G. NARAYANA RAJU versus G. CHAMARAJU & OTHERS

G. NARAYANA RAJU

G. CHAMARAJU & OTHERS

March 19, 1968

[J. C. SHAH, V. !lAMASWAMI AND G. K. MITTER, JJ.)

Hindu joint fami/y-Hotch Potch-Self acquisition when acquires characteristics of joint family property-concurrent finding that business is separate--SnprenJe Court lvill not interfere under Art. 133.

There is no presumption under Hindu l~w that business standing in the name of any member of the joint family is joint family business everi if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. [466 F-Hl

Bhuru Mal v. Jagannath. A.I.R. 1943 P.C. 40, Pearey Lal v. Nanak Chand, A.I.R. 19'48 P.C. 108, Chattanatha Karayalar v. Ramachandra Iyer, A.I.R. 1955 S.C. 799, referred to.

The separate property of Hindu coparcener ceases to be his separate property and acquires the characteristics of his joint family or ancestral property, not by mere act of physical mixing with . his joint family or ancestral property but by his own volition and intention, by his waiving or surrendering his special right in it as separat•e property, Mei-e recitals in deeds dealing w:th self acquisitions as ancestral joint family property is not by itself u.rfficient; but it must be established that there \Vas clear intention on the part of the coparcener to waive his separate property. [470 B-CJ

lfurourshad v. S!ieo Dyal, 3 I.A. 259. Lal Bahadur v. Kanhaiya Lal, 34 l:A. 65. Leh Mddun Go,al v. Khikhinda Kaer, 18 I.A. 9, Naina Pillai v. Daiyanai Ammal, A.J.R. 1936 Mad. 177, referred to.

\\ihete there is concurr~nt find'ng of both the lower courts that the bur,iness is scp:irate business and it is neith~r ?oint family business nor ~reated as joint family business, it is not open to further scrutiny by th~s Court under Art. 133 of the Constitution. [467 A-Bl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 613 of 1965.

Appeal from the judgment and decree dated March 25, 1960 of the Mysore High Court in Regular Appeal No. 155 of 1953.

V. Krishnamurthy and R. Gopalakrishnan, for the appellant.

H. R. Gokhale, B. Subbiah and R. Thiagarajan, for respon-dents Nos. 2 and 4.

The Judgment of the Court was delivered by

Ramaswami, J". The plaintiff G. Narayana Raju filed O.S. 34 of 1951-52 in the Court of District Judge, Mysore for partition and separate possession of suit properties mentioned in the vari-ous schedules of the plaint. The first defendant is the brother

A: of the plaintiff. The second defendant is the widow of M~ami Raju, tho eldest brother of the plaintiff. The third defc;ndant. is the· ·legal representative of the plaintiff's mother: She is ·now. the a_Ppellant having been brought bn record as the legal ·representa-tive of the deceased plaintiff. The case of the original plaintiff was that he, the first defendant and Muniswamj Raju (husband of the second defendant) were the sons. of one·Gopala Raju.and were all members of· the joint faniily. Gopalaraju died in May 1931 and after. his death the plaintiff and his brothers continued to be mel!lbers of the joint faniily. The joint status of the faniily was severed by the issue of registered notice by the first defen-dant to the' pJ.aintiff in July 1951. An ancestral house in Nazar-c bad belonging to the family was acquired 'by the ,City Improvement Trust Board in or about the year 1909 .. Out of the compensation paid for that house and supplemented by the earnings of the members of the joint family, the house item ,No. 1 of Schedule 'A' to th,e plaint was pµrchase!l by Gopalaraju in or about the year 1910. Subsequently item No. ·2 of Schedule 'A'. was also purchased by Go11alaraju from the income of item No. 1 ·suppl1>-D mented by the earr1ings_ of the. members of the family. All the other ·items of properties mentioned in Schedule 'A' and other Schedules attached to the plaint were acquired out of the income from items 1 and 2 of Schedule 'A'. It was further ,alleged that the business'known as "Arnbika Stores~ was also the joint family business and· all the properties mentioned in the Schedules except items 1 and 2 of Schedule 'A' were acquired out of the incorne-of the members of the family including the iricome fn;)m the b:.loine:s of Ambika Stores. The plaintiff accordingly claimed that he and the first defendant woul:I each be entitled to get 5/14t~s share and the second ·and third defendants would 'each be ent'tl<Y.! to get 2/14tl1s share. In the alternative the plaintiff pleaded that if for any reason the Court held" that the properties stand in the name o~ Muniswami Raju and were 'not acquired with the aid of the joint family nucleus, he and the second 4efendant were entitled to equal shares as co-owners of the joint family business. The suit was mainly contested by the second defendant who assert-ed that the properties mentioned in all the Schedules of the plaint were self-acquisitions of Mnniswami Raju and constituted his •e-G parate properti~s, It was alleged that Muniswami Raju was the only earning member of the family at the time of the acquisition of items 1- and 2 of Schedule 'A' properties and the plaintiff and the fi'8t defendant were employed in petty jobs in Wesley Press. Munis~ami Raju later on employed the plaintiff in his shop as salaried servant and the latter had no proprietary right in the business of Ambika Stores. After consideration of the oral and documentary evidence the District Judge held that the plaintiff, first defendant and Muniswami Raju were not divided and that the only property which was divisible, was item No. 1 of Schedule

