TMI Blog1977 (11) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ji and K. J. John and P. N. Chaterjee for the appellant. Shankar Ghosh and B. Dutta for respondents 1-3. P.K. Mukherjee for Respondent No. 5. P.C. Bhartari for Respondents, 6, 8, 9, 16, 17, 21-23, 35-37, 39-41 and 47. S. M. Jain and S. K. Jain for respondents 20 and 42-44. Harbans Singh for respondent No. 19(a). P. R. Mirdul, H. K. Puri and M. C. Dhingra for respondents 12 (a b). D. N. Mukherjee for respondents 13 and 14. B. Parthasarthi for respondents 25-26. Rathin Das for respondents 10, 31 to 33. The Judgment of the Court was delivered by KAILASAM, J.- This appeal is by certificate granted by the Calcutta High Court against its judgment dated 18th May, 1967 in appeal No. 14 of 1957, upholding and affirming the judgement and decree dated 13-9-1956 in suit No. 1607 of 1938. are defendants 12 and 13 in the suit. The suit was filed by Beharilal and his mother Ginni praying amongst other reliefs for a declaration that the respondent is entitled to 1/8th share in the assets and properties belonging to the joint family, for setting aside all conveyances and transfers and for a declaration that Plaintiff is entitled to separate properties and funds of Laloolal Murarka, the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1943, challenged the validity of the impugned transactions 3 years after attaining majority. The position therefore is that the plaintiffs who belonged to Laloolal s group (the widow and son of one of the sons of Laloolal) who were the only persons that questioned the alienations at the time of the suit later on supported the case of the present appellants, while the descendants of two sons Radheylal and Chinnilal though they originally affirmed the impugned transaction, are questioning the validity of transactions and contesting the appeal before us. The present litigation is about 39 years old. The suit was filed on 22-8-1938. The decree was passed by the trial court on 13-9-1956 and the appellate decree is dated 18-5- 1967. It has now come up before us after 10 years since the passing of the decree by the appellate court in Calcutta. The trial went on for 63 days. The main contention that was raised in the appellate court by Defendant 12 and Defendant 13, the present appellants, was that the immovable properties which stood in the name of Ramniranjandas were his self-acquired properties and they were brought into the assets of company of his 8 sons having defined shares i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so submitted that even if the transactions were not binding on the members of the joint family as they are only voidable they can be set aside only at the instance of a coparcener to the extent of his interest in the joint family and as the only branch that questioned the validity of alienation has left the field, the present respondents who originally supported the alienations are not entitled to any- relief and in any event their claim, if any, is barred by limitation. The transction that are impugned are conveyances in favour of the appellants ourarka Properties Limited and Buckingham Court (P) Ltd. by various conveyances, one of which is Ex. L. As the plea of Shri Lal Narain Sinha, the learned counsel for the appellants, is that Ex. L itself proves that at the date of the document there was no joint family and that in any event the document itself effected a separation, it is necessary to refer to the relevant recitals in the document. The document prefaces :- "This indenture of conveyance dated 9th December, 1932 between Hiralal Murarka eldest son of Ramniranjandas Murarka for himself and as the father and natural guardian of his infant son Kunj Lal Murarka and as the Kart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in status at least from the date of the document. The effect of the documents L, M, N, 0 etc. is that the properties which were owned by several sons were transferred to a company consisting of themselves alone. Even if the recitals in the document do not prove separation of status before the date of the document they make it clear that 8 sons who were acting as Kartas of their sons and grandsons were transferring the properties to a company consisting of themselves alone. It is to be noted that the entire family properties were transferred to the company consisting of 8 brothers and their descendants alone. The transaction will have the effect of transferring the properties from the families to the company though it may not be in the nature of a family settlement. Even if the joint family of Ramniranjandas Murarka was in existence before 9-12-1932 by this transaction had the effect of bringing about a separation in status and the members entered into the transactions as co-tenants. We are satisfied was a joint family in existence before the date of the document, the recitals in the documents would have the effect of disrupting the joint family. Mr. Lal Narain Sinha submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case. On the facts of this case there could be no difficulty in coming to the conclusion that the transaction was for the benefit of the estate. The evidence of Mitra, the Solicitor who was instrumental in bringing about the transactions, is that the purpose or the reason for these transactions is for protecting the properties for the members of the family and that the idea was that the properties may not be partitioned and to prevent any member of the Murarka family from selling away any share of the property by transfer or mortgage. The witness was not cross-examined. It is clear therefore that by the transaction there was no dissipation of the property. The transaction was only for the purpose of preserving the properties for all the members after due deliberations by all the adult members. In Bal Mukand v. Kamla Vati and Others([1964] (6) S. C. R. 321.), the Court held that any transaction to be regarded as one which is of benefit to the family need not necessarily be only of a defensive character but what transactions would be for the benefit of the family would depend on the facts and circumstances of each case. The Court must be satisfied on the material before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemselves all the household furniture, fittings, electrical equipments musical instruments, beddings, photo cameras, cutleries, radios and fieldglasses which were with them and their sons in Calcutta and it remained only the exclusive property of each individual and was in their possession. It was submitted by Mr. Mridul, counsel for the respondents, that these documents would indicate that the separation was effected for the first time in October, 1935 or at any rate the immovable properties were divided about the time when these transactions were entered into. It is a common knowledge that usually a division of the movables takes place after immovable properties are divided. These two documents instead of supporting the plea of the respondents probabalise the case of the appellants that the separation took place before the date of these documents. The learned counsel for the respondent relied on two affidavits filed by the members of the family to the effect that the joint family continued. In Ex. 1 dated 9th December, 1936 Mohanlal Murarka stated in a petition for bringing on record the legal representatives for executing a decree obtained by Ramniranjandas Murarka that Ramniran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f representing one of the 8 brothers alone prayed for allotment of 1/8th share and the challenge as regards alienation of share of others cannot be sustained. We do not think we are called upon to decide this question, but we may observe that one of the reliefs asked for is for setting aside the alienation and therefore the failure of one of the, branches to question the validity of the alienation would not bar the right of the other branch for the said relief. On a consideration of the entire evidence placed before us and the contentions of the parties, we hold that the family of Ramniranjandas Murarka became divided in status before 1932 and that in any even- a division in status was effected from the date of the document Ex. L etc. in 1932, and that even if there was a joint family in existence as the transactions were for the benefit of the family, the other coparceners cannot challenge its validity. In the result the appeal is allowed and the decree of the trial court is set aside so far as the appellants, Defendant 12 and Defendant 13, are concerned. Costs will be paid by the contesting respondents who are legal representatives of R- 12, Bimla and Rahul, and R-20 and his th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
