whether defendant No.1 was acting as the manager and ‘Karta’ of
the joint family. Ordinarily, the senior most male member of a
Hindu joint family, who takes up the responsibility of the joint
family property and manages it, is called the ‘Karta’ or sometimes
‘Manager’. The Manager of a Hindu joint family is called a ‘Karta’
(paragraph-234 of Mula’s Hindu Law 21st edition). Now, coming to
the case at hand, it is the admitted case of the parties that the
defendant No.1 is much older that is to say 16-17 years older than
the plaintiffs and defendant No.1 took charge of educating the
plaintiffs at Angul even during life time of their father. The plaintiffs
were allowed to stay in the suit house. It was brought out from the
mouth of defendant No.1 that he had repaid the loan of his father
by selling out property of his father at Hakimpada. The plaintiffs
also pleaded and laid evidence to establish that defendant No.1 was
managing the affairs of the family, as their father was incapable of
doing so. To establish the same, the plaintiffs examined PW-7, who
deposed that defendant No.1 was looking after them as guardian.
Defendant No.1 was even managing the affairs of the family. PW-10
(plaintiff No.1) in his evidence also supported the same and
deposed that defendant No.1 was looking after all the affairs on
behalf of his father, who was ‘Karta’ of the joint family. The
plaintiffs also relied upon evidence of defendant No.1, who deposed
that plaintiff No.1 came to Angul in 1949-50 and plaintiff No.2
came to Angul two years thereafter. They were staying at Badagudia
Hotel. After the suit land was purchased, the defendant No.1
repaired the thatched house standing over the suit land and stayed
there with his wife and plaintiffs. He also deposed that apart from
Hindustan Hotel, he constructed seven rooms with tin roof on a
piece of leasehold land he acquired in the Angul bus stand for the
purpose of running another Hotel. As plaintiff No.1 was
unemployed and wasting his time after completion of his studies,
the defendant No.1, in order to keep him engaged, instructed him
to start a Hotel in the rooms constructed over the leasehold land.
Thus, plaintiff No.1 started the business in the name and style of
‘Jayabharat Hotel’. As plaintiff No.1 was not aware of managing
affairs of the Hotel, defendant No.1 guided him for some years in
the management of the hotel and for that purpose he (the
defendant No.1) was also maintaining the accounts of Jayabharat
Hotel. The entire family stayed in the thatched house over the suit
land till the marriage of plaintiff No.2 in the year 1970. By then,
their parents were staying at Matagajpur and they had come to
Angul to attend the marriage ceremony of plaintiff No.2. After their
parents came to Angul, the house at Matagajpur remained under
lock and key and the defendant No.1 also allowed Aru and Karuna,
the cognates of the plaintiffs, to use the said house. He also
deposed in his evidence that he took the responsibility of educating
the plaintiffs 1 and 2 at Angul. Thus, Mr.Rath, learned counsel for
the plaintiffs/respondents 1 and 2 submitted that defendant No.1
was the ‘Karta’ of the family and thus, the suit properties acquired
by him in the capacity of ‘Karta’ or Manager of the family, are
nothing but joint family properties.
12. Mr.Mukherji, learned counsel for defendant No.1
submitted that even if it is presumed that the defendant No.1 was
looking after the affairs of the family in some way or the other,
those are only act of generosity and kindness on the part of
defendant No.1 and cannot be regarded as his legal obligation.
Thus, he cannot be treated to be the ‘Karta’ of the family at least
during the life time of his father who died in the year 1975. Per
contra, Mr.Rath relying upon a decision in the case of
Narendrakumar J. Modi vs Commissioner Of Income Tax,
Gujarat-II, Ahamedabad, reported in AIR 1976 SC 1953
submitted that a senior member may give up his right and junior
member of the family can act as the ‘Karta’ with consent of all other
members. He relied upon paragraph-10 of the said decision, which
reads as follows:-
“10. In these circumstances he appears to have
acted as the karta with consent of all the other
members. A junior member of the family could
do so. See Mulla's Hindu Law 296, fourteenth
edn. Where occurs the following passage:
So long as the members of a family remain
undivided, the senior member of the family is
entitled to manage the family properties,
including even charitable properties and is
presumed to be the manager until the contrary
is shown. But the senior member may give up
his right of management, and a junior member
may be appointed manager."
A similar view is taken in the case of M/S Nopany Investments (P)
Ltd. vs Santokh Singh (HUF), reported in AIR 2008 SC 673. This
Court in the case of Harihar Sethi and Anr. vs Ladukishore
Sethi and Ors., reported in AIR 2002 Orissa 110 at paragraph 10
held as under:-
“However, it is no more res integra that a senior
member of the family may give up his right and
a junior member of the family can act as Karta
with consent of all the other members. In the
present case, the defendants who putforth a
claim that the plaintiff acted as Karta of the
family, though he is not the eldest member, have
totally failed to prove the said fact by adducing
cogent evidence. In the absence of any evidence,
it is not possible to accept the contention raised
by the appellants that the plaintiff, though he
was not the senior member of the family, acted
as the Karta….”
Needless to mention here that by the time of death of their father,
namely, Jayakrushna, the suit land had already been purchased
and the construction of the house was completed. Thus, it can’t be
held that the defendant No.1, as a ‘Karta’ or Manager of the family
or acting on behalf of his father, purchased the suit land and
constructed the suit house. Further, the generosity shown by the
defendant No.1, as discussed above, cannot lead to the conclusion
that he was the ‘Karta’ of the family at least during life time of
Jayakrushna, more particularly when the plaintiffs have led
evidence to the effect that Jayakrushna was in the helm of affairs of
the family. Further, there is no evidence on record to come to a
conclusion that Jayakrushna at any point of time during his life
time had relinquished his right to act as the ‘Karta’ of the family
with expressly or impliedly or by his consent.
HIGH COURT OF ORISSA: CUTTACK
F.A. NO. 8 of 1990
Rasananda Sahoo
V
Prafulla Kumar Sahu
and others
Dated: 11.03.2016
P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Citation: AIR 2017(NOC)81 ORISSA
K.R. Mohapatra, J Being aggrieved by the judgment and decree dated
18.11.1989 and 30.11.1989 respectively passed by the learned
Subordinate Judge, Angul in T.S. No.40 of 1984, the unsuccessful
defendant No.1 has filed this appeal.