SUPIU!MB cOVlT llllPO&Ts

'A' and there was not sufficient ancestral nucleus for acquisition of the. other properties and that all properties eJtcept item No. 1 of Schedule 'A' were the self acquisitions of Muniswami Raju, that Muniswlimi Raju never blended his properties with that of the joint family' that the plaintiff was only an employee under . Muniswami Raju and thetefore he was not entitled to the alter-native relief claimed by him. Accordingly, the District Judge grant-B ed preliminary decree holding that the plaintiff was entitled to 2/7ths share in item No. 1 of Schedule 'A'. 'Th: plaintiff took the matter in appeal to the Mysore High Court. By its judgment dated March 25, 1960 the High Court affirmed the decree of the trial court with the modification that besides item No. 1 of Sche-dule 'A' item No. 2 also should be held to be joint family property and the plaintiff was entitled to partition of his share in this item also. The High Court cancelled the direction of the District. Judge that the plaintiff should account for the moneys and properties of Muniswami Raju in his hands before he is given possession of his share.

This appeal is brought by certificate on behalf of the plaintiff from the judgment of the Mysore High Court dated March 25, · 1960 in R.A. No. 155 of 1953.

The first question to be considered in this appeal if whether the business of Atnbika · Stores was really the business of the joint family and whether the plaintiff was entitled to partition of his share in the assets of that . business. It was contended on behalf of the appellant that the business of Atnbika Stores grew out of nucleus of the joint family funds or at least by the efforts of the members of the joint family including the appellant. The conten-tion of the appellant has been negatived by both the lower courts and there is a· concurrent finding that the Atnbika Stores was the separate business of Muniswami Raju and it was neither the joint family business nor treated as joint family business. It is well-esta]>lished that there is no presumption under Hindu law that business standing in the name of any member of the joint family is joirit family business even if that member is the manager of the joint \family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the busi-ness remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as family business is question of fact.-{See the decisions of the Judicial Committee in Bhuru Mal V; Jagannath([1 ]) and in Pearey Lal v. Nanak Chand(') lllld of .this Court in Chattanatha Karayalar v. Ramachandra (I) A.I.R. 19431".C. 40. (ll A.J.R. 19481".C. 108.

Iyer}('). In the present cas(I there is concurrent finding of both the lower courts that the business of Ambika Stores was separate business of Muniswami Raju and it was neither joint family busi-ness nor treated as joint family business. The concurrent finding ot the lower courts on this issue is upon finding of fact and follow-ing the usual practice of this Court, it is not now open to further scrutiny by thi~ Court under Art. 133 of the Constitution.

