R.S.A.No. 2500 of 1988(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 2500 of 1988(O&M) Date of decision: 5.5.2011 Surjit Singh and another ......Appellants Versus Kulwant Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Mittal, Sr. Advocate with Mr.S.K.Tripathi, Advocate, for the appellants. None for respondent. **** SABINA, J. The plaintiff had filed a suit for rendition of accounts against his father and brother. The case of the plaintiff, in brief, was that he along with the defendants constituted a Joint Hindu Family. The ancestral property of the parties had not been partitioned so far. Defendant No.1 was the karta of the family. In the year 1973, the plaintiff went to Greece and then to Canada to earn his livelihood. It was decided between the parties that the plaintiff should send his personal earnings to defendant Nos. 1 and 2 and they should retain that money on behalf of the plaintiff and should make investment of his personal earnings to his benefit. The plaintiff had sent in all ` 98,976.35 paise to defendant No.1 from time to time. The plaintiff returned back to India in November, 1981 and was told that his R.S.A.No. 2500 of 1988(O&M) 2 money had been invested for his benefit and therefore, the plaintiff did not ask for accounts. Differences arose between the parties in the year 1983 qua ancestral property. The plaintiff, on enquiry, came to know that the money sent by him had been used by the defendants to purchase property in their own names. Hence, the suit for rendition of accounts was filed by the plaintiff. Defendants filed their written statement. The pedigree table, as shown in para 4 of the preliminary objections, is as under:- Ram Singh | Suba Singh | |-------Ram Kaur (wife) | ____________________________________________________________________ | | | | | | Surjit Singh Pritam Singh Joginder Mohinder Kartar Mohinder def.No.1 | Singh Singh Kaur Kaur | |_ Angrej Kaur (wife) | | (married daughters) __ |______________ | |_________ |_____________________ Jagir Kaur (wife) ________|__________ | | | | | | | | | Surinder Kuldip Manjit | | | Kaur Kaur Kaur | | | (married daughter) (unmarried daughters) | | ___|_____________________ | Gurmit Kaur (wife) | | | | | _________|________________ | | | | | | | Jagpal Harpal Kulwant Harbans Kaur Balbir Randhir Pitat Balbir Sukhbir | Singh Singh Singh (married daughter) Singh Singh Kaur Kaur Kaur | | D.No.2 Pltf. (son) (son) (M/D) (unmarried daughters)| | | |___Darshan Kaur (wife) | | Mohinder |_______________ |___Rajinder Kaur (wife) | Kaur (wife) | | | | | ___|_________ | | | | | | _|______________ |Rajwinder Parminder Kuldip Kaur | | | | |Kaur (wife) Singh (son) (unmarried daughter) | Jasbir Jasdev Beant | | Kaur Singh Singh | | (d) (s) (s) | | ______________ __________________| | | |Surjit Kaur (wife) Kulwinder Singh Jaswinder Singh | (son) (son) | | ______________________________________________________________________ | | | | | | | Amarjit Singh Taran Singh Harnek Singh Inderjit Kaur Manjit Kaur Kuldip kaur Jasbir Kaur (son (son) (son) (unmarried daughters) R.S.A.No. 2500 of 1988(O&M) 3 On merits, it was averred by the defendants that the plaintiff had been sent to Greece after spending an amount of ` 75,000/- from the family funds. The property purchased out of the funds sent by the plaintiff was liable to be treated as Joint Hindu Family property. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to rendition of accounts ? If so, since when? OPP. 2. Whether the amount sent by the plaintiff has been spent by the defendants on the welfare of the joint Hindu family? If so, to what effect? OPD 3. Whether the plaintiff has been separated from the joint Hindu family? If so, since when and to what effect ? OPD 4.Whether the suit is within limitation? OPD 5. Whether the civil court has no jurisdiction to try this suit ? OPD 6. Whether the suit has been properly valued for the purposes of court fee` and jurisdiction ? OPP 7. Whether the suit is bad for misjoinder of necessary parties? OPD 8. Whether the suit is liable to be dismissed as per preliminary objection No.1 in the written statement? OPD 9. Whether the persons mentioned in the preliminary objections No.2 and 4 from joint Hindu Family ? If so, to what effect? OPD R.S.A.No. 2500 of 1988(O&M) 4 10.Relief.” The Sub Judge Ist Class, vide judgment and decree dated 21.1.1987 dismissed the suit of the plaintiff. Appeal filed by the plaintiff challenging the said judgment and decree was allowed by the Additional District Judge vide judgment and decree dated 20.7.1988 and consequently, a preliminary decree for rendition of accounts was passed in favour of the plaintiff. Hence, the present appeal by the defendants. Learned counsel for the appellants has submitted that during the pendency of the appeal, defendant No.1 