Patna High Court
Ganpat Rai Marwari And Ors. vs Sukhdeo Ram And Ors. on 30 November, 1937
Equivalent citations: 174IND. CAS.218, AIR 1938 PATNA 335
JUDGMENT Wort, J.
1. This is an appeal by the plaintiffs arising out of an action claiming against the defendants, who are alleged to have been members of a joint Hindu family business, a sum of Rs. 12,381 on a hat-chitha. The learned Judge in the Court below has given judgment in favour of the plaintiffs against one Sukhdeo Ram who is the first defendant on the record.
2. The family of which Sukhdeo was a member, consisted of himself and his brother and two sons of his brother Mahadeo Mahadeo died in the year 1930 before this suit was brought. The purpose of this appeal is to obtain a decree against the two sons of Mahadeo who are minors. The learned Judge in the Court below has came to the conclusion in a finding, which is not contested, that the business was not the ancestral joint business of the defendants. He has also come to the-conclusion again a finding which is accepted--that there was nothing in the evidence to show that the business grew from the joint family property or that its earnings were blended with the joint family estate: I am using the words of the judgment of the learned Judge in the Court below.
3. But it is contended by Dr. Mitter on behalf of the plaintiff-appellants that the business was a joint family business, the fact being that Sukhdeo and his brother Mahadeo, before the minor defendants were born, had started this business. Reliance is placed upon Rampershad Tewary v. Sheochurn Doss 10 M.I.A. 490 : 2 Sar. 177, for this contention. The question there decided, however, was primarily a question of fact and at the most a question of mixed fact and law, but no question of principle was decided. The action was an action for partition and the question arose whether the business was joint family property. It was held that it was. The five brothers had all joined in the conduct of the business and the profits accruing had been thrown into hotch pot. Dr. Mitter also relies upon an observation of their Lordships of the Judicial Committee of the Privy Council in the case of Benares Bank Limited v Hari Narain 59 I.A. 300 : 137 Ind. Cas. 781 : Ind. Rul. (1932) P.C. 220 : 36 C.W.N. 826 : A.I.R. 1932 P.C. 182 : 34 Bom. L.R. 1079 : 55 C.L.J. 583 : 9 O.W.N. 599 : (1932) A.L.J. 714 : 36 L.W. 56 : 63 M.L.J. 92 : (1932) M.W.N. 788 : 13 P.L.T. 491(P.C.). There, members of a Mitakshara family, purporting to act on behalf of themselves and their minor sons, mortgaged certain family properties. Amongst the debts for the liquidation of which this mortgage was entered into, was a sum of Rs. 3,658 which was used in what was described as a thika business which had been started by certain members of the family. Amongst the properties mortgaged under the mortgage deed were certain properties in Allahabad and Manjhiari, and with regard to these, their Lordships made this observation which is relied upon:
As to the Allahabad and Manjhiari properties, their Lordships were told by Counsel for the bank that they were worth a good deal more than the amount claimed by the bank, and that if it were held that they belonged to Jagdish Narain and Raghubir Narain, it would be unnecessary to consider the questions arising on the items of Rs. 6,342 and Rs. 3,658.
4. Then their Lordships proceed to say:
This, no doubt, correctly represents the legal position, but their Lordships are unable to hold upon the facts that these properties belonged to the two brothers.
5. I fail to understand how the passage which I have read assists Dr. Mitter in his argument. The passage means exactly what it says and nothing more, namely, that if the properties referred to there belonged to the two brothers, who were the mortgagors, as separate properties and that these properties being of greater value than the debt, the Bank would be able, to recover the whole debt by the sale of these two properties, and the question whether these two properties, as joint properties of the family, could be charged with the sum of Rs. 3,658 used in the thika business started by some only of the members of the family, would not arise. But in my judgment the decision of their Lordships in dealing with the item of Rs. 3,658 is pertinent to the matter with which we have to deal. Speaking of this item their Lordships say:
It was urged on behalf of the bank that the business was ancestral and that the minors were liable for the debt to the extent of their interest in the joint family property. On the other hand, it was contended that the business was the personal business of Jagdish Narain and the family had no interest in it. Their Lordships have examined the evidence, and they consider that the business was started by Jagdish Narain and Raghubir Narain as managers of the family. The business, therefore, cannot be said to be ancestral so as to render the minors' interest in the joint family property liable for the debt.