It was, however, contended on behalf of the appellant that the find,ing of the lower .. courts is vitiated in law because of the circumstance that they have not taken into accoUJit three important documents, Ex. D, Ex. and Ex. DDD. We are unable to accept this argument as correct. It is manifest on pcr.:sal of tile judg-c ment of the High Court that all the documents have been examined regarding the issue whether the business of Ambika Stores was joint family business or whether it was separate business of Muni-swami Raju. As regards Ex. D, th" High Court has, after e11:amin-ing the evidence adduced, remarked that the mere fact that item No. 2 of Schedule 'A' was given as security by Muniswami Raju did not result in any detriment to the joint family property and it cannot therefore be held that the business of Ambika Stores grew out of the joint family funds or with the aid of the joint family funds. . On behalf of the appellant reliance was placed on the recitals in Ex. E, deed of mortgage dated July 26, 1928 executed by Gopalaraju, Muniswamiraju and the appellant in favour of the Mysore Bank. The property that had been mortgaged under this document is item No. 2 of Schedule 'A'. The recital is that the borrowing from the Bank was for the business and trade of the executants and for the benefit and use of their family. There is also recital in an earlier portion of the- document that the business was being carried on for the benefit of the family, but it is not quite clear as to whether this related to the business carried on by Narayana Raju or whether it was intended to relate to some business carried on by all the three executants. It is possible that the appellant had other business of his own carried on on his own account at that time and it cannot be assumed that the borrowing under Ex. must have been for the purpose of Ambika Stores. It should be noticed that Muniswami Raju has been described in the document as the proprietor of Ambika Stores which description is not consistent with the contention of the appellant that the business was joint family business. The High Court has, in this connec-tion, referred to Ex. I an application dated February 14, 1929 by the appellant to the City Co-operative Bank, Mysore wherein the appellant has said that he was getting decent earning by doing out-of-door commercial bu.~'ness with Ambika Stores. There is also the recital in Ex. I that Muniswami Raju was the proprietor of Ambika Stores. Having regard to this recital in Ex. I i• is not

en A.I.R.1953 !f.C. 799.

(1968] 3 S.C.R.

SUPREME COUJ.T REPORTS

.unlikely that the appellant had some business of his own at the material time and it cannot be assumed that borrowing under Ex. E, was for the purpose of Ambika Stores business only. The High Court has also dealt with the effect of Ex. DDD, mortgage d~ produced .on behalf of the appellant. It is true that in this docu-ment the appellant and Muniswami Raju have been described as proprietors of Ambika Stores. The finding of the High Court is that this recital was made in the document for the purposes of borrowing from the Bank. Reference was made in this context to J.etter dated May 5, 1931, Ex. 75 written by-Muniswami Raju as proprietor of Ambika Stores to the Bank of Mysore. In this lett:Gr, he has requested the Bank to take note of the fact that he has! authorised the appellant to accept drafts, and sign letters etc. on behalf of the firm. There is another J.etter, Ex. 76, dated April 14, 1934 written by Muniswami Raju to the Bank of Mysore wherein Muniswami Raju has been described as the proprietor of Ambika Stores and there ls an intimation to the Bank that .the appellant Narayana Raju was authorised to sign for the firm. In the context and background of these circumstances it is evident that though both the appellant and Muniswami Raju were· des-cribed as proprietors of Ambika Stores the description was only for the purpose of borrowing money from the Bank, as contended for by the respondents. In this connection the High Court has also taken into account Ex. 7 5 (b), Jetter written by Muniswami Raju. In this letter Muniswami Raju has described himself as the proprietor of Ambika s·ores and has instructed the Bank that he. has cancelled the authority given ·to the appellant to operate on his Current Account. with the Bank. It is therefore not possible for us to accept the contention of the appellant that the finding -0f •he High Court' that the bus'ness of Ambilca Stores was the ex-clusive business of Muniswaml Raju is vitiated in law.

On the other hand, it was contended on behalf of the respon-dents that the finding of the High Court is supported by proper evidence. The business of Ambika Stores was started by Muni-swamiraju as the proprietor thereof at time when Muniswamiraju himself· was comparatively well-off as result of bis partnership with Krishnaswamy Chetty & Co. In the year 1925 the partner-ship of Krishnaswailly Chetty & Co. was dissolved by document Ex. D. The enire business with all the assets ad liabilities was taken over by Muniswami Raju while the widow and son of Krish-naswari1y Chetty were given house estimated by the appellant himself at Rs. 3,000/- and furniture worth Rs. 400/-. Mliniswami Raju changed the· name of the shop after taking it over into Ambika Stores and continued the business as is apparent from Bxs. XVTII, XXVI and XXVI(A). There is also evidence that at the, time when· Ambika Stores was started other members of the family were not in financia:I llosition to make any oontributioµ to pur-