Surjit Singh, father of the plaintiff and defendant No.2 had died. No reliance could be placed on the compromise placed on record by the plaintiff as the same had not been placed on record during the life time of Surjit Singh. The said compromise was not signed by appellant Harpal Singh. Learned counsel has further submitted that the suit for rendition of accounts was not maintainable. An application was moved by the respondent to place on record the compromise Annexure A-2 and affidavit of Surjit Singh Annexure A-1. A perusal of the said documents reveals that the affidavit has been sworn by Surjit Singh to the effect that the compromise had been effected between the parties and the plaintiff would get the land measuring 4 kanals 15 marlas bearing khasra No.57//1/2, 2/1. The said compromise has been thumb marked by Surjit Singh. It has been simply signed by two witnesses without disclosing their parentage and addresses. Since the compromise is not signed by appellant Harpal Singh, the same is not binding on him. Hence, the R.S.A.No. 2500 of 1988(O&M) 5 appeal cannot be decided on the basis of the compromise and affidavit Annexure A-2 and A-1 respectively. The substantial question of law that arises in this case is “whether the suit filed by the plaintiff was maintainable ?” On merits, admittedly, the plaintiff had gone to Greece and then Canada to earn his livelihood in the year 1973. The plaintiff returned back to India in the year 1981. Thereafter, the plaintiff got married in the year 1982. It is duly proved on record that the plaintiff had sent various amounts from time to time and the same were liable to be included in the Joint Hindu Family funds as the plaintiff was a young boy when he went abroad. The plaintiff had been sent abroad with the help of funds belonging to Joint Hindu Family. The case of the plaintiff is also to the effect that the parties constituted a Joint Hindu Family and defendant No.1 Surjit Singh was the karta of the family being father of the plaintiff and defendant No.2. Article 231-A of principles of Hindu Law by Mulla reads as under:- Gains of learning- gains of science: By the Hindu Gains of Learning Act it is provided that notwithstanding any custom, rule or interpretation of the Hindu Law, no gains of learning shall be held not to be the exclusive and separate property of the member of the joint family who acquires them merely by reason of- (a) his learning having been, in whole or in part imparted to him by any member living or deceased, of his family, or with the aid of the joint funds of his family or with the aid of the funds of any member thereof, or R.S.A.No. 2500 of 1988(O&M) 6 (b) himself or his family having, while he was acquiring his learning, been maintained or supported, wholly or in part, by the joint funds of his family, or by the funds of any member thereof." "learning" is defined in the Act as meaning education, whether elementary, technical scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or avocation in life. "gains of learning" means all acquisitions of property made substantially by means of learning, whether such acquisitions be made before or after the commencement of this Act and whether such acquisitions be the ordinary or the extraordinary result of such learning; Before the Hindu Gains of Learning Act, 1930, it was established law that income earned by a member of a joint family by the practice of a profession or occupation requiring special training was joint family property, if such training was imparted at the expense of joint family property.” It has been held by this Court in Sitara Lal vs. Shiv Kumar and others 1985 PAP 74 P&H that a son cannot seek rendition of accounts of the income of the coparcenary property during the life time of his father. The trial Court had, thus, rightly dismissed the suit of the plaintiff. Learned first Appellate Court has erred in decreeing the suit of the plaintiff while holding that the R.S.A.No. 2500 of 1988(O&M) 7 plaintiff had not sent the amount to be credited to Joint Hindu Family funds. Since the case of the plaintiff himself was that the parties constituted a Joint Hindu Family and more so he had been sent to foreign country to earn his livelihood out of the funds of the Joint Hindu Family, the income was liable to be credited to the Joint Hindu Family funds and the plaintiff could not seek rendition of accounts of the funds of the Joint Hindu Family. Thus, the suit filed by the plaintiff was not maintainable. The substantial question of law stands answered accordingly. Hence, the present appeal is allowed. The impugned judgment and decree dated 20.7.1988 passed by the first Appellate Court are set aside and the judgment and decree dated 21.1.1987 passed by the trial Court are upheld. (SABINA) JUDGE May 05, 2011 anita