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PETITIONER:
G. NARAYANA RAJU
Vs.
RESPONDENT:
G. CHAMARAJU & OTHERS
DATE OF JUDGMENT:
19/03/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
MITTER, G.K.
CITATION:
1968 AIR 1276 1968 SCR (3) 464
CITATOR INFO :
F 1976 SC1715 (13)
ACT:
Hindu joint family-Hotch Potch-self acquisition when
acquires characteristics of joint family property
-concurrent finding that business is separate--Supreme Court
will not interfere under Art. 133.
HEADNOTE:
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 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-H]
Bhuru Mal v. Jagannath, A.I.R. 1943 P.C. 40, Pearey Lai v.
Nanak Chand, A.I.R. 1948 P.C. 108, Chattanatha Karayalar v.
Ramachandra Iyer, A.I.R. 1955 S.C. 799, referred to.
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 in it as separate property.
Mere recitals in deeds dealing with self acquisitions as
ancestral joint family property is not by itself sufficient;
but it must be established that there was a clear intention
on the part of the coparcener to waive his separate
property.[470 B-c]
Hurpurshad v. Sheo Dyal, 3 I.A. 219. Lal Bahadur v.
Kanhaiya Lai, 34. I.A. 65, Lola Muddun Gopal v. Khikhinda
Koeri 18 I.A. 9, Naina Pilla v. Daiyanai Ammal, A.I.R. 1936
Mad. 177, referred to.
where there is a concurrent finding of both the lower courts
that the business is a separate business and it is neither a
joint family business nor treated as joint family business,
it is not open to further scrutiny by this Court under Art.
133 of the, Constitution. [467 A-B]
JUDGMENT:
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. Gopdlakrishnan, for the appellant.
H. R. Gokhale, B. Subbiah and R. Thiagaraian, for,
respondents 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 various schedules of the plaint. The first
defendant is the brother
465
of the plaintiff. The second defendant is the widow of
Muniswami Raju, the eldest brother of the plaintiff. The
third defendant is the legal representative of the
plaintiffs mother. She is now the, appellant having been
brought on record as the legal representative of the
deceased plaintiff. The case of the original plaintiff was
that he, the first defendant and Muniswami Raju (husband of
the second defendant) were the sons of one Gopala Raju and
were all members of the joint family Gopalaraju died in May
1931 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
family including the income from the business of Ambika
Stores. The plaintiff accordingly claimed that he and the
first defendant would each be entitled to get 5/14ths share
and the second and third defendants would each be entitled
to get 2/14ths. share. In the alternative the plaintiff
pleaded that if for any reason the Court held that the
properties stand in the name of Muniswami Raju and were not
acquired with the aidof the joint familv nucleus, he and the
second defendant were entitled to equal shares as co-owners
of the joint family business. The suit was mainly contested
by the second defendant who asserted that the properties
mentioned in all the Schedules of the plaint were self-
acquisitions of Miiniswami Raju and constituted his separate
properties. It was alleged that Muniswami Raju was the only
carniiig member of the family at the time of the acquisition
of items 1 and 2 of Schedule operties and the plaintiff and
the first defendant were emploved,in petty jobs in Wesley
Press. Muniswami Raju later on employed the plaintiff in
his -shop as a 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. I of Schedule
466
'A' and there was not sufficient ancestral nucleus for
acquisition of the other properties and that all properties
except item No. 1 of Schedule 'A were the self acquisitions
of Muniswami Raju, that Muniswami I Raju never blended his
properties with that of the joint family that the plaintiff
was only an employee under Muniswami Raju and therefore he
was not entitled to the alternativ ' relief claimed by him.
Accordingly, the District Judge granted a preliminary decree
holding that the plaintiff was entitled to 2/7ths share in
item No. I of Schedule 'A'. The 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. I of
Schedule 'A' item No. 2 also should be hold to be joint
family property and the plaintiff was entitled to partition
of his share in this item also. The High Court cancelled
the I 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 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 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. The question therefore
whether the business was begun or carried on with the
assistance of joint family property or joint family funds or
as a -family business is a question of fact.-(See the
decisions of the Judicial Committee in Bhwu Mal v. Jagannath
(1) and in Pearey Lal v. Nanak Chand (1) and of this Court
in Chattahatha Karayalar v. Ramachandra
(1) A.T.R 1943 P.C 40.
