CHAMPAKLAL CHIMANLAL Vs. AMUBHAI DAHYABHAI SODAGAR

JUDGEMENT

(1.) THIS is an appeal by defendants Nos. 7 to 11 in a suit for partition. The parties to the suit were the sons, grandsons and the widow of one Bahyabhai Sodagar who died in 1906 leaving eight sons. The eldest son Mohanbhai died in 1923. One of the other sons, Chimanlal, died on September 20, 1934, leaving five sons. The plaintiff in the suit is Amubhai, one of the sons of Dahyabhai. Defendants Nos. 1, 2, 3 and 4 are his brothers Hirabhai, Bholabhai, Manilal and Lalbhai. Defendant No.5 was Shantilal who died on April 110, 1936, after the present suit was filed on November 8, 1935. Defendant No.6 was Dahyabhai's widow, Bai Mangu, who died pending the suit and defendants Nos. 7 to 11 are the sons of deceased Chimanlal. The family had moveable as well as immoveable properties at Ahmedabad. There is no dispute with regard to immoveable property. The only disputes between the parties with which we are concerned relate to the money value of a broker's card in the Native Share and Stock Brokers' Association of Bombay, and family ornaments which were alleged to have been in possession of Dahyabhai's widow Mangu but disappeared after her death. It appears that in 1911 three of the brothers, i.e. the plaintiff Amubhai, Manilal and Chimanlal came to Bombay for business and service. They were all members of a joint Hindu family and the family was doing business as share brokers at Ahmedabad where they had two cards in the Ahmedabad Stock Exchange. The plaintiff's case was that in the year 1911 a card was taken in the Bombay Stock Exchange in the name of deceased Chimanlal. The business on that card was done for and on behalf of the joint family and the profits and losses also were shared by it. Another card was thereafter taken by the family in the name of Manilal, defendant No.3, in 1924, but it was kept silent for several years. The family seems to have got into financial difficulties on account of losses incurred by some of the brothers, and as a result, some of the Ahmedabad properties had to be sold to liquidate the debts. Thereafter, on January 20, 1933, the plaintiff gave a formal notice for partition to all the brothers, and since then severance has taken place between the members of the family. On September 20, 1934, Chimanlal died, and thereafter on November 8, 1935, the present suit was filed by the plaintiff. After Chimanlal's death no broker's business was done on his card till December, 1935, when under its rules the board of the Stock Exchange accepted the nomination of his eldest son, defendant No.7, for membership, and since then the business on that card has been done by defendant No.7 alone. The plaintiff's case was that all the four cards, the two cards in Ahmedabad as well as the two cards in Bombay, were taken on behalf of the joint family, that the profits and losses were also shared by the joint family, that the cards had a money value in the stock exchange and that therefore their value should be divided among the members of the family although the cards themselves cannot be divided. With regard to the ornaments, the plaintiff's case was that there were ornaments worth about Rs. 5,000 in possession of the mother and that they must also be brought into hotchpot by those members who might be found to be in their possession.

(2.) ABOUT the Ahmedabad cards there is no dispute and it is conceded that their value belongs to the joint family. But with regard to the Bombay card, which stood in the name of deceased Chimanlal, his sons, defendants Nos. 7 to 11, contended that that card was purchased with the private moneys of Chimanlal by incurring a debt of his own, and that, therefore, the joint family had no concern1 with it and the business done with that card was his personal business. It was further urged that in any case the card represented only a personal right of membership and it was not property in any sense which could be divided and partitioned. As regards the family ornaments, they contended that they were in possession of Bai Mangu, who was living with defendant No. 1, and therefore, the latter must be deemed to be in their possession. Defendant No.3, who held the other Bombay card, admitted in his written statement that it was purchased out of the joint family moneys but contended that the card created only a personal right and that therefore its value was not divisible. With regard to the ornaments, he supported the case of defendants Nos. 7 to11. Bai Mangu had filed a written statement to the effect that her sons the deceased Chimanlal and Lalbhai, defendant No.4, had taken away some of the ornaments from her. She; however, died after filing the written statement and therefore could not be examined in the suit. Defendant No.4 and the other defendants support the plaintiff in his case for partition of the value of the cards. Defendant No.1 denied his possession of any ornaments.

(3.) RELYING on these rules it is contended that the family had no property in the card during Chimanlal's lifetime. After his death also the board accepted in December, 1935, the nomination by Chimanlal's widow; of her eldest son for membership. That gave him a personal right only, and he would not therefore be liable to the joint family to account for the value of that privilege. It is undoubtedly true that the relationship between the member in whose name a card is issued and the Association is governed by these rules. Under the rales no corporate body or a partnership can become a member. Only an individual can be a member. Even if a joint family wishes to do the business of brokers, it cannot have the card in its name but must obtain it in the name of one of its members. If the card is obtained with the moneys belonging to the joint family, the business done by means of the card must be treated as a joint family business and its profits and losses must be shared by its members. If, therefore, the card has a money value, it must also form a joint family asset. That the card has a value there is no doubt whatever although it is not property in the legal sense of the term. Under the rules it cannot be inherited, transferred or bequeathed. It does not, however, necessarily follow that as between the members of a joint family the card cannot be regarded as a joint family asset. The President of the Bombay Stock Exchange has been examined in this case and he has deapsed that a membership means a right to trade on the floor of the Stock Exchange, and the card by itself does not represent any sort of property. He, however, says that on the rights and privileges of a member ceasing either by forfeiture or by his death, the Association is at liberty to sell the card at its discretion ; the amount fixed by the Association of a card from time to time represents its price and the Association fixes the price whenever it increases the number of membership. Rule 42 referred to above, also contemplates the board selling a card when it is either forfeited or vests in the Association. There is, therefore, no doubt that the card represents a valuable right or an asset, even though the card-holder has no absolute property in it.