2. The plaint story in brief reveals that plaintiffs and
defendant No.1 are the three sons of one Jayakrushna Sahoo.
Other defendants are tenants in respect of the suit house. It is the
case of the plaintiffs that contesting parties (plaintiffs and
defendant No.1) to the suit belonged to village Matagajpur in the
district of Cuttack. They shifted to Angul for the purpose of earning
their livelihood. They initially started Hotel business in the name
and style of ‘Hindustan Hotel’ at Angul bus stand in the year 1951.
By then, the plaintiffs were minors and defendant No.1 acted as the
Manager of the Hotel and the plaintiffs were helping him in its
management. They were living in a rented house at Amalapada in
Angul town. Their father, Jayakrushna Sahoo by then was pretty
old, devoid of clear vision, was hard of hearing and his hands were
trembling due to old age. He was also bedridden and physically
incapable. The family had a handsome income from the Hotel
business and out of such income they purchased Ac.0.60 decimal
of land at Amalapada (for short ‘the suit land’) from one Sashi
Bhusan Garnaik vide RSD dated 29.05.1953 for a consideration of
Rs.1,500/-. The defendant No.1 taking undue advantage of
incapacitation of the father, the age of the plaintiffs as well as his
status in the family purchased the suit land in his name without
the knowledge of the plaintiffs. On purchase, they constructed a
thatched house out of the income from the said Hotel business and
were residing therein. Subsequently, they constructed a pucca
house over the suit land by incurring loan and utilizing the
compensation, the family had received for acquisition of their
ancestral properties at Matagajpur by the Railways. The said house
was rented out to Telephone Department on monthly rent of
Rs.90/- from 1957 to 1970. The rent was being collected by
defendant No.1 and the loan was repaid out of the same. Their
father, namely, Jayakrushna Sahoo had also purchased another
piece of homestead land at Angul town and subsequently sold the
same to one Maheswar Sahoo for a consideration of Rs.8,000/- and
the sale proceeds were also utilized for repayment of the loan
obtained for construction of the suit house. After, the marriage of
plaintiff No.2 in the year 1970 dissension arose in the family.
Defendant No.1 shifted to a portion of the suit building, which was
vacated by the Telephone Department. The rest portion of the suit
house was rented out to different persons. The plaintiffs resided in
the thatched house over the suit land. The defendant No.1 collected
a good amount of money from defendants 2 to 4 (the tenants)
towards rent and appropriated the same. Since the year 1970,
plaintiffs were separated in mess from defendant No.1. Their
parents stayed with them. Jayakrushna died in the year 1975 and
their mother died in the year 1977. In the year 1972, defendant
No.1 negotiated with one Sudhakar Pradhan to sell Ac.0.10 decimal
of land from the suit land, but the plaintiffs protested to such
attempt. As the defendant No.1 had taken some advance from said
Sudhakar Pradhan, the latter filed TS No.3 of 1975 against
defendant No.1. In the year 1976, the defendant No.1 again made
an attempt to sell a portion of the suit land to one Ramanath
Sahoo, but due to intervention of the plaintiffs the same could not
be materialized. The defendant No.1 in order to deprive the
plaintiffs from their legitimate share created disturbance with an
intention to evict the plaintiffs by closing the common path and by
constructing some houses in front of the thatched house in which
the plaintiffs were staying. Thus, the plaintiffs finding no other
alternative filed suit claiming 1/3rd share each in the suit land as
well as 1/3rd share from the rent collected and appropriated by
defendant No.1.
3. The defendant No.1 only contested the suit by filing
written statement and other defendants were set ex-parte.
Challenging the maintainability and cause of action of the suit, the
defendant No.1 filed his written statement. He claimed that the suit
was barred by limitation and was bad for non-joinder of necessary
parties. In his written statement, defendant No.1 pleaded that their
common ancestor Arta had only three acres of agricultural land at
Matagajpur and the same was quite inadequate to maintain the
family. Arta had four sons, namely, Iswara, Biswanath, Kusa and
Basu. The family had business of selling rice purchased from
outside and ‘Ukhuda’. When the size of the family inflated, it
became impossible to manage the family with the meager income
from such sources. Thus, the elder son of Arta, namely, Iswara
shifted to Purunagarh under Angul Sub-Division and then he
shifted to Angul town about 90 years back and acquired a piece of
homestead land there. He was running a sweets stall at Angul
bazaar. By then, all the four sons of Arta were living jointly and also
running the business jointly. Subsequently, ancestral lands at
Matagajpur were divided amongst them, but the property at Angul
town was kept joint. The business at Angul was being managed by
all the four brothers on rotation and after the death of all those four
brothers their sons also joined hands in running the said business.
Their family members were then residing at Matagajpur village. The
defendant No.1 and his father had also joined in running the said
business and were getting Rs.400/- to Rs.600/- per annum
towards their share. However, the income from the agricultural
land as well as from the business was not sufficient for
maintenance of the family of Jayakrushna. The defendant No.1 at
the age of 7 came to Angul in the year 1942 to prosecute his
studies. But he could not prosecute his studies as his father could
not afford to it. Thus, he left his study and started business on
pulses and oil seeds on commission basis. He was collecting oil
seeds from the weekly market and giving it to the dealers and was
getting commission out of it. He continued the business up to
1950. From such business, defendant No.1 could able to make
profit of Rs.2,000/- to Rs.3,000/-. With such fund, the defendant
No.1 started a temporary sweets stall at Village Rantalei. There was
good business at Ranatalei for which his financial condition
improved. After closure of the business at Ranatalei, he searched
for an accommodation to start a permanent sweets stall and Hotel
at Angul bus stand. Thus, he took the house of one Ratnakar
Nayak on rent and started ‘Hindustan Hotel’ in the year 1951. Out
of the income from the Hindustan Hotel, he purchased the suit land
in the year 1953 without any assistance of his father or family
members. The Hindustan Hotel was the exclusive business of
defendant No.1. He was alone managing and maintaining the Hotel
without any aid or assistance either of his father or the plaintiffs.
