MANILAL NARSINHADAS Vs. BAI SUSHILA

JUDGEMENT

(1.) THIS Is an appeal by the original defendants. The plaintiff has filed cross-objections. The plaintiff's husband Mafatlal was the son of defendant 1 and brother of defendant 2. Defendant 3 is the son of defendant 2, The plaintiff was married to Mafatlal on 3-1-1951. Unfortunately for her, Mafatlal died in the following year on 17-8-1942. At that time Mafatlal was 24 years old. On 1,-10-1942, the plaintiff left defendant 1's house and went to reside with her mother. In January 1952, she gave a notice to the de-fendants claiming maintenance. Her claim was repudiated by the defendants. On 15-4-1952, the plaintiff filed the present suit. She alleged in the plaint that, at the time when her husband expired, he was joint along with the defendants l and 2, that the family had a joint family business of building contractors and that the defendants had acquired extensive properties from the income of this business. She claimed Rs. 70/- per month for her maintenance and Rs. 25/- per month for her residence. She also claimed Rs. 10,830/- on account of arrears of maintenance. Subsequently by an amendment of the plaint, the plaintiff asked for partition and separate possession of her share in the joint family properties. That claim was subsequently not pressed. The suit was resisted by the defendants. They denied that there was any joint family business. It was also contended that defendants 1 and 2 were separate and that the various properties alleged by the plaintiff to be joint family properties were self-acquired properties of the defendants. The learned trial Judge held that the plaintiff's husband was joint with the defendants at the time of his death, that the business done by the defendants was a joint family business and that the property mentioned in para 14 of the plaint i. e. , a bungalow, on which the plaintiff had asked for a charge being placed for the amount decreed in her favour, was joint family property. The learned Judge did not regard the plaintiff's claim for Rs. 70/- per month as unreasonable, but having regard to the fact that she was working as a teacher on a salary of Rs. 125/- per month, he allowed her maintenance at Rs. 50/-per month. He also asked the defendants to pay her Rs. 16/- per month for residence. For arrears of maintenance, the learned Judge granted the plaintiff Rs. 3,000/-, which amount she had borrowed for the purpose of maintaining herself. He also placed a charge on the bungalow belonging to the defendants. From this decree, the defendants have come in appeal and the plaintiff has filed cross-objections. It has been urged by Mr. Shah on behalf of the defendants that they are not liable to maintain the plaintiff and the family does not possess any joint family properties. The case of the defendants as would appear from their evidence, is that defendant 1's father was a railway contractor. Defendant 1 separated from his father in 1920. After doing some business in partnership with his brothers, defendant 1 separated and started a shop which he conducted till 1928. He suffered a loss in that business. He had several creditors, whose claims he settled at the rate of four annas per rupee. Exhibit 54 is the composition deed executed on 3-10-1928 by defendant 1 on behalf of himself and his two minor sons. In order to pay off his creditors, defendant 1 sold the ancestral properties which had fallen to his share, by two documents. Ex. 56 executed on 10-12-1929 and Ex. 102 executed on 15-4-1932. The first of these documents was executed by both the defendants 1 and 2. Defendant 1 executed it on behalf of himself and his minor son Mafatlal, the husband of the plaintiff. In 1930-31 defendant 1 took up service. He continued to serve till 1932 when he started his own contractor's business. In 1936, he purchased a plot, on which the bungalow mentioned in the plaint stands, for Rs. 5,800/ -. The bungalow was built in 1939 at a cost of about Rs. 12,000/ -. In 1940, defendant 2 separated from defendant 1 and started living separately but in the same bungalow, in 1942, defendant 1 started a separate contractor's business. He took labour contracts of the value of above Rs. 50,000 to Rs. 60,000/ -. The value of the work done by him in these contracts was about Rs. 3 lakhs. The plain tiff's husband passed his B. sc. , examination in 1941 and thereafter he kept terms for L. L. B. examination. He was therefore a law student when he died in August 1943. In 1949, defendant 1 and defendant 2 entered into a partnership for doing business of building contractors. Exhibit 115 is the partnership deed which was executed on 10-8-1949. It mentions that the partnership had commenced on 1-4-1949.

(2.) DEFENDANTS 1 and 2 have made several statements, which show that they do not have much regard for truth. For instance, defendant 1 has stated that in 1931-32, he was working on a pay of Rs. 50/- per month, that out of this he had to pay Rs. 15/- for rent and that from the remaining amount of Rs. 35/ -. he used to maintain himself, his wife and his three sons, one of whom was married. He has also stated that his eldest son, defendant 2, was also in service at that time; but that he used to keep his pay with himself separately. This statement is difficult to believe. As the income of defendant 1 was then only about Rs. 50/- per month, it is not likely that his eldest son, who was also in service, did not help his father in maintaining the family, consisting of 6 persons.

(3.) THE defendants' case is that defendant 2 started a separate business in 1942. Defendant 2 was then about 30 years old and it is difficult to believe that from the small salary which he used to receive when he was in service, he was able to save so much as to be able to provide capital for contracts, the value of the work done in which was about Rs. 3 lakhs. Defendant 2 was also asked how much he had invested in this business and he stated that he had no idea about it. If it was his exclusive business, he certainly would have known about the investment he had made in his business. His inability to give any information on this point, as well as the fact that he was then in all probability not in a position to provide sufficient capital for taking and carrying out large contracts, suggest that the business done by him in 1942 was the Joint family business of both the defendants 1 and 2.