TMI Blog1901 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... o 1894 and apparently subsequent thereto is estimated at ₹ 60,000 and a schedule of such property is annexed to the plaint. The plaintiff charges that the first defendant as the senior brother and member of the joint family, consisting of himself and the plaintiff, has been and continues to be in possession of such property and that he has fraudulently transferred or pretended to transfer a portion of this property to his wife, the second defendant. Though it is not stated in the plaint that the plaintiff is entitled to an equal share with the first defendant in such property, yet it is evident that he claims an equal share on the footing that the property, of which an account is sought to be taken, forms the joint property of an undivided family, consisting of himself and his brother, the first defendant, such property representing the profits of the contract business carried on by himself and his brother with the aid and assistance of their sister, though not with the aid of any ancestral property belonging to them. 3. The first defendant, while admitting the relationship alleged in the plaint, denies that he carried on any joint contract business with the plaintiff or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployed by the father and the three elder brothers of the plaintiff and first defendant since 1874 when the plaintiff and first defendant, alleged to be of the age of 6 and 9 years, respectively at the time, left their family house and went to live with their married sister, who maintained and brought them up, and about 1887, three years after her husband's death, advanced them in business by her influence with the Madras Railway Company, with whom her husband had been carrying on contract business on an extensive scale. The first defendant married his sister's step-daughter in 1881 and the plaintiff, her own daughter in 1891; and until sometime in 1893, the two brothers with their wives were living together in their sister's family. 8. It appears from exhibit B, the draft of a partition deed, and from the oral evidence relating thereto, that an attempt was made in 1898 to effect a partition among the six members of the family, viz., the father and the five sons; but it fell through and was not completed, owing apparently to certain of the members not acquiescing in the proposed distribution and allotment of the property among the various members. 9. Bearing these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joint property of the main family or of one of its branches; and a stranger may also give property to the family as a whole (vide Radhabai Nanarav I.L.R. 3 Bom. 151), or to one of its branches vide Kunhacha Umma v. Eutti Mammi Hajee I.L.R. 16. Mad. 201, as a corporate body. Even if the undivided family is not possessed of any nucleus of property which has come to it as 'unobstructed heritage,' it may be that, by act of parties, property acquired jointly by all the members or separately by one or more members thereof, can be impressed with the character and incidents of unobstructed heritage or joint property belonging to the main family or to any of its branches. Property devolving by inheritance as 'obstructed heritage' on all the members of a joint family vide Gopalasami v. Chinnasami I.L.R. 7 Mad. 468, or upon any one of them, may likewise be impressed with the character of joint family property. But so long as a family remains an undivided unit, two or more members thereof--whether they be members of different branches or of one and the same branch of the family,--can have no legal existence as a separate independent unit; but if they comprise all the members of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly unable to concur in the proposition enunciated by that learned Judge that a mere declaration by one member, that he was separate from the others, would seem to be sufficient to effect the separation in Radha Churn Dass v. Kripa Sindhu Dass I.L.R. 5 Calc. 474 at p. 477. 15. In any one of the above contingencies the normal undivided state of the family and its legal character as a corporate body is in no way affected or disturbed. 16. But if one or more members become divided by partition, it is not equally clear that the status of the remaining members as an undivided family in its normal condition continues unaffected. By some of the Hindu lawyers a separation, such as to give one or more members their several shares, is regarded as necessarily involving a general partition. Those who have not separated, are, on this theory, looked on as re-united (West and Buhler 'Hindu Law, 3rd edition, page 685). This view was adopted in some of the earlier decisions of the Calcutta High Court (vide Jandut Chunder Ghose v. Benodbeharry Ghose 1 Hyde p. 214, Petambur Butt v. Harischandra Dutt 15 W.R. (C.R.) 200, Sham Narain v. Court of Wards 20 W.R. (C.R.) 197, Kesabram Mahapattar v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressing property acquired or owned exclusively by some members of an undivided family who do not in themselves form a branch family, with some of the incidents of joint family property. I say advisedly 'some' of the incidents of joint family property, for the re-united shares of re-united brothers and property acquired by them jointly after re-union are not on the same footing as the joint property of an undivided family in its normal condition. Such an estate is separately defined by the Hindu lawyers and partakes partly of the incidents of joint family property and partly of the incidents of separate property-- vide Ramasami v. Venkatesam I.L.R. 16 Mad. 440 Mayne's 'Hindu Law and Usage,' 6th edition, paragraphs 496 and 586; Mitakshara, chapter II, section IX). 