# G. NARAYANA RAJU v. G. CHAMARAJU & OTHERS

- **Citation:** [1968] 3 S.C.R. 464
- **Court:** Supreme Court of India
- **Decided:** 1968-03-19
- **Case number:** Civil Appeal No. 613 of 1965
- **Bench:** J. C. Shah, V. !lAMASWAMI, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-narayana-raju-v-g-chamaraju-others-4429
- **Pages:** 9

## Headnote

Hindu joint fami/y-Hotch Potch-Self acquisition when
acquires
characteristics of joint family property-concurrent finding that business
is separate--SnprenJe Court lvill not interfere under Art. 133.
There is no presumption under Hindu l~w that a business standing in
the name of any member of the joint family is a joint family business everi
if that member is the manager of the joint family.
Unless it could be
shown that the business in the hands of the coparcener grew up with the
assistance of the joint family property or joint family funds or that the
earnings of the business were blended with the joint family estate, the
business remains free and separate. [466 F-Hl
Bhuru Mal v. Jagannath. A.I.R. 1943 P.C. 40, Pearey Lal v. Nanak
Chand, A.I.R. 19'48 P.C. 108, Chattanatha Karayalar v. Ramachandra Iyer,
A.I.R. 1955 S.C. 799, referred to.
The separate property of a Hindu coparcener ceases to be his separate
property and acquires the characteristics of his joint family or ancestral
property, not by mere act of physical mixing with . his joint family
or
ancestral property but by his own volition and intention, by his waiving
or surrendering his special right in it as separat•e property,
Mei-e recitals
in deeds dealing w:th self acquisitions as ancestral joint family property
is not by itself u.rfficient; but it must be established that there \Vas a clear
intention on the part of the coparcener to waive his separate property.
[470 B-CJ
lfurourshad v. S!ieo Dyal, 3 I.A. 259. Lal Bahadur v. Kanhaiya Lal,
34 l:A. 65. Leh Mddun Go,al v. Khikhinda Kaer, 18 I.A. 9,
Naina
Pillai v. Daiyanai Ammal, A.J.R. 1936 Mad. 177, referred to.
A
B
c
D
E
\\ihete there is a concurr~nt find'ng of both the lower courts that the
bur,iness is a scp:irate business and it is neith~r a ?oint family business nor
~reated as joint family business, it is not open to further scrutiny by th~s
F
Court under Art. 133 of the Constitution. [467 A-Bl

## Text

464
G. NARAYANA RAJU
v.
G. CHAMARAJU & OTHERS
March 19, 1968
[J. C. SHAH, V. !lAMASWAMI AND G. K. MITTER, JJ.)
Hindu joint fami/y-Hotch Potch-Self acquisition when
acquires
characteristics of joint family property-concurrent finding that business
is separate--SnprenJe Court lvill not interfere under Art. 133.
There is no presumption under Hindu l~w that a business standing in
the name of any member of the joint family is a joint family business everi
if that member is the manager of the joint family.
Unless it could be
shown that the business in the hands of the coparcener grew up with the
assistance of the joint family property or joint family funds or that the
earnings of the business were blended with the joint family estate, the
business remains free and separate. [466 F-Hl
Bhuru Mal v. Jagannath. A.I.R. 1943 P.C. 40, Pearey Lal v. Nanak
Chand, A.I.R. 19'48 P.C. 108, Chattanatha Karayalar v. Ramachandra Iyer,
A.I.R. 1955 S.C. 799, referred to.
The separate property of a Hindu coparcener ceases to be his separate
property and acquires the characteristics of his joint family or ancestral
property, not by mere act of physical mixing with . his joint family
or
ancestral property but by his own volition and intention, by his waiving
or surrendering his special right in it as separat•e property,
Mei-e recitals
in deeds dealing w:th self acquisitions as ancestral joint family property
is not by itself u.rfficient; but it must be established that there \Vas a clear
intention on the part of the coparcener to waive his separate property.
