produce; and there is a glaring mistake as to the nagdi income, with which we shall have to deal. We think there has been such a failure of justice in this case that the matter must be re investigated; but, in order to avoid further difficulties in the matter, we have thought it right to deal with the whole matter, leaving only the question of calculation to the officer to whom we propose to remit this matter.
5. It is necessary first to ascertain the income of the properties year by year from the date when defendant No. 1 became the Karta of the joint family, that is to say, from 8th Sawan 1283. Now, the income falls under six different heads, (1) Zerait, (2) Kalam Bag, (3) Jalkar, (4) Kharor, (5) Nagdi, (6) Bhawli. So far as zerait lands are concerned, we are satisfied that there are 132 bighas in the possession of the family and not 128 bighas as found by the learned Subordinate Judge. We are, however, not prepared to dissent from the learned Subordinate Judge that Rs. 20 per bigha is the probable gross income per year from the zerait lands. In order to as certain the net income there must be a deduction of one third for costs of cultivation. So far as kalam bag, jalkar and kharor are concerned, we accept the figures given by the learned Subordinate Judge.
6. We now come to the income of the nagdi lands. The properties yielding nagii income are all set out at page 192 of the paper book and the officer must ascertain the rent recovered by the family from these properties from the date of their respective acquisitions. The defendant No. 1 has undertaken to produce the khatians of these properties and in ascertaining the nagdi income the officer must proceed on the basis of the khatians. If defendant No. 1 does not produce the khatians, then the plaintiffs' evidence on this point must be accepted. The officer will be at liberty to examine one of the plaintiffs farther on this point. In order to ascertain the net income there must be a deduction for Government revenue, cesses and such collection charges as may appear reasonable to the officer. There are two matters in this connection which deserve special mention. It appears that the family was in possession of a lease hold interest in Touji Nos. 351 and 354 from 1293--1297 of which the yearly profit according to defendant No. 1, was between Rs. 800 and Rs. 1,000 per year. Mr. Susil Madhab Mullick argued that in taking the accounts the Court ought to take note of the profits which accrued to the family from this leasehold property. But we are satisfied that this ought not to be done, as the whole of it was utilised by the Karta for the acquisition of one of the admitted joint family properties. The officer, therefore, will not credit the family in the taking of the accounts with the profits derived from Touji Nos. 351 and 345 from 1293 to 1297. The other matter which we desire to note is this: It appears that the family leased out to Dholi factory the properties which they had purchased on the 4th July 1897, for which the factory paid to the family Rs. 1,439 net. These properties are Items Nos. 5 and 6 set out in Schedule I of the Commissioner's report (See page 192). It is admitted that the plaintiffs have received their proportionate share of the rent paid by the factory for some years. In taking the accounts the office will credit the joint family with the rent paid by the factory during the years, if any, in which the plaintiffs did not receive their share of the rent.
7. We now some to the question of the bhawli rent, and, in dealing with this question, we are only concerned with Nonphara which was acquired by the family on the 27th May 1897. We are satisfied that the family has 35 bighas of bhawli lands in this Mouza and that the income derivable from these lands may safely be calculated at Rs. 20 per bigha. As the family would probably be entitled to half the produce, the officer, in taking the accounts, must credit the family with Rs. 350 per year under this head from 27th May 1897.
