KARSANDAS DHARAMSEY Vs. GANGABAI

JUDGEMENT

(1.) The plaintiff sues as a member of a joint undivided Hindu family, alleging that his great grand-father Mulji Jetha, with his son Soonderdas Mulji founded the family fortunes, acquiring great wealth, and that they were joint in food worship and estate; that on the birth of Soonderdas's eldest son, Dharamsey the joint family consisted of Mulji Jetha, Soonderdas Mulji and Dharamsey Soonderdas; that the various settlements and devises made by Mulji Jetha, Soonderdas Mulji and subsequently by Dharamsey Soonderdas and Gordhandas Soonderdas, were all invalid and beyond their competence, as purporting to dispose of joint family property, in the first instance, and afterwards of joint ancestral family property. That on the birth of Gordhandas, he too acquired by birth a right in the joint family property, and after him his son, since deceased and the plaintiff who is the son of Dharamsey Soonderdas.

(2.) The defendants representing generally, the estate of Gordhandas, demur, that the plaintiff on his own showing acquired no interest by birth, in the-family property or to so much of it as had come into the hands of Gordhandas, and had formed the subject of his will; that this being so, the plaint discloses no cause of action, and should be dismissed. Further the defendants plead that by reason of the suit brought by Gordhandas against this plaintiff in the year 1899, the contentions raised in that suit, the decision thereon and the decree, the present suit is res judicata. And to the plaintiff's averment that he was not properly represented in that suit, the result of which is not therefore res judicata, against him, the defendants reply that that too, is res judicata, by reason of the application for leave to appeal, grounded on the same averment, which was heard, first in this Appeal Court, and again before their Lordships of the Privy Council and rejected. This Appeal Court, and the Privy Council held that the plaintiff had been properly represented in the previous suit.

(3.) The demurrer rests on this ground. The plaintiff does not allege that when Mulji Jetha started business he had any ancestral property. It is admitted that he built up his business by his personal exertions, and that it was at a much later stage that he associated his son Soonderdas with him in the business. While therefore the defendants appear to admit, and it was so found in the former suit, that Mulji Jetha and Soonderdas Mulji were joint in all respects, joint in food worship and estate, that means no more than that they were joint tenants, and that on the death of Soonderdas before his father, the latter took the whole estate by survivorship, as his own self-acquired property, over which he had full powers of disposition. The basis of this argument is what I may call the doctrine of nucleus, a doctrine which I cannot help thinking has involved the simple theory of the Hindu law, applicable to the joint family estate, in a great deal of confusion. Briefly it amounts to, or is used as amounting to this, that where there has been no nucleus of joint family property, that special estate does not come into being until there has been at least one unimpaired descent. Or in other words to throw it into a concrete form, if a father and son, or two brothers, start upon nothing, and make a fortune, which they use in common to the end of their lives, children being born to them in the meantime, that fortune has the character, rather, of what in England would be called joint estate, than of what in this country would be called joint family property. The important consequence is that in the former case, the children would take no interest by birth, while in the latter case they would.