[470 B-CJ
lfurourshad v. S!ieo Dyal, 3 I.A. 259. Lal Bahadur v. Kanhaiya Lal,
34 l:A. 65. Leh Mddun Go,al v. Khikhinda Kaer, 18 I.A. 9,
Naina
Pillai v. Daiyanai Ammal, A.J.R. 1936 Mad. 177, referred to.
A
B
c
D
E
\\ihete there is a concurr~nt find'ng of both the lower courts that the
bur,iness is a scp:irate business and it is neith~r a ?oint family business nor
~reated as joint family business, it is not open to further scrutiny by th~s
F
Court under Art. 133 of the Constitution. [467 A-Bl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 613 of
1965.
Appeal from the judgment and decree dated March 25, 1960
of the Mysore High Court in Regular Appeal No. 155 of 1953.
V. Krishnamurthy and R. Gopalakrishnan, for the appellant.
H. R. Gokhale, B. Subbiah and R. Thiagarajan, for respondents Nos. 2 and 4.
The Judgment of the Court was delivered by
Ramaswami, J". The plaintiff G. Narayana Raju filed O.S. 34
of 1951-52 in the Court of District Judge, Mysore for partition
and separate possession of suit properties mentioned in the various schedules of the plaint.
The first defendant is the brother
G
H
NARAYANA RA.TU v. CHAMARA.ru' (Ramaswami, J.)
465,,
A:
of the plaintiff. The second defendant is the widow of M~ami
Raju, tho eldest brother of the plaintiff. The third defc;ndant. is
the· ·legal representative of the plaintiff's mother: She is ·now. the
a_Ppellant having been brought bn record as the legal ·representative of the deceased plaintiff. The case of the original plaintiff
was that he, the first defendant and Muniswamj Raju (husband
of the second defendant) were the sons. of one·Gopala Raju.and
were all members of· the joint faniily.
Gopalaraju died in May
B
c
D
E
F
G
1931 and after. his death the plaintiff and his brothers continued
to be mel!lbers of the joint faniily. The joint status of the faniily
was severed by the issue of a registered notice by the first defendant to the' pJ.aintiff in July 1951. An ancestral house in Nazarbad belonging to the family was acquired 'by the ,City Improvement
Trust Board in or about the year 1909 .. Out of the compensation
paid for that house and supplemented by the earnings of the
members of the joint family, the house item ,No. 1 of Schedule
'A' to th,e plaint was pμrchase!l by Gopalaraju in or about the
year 1910. Subsequently item No. ·2 of Schedule 'A'. was also
purchased by Go11alaraju from the income of item No. 1 ·suppl1>-
mented by the earr1ings_ of the. members of the family. All the
other ·items of properties mentioned in Schedule 'A' and other
Schedules attached to the plaint were acquired out of the income
from items 1 and 2 of Schedule 'A'. It was further ,alleged that
the business'known as "Arnbika Stores~ was also the joint family
business and· all the properties mentioned in the Schedules except
items 1 and 2 of Schedule 'A' were acquired out of the incorneof the members of the family including the iricome fn;)m the
b:.loine:s of Ambika Stores. The plaintiff accordingly claimed that
he and the first defendant woul:I each be entitled to get 5/14t~s
share and the second ·and third defendants would 'each be ent'tl<Y.!
to get 2/14tl1s share. In the alternative the plaintiff pleaded that
if for any reason the Court held" that the properties stand in the
name o~ Muniswami Raju and were 'not acquired with the aid
of the joint family nucleus, he and the second 4efendant were
entitled to equal shares as co-owners of the joint family business.
The suit was mainly contested by the second defendant who asserted that the properties mentioned in all the Schedules of the plaint
were self-acquisitions of Mnniswami Raju and constituted his •eparate properti~s, It was alleged that Muniswami Raju was the
only earning member of the family at the time of the acquisition
of items 1- and 2 of Schedule 'A' properties and the plaintiff and
the fi'8t defendant were employed in petty jobs in Wesley Press.
