Ramchandra and Others vs Pannalal and Others

Chaturvedi, J.—This is second appeal by the Plaintiff in a suit for accounts and profits of joint fields. The Plaintiffs and the Defendants Represents two branches of a joint Hindu family whose common ancestor was Mohan Bhai. Mohan Bhai had, two sons, Vithaldas and Kishanlal. So far as this suit is concerned Vithaldas had two sons Nanuram and Narayan who had issues. Narayan''s three sons Pannalal Dhannalal and Babulal are first three Defendants. Then the Defendant No. 4 Ratanlal is the grandson of Nanuram. Kishanlal''s son Hiralal is the Plaintiff who filed this suit.

He is, however, dead and the names of his three sons Ramchandra, Madanlal and Navnitlal were brought on record as legal representatives of the said Hiralal. The Plaintiffs and the Defendants were members of a joint Hindu family doing business in the name of Mohan Vitthal in Nisarpur of former Holkar State. In 1035 there was a partition of the joint family property and an arbitrator was appointed who gave an award in accordance with which certain release deeds were executed by the parties. This partition is admitted by the Defendants; but then they stated that this award was set aside by another award, and the release deeds, especially Ex. P-3 were not admitted, but the two Courts held; that the release deeds have been proved to have been executed. Now, all the property was partitioned: in 1935 but in the release deed (Ex. P-3) it has been mentioned that certain agricultural fields known as Khata of Narayan Surajmal were kept as joint property and the Plaintiffs filed a suit for accounts of the income of this Khata. It was mentioned in the plaint that it had been agreed between the parties that the deceased Narayan and his sons should keep the account of the income of the fields in question.

It was held by the Courts below, and it is a concurrent finding of fact, that no such specific agreement has been proved; but both the Courts have come to the conclusion that in the release deed (Ex.P-3) which is registered, there is an admission made by Narayan, who executed it, that these agricultural fields are to be treated as joint property and that their accounts will be maintained by Narayan and the Defendants. Both Courts have held that there is no legal evidence this registered release deed was ever set aside.

The, trial Court specifically came to the conclu-sion that the admission of Narayan in the release deed dated 18-4-1935 is binding on the Defendants,-Narayan was the father of the Defendants, and was also the Manager of the joint firm. So the position is that alter the partition of the joint family property the agricultural fields known as Khata of Narayan Surajmal was kept as joint property and Narayan or, his branch maintained, accounts. The Defendants plea that these fields were the separate property of Narayan was held to be false.

It was found by the trial Court that manager of the family had purchased these fields in partnership with Surajmal with, the funds of the family for the benefit of the joint Hindu family. It has been further found that the profits of these fields were thrown in the common stock of the family. The accounts of the profits were maintained in the books of the joint family. The partnership firm of Narayan Surajmal was also financed by the Mohan Vitthal firm. The account books of the family showed that even the amount of Touzi was paid by the Mohan Vithal firm. The income of these fields was credited in the Mohan Vitthal firm and money for manuring these fields was also spent by Mohan Vitthal firm.

The trial Court also held that the profits were enjoyed by the family in common. On this basis the trial Court declared the Plaintiffs to be entitled to ask for accounts of the income of these field and to claim half of the share in the same. A preliminary decree was drawn to the effect that a Com-missioner be appointed to take accounts of the in come of the fields in suit, and after taking accounts the suit be decreed for half of the income to which the Plaintiffs were held entitled. The Court made it clear that the Plaintiffs'' suit for the past three years immediately preceding the date of the suit was also decreed with costs.

The Defendants went in appeal and the appeal was allowed by the District Judge of Dhar on the ground that the suit, as framed was at all maintainable and on the additional ground that Surajmal was hot made a party to this suit. The Plaintiffs come in second appeal to this Court against the decree of the District Judge. ''Dhar dismissing the suit.

Now, there has been no allegation by the Defendants, that the suit should fair on ''the ground that Surajmal being a necessary party had not been impleaded. There has been no issue on the point and it is difficult to understand why an objection was taken suddenly in the appellate Court and why the appellate Court allowed it.

Mr. Rege, learned Counsel for the Appellants has drawn my attention to Defendant Pannalal''s de-position in the Court below in which he has stated

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In my opinion, this portion of the deposition of a Defendant was sufficient to show that Surajmal had gone out and at the time of the suit he could not have been a necessary party. Certainly the suit cannot be dismissed on a ground not taken by the Defendants in their written statement and about which no issue had been framed. I am satisfied that the learned District Judge had fallen into error on this point.

