HUSSAIN SAHIB Vs. HASSAN SAIB

JUDGEMENT

(1.) This is an appeal from the prevailing judgment of Mr. Justice Sadasiva Aiyar affirming the judgment of the District Judge of South Canara, Mr. Justice Tyabji dissenting.

(2.) The parties are Muhammadans and the suit was brought by the plaintiff for partition of the suit properties which, he alleged, belonged to the joint family of the plaintiff and the defendants. The parties are descendants of one Abdul Razak, whose four sons executed a partition deed in 1818. Their family residence was at Manki in North Canara, but the third brother Hussain Sahib with the assistance of the 4th brother Hammed Sahib started business at Souda in South Canara. That business has been carried on down to the present time by the two brothers and their descendants. Various properties had been acquired in the name of one or other of the senior members of the family and all the members of the family have been maintained out of the income of properties and the profits of the business. The accounts which have been preserved show that during the lifetime of Hassan, who died in 1870, accounts were kept in his name, and that since that time, they have been kept in the name of representatives of the senior and junior branches. In the course of years the descendants of the younger brother Hammed became more numerous than the descendants pf the elder brother Hassan and the family have now four residences at Manki, three of which are occupied by-descendants of the junior brother. If this, were all the evidence in the case, the conclusion would naturally follow that the two brothers of the family were living and trading together on equal terms. It is quite common for the descendants of a Muhammadan trader to live and trade together for more than one generation and to acquire property in the names of one or other male members of the family, and in such a case the property is understood to be held for the several members of the family in the shares to which they are entitled under Muhammadan Law in succession to the common ancestor. Such a case recently came before this Court in a suit for the partition of properties of one of the leading Muhammadan firms in Madras. The present case, however, is not so simple. The contesting defendants rely on the partition of 1818 and on a document Exhibit XVI which is said to have been executed by Hassan, the senior brother, in 1845 before starting on a pilgrimage to the holy places and purports to be in the handwriting of the younger brother Hammed and to be written with his full consent. The evidence of the aged witnesses who were called to speak to its execution is practically worthless, as was pointed out by the District Judge. But other witnesses speak to the handwriting of some of the attesting witnesses and one of the plaintiff s witnesses speaks to a recognition of the document by some of the junior branch. It is also admitted by some members of the junior branch in their written statement in this case. Exhibit XVI has been accepted by the District Judge and the two learned Judges who heard the appeal and we are not prepared to differ from them. It recites that Hassan had carried on business and had acquired property of the value therein mentioned, and states that deducting Rs. 500 which he took on starting for Mecca the balance had been distributed into eight shares, of which his younger brother Hammed Sahib, who had been with him till then doing such acts as he was directed to do and who was to remain when he started for Mecca, was to have one; another share was to go to his wife and the remainder to his son Moiddin Sahib, who was to pay his two sisters Rs. 1,000.

(3.) It has been found by the District Judge and by the two learned Judges who heard the appeal that this document was never acted upon. Hassan Sahib returned from the pilgrimage and the business was carried on without any division. Mr. Justice Tyabji was further of opinion that in the events which happened no effect could be given to it. He, however, relied strongly on the recitals which it contained, that the business and properties therein referred to belonged to Hassan, the senior brother, as was admitted by the junior brother, and in these circumstances he was inclined to think that the business continued to belong to Hassan until his death in 1870. This was also the position taken up by the appellants in their 23rd ground of appeal, where they say that The lower Court ought to have held that members of Hammed s branch were only servants, assistants and managers and payments made to them were either by way of wages or as charity." On the hearing of the appeal it was realised that this was too extreme a position, and Mr. K. Srinivasa Iyengar who appeared for the appellants conceded that they should be entitled to a one-eighth share, and acting on this concession Mr. Justice Tyabji in his judgment awarded them a 1/8th share down to death of Hassan in 1870. As to the subsequent period he considered that an agreement between the two branches to share equally in the future profits of the business might be inferred from the fact that the subsequent accounts stood in the names, of members of both branches.