6. As I have said Dr. Mitter contends that, the business was the joint family business. The expression 'joint family business' is frequently used as synonymous with "ancestral business"; that I think is clear from the decision in Abdul Majid Khan v. Saraswati Bai 61 I.A. 90 : 147 Ind. Cas. 1 : 10 O.W.N. 1281 : 6 R.P.C. 48 : 66 M.L.J. 65 : 39 L.W. 72 : 58 C.L.J. 548 : (1934) A.L.J. 79 : A.I.R. 1934 P.C. 4 : 15 P.L.T. 99 : 35 P.L.R. 10 : 30 N.L.R. 60 : (1934) M.W.N. 4 : 36 Bom. L.R. 225 : 38 C.W.N. 201 :17N.L.J. 1(P.C.). It is with regard to a debt incurred for an ancestral business only that the minor members of the family or their shares in. the joint family property are liable. This is clear from the decision of the Privy Council in the Benares Bank case. A further passage in that judgment puts the matter beyond doubt. I read that passage in connection with the argument addressed of us by Dr. Mitter that the fact that the two brothers started this business constitutes it a joint family business. With regard to a similar argument in the Benares Bank case, their Lordships made this observation.
Next it was argued that a business started by the father as manager, even if new, roust be regarded as ancestral. Their Lordships do not agree. It is in direct opposition to the ruling of the Board in Sanyasi Charan Mondal v. Krishnadhan Banerji 49 I.A. 108 : 67 Ind. Cas. 124 : 30 M.L.T. 228 : 20 A.L.J. 409 : 24 Bom. L.R. 700 : 35 C.L.J. 498 : 43 M.L.J. 41 : (1922) M.W.N. 364 : 49 C. 560 : 26 C.W.N. 954 : 16 L.W. 536 : A.I.R. 1922 P.C. 237(P.C.). The judgment in that case proceeded on the broad ground that the manager of a joint family has no power to impose upon a minor member of the family the risk and liability of a new business started by him.
7. The fact, that the minor members were not born at the time that the business was started, in my judgment, makes no difference in this case; and in this connection I would observe that the hat-chitha upon the footing of which judgment is sought to be obtained was during the life-time of the minor defendants. On the findings of the learned Judge in the Court below, it seems to me that it is quite clear that this business could not be rightly described as ancestral business. That being so, the bare fact that the principal defendant and the father of the other defendants started it, would not impose a liability upon the minor defendants.
8. It is next contended that the plaintiffs are entitled to a decree such as was asked for in the Benares Bank case to which I have already made reference. It was there contended, and it is here contended by Dr. Mitter that the plaintiffs are entitled to a decree for sale of the minors' interest in execution on the principle of the second proposition in Brij Narain v. Mangla Prasad 51 I.A. 129 : 77 Ind. Cas. 689 : 21 A.L.J. 934 : 46 M.L.J. 23 : 2 P.L.T. 1 : 28 C.W.N. 253 : (1924) M.W.N. 68 : 19 L.W. 72 : 2 Pat. L.R. 41 : 10 O. & A.L.R. 82 : A.I.R. 1924 P.C. 50 : 33 M.L.T. 457 : 46 A. 95 : 26 Bom. L.R. 500 : 11 O.L.J. 107 : 1 O.W.N. 48(P.C.). But in this case, as in the Benares Bank case 59 I.A. 300 : 137 Ind. Cas. 781 : Ind. Rul. (1932) P.C. 220 : 36 C.W.N. 826 : A.I.R. 1932 P.C. 182 : 34 Bom. L.R. 1079 : 55 C.L.J. 583 : 9 O.W.N. 599 : (1932) A.L.J. 714 : 36 L.W. 56 : 63 M.L.J. 92 : (1932) M.W.N. 788 : 13 P.L.T. 491(P.C.),the case made out in the plaint is quite contrary to this contention and would raise questions of fact which have not been gone into in this case.
9. In my judgment the appeal fails and must be dismissed with costs.
Manohar Lall, J.
10. I agree. In my opinion this appeal is concluded by the observations made by my learned brother in the case of Ganesh Prasad Singh v. Sheogobind Sahu 18 P.L.T. 796 : 173 Ind. Cas. 242 : 16 Pat. 719 : A.I.R. 1938 Pat. 40 : 4 B.R. 230 : 10 R.P. 393, where he reviewed all the relevant authorities on this subject.