After purchase of the suit land, he repaired the thatched house
standing over it and brought his wife from the village. The plaintiffs
then came to Angul and stayed with him to prosecute their studies.
Subsequently, the defendant No.1 incurred some loan from the
House Building Society and started construction of a pucca
building in the year 1956. He rented out the said building to
Telephone Department. The defendant No.1 in his written
statement denied to have received any share from the
compensation received by the family for acquisition of land by the
Railways. He also denied to have utilized any amount of
compensation for construction of the suit house. As the plaintiffs
became wayward, to bring them to discipline, the defendant No.1
helped them by opening another Hotel in the name and style of
‘Jayabharat Hotel’ in the year 1963 on the leasehold land of
defendant No.1. Thereafter, the defendant No.1 asked the plaintiffs
to purchase their own house and to vacate the suit house, but the
plaintiffs did not pay any heed to the same. Though the plaintiffs
had prospered a lot from their business and were well-established
by 1970, they did not vacate the suit house. They were instigated
and ill-advised by some of their friends and created problem over
the suit land. Hindustan Hotel was closed in the year 1968 and the
defendant No.1 had no other business. He was managing his family
with much difficulty. According to him, the suit land and the house
standing thereon are his self-acquired properties and plaintiffs have
no manner of right, title or interest thereon. Thus, he prayed for
dismissal of the suit.
4. Taking into consideration the rival contentions of
parties, learned Sub-Judge framed as many as nine issues, which
are as follows:-
i) Is the suit maintainable?
ii) Is the suit barred by Law of Limitation?
iii) Have the plaintiffs any cause of action to sue
against the defendants?
iv) Is the suit bad for non-joinder of necessary
parties?
v) Had the parties any joint Hotel business in
Angul Bus Stand in the year 1951? And out of
that joint family business or otherwise had
the parties purchased suit plot for
construction of residential house?8
vi) Is the suit plot self-acquired property of
Defendant No.1?
vii) Has the defendant No.1 purchased the suit
plot from the vendor Sashibhusan Garnaik as
Karta of the joint family?
viii) Have the parties any construction over the
suit plot out of the joint family business or
otherwise for joint family occupation?
ix) Are the plaintiffs continuing in the suit plot
with the permission of Defendant No.1 as
licencee?
5. In order to establish their respective case, plaintiffs
examined as many as 12 witnesses including plaintiff No.1 as PW-
10 and exhibited several documents. On the other hand, the
defendant No.1 examined as many as 4 witnesses including himself
as DW-4. He also filed and proved several documents in support of
his case. Learned Sub-Judge while answering issue Nos.5 and 6,
categorically held that the Hindustan Hotel was the separate
business of defendant No.1 only, but in the concluding part of his
discussion of issue Nos.5 and 6, he came to conclusion that the
defendant No.1 had intended to throw the suit land to the joint
family. Then he proceeded to decide other issues and decreed the
suit allotting 1/3rd share to each of the plaintiffs and defendant
No.1 out of the suit land. Further, he held that pucca construction
on the suit land being the separate property of defendant No.1
should not be the subject matter of partition. The defendant No.1
thus filed this appeal assailing the said judgment and decree. The 9
plaintiffs also filed cross-objection under the provisions of Order 41
Rule 22, CPC assailing the findings on issue Nos. 5 and 6 holding
the Hindustan Hotel to be the separate business of defendant No.1.
6. Mr.Gautam Mukherji, learned counsel for the
appellant (defendant No.1 in the suit) and Mr.R.C.Rath, learned
counsel for respondents 1 and 2 (plaintiffs in the suit) at the outset
fairly submitted that the finding to the effect that defendant No.1
had blended the suit property to the joint family is not sustainable
in both fact and law as it was neither pleaded nor the ingredients of
doctrine of blending was satisfied. Thus, the finding on issues with
regard to manner of acquisition of the suit land has to be relooked
by this Court. Mr.Mukherji, learned counsel for the appellants
submitted that the defendant No.1 has in his written statement
clearly pleaded the sequence of events to show that how he
purchased the suit land and started the Hindustan Hotel out of his
own income. On the other hand, the pleadings of the plaintiffs
depict a picture that they have no idea as to how the business of
Hindustan Hotel commenced. In order to claim share over the suit
property, they have tried their best to make out a case which was
neither supported by pleadings nor by the evidence. Learned Trial
Court has also dealt with the oral and documentary evidence
adduced by the parties to the suit in its proper perspective and
rightly came to the conclusion that the suit land and the house
standing thereon as the self-acquired property of defendant No.1.
Referring to oral as well as documentary evidence on record, Mr.
Mukherji argued in detail to establish the claim of the defendant
No.1. Per contra, Mr.Rath, learned counsel for respondents 1 and 2
made a detailed submission to establish that Hindustan Hotel at
Angul bus stand was the joint family business and out of the
income from the said business, the suit land was purchased.
Moreover, the expenditure for construction of the pucca house over
the suit land was from the amount received by the family for
acquisition of land by the Railways and the loan incurred from the
House Building Society, which was repaid out of the income from
Hindustan Hotel. Referring to the oral as well as documentary
evidence on record, he strenuously urged that there is ample
material on record to show that the suit land and the house
standing thereon are the joint family property. As discussed earlier
though he fairly conceded that the finding of the learned Sub-Judge
with regard to applicability of doctrine of blending was not correct,
at the same time, he emphatically submitted that the learned SubJudge
was also wrong in appreciating the evidence on record to
come to a conclusion that the suit land and the house standing
thereon is the exclusive property of defendant No.1. He also
submitted that though the suit was decreed in favour of the
plaintiffs, but the decree is not workable. Thus, he prayed for
dismissal of the appeal and to allow the cross-objection allotting
1/3rd share to each of the sons of Jayakrushna in the suit property 11
as well as from out of the income from the suit land, which was
appropriated by the defendant No.1.
