Case: K. V. Narayanaswami Iyer Vs. K. V. Ramakrishna Iyer And Ors

account for the period of his management. It is true that at the trial Mahadeva tried to explain away this assertion in the written statement by saying that this was based on information given to him by the defendant No. 1. In the very next sentence, however, he again said that this view that the plaintiff was exclusively managing for certain years was his conclusion. It is important to notice in this connection that at the bottom (of) Ex. B190 dated the l3th March 1941 which Mahadeva received from Ramakrishna, Mahadeva made in his own hand an entry in red ink to the following effect :-"1939 Kuruvai (paddy) sold by Nana1939 - Samba Mudal (harvests) by Nana, sold in 1940."27. It is true that there are some letters which indicate that even during 1941 and thereafter Ramakrishna was issuing some instructions to the Karisthan. But, considering the facts mentioned above along with the letters Exhibits B177 and B72 in which detailed instructions about the cultivation were being given by the plaintiff to the Karisthan, we have come to the conclusion that from about 1940, till the mothers death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakashi and took away all the income from them.28. The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs. 2/5/-. The net income, after payment of the kist and debiting the expenses of cultivation etc, may be placed therefore at about Rs. 500/-. It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendants hands from the B Schedule property. On this calculation the first defendant appears to have had in his hands about Rs.1,500/- during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous period 1931 to 1939. It is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.29. Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by Exs. B 127 and B 128 in the name of the third defendant, Venkatarama. At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years. It is not unlikely that he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings. It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant. Apart from this it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had with him sufficient income out of the joint family properties for purchasing all these lands. We have already found that the first defendant resumed management of the joint family properties on his mothers death in 1945. On the question about the income and expenses during this period there is hardly any evidence worth the name on the record. On a consideration of all these circumstances, we are of opinion that the High Courts conclusion as regards these properties also that they did not form part of the joint family property is correct.30. This brings us to Mr. Rajagopal Sastris second argument. While admitting the legal position that in the absence of any evidence of fraud or misappropriation the Karta cannot be called upon to account for the past transactions, learned Counsel stresses the responsibility of the Karta to establish what are the assets available for partition. In support of this, the learned Counsel drew our attention to the decision in Parmeshwar Dube v. Gobind Dube, ILR 43 Cal 459 : (AIR 1916 Cal 500(2)). That case laid down the rule that in absence of fraud or other improper conduct the only account the Karta of a joint family is liable for is as to the existing state of the property divisible; but that this did not mean that the parties were bound to accept the statement of the Karta as to what the property consisted of and an enquiry should be directed by the Court in a manner usually adopted to discover what in fact the property consisted of at the date of the partition. About the correctness of this proposition there is no dispute. In what manner this principle can be applied depends however on the acts and circumstances of each case. Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income. In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15. The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. Vide Amritalal v. Surath Lal, AIR 1942 Cal 553 Appalaswami v. Suryanarayanamurthy, ILR (1948) Mad 440 : (AIR 1947 PC 189  ).16. In the case before us, it is not disputed that the acquisitions in the name of the first defendants wife were made with funds advanced by him. As regards the acquisitions in the name of the third defendant and his minor son the sixth defendant also we find it reasonable to hold from the evidence, as regards the earnings of the third defendant and other circumstances, that for these acquisitions also money was paid by the first defendant. The question whether the joint family had at the time of each of these acquisitions sufficient nucleus from which the acquisition could have been made is therefore of great importance.17. On a consideration of the evidence, as discussed below, we have come to the conclusion that it does not appear that the joint family had at the date of the acquisition made in the names of the first defendants wife, his son, and his grandson sufficient nucleus from which these properties could be acquired. In coming to this conclusion we have taken into consideration the fact that family funds were spent in purchasing 14 acres of land mentioned in the name of the 5th defendant.18. The period during which acquisitions admittedly for the joint family were made came to an end in about 1931. At that time the first defendant had, according to his own evidence, about Rs. 15,000 /in his hand. His case is that this entire amount