A M NARAYANA SAH Vs. ASANKAR SAH

JUDGEMENT

(1.) This is a suit by the plaintiff for partition of joint family properties and for delivery of his share. One Munusami Sah, Sankar Sah (1 defendant), Chinnasami Sah and Ponnu-sami Sah were four brothers. The 1 defendant is one of the above four who is alive. Munusami Sah had three sons and a daughter. One son Sudarsana Sah filed C.S. No. 63 of 1910, got a share and separated himself from the family; the second son Chender Sah is the 10 defendant and plaintiff is the third son. Various other members of the family are set out in the genealogical tree and it is unnecessary to particularise them further here. The plaintiff is the appellant.

(2.) There are only two questions in the appeal: one of fact and one of law. The one of fact is, whether the contract with the Madras Corporation was a separate business of the 1st defendant or a joint family business. The learned Judge has found on the question of fact that it is a joint-family business and I have no hesitation in agreeing with him. The family was one which traded by taking contracts, but the plaintiff alleges that this contract with the Madras Corporation was solely carried on by the 1 defendant. Paragraph 9 of the plaint states that the 1 and 8 defendants have been carrying on a family trade in gold lace, lametta and other goods and have also been carrying on the family contracts on behalf of the joint-family with the Government, for the supply of badges and for stitching uniforms to the Army, Police, etc. Under such circumstances, there is no reason to suppose that the contract with the Corporation would also not have been a joint-family business. The chief argument urged against this is that in the written statement filed by the present 1 defendant in the partition suit he puts himself down as a debtor to the family in a sum of Rs. 9,000 (Item No. 214). This admittedly represents the value of materials which had been handed over to the family by one Chockalinga Naicker who was indebted to the family and had undertaken the contract with the Corporation. At the time of this partition suit, the contract with the Madras Corporation had not been taken up by the plaintiff's family and the plaintiff in that suit was therefore not concerned with it. The 1 defendant has explained why under the circumstances he showed himself as a debtor for this amount to the family. In the Thundn-kanakku with a Chetti for sums borrowed on account of this contract, there is a credit for Rs. 1,359-3-9 in respect of lametta which obviously refers to joint-family business in that commodity. Moreover, the 10th defendant who supports the plaintiff's case that the contract business was not joint-family business admits that he was writing the accounts for it. He stated first that he only began to do so in 1915 but had to admit that he had written them ever since the contract was entered into in 1910 and he could only give the lame explanation that he wrote them as he was asked to. The other adult members of the family were in fact writing these accounts though plaintiff professes that he kept entirely aloof. The 8 defendant admits that the contract was a joint- family one and I have no hesitation in agreeing with the finding of the Court of First Instance in this matter.

(3.) The second question, which is one of law, is much more difficult and turns on the point whether the share taken by the plaintiff's branch of the family when his brother Sudarsana became divided is to be taken into account or not in making the present partition. The learned Judge following the decision in Manja-natha V/s. Narayana (1882) I.L.R. 5 M. 362 has held that the share must be taken into account and he has accordingly granted the plaintiff only 112 instead of 118. We have been asked to make a reference to a Full Bench as to whether this decision is still good law. The grounds urged against its correctness may be summarised as follows: (1) That it proceeds on a wrong principle of law in holding that the share of any member or branch of an undivided Hindu family can be predicated before an actual partition is made and that a view opposite to Manjantha V/s. Narayana (1882) I.L.R. 5 M. 362 has been taken in Pranjivandas Shivlal V/s. Ichharam (1915) I.L.R. 39 B 734. (2) That the Smriti Chandrika which is invoked by the learned Judges in Manjanatha V/s. Narayana (1882) I.L.R. 5 M. 362 in support of their view has since been held to be not an authority and that failing this the Mayukha which holds in an opposite sense is good law in this Presidency unless it is opposed to the Mitakshara. (3) That the argument relied on that those who have capacity to confer spiritual benefits on the common ancestor ought to take equal shares, is no longer sound in law. (4) That even as regards equality, it cannot be secured by taking a previous division into account, that such a course may actually work inequality and that it is impracticable in execution. We are asked to hold that the correct law is that adopted in Pranjivandas Shivlal V/s. Ichharani (1915) I.L.R. 39 B 734 in which Manjanatha V/s. Narayana (1882) I.L.R. 5 M. 362 was considered and dissented from.