NUTBEHARI DAS Vs. NANILAL DAS

JUDGEMENT

(1.) This appeal arises out of a partition suit between members of a Bengali family governed by the Dayabhaga. The contest is between uncle and nephews ; that is between the appellant Nutbehari, who was defendant 1 in the suit, and the three respondents, sons of his deceased brother Haridas, viz., Nanilal (the plaintiff), Manmatha (defendant 2) and Nagendra Nath (defendant 3). These three brothers make common cause against Nutbehari. As McNair, J. has noticed : The real protagonists are Nutbehari and his nephew Manmatha Nath, who are admittedly contractors in a large way of business. Manmatha, although he is not the plaintiff, admits that he is financing the suit. The trial Judge (Subordinate Judge, 4 Court, 24 Perganas) dismissed the suit save as regards a small plot of land measuring about 3 bighas and 4 cottas, upon which the family had been living: this land, but not the house built thereon, he treated as joint property of the parties, though he refused to divide it by metes and bounds. By way of partition he directed that it should be valued and that on the uncle, Nutbehari, paying one-half of the value for division between the nephews, he should retain the whole of the land for himself. The High Court at Calcutta (Mitter and McNair, JJ.) reversed this decision and gave a decree for partition of a large number of immoveable properties and moveables, as well as of a grocery business or modi shop. In agreement, however, with the trial Court the High Court dismissed the claim for partition so far as regards two contract businesses and a money-lending business. It also dismissed the claim for accounts.

(2.) Concurrent findings by the Courts in India have displaced the case made by the respondents on the pleadings and the learned Judges of the High Court have deliberately decided to give effect to a case which the respondents by their memorandum of appeal had expressly disclaimed. The claim made by the respondents upon their pleadings and by the evidence which they adduced was to the effect that Haridas and Nutbehari had inherited from their father Iswar a certain amount of property which formed the nucleus of their joint property and by their joint labour had added thereto; both of them being owners of a contracting business begun in 1906 in the name of Nutbehari in partnership with a stranger to the family called Haricharan Das, son of Dinu Das Mistry; both being owners also of a second contracting business begun in 1913 in the name of Manmatha, of a moneylending business in Nutbehari's name, and of a modi shop carried on in a part of the dwelling house of the parties ; that the two brothers and their families all lived jointly on the land inherited from Iswar, Nutbehari acting as the karta, receiving the profits of all the joint family businesses and other income, investing the family savings sometimes in his own name and sometimes in that of Manmatha, building masonry structures on the family homestead, and on other lands which were let to tenants, generally, but not always, in Nutbehari's name. This case the trial Court rejected root and branch, and in the High Court the very outline of this case has been disbelieved. In agreement with the trial Judge, Mitter and McNair, JJ. in separate but concurring judgments have held that Iswar left no property, that Nutbehari and Haridas had no nucleus of ancestral property, that the contract business begun in 1906 was Nutbehari's alone, and that of 1913 was Manmatha's, having been started for him and given to him by Nutbehari; that Nutbehari did not act as karta; that the moneylending done in his name was done on his separate account; and that the land at Mudiali and the house built thereon by Nutbehari are his separate property. The learned Judges of the High Court have however held that all the other immoveable properties acquired either in Nutbehari's or Manmatha's name (Sch. Ka to the plaint as amended) and all the moveables in Sch. Kha are joint family property of the parties. This they have held on the strength of an argument which each learned Judge has separately stated. McNair, J., puts it thus : That Nutbehari acquired certain properties which would in the ordinary course of events be his own self-acquired properties and handed them over to the joint family and later blended with them other self-acquired properties; so that in the result the mixed properties assumed the condition of joint family property.

(3.) This argument the learned Judge admits not to be the case made in the plaint, not to have been considered by the trial Judge, and to have been expressly disclaimed by the present respondents before the High Court. He observes however that : There is no suggestion that any further evidence could or would be produced if the doctrine of blending had been specifically set up. Mitter, J. puts the argument by saying: That defendant 1 blended the earnings of defendant 2 out of his business with his own separate account and the effect of such blending was to cause the income from the two businesses to become joint to the extent that any immoveable properties which were purchased from such mixed fund was meant to be joint property of both brothers Nutbehari and Haridas.