judgement:
Civil Appeal No. 577 of 1975.
Appeal by Special Leave from the Judgment and order dated the 4 11 74 of the orissa High Court in M.A. No. 75 of 1970.
G. section Pathak, Santosh Chatterjee and G. section Chatterjee for the Appellant.
Sachin Chowdhury (Respondent No. 2) and Vinoo Bhagat for the Respondent No. 1.
The Judgment of the Court was delivered by SHlNGHAL J.
, Maguni Charan Dwivedi, the appellant, filed a title suit in the Court of Munsif, Sundargarh against the State of orissa, for declaration of his title and recovery of possession of plot No. 99 meaguring 3.80 acres in khata No. 89 of village Mahulpali claiming it as his "ganju bhogra" land.
The suit was decreed on October 14, 1958, in respect of 3.45 acres.
The defendant State of orissa, did not file an appeal and the decree became final.
Decree holder Dwivedi applied for its execution.
The case was transferred to the court of the Subordinate Judge of Sundargarh.
An objection was taken there by the Notified Area Council, Rourkela, respondent No. 2, hereinafter referred to as the Council, under sections 37 and 38 and order XXI rule 58 of the Code of Civil Procedure on the ground that it was in actual physical possession of the land.
The objection application was however rejected by the execution court on March 31, 1965.
The Council applied for revision or the order of rejection, but its application was dismissed with the observation that the Council might file a regular suit for adjudication of its right if it so desired.
No suit was filed by the Council and decreeholder Dwivedi filed an application on September S, 1966 for proceeding with the execution of his decree.
The Council and the State then 77 made an application under section 47 of the Code of Civil Procedure stating A that the decree was not executable because the orissa Merged Territories (Village offices Abolition) Act, 1963, hereinafter referred to as the Act, had come into force in the area on April 1, 1966, and the "bhogra land" in question had vested in the State free from all encumbrances.
The Subordinate Judge upheld that objection and dismissed the execution application.
Decree holder Dwivedi felt aggrieved, and filed an appeal which was heard by Additional District Judge, Sundargarh, who held by his order dated May 2, 1970 that the decree was executable.
He therefore set aside the order of the execution court, and the State of orissa and the Council went up in appeal to the High Court.
The High Court held that as the decree holder was not in actual physical possession of the land, the tenure had vested in the State free from all encumbrances C under section 3 of the Act, the decree was "rendered non est", and the Collector could not settle the land with him under section S of the Act.
It therefore allowed the appeal by its impugned judgment dated November 4, 1974, and ordered that the decree holder could not execute the decree.
He applied for and obtained special leave, and has filed the present appeal.
It is not in dispute before us that the appellant held the "village office" within the meaning of section 2(j) of the Act.
It is also not in dispute that it was in that capacity that he held the "bhogra land" in question by way of emoluments of his office.
Moreover it is not in dispute that the appellant 's village office stood abolished in accordance with the provisions of section 3(a) of the Act.
The consequences of the abolition, have been stated in cls.
(a) to (g) of section 3.
It will be sufficient for us to say, for purposes of the present controversy, that as a result of the abolition of the office, all incidents of the appellant 's service tenure, e.g., the right to hold the "bhogra land", stood extinguished by virtue of the provisions of cl.
(b) of section 3, and all settlements, sanads and all grants in pursuance of which the tenure was being held by the appellant stood cancelled under section 3(c).
The right of the appellant to receive the emoluments was also deemed to have been terminated under cl.
(d), and by virtue of cl.
(f) his "bhogra land" stood resumed and "vested absolutely in the State Government free from all encumbrances.
" Section 3 of the Act in fact expressly provided that this would be the result, notwithstanding anything in any law, usage, settlement, grant, sanad or order or "in any judgment, decree or order of a Court.
" All these consequences therefore ensued with effect from April 1, 1966 when, as has been stated, the Act came into force in the area with which we are concerned.
There can be no doubt therefore that from that date appellant Dwivedi suffered from these and the other disabilities enumerated in section 3 of the Act; the "bhogra land" in respect of which he obtained the decree dated October 14, 1958 declaring his title and upholding his right to possession, was therefore lost to him as it vested "absolutely" in the State Government free from all encumbrances.
The decree for possession also thus lost its efficacy by virtue of the express provisions of the Act referred to above, and there is nothing wrong if the High rt has held that it was rendered incapable of execution by operation of the law.
78 Section S of the Act deals with the settlement of the resumed "bhogra land" and has been the subject matter of controversy before us.
It provides as follows: "5.
Settlement of Bhogra lands: (1) All Bhogra lands resumed under the provisions of this Act shall subject to the provisions of sub section (2) be settled with rights of occupancy therein on a fair and equitable rent with the holder of the Village office or with him and all those other persons, if any, who may be in the enjoyment of the land or any part thereof as his co sharers or as tenants under him or under such co sharer to the extent that each such person was in separate and actual cultivating possession of the same immediately before the appointed date.
(2) The total area of such land in possession of each such person shall be subject to a reservation of a certain fraction thereof in favour of the Grama Sasan within whose limits the land is situate and the extent of such reservation shall be determined in the following manner, namely: Land in possession Extent of reservation For the first 10 acres Nil For the next 20 acres 5 per cent For the next 70 acres 10 per cent For the next 100 acres 30 per cent For the remaining 40 per cent: Provided that the area reserved shall, as far as practicable be in compact block or blocks of one acre or more." (Emphasis added) .
It would appear that once a "bhogra land" stood resumed and vested absolutely in the State Government to the exclusion of the village officer concerned, it was required to be "settled", with rights of occupancy thereunder, with the erstwhile holder of the village office, or with him and all those other persons, if any, who may be in enjoyment of the land or any Part thereof as his co sharer to the extent that each such person was in separate and actual cultivating possession of the same immediately before the date appointed for the coming into force of the Act.
The settlement of the land contemplated by section 5 had therefore to be with the holder of the village office and the other persons who were enjoying it (or part of it) as his co sharers or as tenants under him or his co sharers, but that was to be so on the condition that "each such person" namely, the holder of the village office, and his co sharers, or the tenants under the holder of the office or his co sharers, was in "separate and actual cultivating possession" of the land immediately before April 1, .1966.
There is nothing in sub section (1) of section S to justify the argument of Mr. Pathak that we should so interpret the words "each such person" as to exclude the holder of the village office from its purview.
In fact the same words occur in sub section
(2) of section S as well, which deals with the question of reservation of a fraction of the "bhogra land" in favour of Grama Sasan, and Mr. Pathak has not found it possible to argue that the land in possession of the holder of 79 the village office was immune from the liability to such fractional reservation.
We have no doubt therefore that in order to be entitled to the settlement contemplated by sub section (1) of section S, the village officer or the other persons mentioned in the sub section had to be in "separate and actual cultivating possession" immediately before the appointed date.
It has also been argued by Mr. Pathak that the provisions of section 3 of the Act were subject to the provisions of section 5, and that the High Court committee an error in losing sight of that requirement of the law.
He has urged that if section 3 had been read as suggested by him, it would have been found that, in spite of the resumption and vesting of the "bhogra land" under section 3, the appellant 's right to possess the "bhogra land" in question continued to subsist so long as it was not converted into a right of occupancy under sub section
(1) of section 5.
Counsel has gone on to argue that the appellant was therefore entitled to ignore any trespass on his possession of the "bhogra land", and to ask for execution of the decree for possession against the respondents as they were mere trespassers and were not co sharers or tenants within the meaning of sub section
(1) of s.5.
Reference in this connection has been made to Maxwell on Interpretation of Statutes, twelfth edition, p. 86, where it has been stated that it is necessary to interpret the words of the statute so as to give the meaning "which best suits the scope and object of the statute.
" It has been argued that grave injustice would otherwise result for, by a mere act of trespass committed on the eve of the coming into force of the Act, a village officer would lose the right of settlement of his "bhogra land" under sub section (1) of s.5.
It has also been argued that the words "each such person" occurring in that sub section do not include the holder of the village office himself, so that it was not necessary for him to show that he was in separate and actual cultivating possession of his "bhogra land".
Reliance for this proposition has been placed on a bench decision of the High Court of Orissa in State of Orissa vs Rameswar Patabisi (Civil Revision Petition No. 257 of 1974 decided on June 27,1975) and on Meharaban Singh and others vs Naresh Singh and others(1).
As will appear, there is no force in this argument.
Section 3 of the Act expressly provides for the abolition of village offices under the Act, and the consequences of such abolition.
We have made a reference to cls.
(a) (b) (c) (d) and (f) of that section, and we have no doubt that the consequences stated in the section in regard to the abolition of village offices, the extinction of the incidents of the service tenures, cancellation of the settlements and sanads etc.
creating those office, termination of the right to receive any emoluments for the offices, the resumption and vesting of the "bhogra lands" free from all encumbrances ensued "with effect from and on the appointed date" and were not put off until after the settlement provided for in sub section (1) of section 5 had been made.
Section 3 in fact expressly made provision for those consequences and there is no justification for the argument that they remained suspended or were put off until occupancy rights were settled on the persons concerned.
As has been (1) 80 stated, sub section (1) of section S deals with the settlement of such lands, with rights of occupancy, with the holder of the village office or with him and the other persons, if any, referred to in the sub section, but such settlement was required to be made as a result of the consequences referred to in section 3 and not otherwise.