8. The next question which we must consider is, was there a money-lending business of the joint family? The plaintiffs assert in the plaint that there was such a business and that they are entitled to an account of the profits of that business. The defendants not only do not deny in the written statement that there was such a business, but, in our view, they expressly admit it. Thus, in the 9th paragraph, they say that their monetary transactions are wholly separate from the plaintiffs. In the 15th paragraph they deny that the outstandings in cash and kind are joint, but they do not deny in the written statement that there were outstandings to which they were entitled. In the 23rd paragraph they say that the amount of outstandings in cash and in kind, as stated by the plaintiffs, is "wrong, incorrect and imaginary and very much exaggerated and that no item of the outstandings relates to the time before the partition alluded to above." The partition referred to in this paragraph is a partition which the defendants allege in the written statement to have taken place between the parties, and their contention in the 23rd paragraph is that their money-lending business commenced after the partition which they allege in the written statement. That partition has been disbelieved by the Court. In my view, the defendants have admitted in the written statement that they have a money-lending business, though they have denied, having regard to their case that there was a complete partition between them and the plaintiffs in Aghan 1305, that the plaintiffs have any share in that money-lending business or that the extent of the business stated by the plaintiffs is correct. The only other matter which I ought to refer to in this connection is that the Commissioner has some to the conclusion that there is a money-lending business in the family. Having regard to the pleadings in the case and the evidence to which the Commissioner refers and the finding of the learned Commissioner, there can be no doubt whatever that the defendant as the Karta of the family carried on a money-lending business with joint family funds in his hands.
9. The defendant's case as to partition in Aghan 1305 having failed, it must be held that the plaintiffs are entitled to a share in the money lending business as part of the joint family properties. But having regard to the attitude taken up by the defendants, it is plainly impossible to determine what the value of that business is. In these circumstances the only reasonable way of dealing with this matter would be to assume that the defendant, as the Karta of the joint family, must have invested the net income derivable from the properties less the expenditure in each year, in the money-lending business and to charge the defendant No. 1 with interest at such a rate as in the opinion of the Court fairly represents the profits usually made by the employment of money in such a business. Burdick v. Garrick (1870) 5 Ch. 233 : 39 L.J. Ch. 869 : 18 W.R. 387. We direct the officer to whom we propose to remit this matter to calculate interest at the rate of 6 per cent. per annum on the net income derived from the joint family properties less the joint family expenditure each year.
10. The last point is as to the expenditure of the joint family. The defendant himself says that the family expenses amount to Rs. 1,200, per year. We accept this figure. Then the expenses incurred for marriages in the family and for buying properties must be taken into account. But with regard to Janta an exception must be made. It will appear on reference to the evidence of Parmeshvar Dubey that the consideration for the conveyance of this property was the debt due by the owners of that property to the joint family. The original advance was made by the father of the defendant No. 1, and Parmeshvar himself says that he advanced to the owners of this property all the profits which the family derived from the leasehold interest in Touji Nos. 351 and 354 from 1293 to 1297. We hold that in taking the accounts the consideration for the acquisition of Janta will not be taken note of.
11. With the consent of the parties we remit this matter to the learned Deputy Registrar of this Court and direst him, after hearing the parties and taking such evidence as is necessary, to prepare an account of the income and expenditure of the joint family for every year from the date the defendant No. 1 became the Karta of the joint family up to the date of his signing the report. He will report to us, what on the taking of these accounts, are the savings effected from the income of the joint family properties, allowing interest at the rate of 6 per cent. per annum throughout on the net income derived from the joint family properties less the expenditure in each year. He will proceed with this enquiry with all convenient speed and will have power to take our directions if any difficulty arises.
12. There only remains the question of debts incurred by the plaintiffs. Mr. Susil Madhab Mullick urges that as these debts were incurred for maintaining themselves and for meeting marriage and sradh expenses, they should come out of the entire estate before the estate can be partitioned between the members of the joint family. We do not admit that the plaintiffs were entitled to pledge the credit of the joint family properties for the purpose of maintaining themselves. They cannot, by merely walking out of the family, throw an unnecessary burden on the joint family properties. But they are entitled to the expenses incurred for arriages and sradhs, and we direct the m rned Deputy Registrar to enquire and lea report as to what is the total sum of money due by the plaintiffs in respect of loans incurred by them for meeting the expenses of marriages and sradhs.
13. Let this case be put up before us for final disposal as soon as the report of the learned Deputy Registrar is ready, when we will consider the question of costs.
Ross, J.
14. I agree.