Munis~ami Raju later on employed the plaintiff in his shop as
a salaried servant and the latter had no proprietary right in the
business of Ambika Stores. After consideration of the oral and
documentary evidence the District Judge held that the plaintiff,
first defendant and Muniswami Raju were not divided and that
the only property which was divisible, was item No. 1 of Schedule
466
SUPIU!MB cOVlT llllPO&Ts
(1968) 3.s.c.R.
'A' and there was not sufficient ancestral nucleus for acquisition
A
of the. other properties and that all properties eJtcept item No. 1
of Schedule 'A' were the self acquisitions of Muniswami Raju,
that Muniswlimi Raju never blended his properties with that of
the joint family' that the plaintiff was only an employee under
. Muniswami Raju and thetefore he was not entitled to the alternative relief claimed by him. Accordingly, the District Judge grantB
ed a preliminary decree holding that the plaintiff was entitled to
2/7ths share in item No. 1 of Schedule 'A'. 'Th: plaintiff took the
matter in appeal to the Mysore High Court. By its judgment
dated March 25, 1960 the High Court affirmed the decree of the
trial court with the modification that besides item No. 1 of Schedule 'A' item No. 2 also should be held to be joint family property c
and the plaintiff was entitled to partition of his share in this item
also. The High Court cancelled the direction of the District. Judge
that the plaintiff should account for the moneys and properties
of Muniswami Raju in his hands before he is given possession of
his share.
This appeal is brought by certificate on behalf of the plaintiff
D
from the judgment of the Mysore High Court dated March 25,
· 1960 in R.A. No. 155 of 1953.
The first question to be considered in this appeal if whether the
business of Atnbika · Stores was really the business of the joint
family and whether the plaintiff was entitled to a partition of his
share in the assets of that . business. It was contended on behalf
of the appellant that the business of Atnbika Stores grew out of a
nucleus of the joint family funds or at least by the efforts of the
members of the joint family including the appellant. The contention of the appellant has been negatived by both the lower courts
E
and there is a· concurrent finding that the Atnbika Stores was the
separate business of Muniswami Raju and it was neither the joint
J
family business nor treated as joint family business. It is wellesta]>lished that there is no presumption under Hindu law that a
business standing in the name of any member of the joint family
is a joirit family business even if that member is the manager of
the joint \family. Unless it could be shown that the business in
the hands of the coparcener grew up with the assistance of the
G.
joint family property or joint family funds or that the earnings
of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether
the business was begun or carried on with the assistance of joint
family property or joint family funds or as a family business is a
question of fact.-{See the decisions of the Judicial Committee in
Bhuru Mal V; Jagannath( 1 ) and in Pearey Lal v. Nanak Chand(')
lllld of .this Court in Chattanatha Karayalar v. Ramachandra
(I) A.I.R. 19431".C. 40.
(ll A.J.R. 19481".C. 108.
H
f
A
B
c
D
E
F
G
H
NARAYANA RAJU v. CHAMARAJU (Ramaswami, J.)
467
Iyer}('). In the present cas(I there is a concurrent finding of both
the lower courts that the business of Ambika Stores was a separate
business of Muniswami Raju and it was neither a joint family business nor treated as joint family business. The concurrent finding ot
the lower courts on this issue is upon a finding of fact and following the usual practice of this Court, it is not now open to further
scrutiny by thi~ Court under Art. 133 of the Constitution.