As regards the second point that the suit for accounts or mesne profits cannot be maintained unless there is a suit for partition, the learned District-Judge has placed reliance on S.305 of Mulla''s Principles of Hindu Law (11th Edition.) at page 405. In my opinion, this section is not at all applicable. This Section applies to the joint family property. It does not apply to a joint property after there has been a partition in the joint Hindu family. In the present case, the joint Hindu family had been disrupted, there was severance in status and the members of the family had ceased to be joint tenants; they became tenants in-common, and did not remain coparceners in the sense in which the word has been used in Section 305 of Mulla''s Principles of Hindu Law.

Mr. Sanghi, learned Counsel for the Respondents, places reliance on Gavrishankur Prabhuram v. Atmaram Rajaram ILR 180 Bom 611(A) for the proposition that a claim to a share of the produce of, the property left undivided at a partition docs not lie because such a claim is based on the right to a, particular share in the property itself which has no existence in the case of an undivided family. The view has been taken in this case by Sir Charles Sargent C.J. (Bayley J. concurring) that the circumstance that there has been a partition between the members of a joint Hindu family does not alter their rights as to the properly till undivided. They would continue to stand to one another in the relation of members of an undivided Hindu family. If this view is correct, then of course, the District Judge was right in saying that the suit could not be maintained unless there was a suit for partition.

7 This view, however, does not appear to be sound. It has been adversely commented upon by Sir Norman Macleod C.J. and Faweet J. in Ram-chandra Tukaram ILU 45 Bom 914 : AIR 1921 Bom 276(B) where the dictum of Sir Charles Sargent has been held to be unsupported by any authority and was also held to be obiter in the case before''him. It was observed that the real principle was propounded in Anandibai v. Hari Suba Pa ILR 35 Bom 293(C) that if it is proved that there has been a breach in the state of union amongst the members of a joint Hindu family, the law presumed that there has been a complete partition, both as to Parties and to property, and, on this basis, it was laid down in ILR 45 Bom 914 : AIR 1921 Bom 276(B) that once anything occurs which effects a separation of the members of a joint Hindu family, they will be considered as holding the joint family property''s tenants in common; and if it is sought to show that any portion of the joint family property was held by the members of the family as joint tenants and not as tenants in common that will have to be proved like any other fact.

Similar observations are to be found in another case by the same Division Bench in Gabu Naroba Rajput Vs. Zipru Ramsing Rajput, where Three brothers living jointly had divided their immovable estate but kept certain cash securities as joint and they were all in the name of an elder brother. It was held that the money in the securities reamined as owned by the three brothers as tenants-in-common, and that the elder brother was managing as an agent of the other brothers. Fawcett J. delivering his concurring judgment cited the case of Setrucherla Ramabhadra v. Setrucherla Virabhadra Suryanarayana ILR 22 Mad 470(E) in which the Privy Council held that an elder brother was in the circumstances of the case, liable to account on the footing of an ordinary agent.

The Panjab Chief Court in Bhola Devi v. Mohkam Chand 48 lnd Cas 784 : AIR 1918 Lah 366(F) also held that where a partition takes place between the members of a joint Hindu family the presumption is that there is complete partition in status and of the properties, and it certain properties, are left undivided there is no presumption that coparcenary right is retained in those properties. A similar view has been held by a Division Bench of the Oudh Judicial Commissioner''s Court in Chaubar Singh v. Baktawar Singh 47 lnd Cas 897 : AIR 1918 Oudh 270(G). I need not multiply authorities for, the proposition which is very well settled that once the members of a joint Hindu family declare their intention to hold joint family property in definite shares, the family no longer remains a joint family.

The family ceases to be such from the time of partition, or of the declaration of intention of severance, and, then the parties hold the property not as, joint tenants but as tenants-in-common. The learned District Judge, Dhar, was in error when he proceeded on the basis that the Defendant and the Plaintiffs were coparceners in an undivided Hindu family. He ought to be proceeded on the basis that they were not tenants-in-common; and that though the specific agreement was not proved, still the in come of the joint fields was every year taken by Narayan, and after his death by Defendants only as tenants-in-common, and for the benefit of themselves as well as of the Plaintiffs.

The principle is very well settled that every man who manages the property of another person, or property in which another person is beneficially interested, upon the foundation of a trust or confidence between the two, is in a Court of Equity and good conscience accountable to the latter for the mode in which he does manage it and for the profits which he may have made out of it, and, inasmuch, as the question whether or not profits have been made lies, under the circumstances, solely within the knowledge of the person who manages the property a Court of Equity will make him disclose what has been done; in other words, will make him account for his administration of the property. It follows that the learned trial Court was correct in passing a decree in favour of the Plaintiffs and against the Defendants for rendition of accounts, and that the learned District Judge missed the point and wrongly set aside the decree of the trial Court.

For reasons stated above, I would allow the appeal, set aside the decree of the District Judge Dhar, and restore that of the trial Court. The Appellants will be entitled to costs throughout.