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HIGH COURT OF CALCUTTA
P. K. BANERJI, R. BHATTACHARYYA
BISWANATH MITRA - Appellant
Versus
ANJALI MITRA - Respondent
A. F. O. D. 307 Of 1971
Decided On : MARCH 22, 1974
The court held that the two firms, Modern Chappal Manufacturing Co. and Piki Trading Corporation, were joint family businesses and not separate businesses of the appellants. The court found that there was prima facie evidence that the joint family possessed valuable immovable property and that the sale proceeds of this property formed the nucleus of the capital for the various joint family businesses. The court also found that the partners of Modern Chappal Manufacturing Co. and the proprietor of Piki Trading Corporation had failed to disclose the source of capital of their respective businesses and that this failure to disclose relevant material led to the inference that the businesses were started with joint family funds. The court further found that other members of the joint family were freely participating in the business of Piki Trading Corporation, which also indicated that it was a joint family business. The court dismissed the appeal and modified the order under appeal by directing the appellants' solicitor to invest a sum of Rs. 90,000, which had been deposited in bank under orders of the court, in a nationalised bank in short call deposit for a term not exceeding 6 months at a time, to be renewed from time to time, and to hold the said sum together with interest free from lien and subject to further orders of the court.
Fact of the Case:
The company instituted a suit for recovery of its claims against Prakash Trading Co., a joint family business of the Poddar family. The company also applied for an order directing the appellants and the respondents Nos. 2 to 8 to furnish security in Rs. 1,90,000 and in default of such security being furnished the amounts due from Bata Shoe Co. Ltd. to Modern Chappal Manufacturing Co., a sum of Rs. 40,000 due from Philips India Ltd. to Piki Trading Corporation and a sum of Rs. 10,000 due from Farinni's also to Piki Trading Corporation Ltd. be attached before judgment. The trial court made an order for furnishing of security on or before December 10, 1973 in the sum of Rs. 1. 90. 000 to the satisfaction of the Registrar, Original Side and in default of such security being furnished an order for attachment was made of the sum of Rs. 68,000 due from Bata Shoe Co. Ltd. to Modern Chappal Manufacturing Co. and Rs. 15,000 due from Philips India Ltd. to Piki Trading Corporation. The appeal is directed against this order.
Finding of the Court:
The court found that there was prima facie evidence that the joint family possessed valuable immovable property and that the sale proceeds of this property formed the nucleus of the capital for the various joint family businesses. The court also found that the partners of Modern Chappal Manufacturing Co. and the proprietor of Piki Trading Corporation had failed to disclose the source of capital of their respective businesses and that this failure to disclose relevant material led to the inference that the businesses were started with joint family funds. The court further found that other members of the joint family were freely participating in the business of Piki Trading Corporation, which also indicated that it was a joint family business.
Issues: Whether the two firms, Modern Chappal Manufacturing Co. and Piki Trading Corporation, were joint family businesses or separate businesses of the appellants.
Ratio Decidendi: The court held that the two firms, Modern Chappal Manufacturing Co. and Piki Trading Corporation, were joint family businesses and not separate businesses of the appellants. The court found that there was prima facie evidence that the joint family possessed valuable immovable property and that the sale proceeds of this property formed the nucleus of the capital for the various joint family businesses. The court also found that the partners of Modern Chappal Manufacturing Co. and the proprietor of Piki Trading Corporation had failed to disclose the source of capital of their respective businesses and that this failure to disclose relevant material led to the inference that the businesses were started with joint family funds. The court further found that other members of the joint family were freely participating in the business of Piki Trading Corporation, which also indicated that it was a joint family business.
Final Decision: The court dismissed the appeal and modified the order under appeal by directing the appellants' solicitor to invest a sum of Rs. 90,000, which had been deposited in bank under orders of the court, in a nationalised bank in short call deposit for a term not exceeding 6 months at a time, to be renewed from time to time, and to hold the said sum together with interest free from lien and subject to further orders of the court.
( 1 ) THIS appeal is at the instance of the husband who is a respondent in an application by the wife under Section 10 (1) (b) of the Hindu Marriage Act for judicial separation. The case of the applicant wife is that on the 17th February, 1959. the petitioner-wife, respondent herein, went through a form of marriage with the respondent-appellant herein, in accordance with the Hindu rites and rituals at "suruchi Kutir", Jublee Part, Tollygunge, Calcutta. In or about the year 1955. the petitioner was introduced to the respondent by a common acquaintance and in course of four years following the said introduction, a mutual love and affection developed in between the petitioner and the respondent which ultimatly culminated in the aforesaid marriage of the petitioner with the respondent. Just after the marriage, the petitioner started living with the respondent at 4/a, Benode Saha Lane, Calcutta and resided there upto 15th August, 1961. On the 3rd August, 1960. a male child named Sudev, was born of the aforesaid wedlock to the petitioner by the respondent. On 19th June, 1962, a female child, named Sonali, was born of the said wedlock. The petitioner is a working girl and has been earning since her marriage in various capacities and in different places and is at present in the employ of a private firm and has to work hard absolutely to maintain the family. The respondent, it is alleged, is Free Lance Artist (Painter) and Bohemain in character and bears no positive responsibility of the family and does not duly discharge the duty and obligation to the children expected from the father. The respondent for the last few years started ridiculing the petitioner in respect of her concept of morality and her way of looking at things and the way of leading her life. The petitioner during the time was in Government service for more than ten years. The respondent on account of his mental delinquency began suspecting the petitioner in respect of her morality and chastity and made accusation against the petitioner of being immoral as a result whereof, the petitioner suffered in mind and tendered resignation and left the permanent Government service of ten years in the month of July, 1963. Because of financial stringency the petitioner was forced again to seek employment and joined the service in the month of December, 1967. On the joining of the present service by the petitioner, the respondent has again started treating the petitioner with such mental cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious to the petitioner to live with the other party. The respondent almost regularly began to make reckless and unbridled allegations of un-chastity against the petitioner which are absolutely false causing untold mental pain and psychological injury. It is alleged that the respondent further charged the petitioner in presence of the children with gross immorality and adultery which has no basis at all. The respondent stated that the appellant-husband did not show any consideration in respect of the mental and physical requirements, feelings and sentiments of the petitioner especially against the background of her hard and onerous duty in the office. It is further stated that the appellant's brother at the instance of the appellant-husband abused the petitioner and threatened the petitioner in presence of the children and also insulted the petitioner in respect of her moral character. these pleadings, the petitioner prayed for a judicial separation and other reliefs.
( 2 ) THE respondent-appellant denied all the allegations made against by the wife. It is further stated that the application for judicial separation is not maintainable in view of Section 30 of the Special Marriage Act. 1954 as there was no marriage between the petitioner and the respondent in the eye of law as the same was solemnised within the prohibited period of one year from the date of decree of divorce obta
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