It was, however, contended on behalf of the appellant that
the find,ing of the lower .. courts is vitiated in law because of the
circumstance that they have not taken into accoUJit three important
documents, Ex. D, Ex. E and Ex. DDD. We are unable to accept
this argument as correct. It is manifest on a pcr.:sal of tile judgment of the High Court that all the documents have been examined
regarding the issue whether the business of Ambika Stores was a
joint family business or whether it was a separate business of Muniswami Raju. As regards Ex. D, th" High Court has, after e11:amining the evidence adduced, remarked that the mere fact that item
No. 2 of Schedule 'A' was given as a security by Muniswami Raju
did not result in any detriment to the joint family property and
it cannot therefore be held that the business of Ambika Stores grew
out of the joint family funds or with the aid of the joint family
funds. . On behalf of the appellant reliance was placed on the
recitals in Ex. E, a deed of mortgage dated July 26, 1928 executed
by Gopalaraju, Muniswamiraju and the appellant in favour of the
Mysore Bank. The property that had been mortgaged under this
document is item No. 2 of Schedule 'A'. The recital is that the
borrowing from the Bank was for the business and trade of the
executants and for the benefit and use of their family. There is
also a recital in an earlier portion of the- document that the business
was being carried on for the benefit of the family, but it is not
quite clear as to whether this related to the business carried on
by Narayana Raju or whether it was intended to relate to some
business carried on by all the three executants. It is possible that
the appellant had other business of his own carried on on his own
account at that time and it cannot be assumed that the borrowing
under Ex. E must have been for the purpose of Ambika Stores. It
should be noticed that Muniswami Raju has been described in the
document as the proprietor of Ambika Stores which description is
not consistent with the contention of the appellant that the business
was a joint family business. The High Court has, in this connection, referred to Ex. I an application dated February 14, 1929
by the appellant to the City Co-operative Bank, Mysore wherein
the appellant has said that he was getting a decent earning by doing
out-of-door commercial bu.~'ness with Ambika Stores. There is also
the recital in Ex. I that Muniswami Raju was the proprietor of
Ambika Stores. Having regard to this recital in Ex. I i• is not
en A.I.R.1953 !f.C. 799.
i •
408
SUPREME COUJ.T REPORTS
(1968] 3 S.C.R.
.unlikely that the appellant had some business of his own at the
material time and it cannot be assumed that borrowing under Ex.
E, was for the purpose of Ambika Stores business only. The High
Court has also dealt with the effect of Ex. DDD, mortgage d~
produced .on behalf of the appellant. It is true that in this document the appellant and Muniswami Raju have been described
as proprietors of Ambika Stores. The finding of the High Court
is that this recital was made in the document for the purposes of
borrowing from the Bank. Reference was made in this context to
a J.etter dated May 5, 1931, Ex. 75 written by-Muniswami Raju
as proprietor of Ambika Stores to the Bank of Mysore. In this
lett:Gr, he has requested the Bank to take note of the fact that he
has! authorised the appellant to accept drafts, and sign letters etc.
on behalf of the firm. There is another J.etter, Ex. 76, dated
April 14, 1934 written by Muniswami Raju to the Bank of Mysore
wherein Muniswami Raju has been described as the proprietor of
Ambika Stores and there ls an intimation to the Bank that .the
appellant Narayana Raju was authorised to sign for the firm.
In
the context and background of these circumstances it is evident
that though both the appellant and Muniswami Raju were· described as proprietors of Ambika Stores the description was only
for the purpose of borrowing money from the Bank, as contended
for by the respondents. In this connection the High Court has
also taken into account Ex. 7 5 (b), a Jetter written by Muniswami
Raju. In this letter Muniswami Raju has described himself as
the proprietor of Ambika s·ores and has instructed the Bank that
he. has cancelled the authority given ·to the appellant to operate on
his Current Account. with the Bank.
It is therefore not possible
for us to accept the contention of the appellant that the finding
-0f •he High Court' that the bus'ness of Ambilca Stores was the exclusive business of Muniswaml Raju is vitiated in law.
On the other hand, it was contended on behalf of the respondents that the finding of the High Court is supported by proper
evidence. The business of Ambika Stores was started by Muniswamiraju as the proprietor thereof at a time when Muniswamiraju
himself· was comparatively well-off as a result of bis partnership
with Krishnaswamy Chetty & Co. In the year 1925 the partnership of Krishnaswailly Chetty & Co. was dissolved by a document
Ex. D.
