TMI Blog1968 (3) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... 931 and after his death the plaintiff and his brothers continued to be members of the joint family. The joint status of the, family was severed by the issue of a registered notice by the first defendant to the plaintiff in July 1951. An ancestral house in Nazar bad belonging to the family was acquired by the City IuprovementTrust 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. I of Schedule 'A' to the plaint was purchased by Gopalaraju in or about the year 1910. Subsequently item No. 2 of Schedule 'A' was also purchased by Gopalaraju from the income of item No. I supple mented by the earnings 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 Ambika Stores was also the joint family business and all the properties mentioned in the Schedules except items I and 2 of Schedule 'A' were acquired out of the income of the members of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is whether the business of Ambika Stores was really the business of the joint family and whether the plaintiff was entitled. to a partition of his share in the assets of that business.: It was contended on behalf of the appellant that the business of Ambika Stores grew out of a nucleus of the joint family funds of at least by the efforts of the members of the joint family include the appellant. The contention of the appellant has been negatived by both the lower courts and there is a concurrent finding that the Ambika Stores was the separate business of Muniswami Raju and it was neither the joint family business nor treated as joint family business, It is wellestablished that there is no presumption under Hindu law that a business standing in the name of any member of the joint family is a joint family business even if that member is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 a 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. E must have been for the purpose of Ambika Stores. It should be noticed that Muniswarni 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 a joint family business. The High Court has, in this connection, 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 a decent earning by doing; out-of-door commercial business with Ambika Stores. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of his partnership with Krishnaswamy Chetty Co. In the year 1925 the partnership of Krishnaswamy Chetty Co. was dissolved by a document Ex. D. The entire business with 'all the assets ad liabilities was taken over by Muniswami Raju while the widow and son of Krishnaswamy Chetty were given a house estimated by the appellant himself at ₹ 3,000/- and furniture worth ₹ 400/-. Muniswami Raju changed the name of the 'shop after taking it over into Ambika Stores and continued the business as is apparent from Exs. XVIII, XXVI and XXVI(A). There- is also evidence that at the time when Ambika Stores was started other members of the family we're not in a financial position to make any contribution to pur such a business. The appellant joined Wesley Press in 1912 on a salary of ₹ 8 or ₹ 9 p.m. and he was drawing ₹ 27 p.m. in 1927 when he resigned from the Press. The first defendant joined Wesle Press in 1910 on a salary of ₹ 10 p.m. and he was continuing to work there till the institution of the present suit. 'Me income of the property item No. 2 of' Schedule 'A' was ₹ 15 p.m. and the income from pounding rice for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Koer 18 I. A. 9. For instance, in Naina Piltal v. Daiyanai Ammal, A.I.R. 1936 Mad .177 where in a series of documents, self-acouired property was described and dealt with as ancestral-joint family it was 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 his claims with full knowledge of his right to it as his separate property. The important point to keep in mind, is that the separate property of a 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 it as separate prop . A man's intention can be discovered only from- his words or from his acts I and conduct. When his inention with regard to his separate 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, I the acts and conduct being no more than evidence of the intention. - In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the appellant who had been in management. Al, the books of account and other documents pertaining to the business of Ambika Stores had been admittedly entrusted to the appellant. But it is not explained on behalf of the appellant as to why the documents were not produced on his behalf to disprove the Case of the respondents that he was a salaried servant. It is therefore not unreasonable to draw an inference from the conduct of the appellant that the Account Books, if produced in court, would not have supported his case. We accordingly reject the argument of the appellant that the business of Ambika Stores became converted into joint family business at any subsequent stage by the conduct of Muniswami Raju in throwing the business into the common stock or in blending 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 a co-owner of the business along with Muniswami Raju by reason of contribution of his own labour towards the development of the business. In our opinion, there is no substance in this argument. It is evident that the appellant gave up his job in Wesley Press and j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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