PADMANABHAN ASARI Vs. CHOCKANATHAN ASARI

JUDGEMENT

(1.) THIS appeal is by the defendant in a suit for partition. The plaintiff and the defendant are brothers. They have two other brothers, Ganapathi Asari and Arunachalam Asari. The parties are Goldsmiths governed by Hindu Mitakshara Law. The plaintiff's case is that the father used to make and sell jewellery and that he left Iron safes, jewellery and precious stones worth Rs. 4500 when he died in 1096. Thereafter the plaintiff who was the eldest son was carrying on the trade along with his brothers. They opened the shop at Chalai in the year 1106 and the defendant was put in management of the same as he was the cleverest among the brothers, although the youngest. A branch of the shop was opened in Nagercoil in 1117. Immovable properties were also acquired in the name of the defendant with the income from the joint business. The two other brothers sued in O.S. No. 187 of 1121 of the District Court of Trivandrum for partition and recovery of their shares of the assets standing in the name of the defendant. The plaintiff was the 1st defendant in that suit and he filed a written statement claiming his share. However he did not pay court -fees on his share and the defendant and the plaintiffs in that suit colluded together and got the suit dismissed, notwithstanding the attempt made by the plaintiff to get himself transposed as an additional plaintiff. According to the plaintiff the business carried on by the defendant belongs to the joint family as it was started with nucleus left by their father and was conducted by all of them together as a joint family business. The defendant denied these allegations. He contended that his father did not leave any assets on his death and that the business was conducted by him in his name, not as manager of the joint family but as sole proprietor. The trial court held that the father of the parties left some assets when he died, that it was not possible to evaluate the same, that the business conducted in the 1st defendant's name was started with the aid of such assets and that the business belonged to the joint family. A preliminary decree declaring the plaintiff's right to 1/4th of the assets was accordingly passed. The defendant has preferred this appeal from the said decree. The question arising for decision in this case is whether the trade carried on by the defendant in his name at Chalai and Nagercoil and the immovable properties of which partition is sought, belonged to the joint family. After hearing both sides at some length we are satisfied that the decree passed by the court below cannot be supported. It has been pointed out by the Supreme Court that there is no presumption in Hindu Law that a business standing in the name of any member is a joint family one even when that member is, the manager of the family and that it makes no difference in this respect that the manager is the father of the co -parceners. Chattanatha Karayalar v Ramachandra Iyer and another ( : A.I.R. 1955 S.C. 799). The defendant in whose name the business and the immovable properties stand is the youngest of the four brothers. The trade from its commencement was conducted in his own name. In the case of a joint family trade one would normally expect some indication of that fact in the name in which the business is run but in this case, the jewellery shop bore the name of the defendant. There is no clear evidence that the father of the plaintiff 'and the defendant left appreciable assets when he died in 1096, or that the defendant built up the business with the aid of such assets. P.W. 1 who deposed on this point was only a boy of 12 or 13 when the father died. P.W. 2 supports the plaintiff's case on this point. Though he says that himself and his brother jointly own properties worth Rs. 1 lakh, he admitted that he sought the aid of the Debt Relief Act for payment of a debt of Rs. 1500. He does not say that the assets left by the father were valued when he died or that he was present on any occasion when such assets were ascertained. P.W. 3 also supports the plaintiff on this point but on his own showing, the trade could not have been a joint family business because according to him, the plaintiff and the other brothers worked under the defendant for wages. P.W. 3 was the defendant's accountant for some time and he admitted that the wages paid to them were entered in the defendant's account. This is seen to be true from the accounts Exts. IV and V produced by the defendant. In addition to the testimony of these witnesses there is only the interested testimony of the plaintiff. In the light of the circumstances appearing in the case it is not possible to hold that the plaintiff has satisfactorily proved his case by the oral evidence referred to above. It is in evidence that the defendant began subscribing for a chitty as early as 1105 and that in 1106 he received the prize money in respect of a ticket for Rs. 1500.Ext. I is the receipt executed by him in favour of the foreman for receiving the prize money. The plaintiff has no case that this chitty was subscribed for from joint family funds. According to the defendant his trade was started in 1108 with a capital of Rs. 2000. Ext. I is a strong piece of evidence to show that the defendant himself raised funds for starting the trade. The plaintiff admitted that the defendant was a clever and shrewd man. The case in the plaint is that after the father's death in 1096, the plaintiff was looking after the jewellery business conducted by himself and his brothers. If so, it is not clear why the defendant was allowed to use his name for the shop when it was opened in 1106 or 1108. The inference arising from the fact that the defendant's brothers were being paid wages for the work done by them is sufficient to override the effect if any of the oral evidence adduced by the plaintiff. The plaintiff also relies on some circumstances in support of the case such as the fact that when the plaintiff's sons were studying in the College, the defendant acted as guardian. Exts. C and D were relied on for this purpose. The defendant admitted this and also the fact that he was meeting their education expenses. The defendant was in fairly affluent circumstances unlike his brothers and there is nothing strange in his helping the plaintiff in this manner. The Privy Council has pointed out in Appalaswami v Suryanarayana murti and others, (A.I.R. 1947 P.C. 189) the danger of construing acts of generosity or kindness as admissions of legal obligation. That the defendant's version that he was actuated by generous motive in helping the plaintiff to educate his sons is true can be seen from the fact that when the plaintiff wanted a sum of Rs. 5000 for the expenses of the marriage of his daughter, he executed a promissory note to the defendant and received the amount. His explanation that there was an oral agreement to adjust the same at the time of partition. This agreement was not attempted to be proved. If there was such an agreement the plaintiff was not likely to execute a promissory note. The defendant's explanation is that the plaintiff did not borrow this sum for his daughter's marriage but to enable him to start a jewellery business. Another circumstance relied on by the plaintiff is when the two brothers who instituted the earlier suit for partition ceased to prosecute that suit, they filed a memo Ext. A stating that they had settled their claims with the defendant. The defendant in this suit is not bound by what is stated in Ext. A. Even otherwise what is stated in Ext. A is that the payment by the defendant was in the nature of a gratuitous one. This is not sufficient to hold that the business and other assets belonged to the joint family. The normal presumption in a case of this kind is that the business and the other assets standing in the name of the defendant belonged to him. The evidence adduced by the plaintiff is insufficient to rebut such presumption. We therefore hold that the plaintiff is not entitled to get a share in the assets sought to be partitioned as the same belonged to the defendant alone. The decree passed by the court below must therefore be set aside.

(2.) IN the result the decree of the court below is reversed and the appeal is allowed. The suit will stand dismissed with costs here and in the court below. As the suit was filed in forma pauperis the State is allowed to recover from the plaintiff the court fees payable on the plaint.