7. Pleadings and the evidence of the parties have to be
scrutinized keeping in view the aforesaid submissions of the learned
counsel for the parties. It is categorically pleaded by the plaintiffs
that Hindustan Hotel was the joint family business. Thus, the initial
burden of proof is on the plaintiffs to prove that Hindustan Hotel
was a joint family business and not an exclusive business of
defendant No.1 as alleged by him. Hon’ble Supreme Court in the
case of G.Narayana Raju (dead) by his legal representative Vs.
G.Chamaraju and others, reported in AIR 1968 SC 1276 dealing
with a similar nature of case at paragraph-3 of the said decision held
as under, which is relevant for our discussion.
“(3) The first question to be considered in this
appeal is whether the business of Ambika Stores
was really the business of the joint family and
whether the plaintiff was entitled to a partition
of his share in the assets of that business. It was
contended on behalf of the appellant that the
business of Ambika Stores grew out of a nucleus
of the joint family funds of at least by the efforts
of the members of the joint family include the
appellant. The contention of the appellant has
been negatived by both the lower courts and
there is a concurrent finding that the Ambika
Stores was the separate business of Muniswami
Raju and it was neither the joint family business
nor treated as joint family business. It is well
established that there is no presumption under
Hindu law that business standing in the name of
any member of the joint family is a joint family
business even if that member is the manager of
the joint family. Unless it could be shown that
the business in the hands of the coparcener
grew up with the assistance of the joint family
property or joint family funds or that the
earnings of the business were blended with the
joint family estate, the business remains free
and separate. The question therefore whether
the business was begun or carried on with the
assistance of joint family property or joint family
funds or as a family business is a question of
fact.-(See the decisions of the Judicial
Committee in Bhuru Mal v. Jagannath, AIR
1942 PC 13 and in Pearey Lal v. Nanak Chand,
AIR 1948 PC 108 and of this Court
in Chattanatha Karayalar v. Ramachandra Iyer,
AIR 1955 SC 799)…..”
Further, in a path-paving decision with regard to partition suit,
Hon’ble Supreme Court in the case of D.S. Lakshmaiah & anr.
vs. L. Balasubramanyam & anr., reported in AIR 2003 SC 3800
in paragraph 18 held as under:
“18. The legal principle, therefore, is that there
is no presumption of a property being joint
family property only on account of existence of a
joint Hindu family. The one who asserts has to
prove that the property is a joint family property.
If, however, the person so asserting proves that
there was nucleus with which the joint family
property could be acquired, there would be
presumption of the property being joint and the
onus would shift on the person who claims it to
be self-acquired property to prove that he
purchased the property with his own funds and
not out of joint family nucleus that was
available.”
Similar view is also taken in a decision reported in the case of
Makhan Singh (D) By Lrs vs Kulwant Singh, reported in AIR
2007 SC 1808 (relied upon by Mr.Rath, learned counsel for the
plaintiffs/respondents 1and 2). Mr.Rath also relied upon a decision
in the case of Kalwa Devadattam and two others Vs. The Union
of India and others, reported in AIR 1964 SC 880, in which it is
held as under:-
“11. .…The question of onus probably is
certainly important in the early stages of a case.
It may also assume importance where no
evidence at all is led on the question in dispute
by either side; in such a contingency the party
on whom the Onus lies to prove a certain fact
must fail. Where however evidence has been led
by the contesting parties on the question in
issue, abstract considerations of onus are out of
place; truth or otherwise of the case must
always be adjudged on the evidence led by the
parties.”
On the principles decided in the aforesaid case laws, the respective
cases of the parties are to be scrutinized.
8. It is the admitted case of the parties that the suit
property was acquired in the name of defendant No.1. ROR in
respect of the said property stood in his name. Defendant No.1 had
incurred a loan in his name from the House Building Society for
construction of the house over the suit land. However, it is the case
of the plaintiffs that the suit property was acquired from the joint
family nucleus. They contended that Hindustan Hotel was a joint
family business and the suit property was acquired from the
income of the said Hotel. Though the defendant No.1 admits that he
acquired the suit property from the income of the Hindustan Hotel,
he asserts that Hindustan Hotel was started from the savings he
made from the business at Rantalei. The pleadings of the plaintiffs
is silent about the incident occurred prior to establishment of
Hindustan Hotel. The plaintiffs have categorically stated in the
plaint that the contesting parties to the suit originally belonged to
village Matagajpur. While in joint mess and properties, they shifted
to Angul for business purpose. They started the business in the
name and style of ‘Hindustan Hotel’ at Angul bus stand. However,
defendant No.1 in his written statement has given a chronology of
events as to how the Hindustan Hotel at Angul bus stand started
and how he acquired the suit property. He stated in the written
statement that the family did not have sufficient income from the
landed properties for which their father, namely, Jayakrushna was
selling parched rice (Mudhi) and ‘Ukhuda’ moving from village to
village near by Matagajpur. As the size of the family increased by
passage of time, it became difficult to maintain the family from the
meager income from the landed property and selling of ‘Mudhi’ and
‘Ukhuda’. Thus, Iswara, the eldest son of Arta, shifted to
Purunagarh in Angul Sub-division. Thereafter, he (Arta) shifted to
Angul town and acquired a piece of homestead land for the purpose
of taking up family business in Angul bazaar. At that point of time,
all the four sons of Arta were in joint mess and property.
Thereafter, they started a joint business at Angul. Although there
was an amicable partition of Matagajpur property amongst four
sons of Arta, but the business at Angul, i.e., sweets stall continued
jointly and four sons of Arta were looking after the business on 15
rotation basis as their family members were staying at Matagajpur.
