Srinibas Dhelia vs Hariram Tulchan and Others

Ram Labhaya, J.—This is a petition for leave to appeal to the Supreme Court from the judgment and decree of this Court dated 5th January 1950, by which the decree of the trial Court was affirmed. Leave is sought on the basis that the present value of the property in dispute exceeds Rs. 20,000; the decree also involves indirectly a claim or question respecting property of like value and the case involves substantial questions of law. It is also claimed in the petition that the case is a fit one for appeal under Clause (c) of Article 133 of the Constitution of India. The defendant is the petitioner.

We do not think any substantial question of law is involved in this case. Plaintiffs-respondents were the transferees of the property in suit. They purchased it from the sons and grandsons of Jainarain by a registered deed dated 9th May 1941. The property sold consisted of 8 days (fields) measuring 4 K. 19 L. There were also super structures on the land which were included in the sale.

The case of the plaintiffs-respondents was that Jainarain was the sole owner of the firm working under the name and style of Messrs. Ramjasrai-Jainarain. He purchased the property, of which the suit property was only a part, in 1901. The sale deed was in favour of Jainarain and his father Ramjasrai, Jainarain mortgaged the whole of the property purchased except dag No. 1452 to the plaintiffs as its sole owner with the concurrence of Srinibas who attested the mortgage and thus acquiesced in the claim of Jainarain. The successors of Jainarain, viz., his sons and grandsons, sold the property to the plaintiffs in 1941. Defendant at that time was in possession of a part of the property sold. According to the plaintiffs, his possession was permissive.

The defence set up by the petitioner was that Ramjasrai, father of Jainarain, and Ramchandra his father were brothers. They were members of a joint Hindu family. They started joint business when they came to Assam (from Rajputana) at Khowang and Khowant T. E. in the name of Ramjasrai Jainarain and acquired properties in Dibrugarh sub-division including the suit property, with the proceeds of this bussiness.

It was apparently common ground that the property in suit was acquired by the earnings of the business which was being carried on in the name and style of Messrs, Ramjasrai-Jainarain. The point at which the parties were at issue was whether the firm itself was a joint family firm started and continued by the two brothers Ramchandra and Jainarain, or whether Jainarain was the sole owner of the business. This was the real point in controversy.

The learned trial Judge while recognising the possibility that the two brothers Ramchandra and Jainarain may have been members of a joint Hindu family addressed himself to the question whether the two brothers were also joint in business which admittedly was being carried on in the name of two members belonging to one branch of the family. While considering this question he observed that

even if it be presumed or assumed that defendant''s father Ramchandra and paternal uncle Ramjas were living joint while in Dibrugarh as a joint family, there cannot be a presumption that they possessed joint properties or acquired properties jointly. There must be proof or evidence that they were jointly possessed of such properties or such nucleus that with its help the properties now in question claimed by the defendant to have been joint acquisition, could have been acquired.

In the light of this statement of the law, the learned trial Judge after carefully considering the evidence of the parties came to the conclusion that there was no evidence that Ramjasrai and the defendant''s father Ramchandra formed a joint Mitakshara Hindu family or that they jointly acquired the properties in suit or that those properties were acquired from their joint family funds. He also found that the properties in suit were the properties of Ramjasrai Jainarain in which the defendant had failed to establish that he had any share or interest.

It may be noted that the above findings were arrived at on the assumption that the two brothers were members of a joint family. The finding that there was no evidence that the two brothers Ramchandra and Ramjasrai formed a joint Hindu family or they jointly acquired the property in suit disposed of the limited question covered by issue 1 which arose out of the defence set up. The language of the issue is not happy, but the question it involves was whether the two brothers were doing business as members of a joint Hindu family after migration to Assam as alleged by the defendant.

What the learned trial Judge decided was that the property in suit was not acquired by the two brothers acting jointly as members of a joint Hindu family. The second part of the finding that Jainarain was the sole owner of Messrs. Ramjasrai-Jainarain and, therefore, of the property in suit, is covered by issue 2, which arose out of the case set up by the plaintiffs. The two issues are facets of the same problem which is involved in this litigation and which is to the effect, whether the business from the proceeds of which the property was acquired was started and carried on by the two brothers or that it belonged all through to Jainarain who merely used his father''s name for the purposes of his business.