chase such business. The appellant joined Wesley Press in 1912 on salary of Rs. 8 or Rs. 9 p.m. and he was drawing Rs. 27 p.m. in 1927 when he resigned from the Press. The first defendant join-ed Wesle Press in 1910 on salary of Rs. 10 p.m. and he was continuing to work there till the institution of the present suit. The income of the property item No. 2 of Schedule 'A' was Rs. 15 p.m. and the income from pounding rice for which there is no satisfactory evidi:nce ~as also negligible. Therefore, the earnings of the members of the family other than Muniswami Raju were hardly sufficiently to maintain the family at the time when the busi-ness of Ambika Stores was started. The High Court has found that the family did not have sufficient nucleus and that Muniswami Raju was not partner of Krishnaswamy Chetty & Co. on behalf of the family but that he was partner in his own right. The High Court has observed that there is no evidence to show that the family supplied the money or that the family had enough means or that Muniswami Raju was representing the family when he start-ed the business of Ambika Stores. As we have already said, the finding of the High Court and of the District Judge is concur-D rent finding on question of fact and Counsel on behalf of the appellant ha~ been unable to make good his argument that the find-ing is vitiated in law on any account.

We pass on to consider the alternative argument put forward on behalf of the appellant, namely, that even if the business of Ambika Stores was started. as separate business of Muniswami Raju, it became converted at subsequent stage into joint family business. It was argued on behalf of the appellant that the busi-ness of Ambika Stores was thrown by Muniswami Raju into the common stock with the intention of abandoning all separate cla'ms to it and therefore the business of Ambika Stores lost its character of separate property and was impressed with the character of joint family property. It is well-established doctrine of Hindu law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into the joint stock with the intention of abandoning all separate claims upon it. The doctrine has been repeatedly recognized by the Judicial Committee [See Hurpurshad v. Sheo Dyal(') and Lal Bahadur v. Kanhaiya Lall ([2]). But the question whether the coparcener has done so or not is entirely question of fact to be decided in the light of all the circumstances of the case. It must be established that there was clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection [See the decision in Lala Muddun Gopa/ v. Kltikhinda Koer]([3]). For instance, in Naina Pillai v. Daiyanai

fl) 3 I.A. 259.

(2) 34 I.A. 65.

<3l 18 l.A. 9.

(19611] 3 S.CJL

SUPREMB COURT UJOllTS

~mmal,{1 J where in series of documents, self-ae<Juired property Wl!S _described and dealt with as ancestral joint family property, it Wl!S held by the Madras High Court that the mere dealing with self ~acquisitions as joint family property was not sufficient but an intention .of the coparcener must be shown to waive liis claims with full knowledge of his right to it as his separate property. .The ini; portant. point to keep in mind is that the separate property of Hindu coparcener ceases to be his separate property and acqu~ the characteristics of his .joint family or ancestral property, not by mere act of physical mixing with his joint family or aricestral property, but by his own volition and intention, by his waiving or surrendering his special right in it as separate property. man's intention can be discovered only from his words or from his .acts and conduct. When his intention with regard to his sepa• rate property is not expressed in words, we must seek for it in his acts and conduct. But it is the intention that we must .seek in every case, the acts and conduct being no more than evidence of the intention. In the present case, the High Court has examined the evidence adduced by the parties and has reached the conclu· sion that there was no intention on the part of Muniswami Raju to throw the separate business of Ambika Stores into the common stock, nor was it his intention to treat it as joint family busi-ness. Counsel on behalf of the appellant· referred to the recital in Ex. describing the properties being those of the executants and that the borrowings was for trade and benefit of the family and it was argued that there was clear intention on the part of Muniswami Raju to treat the business as joint family business. We have already referred to this document and indicated that the recitals were probably made for the purpose of securing loan and cannot be construed as consent on the part of the members of the joint family to treat the business as the joint family business. Fur-ther, there is ample evidence to show that in all succeeding yean before his death Muniswami Raju had always described himself and conducted himself as the sole proprietor of Ambika Stores. Such an attitude on the part of Muniswami Raju was not consis-tent with any intention on his part either to abandon his exclusive right to the business or to allow the business to be treated as joint family business. Exhibits XXXV to XL VT are all documents ex&-cuted by third parties in favour of Muniswami Raju in which Muniswami Raju has been. described as the oroprietor of Amblka Stores. Exhi1Jits ill, XXill, XXJV, 51, 52, 56, 58, ZZ. AAA series and BBB are all communications addressed by institutions like·Banks etc., in which Muniswami Raju has been described as the proprietor of Ambika Stores. It may be stated that the appel-lant himself has admitted in his evidence that he was not drawing any moneys from the business of Ambika Stores and that whenever he wanted any_money, he would ask Mun1•·~·dllll Raj11 and obtain (I) A.l.R.1936 Mad. 177.