It is therefore futile to contend that the appellant did not suffer from those consequences merely because the "bhogra land" claimed by him had not been settled with rights of occupancy under sub section
(1) of section 5 because it was the subject matter of the decree which had not been executed.
We have gone through the decision in State of Orissa vs Rameshwar Patabisi (supra) and it has no doubt been held there that actual cultivating possession of the village officer was not necessary for purposes of sub section
(1) of section S, but, as has been shown, we have no doubt that the words "each such person" occurring in sub section
(1) of section 5 include the holder of the village office, so that in order to be eligible for settlement of the land with occupancy rights, he must also be in separate and actual cultivating possession of the "bhogra land" immediately before the appointed date.
It appears that the earlier bench decision to the contrary, which is the subject matter of the present appeal, was not brought to the notice of the Bench which decided Rameswar Patabisi 's case.
We have gone through Maharabansingh 's(1) case also but that was quite a different case which was decided in accordance with the provisions of a different Act.
It has next been argued by Mr. Pathak that the High Court lost sight of the provisions of section 9 of the Act which provided for submission of records and delivery of possession of other land but did not require delivery of possession of the "bhogra land" even after its resumption.
The argument is however untenable because section 9 was meant to serve quite a different purpose inasmuch as it made provision for the delivery of all records maintained by the village officer in respect of the land or village held by him in relation to his office, the rendering of all accounts appertaining to his office in respect of the dues payable by and to him, and the delivery of possession of all abandoned and surrendered holdings etc.
The section did not therefore have any bearing on the question of the vesting of the "bhogra land" absolutely in the State Government and the extinction of the right of the village officer to hold it.
That had in fact been.
expressly provided in those clauses of section 3 to which reference has been made by us already.
As it is, section 9 did not deal with the question of delivery of possession of the "bhogra land" and its provisions could not justify the argument that the village officer was entitled to continue his possession of the "bhogra land" under that section in spite of the fact that the land stood resumed and vested absolutely in the State Government free from all encumbrances under section 3.
It may be mentioned that Mr. Pathak has argued further that as the application which had been filed by the Council under order XXI r. 58 C.P.C. had been rejected on March 31, 1965 and the Council did not file a suit to establish its right to the "bhogra land", the decree in favour of the appellant became final and could not be challenged for 81 any reason whatsoever, and the High Court committed an error in A taking the view that it was rendered inexecutable merely because of the coming into force of the Act.
It will be sufficient for us to say in this connection that whatever might have been the consequences of the rejection of the Council 's application under order XXI r. 58 C.P.C. and the failure to institute a suit thereafter, those normal consequences were rendered nugatory by the express provisions of the Act to which reference has been made above.
The question of executability of the decree has therefore been rightly decided with reference to the Act.
It may be mentioned that in a given case there may be no "bhogra land" to be settled with a village officer, or a village officer may feel aggrieved on the ground that the Act provides for the acquisition of property by the State, but we find that provision has been made in the Act for the payment of solatium or compensation under sections 8 and 10 in such cases and it cannot be said that they have been left without a remedy.
For the reasons mentioned above, we find no force in the arguments which have been advanced on behalf of the appellant.
It however appears to us that there is justification for the other argument of Mr. Pathak that there was really no occasion for the High Court to express the view that the appellant "had no possession of the land" so as to claim its settlement under section 5(1) of the Act, and that the Collector could not settle the land with him.
As is obvious, that was clearly a matter for the authorities concerned to examine and decide under section 5 and it was, at any rate, outside the purview of the question relating to the executability of the decree which was the subject matter of the appeal in the High Court.
While therefore the appeal fails and is dismissed, the observation of the High Court that the decree holder had no possession of the land and the Collector could not settle the land with him, is set aside, and it is left to the authorities concerned to examine the question of settlement of the land under section 5(1).
The appellant may rely on such matters as may be open applellant the law.
In the circumstances of this case, we leave the parties to pay and bear their own costs.

summary:
In the execution proceedings to satisfy a decree dated 14 10 1958 for title and recovery of possession of certain "ganju Bhogra lands" obtained by the appellant against the State, the Notified Area Council.
Rourkela claimed the suit lands by an application u/o XXI Rule 58 r/w sections 37 and 38 Code of Civil Procedure.
The said application was rejected.
A revision against it was also dismissed with the observation that the council was free to file a regular suit for adjudication of its rights.
When the appellant took out a fresh application for execution u/s 47 of the Code` of Civil Procedure, the Council which never filed any suit, and the respondent State which never appealed against the original decree, opposed the execution application on the ground that the decree became infructuous by virtue of section 3 of the orissa Merged Territories (Village offices Abolition) Act, 1963.
The Executing court upheld the objection and dismissed the execution petitition.
On appeal the Additional District Judge, by his order dated 2 5 1970, held that the decree was executable resulting in a second appeal to the High court by the respondent State.
The High Court allowed the appeal by its order dated 4 11 1974 holding that as the decree holder was not in actual physical possession of the land, the tenure has vested in the State free from all encumbrances u/s 3 of the Act and the decree was rendered "non est".
Dismissing the appeal by special leave, the Court, ^ HELD: (1) As a result of the abolition of the village office under section 3 of the OMTA, all incidents of the appellant 's service tenure, e.g., the right to hold the "bhogra land" stood extinguished by virtue of the provision of clause (b) of section 3, and ail settlements, sanads and all grants in pursuance of which the tenure was being held by the appellant, stood cancelled under section 3(c).
The right of the appellant to receive emoluments was also deemed to have been terminated under Cl.
(d) and by virtue of Cl.
(f), his bhogra land stood resumed and "vested absolutely" in the State free from all encumbrances.
Section 3 of the Act, in fact, expressly provided that this would be the result, notwithstanding anything in law, usage, settlement, grant, sanad, order or "in any judgment, decree or order of a court.
" All these consequences ensued with effect from April 1, 1966 the date of coming into force of the orissa Merged territories (Village offices Abolition) Act, 1963.
From that date, the appellant suffered from these and other disabilities enumerated in section 3 of the Act, the "bhogra land" in respect of which he obtained the decree dated October 14, 1958 declaring his title and upholding his right to possession was, therefore, lost to him as it vested "absolutely" in the State Government free from all encumbrances.
The decree for possession also thus lost its efficacy by virtue of the express provisions of the Act and there is nothing wrong in holding that the decree was rendered incapable of execution by operation of law.
[77 D H] (2) Under sec.
5 of orissa Merged Territoies ((Village offices Abolition) Act, 1963, once a "bhogra land" stood resumed and vested absolutely in the State Government to the exclusion of the village officer concerned, it was required to be "settled" with rights of occupancy thereunder.
The settlement of the land contemplated by sec.
S had to be with the holder of the village office and the other persons who were enjoying it (or part of it) and as his co sharers, as tenants under him or his co sharers, but that was to be so on the condition 76 that "each such person, namely, the holder of the village office and his cosharers or the tenants under the holder of the office or his co sharers was in separate and actual cultivating possession" of the land immediately before April, 1966.
The words "each such person" occurring in sub section I of Sec. 5 include the holder of the village office so that in order to be eligible for settlement of the land with occupancy rights, he must also be in separate and cultivating possession of the "bhogra land" immediately before April 1, 1966.
There is nothing in sub section I of Sec. 5 to justify the argument that the interpretation of the words "each such person" should be such as to exclude the holder of v the village office from its purview.
[78 E, F H] State of orissa vs Rameswar Patabisi (Civil Revision Petition No. 257 of 1974) decided on 27 6 1975 (orissa High Court) over ruled; Meharabansingh and Ors.
vs Nareshaingh and ors.
(held not applicable).
(3) The provisions of sec.
9 do not justify the argument that the village officer was entitled to continue his possession of the "bhogra land" under that section in spite of the fact that the land.
stood resumed and vested absolutely in the State Government free from all encumbrances.
[80 E] (4) The normal consequences arising out of the rejection of the application under o. XXI, r. 58, Civil Procedure Code and the failure to institute the suit thereafter, were rendered nugatory by the express provisions of section 3 of the orissa Merged Territories (Village offices Abolition) Act, 1963.
The question of executability of the decree did not arise.
[81 A B] [The Court left open to the authorities concerned to examine the question of settlement of the land under section 5(1) of the orissa Merged Territories (Village Dr offices Abolition) Act, 1963, with liberty to the village officer to rely upon such matters as may be available according to law.]


judgement:
Civil Appeal No. 1896 of 1968.
(Appeal by special leave from the judgment and order dated the 21st September, 1962, of the Mysore High Court in Regular Appeal (B) No. 287 of 1956).
H. B. Data and P. C. Bhartari for the appellant.
section T. Desai and Naunit Lal for respondents 3 & 4.
The Judgment of the Court was delivered by SARKARIA, J.
This is a plaintiff 's appeal by special leave directed against a judgment of High Court of Mysore.
The following pedigree table will be helpful in understanding the facts leading up to this appeal: Mahalingappa (died in 1922) Mallappa Appa Saheb Neelkanth Def.
No. I Def.
No. 2 (died on 8 7 46) Chandrakant Smt.
Balabi Def.
No. 3 (wife of Neelkanth Def.
No.4).
The respondents are Hindus governed by Mitakshra School of Hindu Law.
