LAL CHAND SHAW Vs. SRIMATL SARNAMOYEE DASI

JUDGEMENT

(1.) This appeal arises out of a partition suit brought by one Sarnamoyee Dasi, widow of Prom Chand Shaw, against her three brother s-in-law, Lal Chand Shaw, Rassik Chandra Shaw and Jogendra Nath. Shaw. It appears that Biswanath Shaw, the father of these four brothers, died in or about the year 1878. Prom Chand, the husband of the plaintiff, died about 1892. Since that time, the prospects of the family have considerably improved and the plaintiff now claims a one-fourth share of all the properties, both ancestral and subsequently acquired. She divides the properties in her plaint into five categories; first, ancestral immovable properties; secondly, monies due to the sons of Biswanatli Shaw on mortgage of immovable properties, such mortgages having been effected after the death of Biswanath; thirdly, the movable properties; fourthly, money-lending business and, fifthly, the tobacco business. The learned Subordinate Judge has decreed the plaintiff's claim for a one-fourth share of all these properties but, in respect of the movable properties comprised in schedule Ga, he has fixed her share at Rs. 200.

(2.) This appeal has been filed by the three defendants and only one question affecting two of the scheduled properties has been raised before us. With regard to the ancestral immovable properties no question is now raised, the appellants conceding that the plaintiff is entitled to a l/4 share in them, nor is any question raised as to the sum of Rs. 200, fixed by the lower Court in respect of the movable properties. With regard to the money-lending business it is denied that there is any such business in existence; but it is conceded that there are some loans due to the brothers on mortgage of immovable properties and that there are two harbars one in oil and the other in tobacco. With regard to these properties, it is contended that the plaintiff is only entitled to a half of the share of each of her brothers-in-law on the ground that, though the joint family funds might have formed a very small nucleus and have given a start; to the businesses, from the profits of which the loans were given, still these having been completed by the labour of the three surviving brothers, Prem Chand or his widow would not be entitled under the law to more than a half of the share of each of the other brothers. It appears that Biswanati left immovable properties to the extent of 22 or 23 bighas at the time of his death. These properties were encumbered and they were not finally cleared from debts until about 8 or 9 years ago. When Biswanath died, his sons were quite young, the eldest being then only about 10 years of ago. How they supported the selves in early life is not very clear; but Lal Chand says that, at first, he worked merely for his board and. later on, by Having a few rupees and buying and husking paddy, ho made a few more rupees and so by thrift, the prospects of the family improved. The ancestral properties were, as we have said, ultimately freed from debt and the brothers acquired a certain amount of ready money which they were able to lend out on mortgage. There is also pome evidence of. other small loans advanced by the brothers not on the security of immovable properties, which might possibly come under the head of money-lending business, though it was not, in fact, a business properly so called. So far as the question before us is concerned, the decision as to the mortgage loans must turn on what we find to be the fact with regard to the two karbars in oil and tobacco, because it is admittedly from the profits of these harbors that the loans on mortgage were given. we will, therefore, first deal with the question of these two karbars.

(3.) Now, the plaintiff has given her own evidence and she has called a number of persons to support her in her contention that her husband Prem Chand did a great deal not only in starting the karbars in oil and tobacco but also in carrying them on after they had been started and it is upon this that she bases her claim to a full quarter share of the properties. Her evidence and that of Lal Chand coincide almost exactly as to the dates when these karbars were started. They both, agree that Prom Chand died about 13 years before the suit was filed. They also agree that the oil karbar was started about 16 years before the suit and that the tobacco karbar about 12 or 13 years before their evidence was given. It, therefore, follows that the oil karbar was in existence for, at the very most, three years before Prom Chand died while the tobacco karbar was not started until after his death. These dates given by the two persons who must be taken to be most cognizant of the facts really give the go-by to the evidence of the witnesses whom the plaintiff has called so far as they go to prove that Prem Chand had anything to do with these karbars. Their evidence is extremely vague and unsatisfactory. The witnesses do not pretend to give any details nor is it expected that they would know all these small matters relating to the internal economy and the affairs of the business. Those witnesses put the capital of the karbars at anything from Its. 200 to Rs. 600, whereas we know from the evidence of Lal Chand and from the nature of the case that the two karbars were started with practically no capital at all. They arose out of very small beginnings and it is only by the industry and the efforts of Lal Chand and his brothers that they attained the proportion to which they at present extend. Then we must see, how these karbars wore, in fact, started. On the evidence as it stands, we should be inclined to say that they were perfectly distinct from any nucleus of the joint family fund. The learned pleader for the appellants has, however, admitted that it is difficult to dissociate thorn absolutely from the family properties and he, therefore, concedes that the plaintiff is entitled to half of the share of each of the three defendants. On that conclusion we need not trouble to investigate very accurately what was the actual starting point of these two karbars. But it is plain from Lal Chand's evidence and the other evidence on the record that the oil katbar was started by a loan of rapeseed from the plaintiff's father and uncle which loan apparently was paid off within the space of a year or so. That seems to have boon the starting point of the oil karbar. As to the tobacco karbar there is no precise evidence as to how that was started. Assuming that the karbars owed their existence at all to the joint family estate, it seems quite clear, upon the law to which these persons are subject, that Prem Chand or, in his place, the plaintiff would not be entitled to more than half of the share of each of the other brothers, for, it cannot be contended for a moment, that the oil karbar which was started just before Prem Chand's death has not been built up and the profits of it accumulated by the labours and efforts of the three surviving brothers. The law on the subject is plain and is contained in Dayabhaga, Chapter VI, Section 1, paras. 28 to 30. It is also stated by Mr. Mayne in his work on Hindu. Law (7 Edition) at p. 363 as a quotation from the futwah of the Pundits in Purtap Bahadur v. Tilukdharee S.D. 179, 236." Of several brothers living together in Family partnership, should one acquire property by means of funds common to the whole, the property so acquired belongs jointly to all the brothers. Should, however, the moans of acquisition, drawn from the joint funds, be of little consideration and the personal exertions considerable, two shares belong to the acquirer and one to each of the other brothers. Here, there can be no question whatever, even if we assume that the karhars depended in their inception, upon the joint funds, that the assistance from the joint funds was of very little consideration and that the karbars in their present condition are due entirely to the personal exertions of the three surviving brothers. It follows, therefore, that, as against the plaintiff, the defendants would be entitled each to a double share.