The income out of the said business was not sufficient for
maintenance of the family. Jayakrushna was receiving a meager
amount of Rs.400/- to Rs.500/- per annum from the said business,
which was being utilized for maintenance of his family at
Matagajpur. Besides the said income from sweets stall,
Jayakrushna was also getting two to three quintals of paddy as his
share from the agriculture at village Matagajpur. He was also
getting Rs.30/- to Rs.40/- per month from selling of ‘Mudhi’ and
‘Ukhuda’. As such, Jayakrushna was maintaining his family with
much difficulty till 1950. When the defendant No.1 was only seven
years old, he came to Angul town to prosecute his study and
started residing in the house attached to the sweets stall at Angul
bazaar till 1942. Due to paucity of funds, he could not prosecute
his study. Thus, some of his well-wishers showing pity on his
condition suggested the defendant No.1 to assist them in pulses
and oil seeds business on commission basis. With their financial
aid and assistance, defendant No.1 was purchasing oil seeds from
the weekly market at Angul, Athamallik and Hindol and was getting
a commission by supplying the same to the dealers and he
continued the said business up to 1950 out of which he could earn
a profit of Rs.2,000/- to Rs.3,000/-. With such fund, defendant
No.1 opened a temporary sweetmeat stall at village Rantalei where
there was a congregation of people, who used to get medicine from
one ‘Nepala Baba’. Thus, he could able to accumulate some money
and his savings swelled up to Rs.5,000/- within two to three
months. From the said fund, he decided to start a permanent
business and started a sweets stall and Hotel in the year 1951 in
Angul bus stand, which was named and styled as ‘Hindustan
Hotel’. From the income of Hindustan Hotel, he could purchase the
suit land in the year 1953. Thus, defendant No.1 contended that
the business of Hindustan Hotel and the acquisition of suit land
were out of his own income and the plaintiffs have no share or
interest in it.
It is thus clear that the pleadings of the plaintiffs is
conspicuously silent about the sweets stall started by Iswara, the
eldest son of Arta at Angul town, pulses and oil seeds business as
described by defendant No.1 as well as the sweetmeat stall at
Rantalei village. However, the plaintiffs in their evidence do not also
dispute about these business. On the other hand, they led evidence
to establish that those were the joint family business. Regarding
separate earning of defendant No.1 from pulses and oil seeds
business, the plaintiffs have not led much evidence except by
saying that it was a joint family business. As it appears, they had
no idea about such business at the time of filing of the plaint. PW-
4, a person who was working in the Badagudia Hotel (started by
Iswara) deposed in his evidence that defendant No.1 along with one
Bai babu (Baishnab Sahu, the uncle of defendant No.1 as well as 17
the plaintiffs) was doing business in black-gram etc. Further PW-6,
a cousin of plaintiffs and defendant No.1, stated in his evidence
that defendant No.1 was doing business on pulses with Baishnab.
He also deposed that they used to store pulses and oil seeds at the
backyard of the shop (Badaguida Hotel). He also deposed that the
same was a joint family business. PW-6 further deposed that in
1948, defendant No.1 and Baishnab were doing business on pulses,
which was closed in 1950. On the other hand, defendant No.1, who
was examined as DW-4 in his deposition, has categorically stated
that he left the study in the year 1942. Then he started business on
pulses and oil seeds etc. on commission basis. His friend, namely,
Aziz, who is the son of Md. Hazi and brother of Naruddin when saw
defendant No.1 was sitting idle, advised him (defendant No.1) to
take some advance from Hazi Company and collect pulses and oil
seeds on commission basis. In the year 1943, he started his
business. He further deposed that one Rollchand Jagannath firm,
which was situated near to Badaguida Hotel and was dealing with
pulses and oil seeds engaged defendant No.1 to collect the same on
commission basis. He was getting one anna per rupee as
commission. He categorically deposed that he was regularly visiting
Jarapada, Mantira, Bantala and Banibahal weekly markets and
neighbouring villages to collect pulses and oil seeds. He was also
collecting oil seeds from weekly market at Handpa, Thakurgarh and
Pedipathar. Thus, he could save about Rs.3,000/- when he left said
business in 1950. During his cross-examination, he admitted that
he was storing the pulses and oil seeds at the backside of the
Badaguida Hotel and was not paying any rent for that. Thus,
Mr.R.C.Rath, learned counsel for the plaintiffs (respondents 1 and
2) submitted that when he (defendant No.1) was utilizing the joint
family property for business purpose he cannot claim the business
of pulses and oil seeds to be his exclusive one. The argument of
Mr.Rath cannot be accepted in view of the ratio decided by the
Hon’ble Supreme Court in the case of P.S.Sairam and another
Vs. P.S.Rama Rao Pisey and others, reported in AIR 2004 SC
1619, wherein at paragraph-10 it is held as under:-
“10 The question to be examined in the
present case is as to whether mere user of the
joint family property (item no. 1 property), as a
business premises by defendant No.1, who was
karta of the joint family, for running his separate
business can be said to be in any manner
detrimental to the joint family property?
Undisputably, the joint family had not invested a
single farthing in the business at any point of
time as it was started by defendant No.1 by
raising loans from the market.
xx xx xx
This being the position, we have no option but to
hold that the business carried on by defendant
No.1 in the property described as item No.1 in
the Schedule cannot be treated to be joint family
business and the same remained his separate
business throughout, especially in view of the
fact that there was neither any case nor evidence
to show any blending……”
In view of the above, it can’t be held that the business on pulses
and oil seeds was a joint family business only because, defendant
No.1 was stacking the materials at the backside of Badagudia
Hotel. Though there is some evidence by the plaintiffs to the effect
that the defendant No.1 was running pulses and oil seeds business
with Baishnab (their uncle), but there is no evidence on record to
show that Baishnab was in joint mess with the family of plaintiffs
and defendant No.1. Further, in absence of any corroboration to
that evidence, this weak piece of evidence cannot be a basis to
come to a conclusion that the business on oil seeds and pulses was
running jointly by the family, more particularly when there is no
pleading to that effect and evidence to the effect that except
Baishnab other family members had any contribution in it. Thus,
there is no escape to the conclusion that the business on oil seeds
and pulses was the exclusive business of defendant No.1.