The enire business with all the assets ad liabilities was
taken over by Muniswami Raju while the widow and son of Krishnaswari1y Chetty were given a house estimated by the appellant
himself at Rs. 3,000/- and furniture worth Rs. 400/-. Mliniswami
Raju changed the· name of the shop after taking it over into
Ambika Stores and continued the business as is apparent from Bxs.
XVTII, XXVI and XXVI(A). There is also evidence that at the,
time when· Ambika Stores was started other members of the family
were not in a financia:I llosition to make any oontributioμ to purA
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
NARAYANA RAJU v. CHAMARAJU (Ramaswami, !.)
469
chase such a business. The appellant joined Wesley Press in 1912
on a salary of Rs. 8 or Rs. 9 p.m. and he was drawing Rs. 27 p.m.
in 1927 when he resigned from the Press. The first defendant joined Wesle Press in 1910 on a salary of Rs. 10 p.m. and he was
continuing to work there till the institution of the present suit. The
income of the property item No. 2 of Schedule 'A' was Rs.
15
p.m. and the income from pounding rice for which there is no
satisfactory evidi:nce ~as also negligible. Therefore, the earnings
of the members of the family other than Muniswami Raju were
hardly sufficiently to maintain the family at the time when the business of Ambika Stores was started. The High Court has found
that the family did not have sufficient nucleus and that Muniswami
Raju was not a partner of Krishnaswamy Chetty & Co. on behalf
of the family but that he was a partner in his own right. The
High Court has observed that there is no evidence to show that
the family supplied the money or that the family had enough means
or that Muniswami Raju was representing the family when he started the business of Ambika Stores. As we have already said, the
finding of the High Court and of the District Judge is a concurrent finding on a question of fact and Counsel on behalf of the
appellant ha~ been unable to make good his argument that the finding is vitiated in law on any account.
We pass on to consider the alternative argument put forward
on behalf of the appellant, namely, that even if the business of
Ambika Stores was started. as a separate business of Muniswami
Raju, it became converted at a subsequent stage into joint family
business. It was argued on behalf of the appellant that the business of Ambika Stores was thrown by Muniswami Raju into the
common stock with the intention of abandoning all separate cla'ms
to it and therefore the business of Ambika Stores lost its character
of a separate property and was impressed with the character of
joint family property. It is a well-established doctrine of Hindu
law that property which was originally self-acquired may become
joint property if it has been voluntarily thrown by the coparcener
into the joint stock with the intention of abandoning all separate
claims upon it. The doctrine has been repeatedly recognized by
the Judicial Committee [See Hurpurshad v. Sheo Dyal(') and Lal
Bahadur v. Kanhaiya Lall (2). But the question whether the
coparcener has done so or not is entirely a question of fact to be
decided in the light of all the circumstances of the case. It must
be established that there was a clear intention on the part of the
coparcener to waive his separate rights and such an intention will
not be inferred merely from acts which may have been done from
kindness or affection [See the decision in Lala Muddun Gopa/ v.
Kltikhinda Koer]( 3 ). For instance, in Naina Pillai v. Daiyanai
fl) 3 I.A. 259.
(2) 34 I.A. 65.
<3l 18 l.A. 9.
j
470
SUPREMB COURT UJOllTS
(19611] 3 S.CJL
~mmal,{
1 J where in a series of documents, self-ae<Juired property
Wl!S _described and dealt with as ancestral joint family property, it
Wl!S held by the Madras High Court that the mere dealing with
self ~acquisitions as joint family property was not sufficient but an
intention .of the coparcener must be shown to waive liis claims with
full knowledge of his right to it as his separate property. .The ini;
portant. point to keep in mind is that the separate property of a
Hindu coparcener ceases to be his separate property and acqu~
the characteristics of his .joint family or ancestral property, not
by mere act of physical mixing with his joint family or aricestral
property, but by his own volition and intention, by his waiving
or surrendering his special right in it as separate property. A
man's intention can be discovered only from his words or from
his .acts and conduct. When his intention with regard to his sepa•
rate property is not expressed in words, we must seek for it in
his acts and conduct. But it is the intention that we must .seek
in every case, the acts and conduct being no more than evidence
of the intention. In the present case, the High Court has examined
the evidence adduced by the parties and has reached the conclu·
sion that there was no intention on the part of Muniswami Raju
to throw the separate business of Ambika Stores into the common
stock, nor was it his intention to treat it as a joint family business. Counsel on behalf of the appellant· referred to the recital
in Ex. E describing the properties being those of the executants
and that the borrowings was for trade and benefit of the family
B
c
D
and it was argued that there was a clear intention on the part of
J:
Muniswami Raju to treat the business as joint family business.