Mahalingappa, the prepositus of the joint family died in 1922, survived by three sons, namely, Malappa, Defendant 1, Appa saheb, Defendant 2, and Neelkanth (The sons are hereafter referred to as `M ',`A ' and `N '), Mahalingappa and his sons constituted a joint Hindu family.
The family was trading in tobacco.
Mahalingappa, J as Karta was managing the joint family business.
After his death, his eldest son.
Neelkanth, father of Chandrakant, Defendant 3, began to look after the management of the family business `N ' also started C. N. Tennis Bidi Factory in the name of his son, Chandrakanth, in 1942 or thereabout.
`N ' died on July 8, 1946.
Thereafter, `A ' (Defendant 2) continued and managed the joint family business and the family concerns with the consent of the other members.
After 1951, the family business was managed by `M ' (Defendant 1).
The appellant had business dealings in tobacco and money dealings with the Defendants ' joint family.
There used to be periodical verification of accounts and acknowledgements were made from time to 289 time by the Manager of the family.
The plaintiff 's accounts were burnt in fire on October 22, 1949 and he had to reconstruct the accounts from available information and ' documents.
On April 15, 1953 accounts were taken, and the amount due from the defendants family to the plaintiff was worked out and verified The accounts thus stated were acknowledged and signed by Defendant 1 and by Defendant 4, as guardian of her minor son, Defendant 3.
A balance of Rs. 69,465/15/ was found due to the plaintiff from the defendants.
With the preceding allegations, the plaintiff on January 28, 1954 instituted the suit for the recovery of Rs. 75,000/ , comprising of Rs. 69,465/15/ , as principal, plus interest at 12 per cent per annum Subsequently by an amendment of the plaint, he added an alternative ground that if the Defendants proved that there had been a partition in the family, they were still liable for the dues pertaining to the ancestral business carried on by all the defendants either as members of the joint Hindu family or as partners of a firm.
Defendants 1 and 2 in their joint written statement admitted that there was an ancestral tobacco business of the family managed by 'N ' till his death in 1946; that after N 's death, the family business was managed by them (M & A) and that all the defendants were jointly liable for the plaintiff 's claim.
The defendants denied that there was ever a partition of the joint family.
They however conceded that a deed of partnership, an agreement and a partition award had been brought into existence from time to time with the sole object of lessening the burden of income tax, and they were not intended to be acted upon.
It was added that after the interim attachment of the property, Defendant 3, taking advantage of these bogus documents, obtained an ex parte decree to show that there had been division of the joint family, and that this decree was not opposed by the answering defendants because they were assured that it would not be executed.
They admitted that the appellant 's claim was partially true, but denied correctness of the total balance claimed as due.
They further averred that the suit was time barred as the acknowledgement relied on by the plaintiff was not legal and could not extend limitation, that interest was wrongly calculated; that, if they ( Defendant 1 and 2) were held liable, they should be allowed to pay in easy instalments.
Defendant 3 filed a separate written statement.
He resisted the plaintiff 's claim, traversed the allegations in the plaint, and denied that there was any acknowledgment made on his behalf on April 15, 1953 by his mother, Defendant 4.
In the alternative he pleaded that she had no authority to acknowledge the debt so as to bind him as he was then a minor.
Defendant 3 further stated that there was a disruption of the joint family status on November 4, 1945 when M, A and N unequivocally expressed their intention to separate, and divided the movables, and thereafter, a decree for partition of the immovable property of the family was passed in 1949 on the basis of an arbitration award.
Defendant 3 asserted that this decree had been acted upon by the parties.
He denied that Defendants 1 and 2 had ever acted manager of the joint family with the consent of the other members, 290 and added that this question could not arise because of the earlier division of the family.
Defendant 4 in her written statement denied the plaintiffs ' claim and supported the contentions raised in his written statement by Defendant 3.
She stated that Defendants 1 and 2, had taken her thumb impressions on certain papers on the representation that they had been properly managing the Tennis Bidi Factory which had fallen to the share of her husband.
She was never informed of the contents of the documents by the Defendants, who took undue advantage of her illiteracy.
The trial court held that the joint family had disrupted in 1945 and the plaintiff was aware of this fact; that the acknowledgements of the debt had been made by Defendants 1 and 2 and not by Defendant 3, and on that account the suit was within time only as against Defendants 1 and 2; that Defendant 3 had on attaining majority repudiated his liability as partner; that the thumb impressions of Defendant 4 on the acknowledgement had been taken by practising fraud; that in any case defendant 4 had no authority to acknowledge the debt on behalf of her minor son.
The Court, however, upheld the appellant 's contention that the old accounts had been destroyed in fire and that the plaintiff was entitled to interest at 12 per cent per annum.
on these findings, the trial court decreed the plaintiff 's claim in toto against Defendants 1 and 2 but dismissed it against Defendants 3 and 4.
Against that judgment and decree of the trial court, the plaintiff preferred an! appeal to the High Court.
The High Court has affirmed the findings of the trial court and dismissed the appeal.
Hence this second appeal by the plaintiff.
Defendants 1 and 2 did not appeal against the decree of the trial court which had consequently become final against them.
It is common ground between the parties that during the life time of Mahalingappa, the family consisting of Mahalingappa and his sons, was a joint Hindu family trading in tobacco.
It is further not disputed that after the death of Mahalingappa, the surviving co parceners continued to be joint and Neelkanth, the eldest son of Mahalingappa, managed the family business as Karta till November 4, 1945.
The first matter in controversy is, whether on November 4, 1945, on account of an unequivocal declaration of an intention to separate made by the three sons of Mahalingappa, there was a disruption of the joint family status ? The courts below have concurrently answered this question in the affirmative.
Mr. Datar, appearing for the appellant contends that this finding of the courts below that there was a division in the family on November 4, 1945, was not based on any evidence whatever and is consequently, unsustainable in law.
291 We are unable to accept this contention.
The finding is based on good evidence which has been found credit worthy after due consideration by the two courts.
Firstly, there is a recital of the fact of division on November 4, 1945, in the partnership deed, exhibit 197, dated October 25, 1946.
This deed has been written on a general stamp paper of the value of Rs. 30.
The date of the purchase of the stamp paper accords with the date of the execution of the deed.
This document therefore, could not have been brought into existence subsequently.
Secondly, there was an endorsement on the Income tax Return exhibit 309, relating to the previous year ending on November 4, 1945, that at the end of the year there has been a change in the status of the family.
Thirdly, there is the Arbitration Award (exhibit 294) dated November 3, 1948, followed by the decree (exhibit 295).
This award is a registered document.
The material recitals in this document are as under: "The plaintiff (Chandrakant Nilkanth) and the defendants Nos. 1, 2 and 3 (Mallappa, Appasaheb and Basawabai, widow of Mahalingappa) were members of joint family.
During the lifetime of the plaintiff 's father, he and the defendants Nos. 1, 2 and 3 were living joint and all the three persons carried on the business of the joint family.
Thereafter as the minds of the plaintiff 's father and of the defendants Nos. 1 and 2 were prejudiced on account of some domestic reasons, they began to live separately in the year 1945.
Thereafter they took accounts of the transactions, with desire to get their immovable and movable properties and other business partitioned and got the capital amount in that business partitioned on 4th November 1945.
So also they effected partitions in the other movables and the ornaments etc.
, of the family Now the defendants Nos. 1 and 2 are objecting about the maintenance to be given to the defendant No. 3 (widow of Mahalingappa) as per agreement deed The contentions of the defendants Nos. 1 and 2 are as follows: We and our deceased eldest brother Sri Nilkanthappa were living joint.
It is true that on 4th November 1945 we all three together have taken the accounts of the business and have made divisions in the capital of the business.
It is true that accordingly we have proportionately divided the remaining movable articles and the ornaments etc.
and have taken the same. " The award bears the signatures of the three arbitrators, and on its basis the court passed a decree on August 9, 1949.
That suit was instituted by Chandrakant, and Basawwa, widow of Mahalingappa, Suryakant, an illegitimate son of Nilkanth, Mallappa Mahalingappa Sadalge and Appasaheb were impleaded as defendants.
Under the award, provision was made for the maintenance of Smt.
Basawwa and the residence of Suryakant, the illegitimate son of Nilkanth.
292 The conclusion based on the above documentary evidence was reinforced by the courts below with admissions made by Defendants 1 and 2, in cross examination, and also with an inference drawn against the plaintiff and Defendant 1 on account of the non production of the account books.
In our opinion, the court below were justified in drawing the inference because Defendant 1, as is apparent from his written statement, is colluding with the plaintiff, and all circumstances suggest that these account books must be with defendant 1.
The case of Defendant 3 is that on November 4, 1945, the accounts of the joint family were worked out and closed.
It was found that there was a capital balance of Rs. 64,023/11/ which was equally divided among the three brothers and the fact of this division was noted in the account books which were in the possession of Defendant 1.
In the witness box, Defendants 1 and 2 admitted that on November 11, 1945, each of the brothers got Rs. 21,340/3/9 and credit entries to that effect were made in the khata of each brother in the account books of the shop.
Defendant 3 by an application (exhibit 169) called upon Defendant 1 to produce in court the account books, in his possession.
Notice of this application was received by Defendant 's Counsel on July 18, 1955.
Despite this notice defendant 1 did not produce the account books when he appeared in the witness box on July 21, 1955.