9. Defendant No.1 claims that he started a temporary
sweetmeat stall at Rantalei village from which he earned a
handsome profit and his savings swelled up to Rs.5,000/-. He also
corroborated the same in his evidence. He categorically stated that
in 1950, Rantalei incident took place. There was a huge gathering
at that place when one Nepala Baba was distributing medicines he
thought of opening a temporary sweetmeat stall there. In the month
of Bhadrab, he opened the temporary sweets stall at Rantalei and
that business stopped in the month of ‘Aswina’ and again it was
opened in ‘Kartika’ and continued till ‘Margasira’. The temporary
shop at Rantalei was started with the money he saved out of pulses
business. He had a good income at Rantalei. It was his excusive
sweets stall and he saved about Rs.5,000/- to Rs.6,000/- from the
income of that sweets stall business and denied the suggestion to
the effect that it was a joint family business. His evidence in chief
remained unshaken in the cross-examination. Though plaintiffs
had not pleaded with regard to the business at Ranatalei, they have
adduced some evidence in that regard. PW-4 in his evidence
deposed that at the time of Rantalei incident, a temporary shop was
opened by the owners of Badagudia Hotel. Again, PW-7, who is a
classmate and friend of defendant No.1, deposed in his evidence
that in the year 1950, Rantalei incident took place. He also deposed
that defendant No1’s father and uncle gave a temporary sweets stall
at Rantalei. PW-6, a cousin brother of plaintiffs as well as
defendant No.1, deposed that he knew about Rantalei incident. The
family had a temporary shop at Rantalei at that time for one and
half a month. Plaintiff No.1, who has been examined as PW-10 in
his evidence stated that in 1951, Rantalei incident took place. Their
father and defendant No.1 opened a temporary sweets stall at
Rantalei. Baishnab, defendant No.1, one Narana and Gobinda were
in-charge of that business. After two to three months, that business
was closed. Looking at the aforesaid evidence of the plaintiffs and
defendant No.1, it is manifest that except defendant No.1, who was
examined as DW-4, none else have given a clear picture of Rantalei
business. The plaint is silent about the Rantalei business.
Defendant No.1 in his written statement, while describing the
manner of acquisition of funds to start Hindustan Hotel, came out
with a plea that he had a business at Rantalei in the year 1950
from which he earned a handsome amount of money out of which
he started Hindustan Hotel. Though pleadings of the plaint reveals
that the father of the plaintiffs as well as defendant No.1 was pretty
old, devoid of clear vision and was hard of hearing due to his old
age, his hands were trembling and he was physically incapable and
was bedridden in the house. But, surprisingly, PW-10, who is none
other than plaintiff No.1 in his evidence stated that their father and
brothers opened a temporary shop at Rantalei. The witnesses
examined on behalf of the plaintiffs also do not give a clear picture
about the Rantalei business, i.e., regarding type of business,
earning out of that and more particularly about the time when it
started and when it was closed, which was very vividly stated by
the defendant No.1 both in his pleadings as well as evidence, which
remained unchallenged. The only challenge was made to the claim
of defendant No.1 to the effect that it was his exclusive business. In
view of the discussions made above, I am inspired to hold that the
pleadings and evidence of the defendant No.1 in respect of Rantalei
business is more convincing and appears to be more probable.
Hence, I accept the same and hold that Rantalei business was the
exclusive business of defendant No.1.22
10. The plaintiffs do not give a clear picture as to from
which source the family of Jayakrushna acquired sufficient funds to
start Hindustan Hotel. In their pleadings, they have stated that in
the year 1951 they came to Angul for business purpose and started
the Hotel business in Angul bus stand in the name and style as
‘Hindustan Hotel’. Evidence of the plaintiffs also do not give a clear
picture regarding sources of income or sufficient joint family nucleus
to start Hindustan Hotel. The pleadings in the plaint suggest that
the family of Jayakrushna had sufficient funds in their hand when
they came to Angul in the year 1951 and started ‘Hindustan Hotel’.
However, on the contrary, the evidence of plaintiffs disclosed that the
source of funds to start Hindustan Hotel was the business on pulses
and oil seeds as well as the sweetmeat stall at Rantalei. As I have
already held, the said transactions were exclusive business of
defendant No.1 and it can’t be held that the income out of the same
is the income of the joint family; thus, the only source of acquisition
of funds to start Hindustan Hotel could be from landed properties as
well as the share of Jayakrushna from out of the Badagudia Hotel at
Amalapada. The pleadings and the evidence of defendant No.1 to the
effect that the family had only three acres of land which was not
sufficient to maintain the family for which his father, namely,
Jayakrushna was moving nearby villages to sell ‘Mudhi’ and
‘Ukhuda’ for their livelihood. He also deposed in his evidence that he
had come to Angul to prosecute his studies, but due to paucity of
funds he could not continue his study and had to search for his
livelihood. These pleadings and evidence was not disturbed either in
the cross-examination or by adducing convincing and cogent
evidence. Further, the PW-10 (the plaintiff No.1) in his crossexamination
(at page-99 of the paper book), categorically admitted
that they had no sufficient income from the landed properties. The
plaintiffs have relied upon stray statements of some of the witnesses,
namely, PW-1, PW-2, PW-3, PW-4, PW-6 etc. who deposed that
Hindustan Hotel was being looked after by father of the plaintiffs and
defendant No.1 as well as defendant No.1 himself. Thus, the plea of
the plaintiff cannot be believed, particularly in view of the specific
pleadings of the plaintiffs to the effect that their father, namely
Jayakrushna, was feeble, hard of hearing, devoid of clear vision and
was bedridden due to his old age together with the version of plaintiff
No.1 himself that the family had no sufficient income from landed
properties. On the other hand, the defendant No.1 has given a clear
picture as to how he acquired funds to start Hindustan Hotel, which
has been discussed earlier. In that view of the matter, the only
logical conclusion that can be drawn up is that Hindustan Hotel was
started from the savings the defendant No.1 had made from out of
his business which he was doing exclusively. Thus, the Hindustan
Hotel was the exclusive business of defendant No.1.
