NAGESH PUNDALIK Vs. MANJAYYA KRISHNA

JUDGEMENT

(1.) Applications were made by creditors against the petitioner and his two brothers. The trial Court held that the petitioner and his two brothers constituted a joint and undivided Hindu family and the family was not a debtor within the meaning of the Act because their non-agricultural income exceeded the agricultural income beyond the sum of RS. 1500 laid down in the Act. In arriving at the non-agricultural income of the family both the Courts below have taken into consideration the income of the two brothers of the petitioner, one of whom is a Mamlatdar and the other is a bank clerk in Bombay, and Mr. Murdeshwar's contention is that in no view of the case can the income of the Mamlatdar and the income of the bank clerk be treated as joint family income. Mr. Murdeshwar is right that even a coparcener may have separate earnings, and if be earns by his own exertions and without the aid of joint family property, his earnings will not form part of joint family property unless be blends his earnings with the joint family property. Of course, the law has gone much further now because according to Dr. Jayakar's Act, the Hindu Gains of Learning Act, even where a man hag received education with the help of joint family property, his separate earnings will not thereby become part of joint family property. Therefore, prima facie it seems that the earnings of the Mamlatdar and of the bank clerk cannot be taken into account in considering the aggregate income of the joint family under Section 2(5)(b) (iv).

(2.) Now, Mr. Vaidya has two answers to give to this submission of Mr. Murdeshwar. The first is that on a true construction of Section 2 (5) (b) (iv) what is got to be considered is not income of the joint family but the income of each member of the family, whether that income is separate income or income which belongs to the joint family, and Mr. Vaidya draws my attention to the two parts of Sub-clause (iv) which emphasises his contention. Sub-clause (iv) is in the following terms :

(3.) The other contention of Mr. Vaidya is that no opportunity was given to him to establish that in fact the income of the Mamlatdar and the income of the bank clerk are not their separate incomes but they constitute joint family incomes because they are blended with the joint family assets. There is some justification for Mr. Vaidya's contention, because the point does not seem to have been argued in the trial Court and no reference is also made to it in the judgment of the lower appellate Court.