The statement of Hindu law contained in the judgment of the trial Court to which reference has been made above was not questioned before us at the appeal stage. It is settled law that there is no presumption that a family, because it is joint, possesses joint property or any property. To render a property joint, the claimant has to prove that the family was possessed of such property with the income of which the property could have been acquired or from which the presumption could be drawn that the property possessed by the family is joint proparty or that it was purchased with joint family funds or by joint efforts. These alternatives are not matters of legal presumption. They must be proved by evidence like any other fact that may be alleged. It is equally true that there is no presumption that a business carried on by a member of a joint Hindu family is joint family business. The learned Counsel, who argued the appeal, did not claim the benefit of any legal presumption in favour of the defendant. There was thus no question of Hindu law at which the parties were at variance. The only live issue before us was whether Jainarain was the sole owner of the firm Ramjasrai-Jainarain and, therefore, also of the property in suit as alleged by the plaintiffs or whether the business which the firm Ramjasrai-Jainarain was carrying or was started and carried on by the two brothers jointly as alleged by the defendant.

This was a simple question of fact and after considering all available evidence on the record, we came to the conclusion that the finding arrived at by the trial Court with respect of the property in question was correct. No question of Hindu law was raised or decided and if fail to see how it can be said that a substantial question of law is involved in the appeal.

The learned Counsel for the defendant petitioner does not seem to contend that the defendant was unjustifiably deprived of the benefit of any legal presumption. He himself relied on Anand Rao v. Vasant Rao 11 C. W. N. 478; (9 Bom. L. R. 535 P. C.) a pronouncement from their Lordships of the Privy Council. In this it was held that

when the quetion was whether a certain property was the joint property of a Hindu family or the separate estate of a member and it was proved that the family lived joint in one house and that there was nucleus of joint property of substantial value, the onus was on the party setting up a case of a separate estate.

This authority supports the statement of law which was not challenged till the appeal stage. The onus of proving that a property was separate and not joint family property would be on the party alleging it if the circumstances which existed in the Privy Council case are proved. In this case no allegation was made in the written statement, and no proof was given later that there was any nucleus with which the business in question could have been started. The Privy Council case is no authority for the proposition that there is any presumption that a joint family possesses joint property or that a business in the name of one member of a joint Hindu family is joint business.

Parbati Dasi v. Bai Kuntha Nath 18 C. W. N. 428 : (22 I. C. 51) was another Privy Council case relied on by the learned Counsel. This also does not help him. In this case the dispute was whether a property standing in the name of a junior member of a Hindu family was his self-acquired property. The criterion laid down by their Lordships was the source from which the sale consideration came. In the particular case before them, it was found that there was no evidence that the son, in whose name the property was purchased, had any separate fund or that the properties in dispute were purchased with money belonging to him. On those facts it was held

that the presumption was clear and decisive that the property was acquired by the father in the name of his son and it was not the latter''s self-acquired property.

There was no initial presumption made in favour of the property being joint family property. It was only after it was found that there was no evidence that the son had any separate fund or that the properties in dispute were purchased with money belonging to him that a presumption was made to the effect that the property in dispute was acquired by the father in the name of his son. What was stated as presumption was no more than an inference from proved facts. This case was not decided on any Hindu law presumption and has no application to a case where property is admittedly acquired from the proceeds of a business which has been carried on in the name of two members of a family for years

The learned Counsel has urged that there ought to have been an express finding on the question whether Ramchandra and Ramjasrai did not form a joint Hindu family governed by Mitakshars school of Hindu law at the time the property in suit was acquired. His point was that before a decree could be passed in plaintiffs'' favour it should have been found that the two brothers had separated before the proparty in suit was acquired in the name of Ramjasrai Jainarain.

The contention is based on some misapprehension. The question whether the business of the firm of Messrs. Ramjasrai-Jainarain was started and carried on by the two brothers as members of a joint Hindu family or by Jainarain alone was dealt with fully and disposed of. The finding concurrently arrived at has been that Jainarain was the sole owner of the business and that Ramchandra, father of the defendant, was not interested in that business in any capacity. This finding disposes of the first two issues in the case. But the learned Counsel insists that an express finding was necessary that there had been a separation between the two brothers before the acquisition of the property in suit in order that a valid finding to the effect that the property in dispute belonged exclusively to Jainarain could have been arrived at. He has relied on two decisions of their Lordships of the Privy Council in support of this contention.

The first of these is reported in Mt. Cheetha v. Babu Mireen Lall, 11 M. I. A. 869 : (2 Sar. 803 P. C.). In this case the dispute was admittedly about property which was originally ancestral belonging to a joint and undivided Hindu family governed by the Bengal School of Hindu Law. The plaintiff claimed title as widow and heiress of one Damodar Dass. Their Lordships held that in order to make out a case sufficient to rebut the well-established presumption of Hindu law that a family which was once joint retains that status, it was for the plaintiff to show that it had become divided. It was furthar held that the ancestral property of such a family would remain joint unless it is shown by partition or otherwise to have become separate. A mere statement of the facts of this case is enough to show that this case has got no bearing on the facts of the present case. In the case before their Lordships of the Privy Council, the property was admittedly a part of an undivided estate and plaintiff claimed exclusive title. She could not succeed without proving that there was partition of the family property or that the interest of her husband''s brother, who was a coparcener, had been conveyed to her husband or it had been relinquished in his favour. There is nothing in common between this case and the case now before us.