it from him. If really the appellant had considered himself to be co-oWner equally with Muniswami Raju, such conduct on his part ill not explicable. It was urged on behalf of. the appellant that there was no documentary evidence to show that the appel· Jant WIS being paid any saJanr by Muniswami Raju, and that prior to Mlllliswaml Raju's death, it was the appellant who was in the entire management of Amblka Stores when Muniswami Raju was ill and after the death of Muniswami Raju also it was the appeJ.. !ant who had been in m~t. AJl the books C?f account and other documents pertaining to the business of Amblka Stores had been admittedly entrusted to the appellant. But it is not explained Oil behalf of the appellant as to why the documents were not produced on his behalf tp disprove the case of the respondenb that he was salaried servant. It is therefore not unreasonable to draw an inference from the conduct of the appellant that th!l Account Books0 .if produced in court, would· not have supported his case. We accordingly reject the argument of the appellant that the busi· ness of Ambika Stores became converted into joint family business at any subsequent stage ·by the conduct of M uniswami Raju in throwing the business into the common stock or in blendinl! the-earnings of the business with the joint family income.

It was finally contended on behalf of the appellant that, in any event, the appellant became c<>-owner of the business along with Muniswami Raju by reason of contribution of his own labour to-wards the development of the business. In our opinion, there is I: no substance in this argument. It is evident that the appellant gave up his job in Wesley Press and joined An)bika Stores about 9 or 10 months after it was started by Muniswami Raju. The appellant does not state in his evidence that he was co-owner when he. joined Amblka Stores. On the other hand, in Ex. 68 which is an application dated March 20, 1928 by the appellant r to the City Co-operative Bank, the appellant has described him· self as clerk in Amblka Stores and Muniswami Raju has been described as his proprietor. There is no satisfactory evidence on behalf of the appellant to show as to when and under which cir· cumstances his status of clerk changed to that of c<>-owner. · In another application, Ex. 'I.which is of the year 1929 the appellant has dc.9cribed Muniswami Raju as the proprietor of Ambika Stores and he has. described himself as doing out-door commercial busi· ~ with ~bika Stores. Again, in Ex. which is loan appli· catiOll made m 1932 by both the brothers, Muniswami Raju has been dcacn'bed as the proprietor of Amblka Stores while the appel-lut ha,, been dc.9cribed . as General Merchant of Mysore. Reference was made on behalf of the appellant io recitals in. Ex. l1I Dl>:P, mortgage deed dated June 20, 1934 in which Muniswami Raju ll!ld the appellant have been descn'bed as proprietors of Am-bit& Stores. We have already dealt with this document and for .the reasons already mentioned we hold that the description of the

[1968 J 3 S.C.ll.

executants was only given for the purpose of borrowing from the Bank and it had not the legal effect of making the appellant co-owner of the partnership business .. The.re is no ~vidence of any assenion by the appellant during Muniswami Raju's life-time of his being co-owner of the partnership business, nor is there any evid-ence of recognition by Muniswami Raju of any such right of the appellant. On the other hand, there is sufficient evidence to show that whatever the appellant did in connection with the business was only done with the au¢.ority conferred by Muniswami Raju. In our opinion the High Court has rightly rejected the claim of the appellant that he was co-owner of the pannership business;

For the reasons expressed we hold that this appeal has no merit and it must be dismissed with costs.

R.K.P.S.

Appeal dismissed.