He made a lame excuse that the account books had been given to Javali pleader after the service of summons in this suit on him (defendant 1) because that pleader had asked him to bring the books containing the plaintiff 's accounts.
But the defendant gave him the books of the Bidi Factory and not of M. B. Sadalge shop.
Defendant 1, in cross examination, clearly admitted that he had given to Javali pleader only those account books which contained the plaintiff 's Khata "and not of previous years".
By any reckoning, this means that he did not hand over the account books relating prior to the years 1949 to Javali Pleader.
Admittedly, after the death of Nilkanth.
he was managing the business upto 1950, and, as such, was supposed to be in possession of the account books.
The courts below were there fore, right in rejecting the explanation given by him for non production of the account books.
The explanation regarding the non production of the books, given by defendant 2, who had managed the business after 1951, was equally unsatisfactory and was rightly discarded.
In the light of what has been said above, it cannot be held that there was no legal evidence before the courts below to base the finding that the joint family had disrupted on November 4, 1945.
It is next contended by Mr. Datar that even if there was some declaration of separation in 1945 and subsequently a decree for partition based on an award was passed in 1949, then also, such declaration, award and decree were never acted upon.
It is submitted that in holding to the contrary, the High Court has committed several errors of record and misconstrued important documentary evidence.
293 According to Mr. Datar, the under mentioned documentary evidence unmistakably shows that the declaration of 1945, the award of 1948 and the partition decree of 1949 were not acted upon: (1).
Affidavits Exhts.
221, 247 and 248 sworn on July 20, 1946, before a Magistrate by Defendants 2, 4 and 1 stating that they are members of a joint Hindu family and Defendant 2 is the manager of the family.
In the affidavit exhibit 247, Smt.
Balabai gave her consent to the management of the affairs of the joint family by defendant 2.
Application dated August 13, 1946 (exhibit 182), by Defendant 1 to Sales tax officer for transfer and registration of the licence, and application exhibit 208, dated September 30, 1946 made by defendants 1 and 2 on their behalf and on behalf of Chandrakant Defendant 3 informing the City Surveyor about the death of Neelkanth and requesting him to enter the Khata in the names of all the three defendants 1 to 3.
(3) Income tax returns Exhs.
309 to 314 filed after the death of Neelkanth.
Resolution, exhibit 335, passed by the Board of Directors in the meeting held on July 30, 1946 permitting defendant 2 to redeem, in the capacity of Karta of the joint family, goods pledged with the Nipani Branch of the Bank by Neelkanth deceased.
exhibit 147, statement, dated September 26, 1953, by defendant 3 requesting the City Surveyor, Nipani that his joint share in Nipani Revision Survey Nos. 1254 and 1264 may be cancelled and the name of defendant 1 may be entered again for both the numbers.
Emphasis is on a sentence in this statement to the effect: "Two months have passed since the said partition".
In accordance with this statement.
the mutation exhibit 263, was attested.
Both the courts below have fully considered this evidence, along with other evidence, and come to the conclusion that these documents do not discount or alter the fact that the joint family had disrupted on November 4, 1945.
The High Court has given reasons why the evidence furnished by the deed of partnership (exhibit 197) and the Arbitration Award, (exhibit 294) can be safely accepted. ' In regard to Exs.
221, 247 and 248, the High Court has said that there is no evidence as to for what purpose these affidavits were sworn to and has rightly emphasised that in the absence of such evidence, it is difficult to draw any inference about the implications of their contents.
Regarding the affidavit exhibit 247, purporting to have been sworn by Smt.
Balabai, the High Court has said that she must have been mentally depressed being in mourning on account of the death of her husband which occurred only 12 days earlier; that she was an illiterate woman who thumb marked whatever documents were presented to her, without understanding its contents.
In this connection, the High Court referred to the statement of defendant 1, wherein he has admitted that during defendant 3 's minority, defendant 1 and defendant 2 were the only persons who looked after the business and defendant 4 never objected to whatever they did.
and that they used 294 to take defendant 4 's thumb impression whenever they thought it necessary in connection with the dealings of M. B. Sadalge shop.
As regards the applications Exs. 182 and 208, the High Court said, there was nothing inconsistent in the recitals of these documents, to show that there was no partition of the joint family.
The recital in exhibit 208 was found to be too technical to spell out the full legal implications of the words "in the joint family".
Referring to the Income tax returns Exs.
310, 311 and 314, submitted on March 15, 1948, November 12, 1949 and February 13, 1954, respectively, the High Court noted that these refer to the accounts of the two concerns and contain somewhat different description in the management.
In exhibit 310, relating to the year ending October 24, 1946, it is stated that N ' and defendants 1 and 2 were Kartas of the family.
In exhibit 311, defendant 2 is mentioned as the manager of the "old Hindu Undivided Family".
Similarly, exhibit 314, purports to have been filed by the H.U.F. relating to the year 1949 50 but this was filed on Feb. 13, 1954 after the institution of this suit.
The income tax returns exhibit 312 and 313 relate to the previous years ending on 12 11 1947 and 22 12 48.
exhibit 312 was submitted on December 26, 1949 and exhibit 313 on December 22, 1953, both by defendant 2.
The status of the assessee in these two returns is mentioned as "Firm".
exhibit 315, is the income tax return relating to the income tax year 1948 49, the previous year of which ended on November 12, 1947.
It was filed by defendant 4 as guardian of her minor son, defendant 3, on December 22, 1949.
The status of the assessee therein is shown as `Individual '.
It relates to the business which was being run under the style of M/s. M. B. Sadalge.
It is mentioned in this return that each of the three defendants .1, 2 and 3 has 1/3 share in the business exhibit 316 is the order of the Income tax officer passed on June 20 1950 wherein it is stated that 1/3 share of defendant 1 in the profits of this firm was assessed on that date.
exhibit 309 is the income tax return relating to the previous year ended on November 4, 1945.
It was filed by defendant 2 in 1946, after Neelkanth 's death.
The High Court has attached great weight to an endorsement on this return, which is to the effect, that there had been a change in the family status.
at the end of the year.
This endorsement has been omitted from the printed copy of exhibit 309.
Consequently, at one stage, it was maintained by the counsel for the appellant that in repeatedly referring to this endorsement the High Court had committed an error of record.
We therefore, sent for the original.
We find that this endorsement is very much there in the original.
This endorsement was a valuable piece of evidence to show that, in fact, there had been a disruption of the joint family status at the end of the previous year, 1944 45, on November 4, 1945.
Thus the evidence furnished by the income tax returns was conflicting.
But the aforesaid endorsement on exhibit 309 was a clincher.
It was a statement made ante litem motam.
It confirmed the testing of 295 Defendant 2 that the partition had taken place in 1945 and this tilted the balance against the contention of the plaintiff.
In such evidentiary value, it out weighs the income tax returns, exhibit 310, 311 and 314, in which the status of the assessee is shown as H.U.F. The High Court was therefore, not wrong in holding that all these documents taken together do not show "that the family of the defendants had continued to be joint.
" Discussing the resolution (exhibit 335)of the Board of Directors passed on July 30, 1946, the High Court said that this resolution was passed only 22 days after the death of Neelkanth and therefore, there was nothing unusual if all the members authorised defendant 2 to redeem the pledged goods as manager of the joint family.
In our opinion, it was not ' unreasonable to hold that the recital in this resolution with regard to defendant 2 being the authorised manager of the joint family, was made as a matter of expediency, and did not discount the case of defendant 4 that the joint family had disrupted on November 4, 1945.
The High Court found that the racital in exhibit 143, that the partition had taken place two months prior to this application, was obviously a mistake, as it was nobody 's case that the partition had taken place in 1953.
This inference also was not implausible.
This document contains other palpable errors of a similar nature.
For instance, therein the age of defendant 3 is mentioned as twenty years, while he was hardly eighteen.
The High Court found that the documentary evidence furnished by the partnership deed (exhibit 197) dated October 25, 1946, the award (exhibit 294) dated October 30, 1948, and the decree (exhibit 295) dated September 15, 1949, passed on its basis was entirely reliable.
It further found that these documents had been acted upon.
In this connection, the High Court, 'rightly relied upon the admissions of defendant 1 in cross examination.
In the witness box, defendant 1 had conceded that all the immovable property that had been allotted to defendant 2 under the award had been sold away by him, and that pursuant to the award, Rs. 7,000/ had been paid to Heerabai and her son, Suryakant.
Defendant 1 further significantly admitted that on October 25, 1946 Rs. 16000/ and odd were to the credit of defendant 3 in the account books of M. section Sadalge Shop.
By virtue of the receipt, exhibit 167, dated August 9, 1949, defendants 1 and 2 acknowledged the deposit of Rs. 16005 15 0 in favour of the minor Defendant 3, payable with interest at Rs. 6/ per cent per annum.
Defendant 1 admitted the correctness of the contents of this receipt.
It is undisputed that subsequently, defendant 3 has not only obtained a decree on the basis of this receipt against defendant 1, but has taken out its execution.
The High Court has also dismissed the effect of the agreement (exhibit 99) which was executed between defendants 1, 2 and defendant 4 as the guardian of the minor, defendant 3 on April 12, 1950.
The main object of this agreement was to safeguard the interests of the minor in the management of the two partnership businesses, namely, 296 M. B. Sadalge Shop and Tennis Bidi Factory in the name of Chandrakant Neelkant Sadalge.