was what he had accumulated out of his own earnings. The Subordinate Judge held that a little more than Rs. 14,000/out of this amount was the savings from the family funds. We agree with the High Court this conclusion is not justified by the evidence on the record. As rightly pointed out by the High Court properties worth about Rs. 20,000 /had been purchased out of the family income during this period. During part of this period at least monies had to be spent for other requirements of the family including the expenses on the education of the third brother Mahadeva. The several documents produced in the case show that at the time of more than one purchase the first defendant had to borrow money on promissory notes to pay the consideration mentioned in the documents. It is worth mentioning that even the plaintiff was not prepared to say that the family income was sufficient to pay for theseother words, the plaintiff himself seems to concede that only Rs. 10,000/of the family income was available during this period for purchase of lands. The claim made here that he also contributed to the purchase is clearly inconsistent with his own written statement and with other parts of his evidence and cannot be accepted.19. The learned Subordinate Judge appears to have been convinced that Ramakrishnas personal earnings were very little. He thought also that what little Ramakrishna earned was required for the expenses of his own branch of the family. The learned Judge concluded that he could not have saved out of these earnings. This view appears to have been mainly responsible for this conclusion that almost the whole of Rs. 15,000/which the defendant No. 1 admitted to have with him in about 1931 came out of the family funds. In our opinion, the materials on the record do not justify the Trial Courts view that Ramakrishna could not have accumulated a sum of Rs. 15,000/out of his own income. The mamools which he received as Karnam of Narasingampettai and later on of the bigger village of Vepatthur amounted to a considerable quantity of paddy and must have fetched him a goodly income. There was apart from this, his income from the banana plantations which he had at Narasingampettai. One of the lease deeds shows a receipt of Rs. 450 /for one season. Taking good years with bad, it would not be unreasonable to think that this also brought him a few thousands of rupees. We are convinced also on a consideration of his evidence, taken with the entries in the account book of Appaswamy Iyer (Ex. B.101) that he received a sum of Rs. 2,500/as reward for successfully maintaining the litigation on Appalaswamys behalf. There can be little doubt that he received a good sum also as fees for writing documents. One of his witnesses, Nariyanaswami Reddiar, DW 7, has given evidence that he paid the defendant Rs.1000/as fees for the documents written for him. Even if this be considered an exaggeration, it is quite celar from the evidence of this witness that Ramakrishna who, it may be noted, was a man of some education, did a flourishing side business as a writer of documents, saved two or three thousand rupees, earned by him by this work during the entire period he served as a Karnam. It is more than probable that he had other sources of income which he did not think it prudent to mention in the witness box.20. On a consideration of the circumstances we are convinced that his story that he had Rs.15,000/in his hands in about 1931 as accumulated out of his own earnings is substantially true.21. Mr. Rajagopala Sastri has however rightly pointed out that a finding that in 1931 very little remained out of the family income would not be sufficient to show that there was no sufficient nucleus for the acquisition of the different properties in the name of the defendants wife, his son and his grandson after 1931. For a proper decision of this question it is necessary to consider roughly the income and expenditure out of the admittedly family properties during thisdifferences in the estimates seems to be mainly due to the fact that while, according to the respondent, the family was in possession of only six acres of mortgaged land in addition to the 35 acres, the appellants case was that an additional area of six acres of mortgaged land was also in the familys possession during these years. Mr. Rajagopala Sastri was not however able to point out anything on the record in support of this claim. We think it reasonable therefore to accept as substantially correct the estimate of paddy yield as mentioned before us on behalf of the respondent for these year. For the year 1939 the yield may be taken as 1153 kalams roughly as in that year the D Schedule lands now found to be the property of the joint family had also been acquired.23. On an examination of the evidence on the record we accept the price for each kalam of paddy to be Rs. 2.50 nP. for each of the years 1931 and 1932 and 1.19, 1.25, 1.37, 1.50, 1.50, 1.56 and 1.62 for the years 1933 to 1939 respectively, as contended before us on behalf of the respondent. The total income received from paddy in these nine years thus appears to be about Rs.To this has to be added the receipts from the dry crops like black grams and green grams grown on some of the lands. We accept the evidence given by the defendant that dry crops were not grown in every year and also not on all the lands. The sale proceeds of black grams and green grams amounted to Rs. 72/for the year 1935 according to the account book Ex.Taking this to be the average receipt per year from the dry