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TMI Blog1964 (4) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... guardianship and protection of their mother, Ahilandammal, that they have been carrying on a business in javuli to start with in a small scale, that with the aid of such meagre nucleus as existed and by joint labour and exertion, the business expanded from time to time, that in 1919 the eldest brother, G. Radhakrishna got himself divided from his three brothers, and went out of the family, that at the time all the assets of the family consisting of the stock in trade, debts, outstanding, ancestral house were divided with the aid of certain well wishers and panchayatdars, that under the scheme of division the brother, Radhakrishnan, was given his one fourth share and the other three brothers took (together and as one unit) the other three-fourth share, and that there after the other three brothers carried on the business in javuli under the name and style of Gunnaji Krishnan and Bros, and the business expanded and flourished considerably from time to time and out of the income and assets of the said business all the suit properties were purchased and acquired. The plaintiff's father's case is that as and when the sons of the three brothers attained majority, they also attend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the separate business which they claimed to have been carrying on and with regard to certain deposits in the banks. (3) The first defendant (with whom his second son, the third defendant joined) contested the suit on the ground that his father left no assets whatsoever, that he and his brothers carried on their own separate business as hawkers in javuli, that from the time of the death of the father till 1919, the four brothers, were carrying on, though jointly, a separate business of their own, that in 1919 there was a division by metes and bounds between all the four brothers, and that the subsequent business which was carried on under the name and style of Gunnaji Krishnan and Bros by himself and other two brothers was their own separate business, in which the plaintiff was not entitled to any right or share, and that all the properties involved in the suit were acquired out of the business assets and the income of the business, Gunnaji Krishnan and Bros, that on 14-2-1943, there was a partition and dissolution of the business between himself and defendants 4 and 7, and that the plaintiff is not entitled to make any claim in respect of any of the assets as jointly family pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff's rights, and also setting up his second wife to put forward wholly dishonest and untenable claims to substantial sums of money deposited and standing in her names. A perusal of his oral evidence, in the light of the documentary is a person who has no regard for truth and no reliance can be placed upon his evidence. (7) As observed earlier, the question for decision lies in a very narrow compass and a great portion of the documentary evidence that has been adduced in this case is unnecessary, besides being irrelevant. In his pleading, in his evidence before the trial court, and in the course of arguments both in the trial court, as well as before us, the first defendant accepted the position that all the properties involved in the suit have come out of the income and assets of the javuli business carried on in the name and style of Gunnaji Krishnan and Bros from 1919, further, the first defendant does not claim any other source of income whatsoever for any of those acquisitions. (8) It is again the accepted case of the defendants that the business, Gunnaji Krishnan and Bros, was carried on with the assets which the three brothers (together and as one unit) obt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erties. The document itself shows that the four brothers were carrying on business as undivided members of the family after the death of their father. Learned counsel for the appellant attempted an argument that as the father did not leave any ancestral nucleus worth mentioning the business which the four sons carried on should be regarded as their own separate business, and not joint family business. There is absolutely no substance in this contention. (11) The law is well settled that if members of a joint family who are joint in status and carry on business and acquire property by their joint labour and exertions without the aid of any ancestral nucleus the presumption is that the property so acquired by them would be joint family property in which the sons of the acquirers would get a right by birth, unless it is proved that the acquirers intended to own the property as co-owners between themselves, in which case alone it will be joint property as distinguished from joint family property. The presumption is in favour of its being regarded as joint family property. Vide Mayne's Hindu Law, 11th Edn. page 345; S. 281; and Mullah, 12th Edn. pages 333-334. In this case there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant, taken along with the express recitals in the partition deed, Ex. B. 11, dated 14-2-1943, no other conclusion is possible except that all the properties involved in the suit are joint family properties. The three brothers got into possession of ancestral nucleus consisting of business and business assets, and with the same they continued and carried on the business. Even today the share of the joint family assets pertaining to the shares of the three brothers continue to be embarked in the business. The fact that in 1919 the business and the business assets