By this agreement, defendants 1 and 2 were called upon to credit to the business whatever amounts they had spent from out of the partnership assets.
The power of each of the defendants with regard to withdrawal of funds from partnership chest for personal expenses, was also restricted.
This arrangement continued to be in force till the partnership was dissolved by another registered deed on April 20, 1951.
Reference has already been made to exhibit 316, an order dated June 20, 1950, of the Income tax officer showing that defendants 1, 2 and 3 were being assessed on the basis that each of them had 1/3rd share in the business.
In a joint Hindu family business, no member of the family can say that he is the owner of one half, one third or one fourth.
The essence of joint Hindu family property is unity of owner ship and community of interest, and the shares of the members are not defined.
Similarly, the pattern of the accounts of a joint Hindu family business maintained by the Karta is different from those of a partnership.
In the case of the former the shares of the individual members in the profits and losses are not worked out, while they have to be worked out in the case of partnership accounts.
In view of all that has been said above, we are of opinion that the concurrent finding of the courts below to the effect, that the joint Hindu family of the defendants had disrupted on November 4, 1945, does not suffer from any legal infirmity or gross error which would justify our interference in this appeal by special leave.
We therefore, take it that no joint Hindu family of the defendants, nor any joint business of such a family was in existence either on October 15, 1949 when the last dealing (vide exhibit 394) of the plaintiff with defendants 1 and 2 took place, or when on April 15, 1953 the accounts were stated and admitted.
Indeed, on the date, April 15, 1953, on which the plaintiff 's cause of action arose, even the partnership was not in existence, the same having stood dissolved since April 20, 1951.
Mr. Datar next contends that even if the joint status of the family stood disrupted from November, 1945, then also, on the principle of section 45, Partnership Act, the acknowledgements made by defendants 1 and 2, representing themselves, jointly or severally, as Karta of the joint Hindu trading family, would, in the absence of public notice to the traders in general or particular notice to the plaintiff, be binding of all the erstwhile members of the joint family.
Reliance for this contention has been placed on a Single Bench judgment of the Bombay High Court in Kashiram Bhagshet Shete vs Bhaga Bhanshet Redij(1).
As against this, Mr. Desai submits that Kashiram 's case (supra) does not lay down the law correctly.
Counsel maintains that the contrary view taken by the other High Courts in these cases is sound : Pramod Kumar Pati vs Damodar Sahu(2); Rengaswami Ayyanagar vs (1) A.I.R. 1945 Bom.
511 (2) I.L. R. 1953 Cuttack 221.
297 Sivyurakasam Pillai(1); Muthyala Ramachandrappa vs Muthyala Narayanappa (2) .
Kashiram 's case (supra) decided by an eminent single Judge certainly supports the proposition propounded by Mr. Datar.
Applying the principle of section 45 of the Partnership Act, 1932, the learned Judge held that unless intimation of the severance of joint status between the members of the joint family is given to the outside creditors who had dealings with the joint family through its karta, either by public notice or individual notice in that behalf, the karta would be deemed to continue to represent the family and to have power to incur debts for family necessity and to make acknowledgements or part payments in `s respect of the same so as to extend the period of limitation.
With great respect to the learned Judge, we do not think that this is a correct enunciation of the law on the point.
Firstly, the legislature has, in its wisdom, excluded joint Hindu trading families from the operation of the Partnership Act.
Section 4 of that Act defines 'partnership ' as "the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all".
Section 5 further makes it clear that this Act governs only that relation of partnership which arises from contract and not from J status such as the one obtaining among the members of a joint Hindu family trading partnership.
Secondly, the question whether an acknowledgement made by the karta of an erstwhile joint Hindu family after its severance, would extend limitation against all the former members of that family, turns primarily on an interpretation of clause (b) of sub section (3) of s 21 read with section 19 of the Limitation Act, 1908.
Clause (b) of section 21 (3) provides: "Where a liability has been incurred by or on behalf of a Hindu undivided family as such, an acknowledgement or payment made by or by the duly authorised agent of, the manager of the family for the time being, shall be deemed to have been made on behalf of the whole family".
The key words in this clause are the manager of the family for the time being '.
These words unerringly indicate that at the time when the acknowledgement is made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family.
If at the relevant time the joint Hindu family as such was no longer in existence because of division, or disruption of its joint status, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against all the members of the family, his representative capacity as karta being co terminus with the joint status of the family.
Explanation (II) to section 19 lays down that for the purpose of this section "signed" means signed either personally or by an agent duly authorised in this behalf.
Section 21(1) provides that the expression "agent duly authorised in this behalf" in sections 19 and 20 shall in the case of a person under disability include his lawful guardian or manager or an agent duly authorised in this behalf.
It is well settled that (1) I.L.R. 1942Mad. 251 (F.B.) (2) A.I.R. 1940 Mad.
298 coparceners do not derive their title through the karta of the coparcenary.
Defendants 1 and 2 do not fulfil the requirements of this sub section.
It is therefore the duty of the creditor to ascertain after due enquiry whether the person making the acknowledgement still holds his representative capacity as karta of the family.
The law does not cast any duty upon the members of the family who do not figure in the endorsement or writing admitting the debt to inform the creditor by a general notice about the disruption of the family.
If the creditor fails to make an enquiry and satisfy himself ' about the capacity of the executant to represent the family at the time of making the acknowledgement, he does so at his own peril.
Disruption of the joint family status, as already noticed, puts an end to the representative capacity of the karta and any acknowledgement of a debt made by him after such disruption cannot save the creditors ' claim from becoming time barred against the other members.
The above enunciation of the law is in accord with the view taken by a Full Bench of the Madras High Court in Rangaswamy Ayyangar vs Sivprakasam Pillai (supra) and by a Division Bench consisting of Varadachariar and Abdur Rahman JJ.
in Muthyala Ramachandrappa vs Muthyala Narayanappa (supra), and by a Division Bench of the Orissa High Court in Pramod Kumar Pati vs Damodar Sahu (supra).
We approve of the law enunciated on the point by the High Courts in these cases.
No other point has been argued before us in this appeal which fails and is dismissed with costs.
P.B.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
The plaintiff appellant had business dealings with the joint family of the defendants.
He had instituted a suit claiming a certain sum of money from the defendants, one of the grounds being that even if the defendants proved that there had been a partition in the family, the family was still liable for the dues pertaining to the ancestral business carried on by all the defendants either as members of the joint Hindu family or as partners of a firm.
Defendant 3 (respondent) stated that there was disruption of the joint family status on November 4, 1945.
when defendants 1 and 2 and his deceased father unequivocally expressed their intention to separate and divided their movables.
He denied that defendants 1 and 2 had ever acted as managers of the joint family.
The trial Court and the High Court concurrently found that the joint family of the defendants had disrupted on November 4, 1945 and that no joint family business was in existence on the date when the last dealing of the plaintiff with the defendants took place.
On appeal to this Court, it was contended that even if the joint family stood disrupted from November, 1945, in the absence of public notice by defendants 1 and 2 regarding the disruption of the joint family, the acknowledgements made by them as karta of the joint Hindu family would be binding on the erstwhile joint family under section 45 of the Partnership Act, 1932.
Dismissing the appeal, ^ HELD: (1) It is the duty of the creditor to ascertain whether the person making the acknowledgement still holds his representative capacity as karta of the family.
The law does not cast any duty upon the members of the family to inform the creditors by a general notice about the disruption of the family.
If the creditor fails to make an enquiry and satisfy himself about the capacity of the executant to represent the family at the time of making the acknowledgement, he does so at his own peril.
Disruption of the joint family status puts an end to the representative capacity of the karta and any acknowledgement of a debt made by him after such disruption cannot save the creditor 's claim from becoming time barred against the other members.
[298B C] Pramod Kumar Pati vs Damodar Sahu, ILR 1953 Cuttack 221; Rengaswami Ayyangar vs Sivprakasem Pillai, ILR ; Mutayala Ramachandrappa vs Mutayala Narayanappa, AIR 1940 Mad. 339, approved.
Kashiram Bhagshet Shete vs Bhaga Bhanshet Redij A.I.R. over ruled.
(2)(a) The Legislature has excluded the joint Hindu trading families from the operation of the Partnership Act.
Section 4 defines partnership as a relation between persons who have agreed to share the profits of a business, and according to section 5 the Act governs only that relation of partnership which arises from contract and not from status such as the one obtaining among the members of a joint Hindu family ' trading partnership, [297C D] 288 (b) The words "manager of a family for the time being" occurring in section 21(3)(b) of the Limitation Act.
indicate that at the time when the acknowledgement was made and signed, the person making and signing it, must be the manager of a subsisting joint Hindu family.
If at the relevant time the joint Hindu family, as such, was no longer in existence, any acknowledgement made by the erstwhile karta of such family cannot keep the debt alive and extend limitation as against all the members of the family, his representative capacity as karta being co terminus with the joint status of the family.
[297F G] (c) Coparceners do not derive their title through the karta of the coparcenaty.
In the instant case defendants 1 and 2 did not fulfil the requirements of sub section
(1) of section 21 of the Limitation Act.
[298A]


judgement:
Civil Appeal No. 971 of 1968 From the judgment and decree dated the 10 5 1965 of the Punjab High Court at Chandigarh in R.F.A. No.181 of 1957.
section K. Mehta, K. R. Nagaraja and P. N. Puri for the appellant.
