K SEETHARAM NAIDU Vs. KBALAKRISHNA NAIDU

JUDGEMENT

(1.) This is a suit brought by the plaintiffs who are the sons of the 1st defendant to set aside alienations made by the 1st defendant and for partition. The properties in question are alleged by the plaintiff to have descended to the 1st defendant Balakrishna from his father Venkatasawmy. Venkatasawmy was the son of one Gantalamma, who according to the defendants, was a dancing woman and the evidence is that the whole family were known as Gantala people, that is to say, as descendants. One of the chief alienations attacked is a partition deed, Exhibit C," entered into in 1893, shortly after Venkatasawmy s death between the 1st defendant and his sisters through whom some of the alienee-defendants claim. That deed shows that the 1st defendant Balakrishna and his sisters who according to the undisputed evidence, still continue to follow the profession of dancing women were all residing together in one house; and it recites that this woman Gantalamma, Venkatasawmy s mother, had effected a partition with her sisters, who according to the evidence were themselves dancing women, as far back as 1874. It also recites that she enjoyed the properties included in the deed with her daughters and intended to leave half of them to her son Venkatasawmy and half of them to her daughters who were dancing girls, that the daughters pre-deeeased her and she decided to leave half the property to her son and half of the property to the daughters of the son who had according to the evidence adopted the profession of dancing women It also recites that she died in 1882 and that since that time-Venkatasawmy, her son had been managing, and improving the properties. The evidence is that all these properties whether acquired, during Gantalamma s lifetime or after her death, stood in the name of Venkatasamy and that some of the more valuable-properties were acquired after her death. There is also evidence that Venkatasawmy kept a small drug store but not such a business as is likely to enable him to become the possessor of these properties. The cession by Balakrishna of half of these properties to his sisters is attacked as an alienation of the joint family property of himself and his son--at that time, he had one son--on the ground it was not made for any antecedent debt or beneficial purpose. On the other hand it is supported on somewhat inconsistent grounds. Mr. V.V. Srinivasa Aiyangar for some of the defendants contended that it should be supported as a family arrangement because these dancing girls sisters had certain claims upon him for maintenance and otherwise. On the other hand Mr. Mahadeva Aiyar for some of the other defendants took a bolder line ; he contended that the proper inference was that all these properties had been acquired by these, three generations of dancing women as the fruits of prostitution and that under the Hindu law, as recognised in this presidency, they formed a joint family who took by survivorship and that consequently all these properties, though they stood in the name of Venkatasawmy, were really the property of the female members of the family and that Venkatasawmy did a very good thing for himself when he acquired one-half of them under Ex. C. and that therefore this acquisition was to be taken to have been a self-acquisition of his with which he was at perfect liberty to deal. As regards this last contention the first thing to be said is that it is nowhere set up in the pleadings nor was it a question on which the parties came to trial. Mr. Mahadeva Aiyar s answer to that is that these alienees did not know and it was only during the course of the case that the real circumstances of the family came to light. But in my opinion this contention has not been established. Admittedly the daughters of Gantalamma predeceased her and though the daughters of Venkatasawmy, the sisters of Balakrishna, engaged in prostitution yet there is no evidence that they were adopted by Gantalamma. If they had been, the question would have to be considered whether any such adoption could at the present day be considered as giving rise to any right to the property but I find it is not proved that they were adopted. On the other hand I am not disposed to accept as literal truth recitals in Ex. C ; the conclusion which I am constrained to draw from the evidence is that these people were carrying on, males and females, a sort of joint family business in which this man Venkatasawmy acted as a sort of managing member. No doubt he went so far on the way to respectability as to get married but he seems to have stopped there. He brought up his daughters to prostitution and his son to live with them in the same house; I am not able to say whether such a state of things is common in this part of India but I see in Ghasti and Nanhi Jan v. Umrao Jan (1893) L.R. 20 I.A. 1913 the facts were of a similar description. I find then there was no adoption of Balakrishna s sisters by Gantalamma. Therefore it seems to me that on Gantalamma s death Venkatasawmy was her heir and was entitled to inherit the properties which she had obtained on partition,. But it is perfectly clear to my mind that a large portion of these properties was afterwards acquired by Balakrishna s sisters. Therefore they had at any rate a better right to those gains than any male member of the family who had been aiding and abetting them and it seems to me that although in Ex. C. they did not like to state a number of unpleasant truths, which it was nobody s business to state in Ex. C. it repeats the story of Gantalamma s intention which is simply put in there to make some sort of colorable story--that is the inference I have come to. But I think that these properties were really largely acquired by the sisters of Balakrishna as the earnings of prostitution and that therefore they had a well-founded claim to part of the property which stood in the name of Venkatasawmy after his death and that therefore, in any case there was more than sufficient to support, a bona fide compromise by Venkatasawmy as head of the joint family of himself and his son. I find that the alienations under Ex. C. cannot be attacked. That disposes of the case of the 2nd & 3rd defendants.