The second case relied on is reported in Prit Koer v. Mahadeo Pershad Singh, 22 Cal. 65 : (21 I. A. 134 P. C.). In this case a daughter in the absence of sons after the deaths of her father''s widows, claimed to inherit the estate alleging that it belonged to her father separately. It was found that the estate had been at one time in her father''s possession jointly with his only brother, they having been members of a joint family under the Mitakshara. On the death of plaintiff''s uncle, his sons became entitled to the property jointly with plaintiff''s father as survivors. It was held that it was for the plaintiff to adduce evidence that there had been a separation between her father and his co-sharer or co-sharers. From the evidence the inference drawn was that the previous joint holding had continued till her father''s death. This case is also obviously distinguishable and does not support the contention of the learned Counsel. In both the Privy Council cases the property in dispute was admittedly joint family property. The claimant in each case was from one branch of the family. The claim to exclusive title could not be substantiated except by proof of separation of the family. In the present case there was no allegation in the written statement that the two brothers had any joint family property before migration to Assam. There was no proof that any family nucleus was utilised for the joint business. All that was alleged was that the two brothers formed a joint Hindu family. Both came to Assam and started joint business from the proceeds of which the disputed property was acquired. It was held by the learned trial Judge that even if the two brothers were joint, there was no presumption that the business which was being carried on in the name of two members of one branch was joint or that the property acquired in their names was jointly acquired.

The proposition so stated assumes the existence of a joint Hindu family, It was in the background of this assumption that the trial Judge came to his conclusion that the property in suit could not be held to be joint property of the two brothers as the defendant did not allege or prove that family nucleus existed or was utilised for the business carried on in the name of Ramjasrai Jainarain and he could not also substantiate that two brothers jointly started and carried on the business. It was on this basis that the question in dispute was decided in this Court also. It was not necessary to find that the two brothers had separated before the property in dispute was acquired. The dispute did not relate to any property which at one time admittedly belonged to the joint family as in the two Privy Council cases considered above. The question of separation may have arisen if defendant had alleged or proved that there was joint family property which was actually utilised or which could have been utilised for starting a new business in Assam.

The contention of the learned-counsel rests on an entirely erroneous view of the significance of the two decisions of their Lordships of the Privy Council and has got absolutely no force.

The learned Counsel has also observed that the finding that there was no ancestral nucleus is not based on any evidence. No evidence was needed as defendant had not pleaded that the business in question was started with the aid of any ancestral nucleus. He also made no attempt to prove that any nucleus existed. His case merely was that the property was acquired by the two brothers jointly and finding on the point was against him.

The learned Counsel has cited certain authorities bearing on the question as to what is signified by the words ''substantial question of law'' occurring in Article 133, Constitution of India. In these cases it has been held u/s 110, Code of Civil Procedure., that a question of law in respect of which there may be difference of opinion would be a substantial question of law. This proposition is unexceptionable but we have not been able to discover and the learned Counsel has not been able to show that there is any question of law in this case on which difference of opinion is possible. As said above, the dispute between the parties was narrowed down by their pleadings to a question of fact which was determined by our judgment against which an appeal is sought to be preferred. We also held that at that stage the question of onus had become immaterial as all the evidence was before the Court and it was not necessary in the circumstances of the case to resort to onus for the decision of this case. No objection has been taken to this view of the matter. What is left in these circumstances is a decision on a pure question of fact.

The learned Counsel has not assailed the correctness of the view that defendant-petitioner was estopped by his acquiescence from challenging the title of Jainarain to the property in dispute. The decree in plaintiffs'' favour cannot be reversed if this finding is not challenged.

It is a question whether the case fulfils the requirements of Clause (a) of Article 133 as to the valuation of the subject-matter or whether the final decree involves directly or indirectly some claim or question to or respecting property of which the value is not less than Rs. 23,000. But it is not necessary to go into this question as in the view that we take of the matter it is not possible to grant a certificate for leave to appeal either under Clause (a) or (b) of Article 133, Constitution of India.

We are not satisfied that any substantial question of law arises in this case. The case, therefore, does not fulfil the requirement of cls. (a) and (b) of Article 133, Constitution of India, and it manifestly does not attract the application of Clause (c) of the Article. No question of any great public or private importance is involved. The petition, therefore, must fail and is dismissed with costs.

Hearing fee Rs. 50.

Thadani, C. J.

I agree.