V. M. Tarkunde, J. P. Agarwal and Miss Manik Tarkunde for respondents 1 6.
The Judgment of the Court was delivered by SARKIRIA, J.
This appeal on certificate is directed against a judgment of the High Court of Punjab and Haryana awarding to the plaintiff respondents a decree for Rs. 21,600.
It arises out of these facts: On January 21, 1955, Lala Wazir Singh deceased, a retired Divisional Engineer (Railways) was traveling from Delhi to Hissar by a bus belonging to the Krishna Bus Service Ltd. (hereinafter referred to as the Company).
On the way, the vehicle went out of order.
180 Lala Wazir Singh and some other passengers were then transferred to another bus No. DLB 5749 belonging to the same Company.
This bus was being driven by Harbans Singh, defendant 3 (Respondent 8 herein) who was an employee of the Company, acting under its directions and instructions.
When at about 3 p.m., this bus was negotiating a turn in village Kheri Sadh, a few miles from Rohtak, it over turned, causing the death of Lala Wazir Singh, at the spot and in injuries to several other passengers.
The widow, the sons, the daughters, the grandsons and grand daughters of the deceased instituted a suit in the court of the Subordinate Judge, 1st Class, Rohtak for the recovery of Rs. 50,000 as damages for the loss caused to them on account of his death.
The Company was impleaded as defendant No. 1, the Insurance Company was joined as defendant No. 2 and the driver of the bus as defendant 3.
it was alleged that the accident causing the death of Lala Wazir Singh, occurred on account of the negligence of defendants 1 and 3.
The bus, it was pleaded, was not in proper order; it was overloaded with passengers and goods, and despite these facts, defendant 3 drove it at a very high speed while it was negotiating a turn.
The liability.
of the employer Company was sought to be fixed on the ground that it was negligent in employing such a rash and negligent driver and that the accident occurred when defendant 3 was acting in the course of its employment.
In their written statement presented on July 16, 1956, the Company admitted that the bus involved in the accident belonged to it and at the time of the accident it was driven by their employee, defendant 3.
In regard to the allegations of negligence, the Company replied: "The accident alleged by the plaintiffs was not due to any negligent or careless driving of Harbans Singh Driver of the vehicle owned by the defendant but was vis major.
There was rain on that day and the front was slippery.
The bus overturned and the death of the said Wazir Chand (Singh) was in no case the result of overturning of the Bus.
" While finding that the death of Lala Wazir Singh had occurred on account of injuries sustained by him in the accident in question, the trial court held that the accident took place "on account of the r breaking of the tie rod of the vehicle due to which the bus went out of the control of the driver".
The tie rod, according to the trial court, broke because the front left wheel of the vehicle while it was negotiating a turn, fell into a pit.
The court further held that the.
vehicle was not overloaded and its speed at the time of the accident was not more than 20 or 25 miles per hour, and as such, was not excessive.
On these premises, the trial court concluded that the is plaintiffs had failed to prove that the accident involving fatal injuries to the deceased, was due to rash or negligent driving by defendant No.r 3.
It further held that in case Issues 1 and 2, were decided in favour of the plaintiffs, the maximum damages awardable to them would be Rs. 34,210, i.e., the amount of pension which the deceased would have earned, had he been alive for 9 years and 2 months after the accident.
181 On these findings, the trial court dismissed the suit leaving the parties to bear their own costs.
Aggrieved, the plaintiffs preferred an appeal to the High Court.
The Division Bench who heard the appeal, has after appraising the evidence on record, reversed the findings of the trial court and held that "the accident was due to negligence attributable to defendant 3 or both defendants 1 and 3".
This finding of negligence recorded by the High Court is based on facts appearing in the evidence of PWs.
5, 6 and 8 who were c found by it to be entirely trustworthy.
These facts are: (i) The bus was overloaded with goods and passengers.
There were 60 or .62 passengers including 10 or 12 children, in it (vide PWs 5 and 6).
(ii) It was drizzling; the road was wet and slippery (vide P.s.
S and 6); (iii) The tie rod of the bus was not found broken but only "opened" (dismantled) when it was examined by the expert motor mechanic, PW 8, on the day following the accident.
The hand brake and the foot brakes were also found in a bad condition; (IV) At the time of the accident the bus was negotiating a turn and passing through the habitation of village Cherry; (v) Immediately before the accident the bus was making a zigzag movement and was being driven at fast speed despite the protests and shouts of the passengers asking the driver to slow down; (vi) the speed of the bus at the material time, according to PW 6, was about 30 miles per hour; (vii) The bus overturned as a result of which Lala Warier Suing died at the spot and other passengers, including PW S, received serious injuries.
The High Court further reinforced its finding with an adverse inference against the defendants drawn from the fact that the driver (defendant 3) who knew best the relevant facts, did not appear in the witness stand to explain the circumstances in which the accident occurred.
In this connection it observed: "Buses do not, in such circumstances, normally and in the ordinary course, turn turtle.
The transaction thus speaks for itself: in other words res ipsa loquitur and in the absence of explanation by defendant No. 3 and his employer, defendant No. 1 the established facts and circa stances accompanying the fatal injury caused to the deceased clearly raise a presumption or at least permit an inference of negligence on the part of defendant No. 3 The Court below was thus clearly wrong in negativing negligence on the part of defendant No. 3.
I would accordingly reverse the conclusion of the court below on this point and hold that the accident was due to the negligence of defendant No. 3 and was not inevitable which could not be obviated by ordinary care, caution and skill on his part.
" On the above facts and the premises, the High Court concluded that the accident was due to the negligence of the driver and was "not inevitable which could not be obviated by ordinary care, caution u skill on his part".
In the result, it awarded a decree for Rh.
21,600 182 as damages against defendants 1 and 3 proportionate costs, limiting the liability of the Insurance Company, defendant No. 2 to Rs. 2,000 only, plus proportionate costs.
Hence this appeal.
It is an undisputed fact that Lala Wazir Singh died in the bus accident on 21.1.1955.
It is further common ground that the bus while negotiating a turn, had overturned causing fatal injuries to the deceased, and that at the relevant time it was being driven by Harbans Singh defendant, an employee of the appellant Company.
It is also admitted that the bus belonged to the appellant company.
The only issue in controversy is, whether the accident involving the death of L. Wazir Singh, was caused due to the negligence of defendant 1 or both defendants 1 and 3.
Mr. Mehta, appearing for the appellant contends that the High Court while conceding that the plaintiffs ' witnesses were not able to assign the reason for the accident, wrongly spelled out negligence on the part of the driver from the bald circumstance that the bus had overturned.
It is submitted that the High Court committed an error of law inasmuch as it assumed that the overturning of the bus was res ipsa loquitur and had shifted the burden on the defendants to show that the accident and the consequent death of L. Wazir Singh was not due to their negligence.
It is submitted that res ipsa loquitur is merely a Latin phrase and does not convey any legal principle.
Reliance has been placed on this Court 's decision in Shyam Sunder and ors.
vs State of Rajasthan(1).
Mr. Mehta further maintains that the trial court had correctly held on the basis of evidence on record, that the accident occurred due to the sudden breaking of the tie rod and not due to any negligence on the part of the driver.
To us, none of these contentions appears to be well founded.
ordinarily, in Second Appeal it is not necessary for this Court to reappraise the evidence on record because the first appellate court is supposed to be the final court of fact.
Nevertheless, on the insistence of the Counsel for the appellant, we have examined the evidence on the record.
We have no hesitation in holding, in agreement with the High Court, that the evidence rendered by PWs 5, 6 and 8 was reliable and cogent enough to establish facts which, in their totality, unerringly point to the conclusion that the accident was due to the negligence of the driver, defendant No. 3.
Kali Ram, PW 5, was one of the passengers in the ill fated bus.
He, also, received injuries in the accident.
For treatment of his injuries he remained in hospital for twenty days.
He was therefore supposed to have personal knowledge and experience of the circumstances in which the accident occurred.
He testified that the bus was overloaded, and the driver unheeding the protests and shouts of the passengers to go slow, was driving it at a fast speed.
He further stated now near village Kheri, the vehicle after making zig zag movements overturned causing the death of one passenger at the spot and injuries to the witness and other passengers.
(1) ; 183 Subedar Ram Kishan, PW 6, is a retired Army officer and knows motor driving.
His house is just near the place of the accident.
According to his estimate, the speed of the bus, while it was negotiating the turn, just before the accident, was 30 miles per hour and it was moving in a zig zag manner, being not in the control of the driver.
In cross examination, the witness accepted a suggestion put by the defence, and stated that in his presence, the driver had told the police that the accident had occurred due to the breaking of the tie rod.
The witness further conceded that there was pit by the side of the road, but repelled the suggestion that the tie rod could be broken by a sudden jerk at the turning.
Raghbir Singh PW 8 was a motor mechanic.
He examined the bus at the site on the 22nd January.
According to him, the tie rod had not broken down, but had been opened", implying that it had been subsequently tampered with.
The witness found that the handbrake and foot brakes of the vehicle were in a bad condition.
He did not find the pipe of the hydraulic foot brake in a broken condition.
For its finding that the accident had taken place on account of the breaking of the tie rod of the vehicle, the trial court sought support from the evidence of PW 5 and DW 6.