19. It is next argued on behalf of the appellant that, even if the contract works carried on by the first defendant cannot be regarded as the joint family business of plaintiff and the first defendant, it must be treated as a partnership business between the two brothers. It is not alleged that there was any express agreement of partnership, but that as the plaintiff regularly combined his labour with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the profits, the sister, half a share, and the defendant, the remaining one share. If the plaintiff was a partner with the first defendant, this one share would of course belong to both of them. 20. The first contract appears to have ended in a loss in 1890 and the sum of ₹ 800 and odd then found due to Chelvapillai was repaid to him by the first defendant from a loan advanced to him by his sister. It does not appear from the evidence that, beyond the said amounts, any capital was contributed for the business. The loan, no doubt, was raised by the first defendant, but it cannot be regarded as capital contributed by him, for, if the plaintiff was a partner with him in the business, the debt will bind both equally. 21. There being no express agreement between the brothers in regard to the contract business, the question that presents itself for consideration is whether, under the above circumstances, a contract of partnership should be implied or whether the proper inference to be drawn is that there was no legal relation between the brothers in respect of the business, but that the plaintiff regularly and systematically assisted his elder brother in carrying on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Gopal Chunder Laha L.R. 19 I.A. 203 : I.L.R. 20 Calc. 296. The principle applicable to such a case is nowhere stated more lucidly than by Lord Kingsdown in his judgment in Ramsden v. Dyson L.R. 1129 H.L. at p. 170. If a man, says his Lordship, under a verbal agreement with a landlord for a certain interest in land or what amounts to the same thing, under an expectation created and encouraged by the landlord that he shall have a certain interest takes possession of such land with the consent of the landlord and upon the faith of such promise or expectation with the knowledge of the landlord and without objection by him lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v. Mighell 18 Ves. 328 , and as I conceive is open to no doubt. 23. This conclusion receives support from the circumstance that sometime after there was first a breach between the first defendant and his sister in 1893 and subsequently the relations between the brothers themselves became rather strained, and the first defendant removed to another house of his own, leaving the plaintiff to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in exhibit II as the first defendant's garden) we both erected at Madavakum, because he was displeased with my sister. Sometime after, there was a quarrel between us. He would not give me money, I asked for, while I was working for him .... We quarrelled because my brother would not give me money. No questions have been put to the plaintiff about this statement in view to its elucidation. Prima facie the statement indicates that plaintiff expected to be rewarded or remunerated for his having worked with the defendant in connection with the contract. If the earnings had been regarded as the joint family property of himself and the first defendant or as the profits of the first defendant's business in which plaintiff was a partner, he would not have simply demanded money for his having worked with the defendant in the business--a demand which implies that he expected reward or remuneration for his trouble--but he would have demanded his one half share in the defendant's earnings, a considerable portion of which was converted into house or landed property. He was not even paid any money as demanded by him. This was about the end of 1893 or beginning of 1894 and the pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned, the first defendant thereafter continued that business on his own account, and also undertook and carried on fresh contract business by himself or sometimes in partnership with one or other of his other brothers and that the plaintiff too obtained from the railway authorities other contract work for himself and carried on the same on his own account. The plaintiff says that the Ennore contract work which he obtained in 1894 and which he was carrying on for four years and which resulted in a profit of about ₹ 3,000 was his own concern and not a joint undertaking with the first defendant. But on the other hand, he says that he claims a half share in the profits of the first defendant's contract works even subsequent to 1894, not on the ground that he was working with his brother as before in the execution of the work, but by reason of an understanding with his brother that the latter should deal with him as he had been doing before and should not think of injuring him. The understanding herein referred to is vague and indefinite and there is no reliable evidence in support of it. 28. From the year 1894, therefore, the plaintiff ceased to be a member of the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solution and that the plaintiff did not abandon his interest in the partnership. It is impossible to gather from the report, whether, upon the facts of the case, the plea of limitation could have been taken, though as a matter of fact it was not taken in any of the Courts. At page 59 their Lordships of the Privy Council observe as follows: There was, however, no more evidence of express abandonment than of consent and there was some evidence of the plaintiff's subsequent intervention in the partnership affairs. If such subsequent intervention was within three years before the date of the suit, there could be no foundation whatever for raising a plea of limitation. The whole judgment and the English authorities cited by Counsel in argument and in the judgment of the Privy Council clearly show that the question of limitation was not at all before their Lordships and that the decision proceeded on the ground that there has been no abandonment on the part of the plaintiff or loss of his interest in the partnership by laches. In the present case, if there was a partnership between the brothers, it cannot be, and is not, contended that the plaintiff abandoned his interest therein ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