crops the receipt from these crops during the nine years under consideration amounted to about Rs.The total income from the crops grown on the joint family lands during the years 1931 to 1939 thus works out approximately to be about Rs.. adding to this the sum of Rs. 1,100/It is now necessary to have some idea of the expenditure incurred during these years. The claim of expenditure of Rs. 5,172/during these years made before us on behalf of the respondent is not disputed by the appellant. We think also that the respondents claim that Rs. 1,100/advanced on the mortgage bond (Ex. 187) was paid from family funds, should be accepted. We have next to add the sum of Rs. 6,500/that was paid for the purchase of the D Schedule lands, Rs. 4,030/paid as kists and Rs. 2,000/as cultivation expenses including Kariasthans pay. The total expenditure during the nine years1931 to 1939Proceeding therefore in the basis on which there is no longer any dispute, that D Schedule lands were acquired out of the family funds, it appears clear that the joint family did not possess sufficient nucleus for making any of the other purchases made during this period, viz., the properties mentioned in Schedules B and Bl purchased by the document Ex.125, the properties mentioned in Schedule Cl purchased by the document Ex. B 124, the properties mentioned in Schedule C purchased by Ex.129, the properties mentioned in the Schedule to the written statement of the second defendant purchased by documents Exhibits B 134 and B 135. The High Courts conclusion as regards these properties that they did not form part of the joint family properties and are not liable to partition in the present suit is therefore clearlyconsidering the facts mentioned above along with the letters Exhibits B177 and B72 in which detailed instructions about the cultivation were being given by the plaintiff to the Karisthan, we have come to the conclusion that from about 1940, till the mothers death early in 1945 the plaintiff displaced the first defendant from the management of the family lands and took away all the family lands in Kumarakashi and took away all the income from them.28. The only income from joint family properties that appears to have come into the hands of the first defendant during this period was that from D Schedule lands. The yield from these lands may roughly be estimated at about 300 kalams for each year. The price per kalam in 1941 appears from Ex. 100 to have been Rs.The net income, after payment of the kist and debiting the expenses of cultivation etc, may be placed therefore at about Rs.It is undoubtedly a very rough estimate. But in the absence of anything more specific on the record we think it proper to accept this as a reasonable basis for ascertaining the nucleus available in the first defendants hands from the B Schedule property. On this calculation the first defendant appears to have had in his hands about Rs.1,500/during the years 1940 to 1942. There was already however a deficit of more than this amount on his management of the properties during the previous periodIt is reasonable therefore to think that there was no nucleus from the joint family properties which the first defendant could have possibly used in making the acquisitions during 1941 and 1942. The conclusion of the High Court that these properties did not belong to the joint family and are therefore not liable to partition cannot therefore be disturbed.29. Some of the properties mentioned in Schedule B2 to the plaint were purchased in 1945 and 1946 by Exs. B 127 and B 128 in the name of the third defendant, Venkatarama. At the time of these acquisitions the third defendant had been karnam of Vepatthur for over 15 years. It is not unlikely that he would have saved some portion of his own earnings during this period so as to be able to pay for these purchases out of his own earnings. It cannot therefore be said reasonably that these purchases were made from funds advanced by the first defendant. Apart from this it appears that the plaintiff has not been able to show that at the time of these acquisitions the first defendant had with him sufficient income out of the joint family properties for purchasing all these lands. We have already found that the first defendant resumed management of the joint family properties on his mothers death in 1945. On the question about the income and expenses during this period there is hardly any evidence worth the name on the record. On a consideration of all these circumstances, we are of opinion that the High Courts conclusion as regards these properties also that they did not form part of the joint family property isthe correctness of this proposition there is no dispute. In what manner this principle can be applied depends however on the acts and circumstances of each case. Where, as in the present case, the evidence already adduced before the court shows prima facie that the Karta could not reasonably be expected to have in his hands at the date of the suit any accumulation worth the name in addition to the immovable properties found on evidence to have been acquired for the family, there can be no justification for calling the Karta to account for his past dealings with the joint family property and its income. In the circumstances of this case therefore the order of the High Court that there was no liability on the first defendant as managing member to render any account of any kind prior to the 12th December 1946, on which notice demanding partition was issued, does not call for any modification.