HARIDAS NARAYANDAS BHATIA Vs. DEVKUVARBAI MULJI

JUDGEMENT

(1.) The facts of this case are as follows : One Narayandas started business in Bombay as a piecegoods merchant many years ago. He commenced his venture without the aid of any joint ancestral nucleus and amassed considerable wealth. While he was carrying on the business, the present plaintiff Haridas was born to him, and when Haridas reached the age of eighteen or thereabouts, he was associated with his father in the business. The trial Judge remarked: As the plaintiff grew to manhood and the father advanced to old age, more and more burden of the business was shouldered by the plaintiff and less by the father. The father and son lived and messed also jointly. All the property, and it is said by the son to be worth a lac, was acquired gradually from the profits of the business.

(2.) Then, shortly before his death Narayandas gave away a piece of land, the subject-matter of the present suit, to his daughter, the defendant. The plaintiff was aware of the gift and knew that his father with whom he lived had laid the foundation of the building in the land which had been gifted away. The trial Judge held that the property in dispute was his father's self-acquisition, and that the father had a right to gift it away to any extent. He thought that it was not proved that the gift was made with the plaintiff's consent; that the plaintiff was not estopped from disputing the validity of the gift, and that the plaintiff was not entitled to possession. Incidentally, the learned Judge held that, even if the property was joint family property, the gift of a small portion of the joint family property to the daughter by the head of the family would be good.

(3.) The appellate Judge held that, although the property was joint property in the hands of Narayandas and his son, it was not joint family property as contended for by the plaintiff. He considered himself bound to follow the common law rule adopted by this Court in Cliatturbhojj Meghoi V/s. Dharamsi Naranji [1884] 9 Bom. 438. In my opinion, the passage cited by the Judge on pp. 415 and 446 of the report does not lay down the correct principle to be followed where a Hindu father and son living together acquire property without any family nucleus. Mr. Justice Birdwood said (p. 445): There is no evidence to show that the parties were members of an ordinary trade partnership resting on contract. If the sons had a joint interest with their father in the piecegoods business, it was apparently because they were members of an undivided family carrying on business jointly in that capacity. If the property of the family firm had been acquired by the equal exertions of the three members, without the aid o any nucleus of property other than acquired by themselves, then, no doubt, the property of the firm with its accumulations would be self-acquired property even though it was owned jointly, And on a partition such, property would apparently remain self-acquired property in the hands of the several members, even though one of them was the father of the other two.