It is manifest that correctly read, the evidence of PW 6 does not justify that conclusion.
The mere fact that sometime after the accident during police investigation, the driver came out with the story that the accident occurred due to the breaking of the tie rod, was no ground to believe, without demur.
that such breaking was the cause of the accident.
The evidence of the expert, DW 6, was dogmatic and worthless.
His opinion was not based on an examination of the vehicle and was rightly rejected by the High Court.
On the other hand, the testimony of PW 8 who had examined the vehicle one day after the accident, was quite convincing, and it could reasonably lead to the conclusion that the tie rod of the vehicle had been tampered with an untied sometime after the accident.
The defendants led oral evidence to prove that near the place of the accident, there was a pit in the road, and when the bus was negotiating a turn, its front wheel fell in that pit, and as a result of this fall, the tie rod end of the steering wheel broke loose and the bus went out of control.
In the first place, DWs 2 and 3, who were examined to substantiate this story, did not say that the wheel of the bus had fallen in that pit.
Secondly, the story of this pit and the breaking of the tie rod, was not even faintly adumbrated in the written statement.
It was subsequently developed as an after thought.
Even if it is assumed for the sake of argument that one wheel of the bus had fallen into the pit, and the resultant shock broke the tie rod causing the vehicle to go out of control, then also that would not, when viewed in the light of the other circumstances of the case, negative the inference of negligence on the part of defendants 1 and 3.
The pit was according to Gordhan, DW 2, hardly four feet in 1 3 L390SCI/76 184 length and 6 inches deep.
It was not in the mettled part of the road but in the kacha berm.
The bus was negotiating a turn.
There, the road runs through the habitation of a village.
lt was drizzling and the road was wet and slippery.
The speed of the bus at the relevant time, according to PW 6, was 30 miles per hour, and according to DWs 2, 4 and 5, it was 25 miles per hour.
The bus was overloaded.
In these peculiar circumstances, a duty was cast on the drier lo go dead slow.
A speed of 25 to 30 miles per hour, in these conditions and in this situation, at the turning of the road, would be imprudently excessive.
Had the bus been properly maintained in a sound road worthy condition, and used with due care and driven with due caution, the tie rod should not have broken loose by the fall of the wheel in a pit hardly six inches deep, particularly when the upward thrust of the water in the pit would have largely absorbed the shock of the fall.
The pit was in the kacha berm and not right in the mettled portion.
The driver could have with ordinary care and diligence avoided it.
Thus, the breaking of the tie rod assuming it did break was at best, a neutral circumstance.
As rightly pointed out by the High Court, buses in sound road worthy condition, driven with ordinary care, do not normally over turn.
It would be for the driver who had special knowledge of relevant facts to explain why the vehicle overturned.
The maximum res ipsa loquitur would be attracted to such a case.
Defendants 1 and 3 had failed to rebut the presumption of negligence that arose from the manifest circumstances of the case.
, In Barkway vs South Wales Transport Co. Ltd.( ' ') a motor omnibus loaded with passengers was passing through a village when the off side front tyre burst; the omnibus went over to the off side of the road, mounted the pavement, crashed into some railings, and fell down an embankment, killing four of the passengers, including the plaintiff 's husband.
On these facts, Asquith L.J. summarised the position as to the onus of proof thus: "If the defendants ' omnibus leave the road and falls down an embankment, and this without more is proved, then res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this pre sumption, (ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of this omnibus leaving the road is a tyre burst, since a tyre burst per se is a neutral even consistent, and equally consistent, with negligence or due diligence on the part of the defendants.
When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale.
The depressed scale will remain down.
This is the effect of the decision in Laurie vs Raglan Building Co. Ltd., where not a tyre burst but a skid was involved.
(1) 185 (iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its absence as more probable, or (b) if they can point to no such specific cause, that they used all reason able care in and about the management of their tyres.
" The above observations apply with greater force to the facts of the present case.
Shyam Sunder 's case (supra), cited by Mr. Mehta does not advance his case.
There, the radiator of the vehicle was getting heated frequently and the driver was pouring water therein after every 6 or 7 miles of journey.
It took the vehicle 9 hours to cover a distance of 70 miles and thereafter it suddenly caught fire.
On these facts this Court, speaking through Mathew J., held that there was some defect in the mechanism and the driver was negligent in putting the vehicle on the road.
Since the driver could not explain the cause of the accident which was within his exclusive knowledge and it was not possible for the plaintiff to give any evidence as to the cause of the accident, the maxim res ipsa loquitur was attracted to the case.
Coming back to the instant case, it may be observed that the driver was admittedly an employee of the appellant Company, and at the relevant time he was acting in the course of his employment.
The vehicle was the property of the appellant Company, under whose management defendant 3 was working at the material time.
It is well settled that where in an action for negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to the plaintiff, is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of events does not happen, if those who have the management use proper care, that affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
The appellant Company was therefore fully liable for the negligent act of its employee and the injury resulting therefrom.
No other point has been argued before us.
In the light of all that has been said above, the appeal fails and is hereby dismissed with costs.
S.R.Appeal dismissed.

summary:
One of the buses belonging to the appellant, DLB 5749, driven by "HS" enroute to Hissar, while negotiating a turn in village Kheri Sadh overturned, causing the death of "LWS" and injuries to many.
At the time of the fatal accident, the bus was over loaded with passengers and goods, driven by "HS" at an excessive speed despite protests by the passengers while negotiating a turn.
A suit for damages was filed by the legal heirs of deceased "LWS" against the driver and the appellant, the liability of the appellant arising out of the fact of its negligence in employing such a rash and negligent driver who was responsible for the accident acting in the course of its employment.
The appellant took the plea of "vis major", there being rain on the fateful day and the breaking of the tie rod of the vehicle when it fell into a pit and making the bus out of the control of the driver.
The suit was dismissed fixing the "quantum damni ficatus" at Rs. 34,210/ applying the principle of "quantum meruit" and on appeal the Punjab and Haryana High Court held that the accident was due to negligence attributable to the driver or both the driver and the appellant and decreed the suit, basing on the cogent and trustworthy evidence of P.Ws. 5, 6 and 8 to these facts (i) overload of the bus with goods and passengers; (ii) Witness and slippery nature of the road due to drizzling (iii) The expert report of the mechanic to the effect that the "tie rod" of the vehicle was only "opened" (dismantled) but not broken and the bad conditions of the foot brake and hand brakes: (iv) Factum of negotiating a turn and passing through the habitation of village Kheri; (v) Zig zag movement of the bus and the fast speed at which the bus was driven despite protests and shouts of the passengers.
(vi) The actual) speed of the bus at 30 miles per hour at the time ", of the accident and (vii) over turning of the bus resulting in the death of "LWS" on the spot and injuries to many.
The High Court, drawing an adverse inference against the appellant and the driver for non appearance in the witness box held that "inasmuch as buses in sound road worthy condition and driven with ordinary care do not normally overtime, and in this case the bus did overturn, the principle of "res ipsa loquitur" applied.
" The High Court also awarded a decree for Rs. 21,600/ with proportionate cost as damages against the appellant and the driver limiting the liability of Rs. 2,000/ only against the insurance company.
On appeal by certificate the appellant contended (i) that it was wrong to assume that over turning of the bus was "res ipsa loquitur"; (ii) that it was wrong to shift the onus on the appellant to show that they were not negligent and (iii) that in the absence of specific assignment of the reasons by the witnesses in their evidence the sudden breaking` of the tie rod was the cause of the accident and hence a vis major".
Dismissing the appeal, the Court, 179 ^ HELD: (1) ordinarily in second appeal, it is not necessary for the court to reappraise the evidence on record because the first appellate court is supposed to be the final court of fact.
[182E] (2) Buses in sound road worthy condition, driven with ordinary care, do not normally over turn.
It would be for the driver who had special knowledge of the relevant facts to explain why the vehicle over turned.
The maxim "res ipsa loquitur" would be attracted in such a case.
In the present case, the defendants failed to rebut the presumption of negligence that arose from the manifest circumstances of the case.
[184 C D] Shyam Sundar and others vs State of Rajasthan, A.I.R. , not applicable.
Barkway vs South Wales Transport Co. Ltd. [1948] 2 All.
E.R. 460, applied.
(3) Viewed in the light of the other circumstances, in the instant case, like overloading, negotiating of a turn near the village habitation on a slippery road a duty was cast on the driver to go dead slow.
A speed of 25 to 30 miles per hour, in these conditions and in this situation, at the turning of the road would be imprudently excessive.
[184A B] (4) Had the bus been properly maintained in a sound road worthy condition and used with due care and driven with due caution, the tie rod should not have broken loose by the fall of the wheel in a pit hardly six inches deep, particularly when the upward thrust of the water in the pit would have largely absorbed the shock of the fall.
The pit was in the kacha berm and not right in the mettled portion.
The driver could have with ordinary care and diligence avoided it.
Thus, the breaking of the tie rod assuming it did break was.
at best, a neutral circumstance.
[184 B C] (5) In the instant case the driver was admittedly an employee of the appellant company, and at the relevant` time he was acting in the! course of his employment.
The vehicle was the property of the appellant company under whose management defendant 3 was working at the material time.
It s well settled that where in an action for negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to the plaintiff, is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of events, does not happen, if those who have the management use proper case, that affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.