(2) A.T.R. 1948 P.C 108.
467
lyer) (1). In the present, case there is a concurrent
finding of both the lower courts that the business of Ambika
Stores was a separate, business of Muniswami Raju and it,
was neither a joint family business nor treated as joint
family business. The concurrent finding of the lower courts
on this issue is upon a finding of fact and following the
usual practice of this Court, it is not now open to further
scrutiny by this Court under Art. 133 of the Constitution.
It was, however, contended on behalf of the appellant that
the finding of the lower. courts is vitiated in, law because
of the circumstance that they have not taken into account
three important documents, Ex. D, Ex. E and Ex. DDD. We
are unable to accept this argument as correct. It is
manifest on a perusal of the judgment of the High Court that
all the documents have been examined, regarding the issue
whether the business of Ambika Stores was a joint family
business or whether it was p. separate, business of Muni-
swami Raju. As regards Ex. D, the High-,Court has, after
examining the evidence adduced, remarked that the, mere fact
that item No. 2 of Schedule 'A was given as a 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, a
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 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 also the, recital in Ex. I that
Muniswami Raju was the proprietor of Ambika Stores. Having
regard to this recital in I it is not-
(1) A.I.R. 1955 S.C. 799.
468
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 deed produced on behalf of the appellant. It
is true that in this document 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 a letter dated May 5,
1931, Ex. 75 written by Muniswami Raju as proprietor of
Ambika Stores to the Bank of Mysore. In' this letter, 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 Letter, 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 is 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 described 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), a letter written by Muniswami Raju. In
this letter Muniswami Raju has described himself as the
proprietor of Ambika Stores and has instructed the Bank that
he has cancelled the authority given to the appellant to
operate one his Current Account with the Bank. It is
therefore not possible for us to accept the contention of
the appellant that the finding of the High Court that the
business of Ambika Stores was the exclusive business of
Muniswami 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 Muniswamiraju as the proprietor thereof at a time when
Muniswamiraju himself was comparatively well-off as a result
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 Rs. 3,000/- and
furniture worth Rs. 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-
469
such a business. The appellant joined Wesley Press in 1912
on a 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 joined Wesle Press in 1910 on a salary of Rs. 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 Rs. 15 p.m. and the income
from pounding rice for which there is no satisfactory
evidence was 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 business of Ambika Stores was started. The High Court
has found that the family did not have sufficient nucleus
and that Muniswami Raju was not a partner of Krishnaswamy
Chetty & Co. on behalf of the family but that he was a
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 started the
business of Ambika Stores. As we have already said, the
finding of the High Court and of the District Judge is a
concurrent finding on a question of fact and Counsel on
behalf of the appellant has been unable to make good his
argument that the finding 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, a separate
business of Muniswami Raju, it became converted at a
subsequent stage into joint family business. It was argued
on behalf of the appellant that the business of Ambika
Stores was thrown by Muniswami Raju into the common stock
with the intention of abandoning all separate claims to it
and therefore the business of Ambika Stores lost its
character of a separate property and was impressed with the
character of joint family property. It is a 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. Shea Dayal(1) and Lal
Bahadur v. 'Kanhaiya Lal(-). But the question whether the
coparcener has done so or not is entirely a question of fact
to be decided in the light of all the circumstances of the
case. It must be established that there was a clear
intention on the part of the copareener 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 Lata Muddun Gopat v.
Khikhinda Koer (3). For instance, in Naina Piltal v.
Daiyanai
(1) 3 I.A. 259. (2) 34 I. A. 65.
(3) 18 I. A. 9.
470
Ammal, (1) 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 the present case, the High Court has
examined the evidence adduced by the parties and has reached
the conclusion 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 a joint family business. Counsel on behalf of
the appellant referred to the recital, in Ex. E 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 a clear intention on the part of.
Muniswaini 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 a 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. Further,
there is ample evidence to show that in all succeeding years
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 consistent 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 XLVI are all documents executed by third parties in
favour of Muniswami Raju in which Muniswami Raju has been
described as the proprietor of Ambika Stores. Exhibits III,
XXIII, XXIV, 51, 52, 56, 58, ZZ, AAA series and BBB -are all
communications addressed by institutions like Banks etc., in
which Muniswwni Raju has been described as the proprietor of
Ambika Stores. It may be stated that the appellant 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 Muniswami Raju and obtain
(1) A.I.R. 1936 Mad .177.
