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HIGH COURT OF CALCUTTA
R. P. MOOKERJEE, SARMA SARKAR
KUNJA BEHARI RANA - Appellant
Versus
GOURHARI RANA - Respondent
A. F. O. D. 107 Of 1952
Decided On : JUNE 12, 1956
DAYABHAGA FAMILY - JOINT FAMILY - PRESUMPTION - BURDEN OF PROOF - BENAMI TRANSACTION - SOURCE OF CONSIDERATION - BRASS UTENSIL BUSINESS - INDEPENDENT SOURCE OF INCOME - SEPARATION - PROPERTIES ACQUIRED AFTER SEPARATION - NON-PRODUCTION OF KOBALAS - WITHHOLDING OF TITLE DEEDS - ADDITIONAL EVIDENCE - DECREE FOR PARTITION - DECREE FOR ACCOUNTS - TRANSFER OF PROPERTIES.
Fact of the Case:
The plaintiffs, members of a joint Hindu family governed by the Dayabhaga School of Law, filed a suit for partition of certain properties which they claimed to be joint family properties. The defendants, who were the father and two sons of one of the plaintiffs, contested the claim, contending that the properties were their separate properties. The trial court decreed the plaintiffs' suit, holding that the properties were joint family properties.
Finding of the Court:
The High Court held that the presumption of jointness in a Hindu family does not apply to a Dayabhaga family consisting of a father and his sons. The burden of proof lies on the party who asserts that the properties acquired in the names of the sons are joint family properties. In the present case, the plaintiffs failed to discharge this burden. The evidence showed that the father had an independent source of income and that he had acquired some properties in his own name. The sons also had an independent source of income and they had acquired some properties in their own names. The properties acquired after the death of the father were also held to be the separate properties of the sons, as there was no evidence that they had been acquired from joint funds or that they had been thrown into the common stock. The court also held that the non-production of kobalas (title deeds) in respect of some of the properties did not lead to the conclusion that they were joint family properties. The court further held that the withholding of title deeds by the father was not sufficient to establish that the properties covered thereby were joint family properties. The court also rejected the defendants' application to admit additional evidence at a late stage.
Issues: 1. Whether the presumption of jointness in a Hindu family applies to a Dayabhaga family consisting of a father and his sons. 2. Who bears the burden of proof in a case where it is alleged that properties acquired in the names of the sons are joint family properties. 3. Whether the evidence in the present case was sufficient to establish that the properties in dispute were joint family properties. 4. Whether the properties acquired after the death of the father were joint family properties. 5. Whether the non-production of kobalas in respect of some of the properties led to the conclusion that they were joint family properties. 6. Whether the withholding of title deeds by the father was sufficient to establish that the properties covered thereby were joint family properties. 7. Whether the defendants' application to admit additional evidence at a late stage should be allowed.
Ratio Decidendi: 1. The presumption of jointness in a Hindu family does not apply to a Dayabhaga family consisting of a father and his sons. 2. The burden of proof lies on the party who asserts that the properties acquired in the names of the sons are joint family properties. 3. The evidence in the present case was not sufficient to establish that the properties in dispute were joint family properties. 4. The properties acquired after the death of the father were not joint family properties, as there was no evidence that they had been acquired from joint funds or that they had been thrown into the common stock. 5. The non-production of kobalas in respect of some of the properties did not lead to the conclusion that they were joint family properties. 6. The withholding of title deeds by the father was not sufficient to establish that the properties covered thereby were joint family properties. 7. The defendants' application to admit additional evidence at a late stage was rejected.
Final Decision: The High Court modified the decree of the trial court and remitted the case to that court to be dealt with in accordance with the directions given by the High Court. The parties were directed to bear their respective costs in both the courts up to that stage. Subsequent costs were to be according to the shares.
( 1 ) DEFENDANTS 1 to 3 have appealed to this Court against a preliminary decree passed by the Subordinate Judge, Second Court, Midnapur, directing partition of certain items of properties which had been claimed by the Plaintiffs PS joint family properties.
( 2 ) THE plaintiffs' claim so far as the immoveable properties are concerned (described in Schedule Ka to the Plaint) has been allowed. The claim to moveables, mortgage bonds and decrees included in Schedules Kha and Ga has been dismissed as the plaintiffs failed to prove the existence of any of those items at the time of the filing of the plaint. Schedule Gha included the stock-in-trade of a brass metal foundry business and not the business itself. Such stocks also were found not to be in existence.
( 3 ) THE immoveable properties which have been held to be joint family properties liable to partition stand in the name of different members of the family. For a proper appreciation of the conflicting claims we need refer to the relationship between the parties as it appears from the following genealogical table:
Although the present appeal is limited to the immoveable properties only and the claim in respect of the stock-in-trade of the brass foundry business has been dismissed we shall all the same be required to consider who had been running such business and whether any or more of the properties in suit were acquired out of the profits of such business. It is the common case of both the parties that a brass foundry business had been carried on in the family but the dispute is whether such business was started and/or developed by Kirtibas along with his sons or by Kunja alone.
( 4 ) I shall state in short the plaintiffs' case. According to them all the properties described in the different schedules to the plaint originally belonged to Kirtibas who had died in 1943 or thereabouts at the ripe old age of eighty. Kunja the eldest son was alleged to have become "the Karta of the joint family" even during the lifetime of Kirtibas when the latter became too old to look after the business and the other properties which had been acquired by him. Kunja used to retain in his hands the usufruct of the properties including the business meeting therefrom the necessary expenses of the family and all outgoings, maintaining an account of such dealings. In course of such management and out of the income which came into his hands as aforesaid Kunja had acquired various items of properties in the names of the different members of the family including the two sons of Kunja. Such persons in whose names properties were being acquired had no separate or independent source of income. The primary source of income of Kirtibas had originally been from a brass foundry business carried on by him as a family business being helped by his sons as and when they became fit for work. Kirtibas was alleged to have had a money lending business which also was looked after by Kunja when his father became old. After the death of Kirtibas all the members of the family continued to live in joint mess, Kunja acting as the Karta. When it transpired that Kunja had been dealing with the Joint income in an improper manner the parties separated in mess in September 1946. The plaintiffs accordingly claim partition of all the items of properties as joint family properties. They also pray for a direction on Kunja to render accounts of the period he had been in charge.
( 5 ) KUNJA pleaded a previous partition. He also contested the allegations made in the Plaint contenting inter alia that his father had never carried on any business of making brass utensils. Kunja had become an expert artisan; with the assistance of his sister Putibala who had got the training of a moulder, Kunja had through his own personal efforts and exertions earned a lot wherefrom he had acquired properties. He had never been the Karta of the alleged joint family. He, however, admitted that there were certain items of properties
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