- (1.) THIS is a defendant's appeal arising out of a suit for partition. The facts of the case, in so far as they are relevant for this appeal, are as follows: Tikam Singh, the original plaintiff, Naim Singh, defendant 1, and Chattar Singh, defendant 2, are own brothers, being the sons of Girwar Singh. Girwar Singh had two brothers, Mohan Singh and Ulfat Singh. Ulfat Singh died issueless. Mohan Singh, had two sons, Ram Prasad Singh deceased and Padam Singh, defendant 3. Balmukund Singh defendant 4, is the son of Ram Prasad Singh deceased. Tikam Singh's case in the plaint was that the whole family was at one time joint owning property, as well as money-lending business, that about the year 1937-1938 the Zamindari property was partitioned, but that the money-lending business remained joint. He, therefore, wanted a partition of his 1/6th, share out of the money-lending business. Chattar Singh, Padam Singh and Balmukund Singh practically admitted the plaintiff's case, while naim Singh, defendant 1, contested it and alleged that he was the exclusive owner of the money-lending business as it was started by him in the year 1916 or 1917 after the death of mohan Singh with a sum of Rs. 500/- gifted to him by his father-in-law. Tikam Singh, plaintiff, absented himself from the suit when the case came up for final hearing, but defendants 2, 3, and 4 stated that they wanted their shares to be separated and that the suit should proceed. Accordingly, the suit for partition was not allowed to be dismissed for default of Tikam Singh's appearance and defendants 2, 3 and 4 were treated as plaintiffs in the case. The Court below held that the money-lending business was a joint Hindu family business and, accordingly, decreed the suit for partition and for allotment of separate shares to the parties. This is an appeal against that decree by Naim Singh and the only question that falls to bo considered is whether the money-lending business was the joint family business or was it a separate, self-acquired business of Naim Singh.
(2.) IN deciding the above question the Court below proceeded to examine whether the defendant/-appellant's case was true or false and having found that it was untrue and having regard to some other evidence came to the conclusion that the business was joint family business. It did not direct its attention to the question whether" any, and if so, what money was invested by the joint family in the money-lending business. The learned Judge mainly relied upon certain income-tax returns and orders in which the entire income of the family including the income from, the money-lending business was jointly shown as the income of the joint family.
(3.) NOW, it is wee settled that where a joint family is possessed of joint property the mere fact that a particular item of the property stands in the name of a single member of the family does not raise the presumption that it is the separate and self acquired property of that member. The presumption, on the other hand, is that that property also is joint family property like every other joint family property. In the case of a business, however, there is no such presumption. In--'bhuru Mal v. Jagannath', AIR 1942 PC 13 (A), Sir George Rankin delivering the opinion of the Judicial Committee observed: "special considerations apply to the question whether or not the business belongs to the family or to the individual member who carries it on. If it be a joint family business, then all the members of the family are liable for its debts upon the terms and to the extent laid down by the hindu law. Whether or not it can be said that if a joint family is possessed of some joint property, there is a presumption. that any property in the hands of an individual member is not his separate individual property but joint property, no such presumption can be applied to a business. " then his Lordship quoted the observations of Lord Buckmaster in -- 'annamalai Chetty v. Subramanian Chetty', AIR 1929 PC 1 (B): "a member of a joint undivided family can make separate acquisition of property for his own benefit and, unless it can be shown that the business grew from joint family property, or that the earnings were blended with joint family estate, they remain free and separate. ";