471
from him. If really the appellant had considered himself to
be I co-owner equally with Muniswami Raju, such conduct on
his part is not explicable. it was urged on behalf of the
appellant that there was no documentary evidence to show
that the appellant was being paid any salary 'Muniswami
Raju, and that prior to Muniswami Raju's death, it was the
appellant who was in the entire management of Ambike stores
when Muniswami Raju was ill and after the death of Muniswami
Raju also it 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 joined Ambika Stores about 9 or 10 months after it was
started by Muniswami Raju. The appellant does not state in
his evidence that he was a co-owner when he joined Ambika
Stores. On the other hand, in Ex. 68 which is an
application dated March 20, 1928 by the appellant to the
City Co-operative Bank, the appellant has described himself
as a clerk in Ambika 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 circumstances his status of a clerk changed to
that of a co-owner. In another application, Ex. I which is
of the year 1929 the appellant has described Muniswami Raju
as the Proprietor of Ambika Stores and he has described
himself as doing out-door commercial business with Ambika
Stores. Again, in Ex. C which is a loan application made
in 1932 by both the brothers, Muniswami Raju has been
described as the proprietor of Ambika Stores while the
appellant has been described as a General Merchant of
Mysore. Reference was made on behalf of the appellant to
recitals in Ex. DDD, a mortgage deed dated June 20, 1934 in
which Muniswami Raju and the appellant have been described
as proprietors of Ambika Stores. We have already dealt with
this, document and for the reasons already mentioned we hold
that the description of the
472
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. There is
no evidence of any assertion by the appellant during
Muniswami Raju's life-time of his being a co-owner of the
partnership business, nor is there any evidence 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 Authority conferd by
Muniswami Raju. In our opinion the High Court has rightly
rejected the claim of the appellant that he was a co-owner
of the partnership business.
For the reason expressed we hold that this appeal has no
merit and it must be dismissed with costs.
R.K.P.S. Appeal dismissed.
473
PETITIONER:
G. NARAYANA RAJU
Vs.
RESPONDENT:
G. CHAMARAJU & OTHERS
DATE OF JUDGMENT:
19/03/1968
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
SHAH, J.C.
MITTER, G.K.
CITATION:
1968 AIR 1276 1968 SCR (3) 464
CITATOR INFO :
F 1976 SC1715 (13)
ACT:
Hindu joint family-Hotch Potch-self acquisition when
acquires characteristics of joint family property
-concurrent finding that business is separate--Supreme Court
will not interfere under Art. 133.
HEADNOTE:
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 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-H]
Bhuru Mal v. Jagannath, A.I.R. 1943 P.C. 40, Pearey Lai v.
Nanak Chand, A.I.R. 1948 P.C. 108, Chattanatha Karayalar v.
Ramachandra Iyer, A.I.R. 1955 S.C. 799, referred to.
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 in it as separate property.
Mere recitals in deeds dealing with self acquisitions as
ancestral joint family property is not by itself sufficient;
but it must be established that there was a clear intention
on the part of the coparcener to waive his separate
property.[470 B-c]
Hurpurshad v. Sheo Dyal, 3 I.A. 219. Lal Bahadur v.
Kanhaiya Lai, 34. I.A. 65, Lola Muddun Gopal v. Khikhinda
Koeri 18 I.A. 9, Naina Pilla v. Daiyanai Ammal, A.I.R. 1936
Mad. 177, referred to.
where there is a concurrent finding of both the lower courts
that the business is a separate business and it is neither a
joint family business nor treated as joint family business,
it is not open to further scrutiny by this Court under Art.
133 of the, Constitution. [467 A-B]
JUDGMENT:
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. Gopdlakrishnan, for the appellant.
