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 7d read with section 92 of Act No XLIII of 1951
Under section 7d 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 92 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 7d 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 7d
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 7d 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 7d read with section 92 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 Cal1 Chotey Lai vs Dulip Narain 2 and Hayat Ali vs Nem Chand3
But 1 All 605
2 Patna 386
3 A1R 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 25000 to Rs 30000 and that while there is evidence that about Rs 7000 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 ILR 57 All 605 Chhotey Lal Chaudhury vs Dalip Narain Singh 1938 ILR 17 Patna 386 Hayat Ali Shah vs Nem Chand AIR  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 7d read with section 92 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