The appellant company was, therefore, fully liable for the negligent act of their employee and the injury resulting therefrom.
[185 D F]


judgement:
ivil Appeal No. 136 of 1965.
Appeal by Special Leave from the Judgment and Order dated the 15th November 1954 of the Election Tribunal, Quilon, Travancore Cochin, in Election Petition No. 18 of 1954.
section Mohan Kumara Mangalam, H. J. Umrigar and Rajinder Narain, for the appellant.
T. R. Balakrishnan, for respondent No. 1. 1955.
September 19.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
This is an appeal by special leave against the order of the Election Tribunal, Quilon declaring the election of the appellant to the Legislative Assembly of the State of Travancore 479 Cochin from the Shencottah Constituency void on the ground that he was disqualified to stand for election under section 7(d) read with section 9(2) of Act No. XLIII of 1951.
Under section 7(d), a person is disqualified for being chosen as a member of the Legislative Assembly of a State, if he is interested in any contract for the supply of goods or for the execution of any works for the Government of that State.
Section 9(2) declares that if any such contract has been entered into by or on behalf of a Hindu undivided family, every member thereof shall be subject to the disqualification mentioned in section 7(d); but that if the contract has been entered into by a member of an undivided family carrying on a separate business in the course of such business, other members of the family having no share or interest in that business shall not be disqualified under section 7(d).
The contract in the present case was for felling trees in a Government forest and transporting them for delivery at the places specified therein.
There is now no dispute that this contract is one that falls within section 7(d) of the Act.
The point in controversy is simply whether the contract with the Government was entered into on behalf of the joint family, of which the appellant is a member.
The agreement stands in the name of one Kuppuswami Karayalar, and the allegations in the petition are that he is a mere name lender for one Krishnaswami Karayalar, who is the manager of a joint family consisting of himself and his sons, the appellant being one of them, and that he entered into the contract in question on behalf of and for the benefit of the joint family.
The case of the appellant, on the other hand, is that Kuppuswami whose name appears in the contract was the person solely entitled to the benefits thereof, that he was not a name lender for Krishnaswami Karayalar, and that further neither he nor the joint family had any interest in the contract.
Certain other pleas were also put forward by him, but they are not now material.
61 480 The following issues were framed on the above con tentions: " (2) Is the said joint family the owner of the right and benefits of the contract for the felling and removal of timber from Coupe No. 4, Nedumangad Taluq, entered into with the Forest Department, Travancore Cochin State? Has the joint family any interest in the said contract? (3) Is Mr. Kuppuswami Karayalar whose name appears as the contractor only a name lender for the joint Hindu family of which the respondent is a member?" On issue 3, the Tribunal found that Krishnaswami Karayalar was the real contracting party, and that Kuppuswami was a benamidar for him, and on issue 2, that the contract was entered into on behalf of the joint family, of which the appellant was a member.
On these findings, it held that the appellant was disqualified under section 7(d) read with section 9(2), and declared his election void.
The appellant questions the correctness of this order firstly on the ground that the finding that Kuppuswami is a benamidar for Krishnaswami Karayalar is not warranted by the evidence, and secondly on the ground that the finding that Krishnaswami entered into the contract on behalf of the joint family is based on a mistake of law and is unsustainable.
On the first question, Mr. Kumaramangalam for the appellant admitts that there is evidence in support of the conclusion that Kuppuswami was a benamidar for Krishnaswami, but contends that it is meagre and worthless.
The question whether a person is a benamidar or not, is purely one of fact, and a finding thereon cannot be interfered with in special appeal, if there is evidence on which it could be based.
We must, therefore, accept the finding of the Tribunal that it was Krishnaswami, the father of the appellant, who was the real contracting party to the agreement with the Government.
The next question is whether Krishnaswami entered into the contract in his own personal capacity or as manager of the joint family.
The Tribunal found 481 as a fact that the business started by Krishnaswami Karayalar was a new venture, and instead of proceeding next to consider on the evidence whether in entering into the contract he acted for himself or for the joint family, it entered into a discussion whether under the Hindu law there was a presumption that a business started by a coparcener was joint family business.
After observing that there was no such presumption "in the case of an ordinary manager", it held that "the law is different when the manager happens to be also the father".
It then referred to certain decisions in which it had been held that the sons were liable for the debts incurred by the father for a new business started by him, and held "on the above authorities that the joint family of the respondent is the owner of the right and benefit of the present contract".
The appellant contends that the statement of law by the Tribunal that there is a presumption that a new business started by the father is joint family business is erroneous, and that its finding that the joint family of which the appellant was a member had an interest in the contract of Krishnaswami could not be supported, as it was based solely on the view which it took of the law.
This criticism is, in our opinion, well founded.
Under the Hindu law, there is no presumption that a business standing in the name of any member is a joint family one even when that member is the manager of the family, and it makes no difference in this respect that the manager is the father of the coparceners.
It is no doubt true that with reference to a trade newly started there is this difference between the position of a father and a manager, that while the debts contracted therefor by the former would be binding on the sons on the theory of pious obligation, those incurred by a manager would not be binding on the members, unless at least there was necessity for the starting of the trade, as to which see Ram Nath vs Chiranji Cal(1), Chotey Lai vs Dulip Narain (2) and Hayat Ali vs Nem Chand(3).
But (1) ,All. 605.
(2) Patna 386.
(3) A.1,R. 1945 Lab. 169, 482 it is one thing to say that the sons are liable for the debts contracted by the father in the trade newly started by him, and quite another thing to treat the trade itself as a joint family concern.
We are therefore unable to accept the finding of the Tribunal that the contract of Krishnaswami Karayalar should, as a matter of law, be held to be a joint family business of himself and his sons.
This conclusion, however, is not sufficient to dispose of the matter.
The case of the respondent that Krishnaswami entered into the contract with the Government of Travancore Cochin on behalf of the joint family rests not merely on a presumption of law but on evidence as to facts and circumstances which, if accepted, would be sufficient to sustain a finding in his favour.
In the view it took of the law on the question, the Tribunal did not discuss the evidence bearing on this point or record a finding thereon.
It is therefore necessary that there should be a remittal of the case for 'a consideration of this question on the evidence.
The appellant contends that there is only the evidence of the respondent in support of the plea that the contract was entered into by Krishnaswami on behalf of the joint family, and that this Court could itself record a finding thereon.
But it is argued by the respondent that there are in the judgment of the Tribunal several observations which would support the conclusion that the contract was entered into on behalf of the joint family.
Thus ' it is pointed out that in para 5 of the judgment the Tribunal observes that Krishnaswami Karayalar started this new business with a view to discharge the family debts.
It further observes in para 6 that the business required an initial investment of about Rs. 25,000 to Rs. 30,000, and that while there is evidence that about Rs. 7,000 had been borrowed by Krishnaswami Karayalar, there is no evidence bow the balance was made up.
The contention of the respondent is that this must have proceeded from the joint family funds, and that implicit in the finding of the Tribunal.
It is this is also mentioned in the judgment of the Tribunal that 483 Krishnaswami was anxious to support his son, the present appellant, and that many of the witnesses whom the respondent was obliged to examine, were really anxious to help the appellant.
(Vide para 12).
We do not, however, desire to express any opinion on these contentions, as we propose to leave them to the decision of the Tribunal.
We accordingly set aside the order of the Tribunal, and direct that the Election Commission do reconstitute the Tribunal to hear and decide the question whether Krishnaswami Karayalar entered into the contract with the Government of Travancore Cochin on behalf of the joint family or for his own personal benefit, on a consideration of the evidence on record.
It is made clear that no further evidence will be allowed.
The parties will bear their own costs in this Court.
Appeal allowed.
Case remitted for hearing.

summary:
There is no presumption in Hindu Law that a business standing in the name of a member of the Hindu joint family is joint family business, even when that member is the manager or the father.
There is this difference between the position of the father starting a new business and a mere manager doing so that while the debts contracted by the father in such business are binding on the sons on the theory of a son 's pious obligation to pay his father 's debt, those contracted by the latter are not binding on the other 478 members of the family unless, at least, it can be shown that the starting of the business was necessary.
Ram Nath vs Chiranii Lal, ([1934] I.L.R. 57 All. 605), Chhotey Lal Chaudhury vs Dalip Narain Singh, ([1938] I.L.R. 17 Patna 386), Hayat Ali Shah vs Nem Chand (A.I.R. , referred to.
But this distinctive position of the father does not by itself make the new business started by him a joint business of the undivided family.
The question of benami is a question of fact and where there is evidence to support a finding that a person is a benamidar for another, the Supreme Court in a Special appeal will not interfere with it.
Consequently, in a case where an election was challenged on the ground that the candidate returned was interested in a contract entered into by his father, benami in the name of another, with the Government for felling trees and transporting timber and as such disqualified to stand for election under section 7(d) read with section 9(2) of the Representation of the People Act and the Tribunal found on evidence that the father was the real contracting party but without considering the evidence on the other point which, if believed, might sustain a finding that the father was meting on behalf of the family, presumed as a matter of law that the ion had interest in the contract and declared the election void, Held, that the Tribunal took an erroneous view of the law and made a wrong presumption, so its decision must be set aside, and as the findings are not sufficient for disposal of the matter the case must be remitted back for rehearing on the evidence on record.