H. R. Gokhale, B. Subbiah and R. Thiagaraian, for,
respondents 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 various schedules of the plaint. The first
defendant is the brother
465
of the plaintiff. The second defendant is the widow of
Muniswami Raju, the eldest brother of the plaintiff. The
third defendant is the legal representative of the
plaintiffs mother. She is now the, appellant having been
brought on record as the legal representative of the
deceased plaintiff. The case of the original plaintiff was
that he, the first defendant and Muniswami Raju (husband of
the second defendant) were the sons of one Gopala Raju and
were all members of the joint family Gopalaraju died in May
1931 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
family including the income from the business of Ambika
Stores. The plaintiff accordingly claimed that he and the
first defendant would each be entitled to get 5/14ths share
and the second and third defendants would each be entitled
to get 2/14ths. share. In the alternative the plaintiff
pleaded that if for any reason the Court held that the
properties stand in the name of Muniswami Raju and were not
acquired with the aidof the joint familv nucleus, he and the
second defendant were entitled to equal shares as co-owners
of the joint family business. The suit was mainly contested
by the second defendant who asserted that the properties
mentioned in all the Schedules of the plaint were self-
acquisitions of Miiniswami Raju and constituted his separate
properties. It was alleged that Muniswami Raju was the only
carniiig member of the family at the time of the acquisition
of items 1 and 2 of Schedule operties and the plaintiff and
the first defendant were emploved,in petty jobs in Wesley
Press. Muniswami Raju later on employed the plaintiff in
his -shop as a 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. I of Schedule
466
'A' and there was not sufficient ancestral nucleus for
acquisition of the other properties and that all properties
except item No. 1 of Schedule 'A were the self acquisitions
of Muniswami Raju, that Muniswami I Raju never blended his
properties with that of the joint family that the plaintiff
was only an employee under Muniswami Raju and therefore he
was not entitled to the alternativ ' relief claimed by him.
Accordingly, the District Judge granted a preliminary decree
holding that the plaintiff was entitled to 2/7ths share in
item No. I of Schedule 'A'. The 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. I of
Schedule 'A' item No. 2 also should be hold to be joint
family property and the plaintiff was entitled to partition
of his share in this item also. The High Court cancelled
the I 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 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 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. The question therefore
whether the business was begun or carried on with the
assistance of joint family property or joint family funds or
as a -family business is a question of fact.-(See the
decisions of the Judicial Committee in Bhwu Mal v. Jagannath
(1) and in Pearey Lal v. Nanak Chand (1) and of this Court
in Chattahatha Karayalar v. Ramachandra
(1) A.T.R 1943 P.C 40.
(2) A.T.R. 1948 P.C 108.
467
lyer) (1). In the present, case there is a concurrent
finding of both the lower courts that the business of Ambika
Stores was a separate, business of Muniswami Raju and it,
was neither a joint family business nor treated as joint
family business. The concurrent finding of the lower courts
on this issue is upon a finding of fact and following the
usual practice of this Court, it is not now open to further
scrutiny by this Court under Art. 133 of the Constitution.
It was, however, contended on behalf of the appellant that
the finding of the lower. courts is vitiated in, law because
of the circumstance that they have not taken into account
three important documents, Ex. D, Ex. E and Ex. DDD. We
are unable to accept this argument as correct. It is
manifest on a perusal of the judgment of the High Court that
all the documents have been examined, regarding the issue
whether the business of Ambika Stores was a joint family
business or whether it was p. separate, business of Muni-
swami Raju. As regards Ex. D, the High-,Court has, after
examining the evidence adduced, remarked that the, mere fact
that item No. 2 of Schedule 'A was given as a 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, a
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 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 also the, recital in Ex. I that
Muniswami Raju was the proprietor of Ambika Stores. Having
regard to this recital in I it is not-
(1) A.I.R. 1955 S.C. 799.