were not very large cannot affect the legal position. It is not competent to a managing member of a joint family who gets into management of the family business and its assets, though small in nature, to claim the subsequent expansion and accretions to the business and augmentations thereof as his own separate property on the ground that they are the result of his special skill and labour, and that the other members of the family should be restricted only to their share in the value of the assets at their inception. In the case of a running business, even though the capital invested may be comparatively small, it migh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from a friend, or a gift at nuptials does not appertain to the co-heir. Nor shall he who recovers hereditary property which has been taken away give it up to the coparceners; not what has been gained by science'. This text of Hindu law does not throw and light on the degree of detriment necessary to attribute, to the acquisition of the character of joint family property. The court cannot undertake the impossible task of fixing the minimum standard of 'detriment'. It is of course clear that some detriment is necessary; this can only mean that it should not be vague or merely sentimental but should be something real. What would be the position of the 'detriment' were trifling and unsubstantial, we do not propose to consider as the question does not arise in this case. It seems to us that the question whether or not an acquisition was made to the detriment of the family estate is very largely one of fact . Learned counsel for the appellant, placing considerable reliance upon the Bench decision of this court in Sivarama Krishnan v. Kaveriammal, contended that the acquisitions made out of the business of Gunnaji Krishnan Bros should be regarded as the separate pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Nathubhoy, ILR 10 Bom 528, May be in his Hindu law and Usage 10th Edn. para 277 page 355, has cited various authorities on the point, and has dealt with the principle of accretion to the acquisition of property out of savings of ancestral property by a manager. I do not think the position of the sole surviving coparcener who has invested the ancestral funds in a fresh business started by him, should be different merely because he was the sole owner of the entire property at the time of the investment. I think the principle of accretion could properly be applied to the profits made form investment of the ancestral funds by the sole surviving coparcener prior to the adoption . In this case, the share of the assets, obtained by the three brothers at the family partition continued to be embarked in the business right upto the moment of the suit and the detriment thereby is amply satisfied. Further the rule that whatever is the outcome of the ancestral property would partake of the character of joint family property is fully satisfied. We have therefore no hesitation in negativing the first defendant's claim as to self acquisition. (15) Learned counsel for the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness which the three brothers carried on in the name and style of Gunnaji Krishnan and Bros. must either be a partnership business or as co-owners. But so far as the plaintiff is concerned, his father, the first defendant, representing his branch, has invested the one-third share of the assets pertaining to that branch in the said business of Gunnaji Krishnan and Bros, and whatever the first defendant is entitled to out of the business, out of its income and out of the subsequent expansion and accretions, will have to be shared between the first defendant and the members of his branch. (18) It is settled law that if the managing member of a joint family enters into a partnership with strangers, the managing member alone is the partner of the business, and the junior members are not entitled to interfere with the partnership business, so long as it is a going concern. But the moment a dissolution of the business takes place and a junior member files a suit for partition, in that partition suit all the family properties will have to be included, including the assets of the dissolved partnership, so that in the presence of the manager as well as the erstwhile partners of the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the precise legal basis on which the plaintiff claims a share in the suit properties so long as the members of the other branch are quite willing and agreeable (in this suit itself) to a division of the assets of Gunnaji Krishnan and Bros, and the ascertainment of whatever is payable and allotable tot he first defendant. Whatever view may be taken, the position remains the same so far as the plaintiff is concerned. (20) As regards the claim made by the second defendant in respect of moneys and properties standing in her name was entirely agree with the reasoning and findings of the learned Subordinate Judge in paragraphs 29 and 30 of the judgment. In fact, learned counsel for the appellants could not advance any serious argument against the correctness of this finding, to establish the second defendant' ownership of the same. In his evidence at page 272 the first defendant has admitted has wife were all moneys taken from the business of Gunnaji Krishnan and Bros. (21) Some argument was advanced regarding the moneys alleged to have been taken separately by the members of the three branches, including the plaintiff, it is needless to observe that these are matters to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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