It needs no discussion to arrive at a conclusion that
the suit land was purchased from out of the income from 24
Hindustan Hotel as it is admitted by both parties. Thus, it leads to
the conclusion that the suit land was purchased from the exclusive
income of defendant No.1 and the plaintiffs had no share in it. An
argument is advanced by Mr.Rath, learned counsel for the plaintiffs
that the construction over the suit land was made out of the
income from joint family property. It is not disputed that the suit
property was purchased in the year 1953 in the name of defendant
No.1. DW-4 (defendant No.1) in his evidence clearly stated that he
had incurred a loan of Rs.6,500/- on two occasions from the House
Building Society to start some new construction on his purchased
land at Amalapada (the suit land). He also deposed that he spent
Rs.16,000/- to Rs.17,000/- for construction of the pucca house
over the suit land. The money over and above the loan amount was
met out of the income from Hindustan Hotel. He constructed two
pucca rooms with RC roof and three rooms with tiled roof. He also
deposed that the construction was completed in the year 1957 and
rented out to Telephone Department for Rs.90/- per month. The
said arrangement continued till 1970. Thereafter, the house
standing over the suit land was rented out to different persons till
1984. There is also no dispute to the fact that the loan incurred by
defendant No.1 was repaid from out of the rent. Defendant No.1
further deposed in his evidence that from the year 1969 to 1975 he
received notice for repayment of the loan that he incurred for
construction of the house. Thus, he proposed to dispose of a 25
portion of the suit land to one Sudhakar Pradhan and took an
advance of Rs.1,000/- from him. But Sudhakar wanted a specific
portion, for which the sale could not be materialized. In the year
1977, the land and the house at Amalapada (the suit land) were
attached and in 1979 defendant No.1 repaid the loan and released
the suit land and the house. The plaintiff No.1 (PW-10) in his
evidence however deposed that his father gave consideration money
for purchase of the suit land to defendant No.1 from the cash box of
the Hotel. He counted it and handed over the same to Sashibhusan
in Hindustan Hotel. A part of the consideration money was paid
previously and the rest was paid on the date when sale took place.
He also deposed that on previous occasion his father gave money to
defendant No.1 who in turn gave the same to Sashibhusan towards
consideration money for purchase of the suit land. This piece of
evidence is not believable in view of the pleadings of the plaintiffs to
the effect that Jayakrushna was virtually bedridden and suffering
from different incapacitations. Further, I have already held that the
Hindustan Hotel was the exclusive business of the defendant No.1.
Thus, the income out of it is the exclusive one of the defendant
No.1. Scrutinization of the evidence of the plaintiffs, it appears that
their evidence is shaky and thus the same is unreliable. On the
other hand, the pleadings and evidence of defendant No.1 give a
clear picture with regard to the transactions with accuracy. Thus,
the plea of the plaintiffs to the effect that the house on the suit land
was constructed out of the joint family nucleus is not believable.
Accordingly, this Court endorses the findings of the learned trial
Court in respect of issue Nos.5, 6, 7 and 8 except the finding with
regard to blending of the suit land to the joint stock of the family.
11. The next question that arises for consideration is that
whether defendant No.1 was acting as the manager and ‘Karta’ of
the joint family. Ordinarily, the senior most male member of a
Hindu joint family, who takes up the responsibility of the joint
family property and manages it, is called the ‘Karta’ or sometimes
‘Manager’. The Manager of a Hindu joint family is called a ‘Karta’
(paragraph-234 of Mula’s Hindu Law 21st edition). Now, coming to
the case at hand, it is the admitted case of the parties that the
defendant No.1 is much older that is to say 16-17 years older than
the plaintiffs and defendant No.1 took charge of educating the
plaintiffs at Angul even during life time of their father. The plaintiffs
were allowed to stay in the suit house. It was brought out from the
mouth of defendant No.1 that he had repaid the loan of his father
by selling out property of his father at Hakimpada. The plaintiffs
also pleaded and laid evidence to establish that defendant No.1 was
managing the affairs of the family, as their father was incapable of
doing so. To establish the same, the plaintiffs examined PW-7, who
deposed that defendant No.1 was looking after them as guardian.
Defendant No.1 was even managing the affairs of the family. PW-10
(plaintiff No.1) in his evidence also supported the same and 27
deposed that defendant No.1 was looking after all the affairs on
behalf of his father, who was ‘Karta’ of the joint family. The
plaintiffs also relied upon evidence of defendant No.1, who deposed
that plaintiff No.1 came to Angul in 1949-50 and plaintiff No.2
came to Angul two years thereafter. They were staying at Badagudia
Hotel. After the suit land was purchased, the defendant No.1
repaired the thatched house standing over the suit land and stayed
there with his wife and plaintiffs. He also deposed that apart from
Hindustan Hotel, he constructed seven rooms with tin roof on a
piece of leasehold land he acquired in the Angul bus stand for the
purpose of running another Hotel. As plaintiff No.1 was
unemployed and wasting his time after completion of his studies,
the defendant No.1, in order to keep him engaged, instructed him
to start a Hotel in the rooms constructed over the leasehold land.
Thus, plaintiff No.1 started the business in the name and style of
‘Jayabharat Hotel’. As plaintiff No.1 was not aware of managing
affairs of the Hotel, defendant No.1 guided him for some years in
the management of the hotel and for that purpose he (the
defendant No.1) was also maintaining the accounts of Jayabharat
Hotel. The entire family stayed in the thatched house over the suit
land till the marriage of plaintiff No.2 in the year 1970. By then,
their parents were staying at Matagajpur and they had come to
Angul to attend the marriage ceremony of plaintiff No.2. After their
parents came to Angul, the house at Matagajpur remained under 28
lock and key and the defendant No.1 also allowed Aru and Karuna,
the cognates of the plaintiffs, to use the said house. He also
deposed in his evidence that he took the responsibility of educating
the plaintiffs 1 and 2 at Angul. Thus, Mr.Rath, learned counsel for
the plaintiffs/respondents 1 and 2 submitted that defendant No.1
was the ‘Karta’ of the family and thus, the suit properties acquired
by him in the capacity of ‘Karta’ or Manager of the family, are
nothing but joint family properties.
12. Mr.Mukherji, learned counsel for defendant No.1
submitted that even if it is presumed that the defendant No.1 was
looking after the affairs of the family in some way or the other,
those are only act of generosity and kindness on the part of
defendant No.1 and cannot be regarded as his legal obligation.