468
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 deed produced on behalf of the appellant. It
is true that in this document 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 a letter dated May 5,
1931, Ex. 75 written by Muniswami Raju as proprietor of
Ambika Stores to the Bank of Mysore. In' this letter, 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 Letter, 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 is 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 described 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), a letter written by Muniswami Raju. In
this letter Muniswami Raju has described himself as the
proprietor of Ambika Stores and has instructed the Bank that
he has cancelled the authority given to the appellant to
operate one his Current Account with the Bank. It is
therefore not possible for us to accept the contention of
the appellant that the finding of the High Court that the
business of Ambika Stores was the exclusive business of
Muniswami 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 Muniswamiraju as the proprietor thereof at a time when
Muniswamiraju himself was comparatively well-off as a result
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 Rs. 3,000/- and
furniture worth Rs. 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-
469
such a business. The appellant joined Wesley Press in 1912
on a 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 joined Wesle Press in 1910 on a salary of Rs. 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 Rs. 15 p.m. and the income
from pounding rice for which there is no satisfactory
evidence was 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 business of Ambika Stores was started. The High Court
has found that the family did not have sufficient nucleus
and that Muniswami Raju was not a partner of Krishnaswamy
Chetty & Co. on behalf of the family but that he was a
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 started the
business of Ambika Stores. As we have already said, the
finding of the High Court and of the District Judge is a
concurrent finding on a question of fact and Counsel on
behalf of the appellant has been unable to make good his
argument that the finding 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, a separate
business of Muniswami Raju, it became converted at a
subsequent stage into joint family business. It was argued
on behalf of the appellant that the business of Ambika
Stores was thrown by Muniswami Raju into the common stock
with the intention of abandoning all separate claims to it
and therefore the business of Ambika Stores lost its
character of a separate property and was impressed with the
character of joint family property. It is a 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. Shea Dayal(1) and Lal
Bahadur v. 'Kanhaiya Lal(-). But the question whether the
coparcener has done so or not is entirely a question of fact
to be decided in the light of all the circumstances of the
case. It must be established that there was a clear
intention on the part of the copareener 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 Lata Muddun Gopat v.
Khikhinda Koer (3). For instance, in Naina Piltal v.
Daiyanai
(1) 3 I.A. 259. (2) 34 I. A. 65.
(3) 18 I. A. 9.
470
Ammal, (1) 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 the present case, the High Court has
examined the evidence adduced by the parties and has reached
the conclusion 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 a joint family business. Counsel on behalf of
the appellant referred to the recital, in Ex. E 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 a clear intention on the part of.
Muniswaini 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 a 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. Further,
there is ample evidence to show that in all succeeding years
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 consistent 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 XLVI are all documents executed by third parties in
favour of Muniswami Raju in which Muniswami Raju has been
described as the proprietor of Ambika Stores. Exhibits III,
XXIII, XXIV, 51, 52, 56, 58, ZZ, AAA series and BBB -are all
communications addressed by institutions like Banks etc., in
which Muniswwni Raju has been described as the proprietor of
Ambika Stores. It may be stated that the appellant 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 Muniswami Raju and obtain
(1) A.I.R. 1936 Mad .177.
471
from him. If really the appellant had considered himself to
be I co-owner equally with Muniswami Raju, such conduct on
his part is not explicable. it was urged on behalf of the
appellant that there was no documentary evidence to show
that the appellant was being paid any salary 'Muniswami
Raju, and that prior to Muniswami Raju's death, it was the
appellant who was in the entire management of Ambike stores
when Muniswami Raju was ill and after the death of Muniswami
Raju also it 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 joined Ambika Stores about 9 or 10 months after it was
started by Muniswami Raju. The appellant does not state in
his evidence that he was a co-owner when he joined Ambika
Stores. On the other hand, in Ex. 68 which is an
application dated March 20, 1928 by the appellant to the
City Co-operative Bank, the appellant has described himself
as a clerk in Ambika 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 circumstances his status of a clerk changed to
that of a co-owner. In another application, Ex. I which is
of the year 1929 the appellant has described Muniswami Raju
as the Proprietor of Ambika Stores and he has described
himself as doing out-door commercial business with Ambika
Stores. Again, in Ex. C which is a loan application made
in 1932 by both the brothers, Muniswami Raju has been
described as the proprietor of Ambika Stores while the
appellant has been described as a General Merchant of
Mysore. Reference was made on behalf of the appellant to
recitals in Ex. DDD, a mortgage deed dated June 20, 1934 in
which Muniswami Raju and the appellant have been described
as proprietors of Ambika Stores. We have already dealt with
this, document and for the reasons already mentioned we hold
that the description of the
472
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. There is
no evidence of any assertion by the appellant during
Muniswami Raju's life-time of his being a co-owner of the
partnership business, nor is there any evidence 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 Authority conferd by
Muniswami Raju. In our opinion the High Court has rightly
rejected the claim of the appellant that he was a co-owner
of the partnership business.
For the reason expressed we hold that this appeal has no
merit and it must be dismissed with costs.
R.K.P.S. Appeal dismissed.
473
