GANPAT RAI MARWARI Vs. SUKHDEO RAM

JUDGEMENT

(1.) This is an appeal by the plaintiffs arising out of an action claiming against the defendants, who are alleged to have been members of a joint Hindu family business, a sum of Rs. 12,381 on a hat-chitha. The learned Judge in the Court below has given judgment in favour of the plaintiffs against one Sukhdeo Ram who is the first defendant on the record.

(2.) The family of which Sukhdeo was a member, consisted of himself and his brother and two sons of his brother Mahadeo Mahadeo died in the year 1930 before this suit was brought. The purpose of this appeal is to obtain a decree against the two sons of Mahadeo who are minors. The learned Judge in the Court below has came to the conclusion in a finding, which is not contested, that the business was not the ancestral joint business of the defendants. He has also come to the-conclusion again a finding which is accepted--that there was nothing in the evidence to show that the business grew from the joint family property or that its earnings were blended with the joint family estate: I am using the words of the judgment of the learned Judge in the Court below.

(3.) But it is contended by Dr. Mitter on behalf of the plaintiff-appellants that the business was a joint family business, the fact being that Sukhdeo and his brother Mahadeo, before the minor defendants were born, had started this business. Reliance is placed upon Rampershad Tewary V/s. Sheochurn Doss 10 M.I.A. 490 : 2 Sar. 177, for this contention. The question there decided, however, was primarily a question of fact and at the most a question of mixed fact and law, but no question of principle was decided. The action was an action for partition and the question arose whether the business was joint family property. It was held that it was. The five brothers had all joined in the conduct of the business and the profits accruing had been thrown into hotch pot. Dr. Mitter also relies upon an observation of their Lordships of the Judicial Committee of the Privy Council in the case of Benares Bank Limited v Hari Narain 59 I.A. 300 : 137 Ind. Cas. 781 : Ind. Rul. (1932) P.C. 220 : 36 C.W.N. 826 : A.I.R. 1932 P.C. 182 : 34 Bom. L.R. 1079 : 55 C.L.J. 583 : 9 O.W.N. 599 : (1932) A.L.J. 714 : 36 L.W. 56 : 63 M.L.J. 92 : (1932) M.W.N. 788 : 13 P.L.T. 491(P.C.). There, members of a Mitakshara family, purporting to act on behalf of themselves and their minor sons, mortgaged certain family properties. Amongst the debts for the liquidation of which this mortgage was entered into, was a sum of Rs. 3,658 which was used in what was described as a thika business which had been started by certain members of the family. Amongst the properties mortgaged under the mortgage deed were certain properties in Allahabad and Manjhiari, and with regard to these, their Lordships made this observation which is relied upon: As to the Allahabad and Manjhiari properties, their Lordships were told by Counsel for the bank that they were worth a good deal more than the amount claimed by the bank, and that if it were held that they belonged to Jagdish Narain and Raghubir Narain, it would be unnecessary to consider the questions arising on the items of Rs. 6,342 and Rs. 3,658.