Thus, he cannot be treated to be the ‘Karta’ of the family at least
during the life time of his father who died in the year 1975. Per
contra, Mr.Rath relying upon a decision in the case of
Narendrakumar J. Modi vs Commissioner Of Income Tax,
Gujarat-II, Ahamedabad, reported in AIR 1976 SC 1953
submitted that a senior member may give up his right and junior
member of the family can act as the ‘Karta’ with consent of all other
members. He relied upon paragraph-10 of the said decision, which
reads as follows:-
“10. In these circumstances he appears to have
acted as the karta with consent of all the other
members. A junior member of the family could
do so. See Mulla's Hindu Law 296, fourteenth
edn. Where occurs the following passage:
So long as the members of a family remain
undivided, the senior member of the family is
entitled to manage the family properties,
including even charitable properties and is
presumed to be the manager until the contrary
is shown. But the senior member may give up
his right of management, and a junior member
may be appointed manager."
A similar view is taken in the case of M/S Nopany Investments (P)
Ltd. vs Santokh Singh (HUF), reported in AIR 2008 SC 673. This
Court in the case of Harihar Sethi and Anr. vs Ladukishore
Sethi and Ors., reported in AIR 2002 Orissa 110 at paragraph 10
held as under:-
“However, it is no more res integra that a senior
member of the family may give up his right and
a junior member of the family can act as Karta
with consent of all the other members. In the
present case, the defendants who putforth a
claim that the plaintiff acted as Karta of the
family, though he is not the eldest member, have
totally failed to prove the said fact by adducing
cogent evidence. In the absence of any evidence,
it is not possible to accept the contention raised
by the appellants that the plaintiff, though he
was not the senior member of the family, acted
as the Karta….”
Needless to mention here that by the time of death of their father,
namely, Jayakrushna, the suit land had already been purchased
and the construction of the house was completed. Thus, it can’t be
held that the defendant No.1, as a ‘Karta’ or Manager of the family
or acting on behalf of his father, purchased the suit land and
constructed the suit house. Further, the generosity shown by the
defendant No.1, as discussed above, cannot lead to the conclusion
that he was the ‘Karta’ of the family at least during life time of
Jayakrushna, more particularly when the plaintiffs have led
evidence to the effect that Jayakrushna was in the helm of affairs of
the family. Further, there is no evidence on record to come to a
conclusion that Jayakrushna at any point of time during his life
time had relinquished his right to act as the ‘Karta’ of the family
with expressly or impliedly or by his consent. An objection was
raised by Mr.Rath to the effect that PW-8, namely, Benudhar Das,
Advocate, who prepared Ext.9, i.e. Chuktinama dated 15.07.1963,
happened to be the lawyer of defendant No.1 and continued to
appear on his behalf in the suit and also prepared and filed the
written statement on the instruction and on behalf of the defendant
No.1. He also relies on Sections 126, 129 and 149 of the Evidence
Act and submits that PW-8 was examined by the plaintiffs only for
the purpose of proving Ext.9 and not beyond that. Thus, the
statement of PW-8 in his cross-examination shouldn’t be taken into
consideration. Mr. Mukherji on the other hand submitted that the
plaintiffs themselves chose to examine the PW-8 as a witness and
when his examination-in-chief is recorded, the defendant No.1 has
every right to cross-examine him and can put question in
conformity with Section 146 of the Evidence Act. PW-8 has also not
been declared hostile by the plaintiffs. As it appears, he was
examined to prove Ext.9, which is a document of settlement 31
between the parties in which it was decided that business of
Jayabharat Hotel will be managed by the plaintiff No.1 for which
the plaintiff No.1 was also paid Rs.500/- by the defendant No.1.
Further, the plaintiff No.1 was required to pay monthly rent of
Rs.50/- to the defendant No.1 for occupation of the leasehold land
of the defendant No.1 to run Jayabharat Hotel. Ext.9 alone cannot,
by itself, establishes that there was joint family nucleus from which
Hindustan Hotel was established. It is already held that both
Hindustan Hotel and the suit land along with the construction
thereon were out of the self-acquired properties of defendant No.1.
Thus, the evidence of PW-8 with regard to acquisition of land for
Hindustan Hotel and purchase of the suit land and construction of
the house thereon is of little importance. Further, a plain reading of
Ext.9 makes it clear that the said document was prepared as there
was dissention between the plaintiff No.1 and defendant No.1. So
the plaintiff No.1 took the leasehold land of defendant No.1 on rent
of Rs.50/- per month to start ‘Jayabharat Hotel’ exclusively.
Defendant No.1 had also given Rs.500/- to plaintiff No.1 for the
same. Though Ext.9 reveals that the family had a joint hotel
business, it is not clear as to whether, it refers to Badagudia Hotel
in the Angul market or the Hindustan Hotel at Angul bus stand. At
one hand, the plaintiff No.1 relying upon Ext.9 deposes that the
joint business mentioned therein refers to Hindustan Hotel. On the
other hand, he deposes that he signed on Ext.9 with a belief that
the document is being prepared for obtaining sales tax licence.
Moreover, he admits in his cross-examination (page-99 of the paper
book) that there was no sufficient income from the landed
properties. Further, the plaint is conspicuously silent about
business on pulses and oil seeds as well as Hotel at Rantalei as
discussed earlier. Thus, it is very difficult to believe the story of
plaintiffs to the effect that Hindustan Hotel was the joint business
of the family, as he (plaintiff-1) is changing colours from time to
time very conveniently to suit his case and more particularly when
the plaintiffs have miserably failed to establish that there was
sufficient nucleus in the joint family to start Hindustan Hotel. As
discussed earlier, it has already been held that the family had no
sufficient nucleus to start Hindustan Hotel. Thus, from the recitals
of Ext.9, it cannot be inferred that the joint business mentioned
therein refers to the business of Hindustan Hotel.
13. In that view of the matter, the appeal succeeds and
the cross-objection fails. The suit schedule property being the
exclusive property of defendant No.1 is not partiable. Thus, the suit
fails, but in the circumstances there is no order as to costs.
………………………….
K.R. Mohapatra, J.
Orissa High Court, Cuttack
Dated the 11th March, 2016/ss
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