(2.) The next question is as to the character of the property Balakrishna took.1 Mr. Mahadeva Aiyar, as I said, contended that it must be taken to have been self-acquired property. I cannot agree. It was taken by him under the deed, as in the right of his father Venkatasawmi. I think it must be taken to have been ancestral property which descended to him from his father who is proved to have been married and therefore Balakrishna took the share which he got under Ex. C. with all the incidents of joint family property.

(3.) Coming now to the other alienations, the question with which I have had to deal is the question of onus. It was contended for the plaintiff that the onus was on the defendant alienees to show that the alienations were made by the father Balakrishna for some antecedent debts or for a purpose beneficial to the family The only issue relating to that is " whether the alienations are illegal or immoral and therefore not binding ". That does not seem to me to cover the issue whether the alienations were for an antecedent debt or for a purpose beneficial to the family, and when the very recent decision in Ruthna Gramany v. Veerabadra Aiyar (1913) 25 M.L.J. 28 : M.W.N. 751 was cited at a later stage of the case to show that the plaintiffs must be taken to have accepted the onus of showing that these alienations were not made for antecedent debts which was held to be the case there, I came to the conclusion on a perusal of the pleadings and the issues in this case that the plaintiffs had never under taken any such burden and I have framed the further issue as to whether these alienations were for antecedent debts or for a purpose beneficial to the family as both the pleadings and the evidence were directed to such an issue. That of course is quite an independent issue from the issue whether the antecedent debts, if such they were; were incurred for illegal or immoral purposes. Now as regards the issue whether the alienations were made for an antecedent debt or for a beneficial purpose I am clearly of opinion that in this as in other cases the onus is on him who asserts. Anyone who asserts that the alienation was made for an antecedent debt or for a beneficial purpose is bound to prove it. The difference of opinion which took place in the Allahabad High Court in the case Chandradeo Singh v. Mata Prasad (1908) I.L.R. 31. A. 176 (F.B.) appears on a perusal of the Judgments, on the one side, of Chief Justice Stanley and on the other of Mr. Justice Banerji, to have proceeded entirely upon the difference of opinion as to whether in order to support such an alienation as this it was necessary to show existence of an antecedent debt. Stanley C.J. held it was, Mr. Justice Banerjee it was not. If Mr. Justice Banerjee had held that an actecedent debt must be shewn, I take it he must have held that the onus lay upon the person who asserted it. In this Court there is a decision of the Full Bench that the existence of an antecedent debt must be shown--I mean in the, abserice of any beneficial purpose--that is in Venkataramanayya Pantulu v. Venkataramanadoss Pantulu (1905) 29 M. 200 (F.B.). The recent decision of the Privy Council reported in Sri Narain v. Lala Raghubans Rai (1913) 25 M.L.J. 27 was referred to. That is a very short Judgment merely affirming the Judgment of the Court below. It can only be understood in my opinion on a perusal of the Judgment of the Court below which was not before me at the trial. But now lam informed, as I believed it must be the case, that no question of the existence of antecedent debts arose there because it was admitted. I think we should be very slow to construe a Judgment of their Lordships as dealing with a question of the first importance in India without assigning reasons. As to the case in Ruthna Gramany v. Veerabhadra Aiyar (1913) 25 M.L.J. 28 : M.W.N. 751 though the question is discussed there yet the court deliberately refrained from expressing any final opinion such as would be binding on me. I therefore hold that the onus is upon the; other defendants to support those alienations and they have very largely failed to discharge it.