We have already referred to this document and indicated that the
recitals were probably made for the purpose of securing a loan and
cannot be construed as consent on the part of the members of the
joint family to treat the business as the joint family business. Further, there is ample evidence to show that in all succeeding yean
before his death Muniswami Raju had always described himself
and conducted himself as the sole proprietor of Ambika Stores.
Such an attitude on the part of Muniswami Raju was not consistent with any intention on his part either to abandon his exclusive
right to the business or to allow the business to be treated as joint
family business. Exhibits XXXV to XL VT are all documents ex&-
cuted by third parties in favour of Muniswami Raju in which
Muniswami Raju has been. described as the oroprietor of Amblka
Stores. Exhi1Jits ill, XXill, XXJV, 51, 52, 56, 58, ZZ. AAA
series and BBB are all communications addressed by institutions
like·Banks etc., in which Muniswami Raju has been described as
the proprietor of Ambika Stores. It may be stated that the appellant himself has admitted in his evidence that he was not drawing
any moneys from the business of Ambika Stores and that whenever
he wanted any_money, he would ask Mun1•·~·dllll Raj11 and obtain
(I) A.l.R.1936 Mad. 177.
G
H
NARAYANA RA.JU v. CllAMARAJU (Ramaswaml, /.)
471
A
it from him. If really the appellant had considered himself to be
a co-oWner equally with Muniswami Raju, such conduct on his
part ill not explicable. It was urged on behalf of. the appellant
that there was no documentary evidence to show that the appel·
Jant WIS being paid any saJanr by Muniswami Raju, and that prior
to Mlllliswaml Raju's death, it was the appellant who was in the
B entire management of Amblka Stores when Muniswami Raju was
ill and after the death of Muniswami Raju also it was the appeJ..
!ant who had been in m~t. AJl the books C?f account and
other documents pertaining to the business of Amblka Stores had
been admittedly entrusted to the appellant. But it is not explained
Oil behalf of the appellant as to why the documents were not
C
produced on his behalf tp disprove the case of the respondenb that
he was a salaried servant. It is therefore not unreasonable to draw
an inference from the conduct of the appellant that th!l Account
Books0 .if produced in court, would· not have supported his case.
We accordingly reject the argument of the appellant that the busi·
ness of Ambika Stores became converted into joint family business
at any subsequent stage ·by the conduct of M uniswami Raju in
D
throwing the business into the common stock or in blendinl! theearnings of the business with the joint family income.
It was finally contended on behalf of the appellant that, in any
event, the appellant became a c<>-owner of the business along with
Muniswami Raju by reason of contribution of his own labour towards the development of the business. In our opinion, there is
I: no substance in this argument. It is evident that the appellant
gave up his job in Wesley Press and joined An)bika Stores about
9 or 10 months after it was started by Muniswami Raju. The
appellant does not state in his evidence that he was a co-owner
when he. joined Amblka Stores. On the other hand, in Ex. 68
which is an application dated March 20, 1928 by the appellant
r
to the City Co-operative Bank, the appellant has described him·
self as a clerk in Amblka Stores and Muniswami Raju has been
described as his proprietor. There is no satisfactory evidence on
behalf of the appellant to show as to when and under which cir·
cumstances his status of a clerk changed to that of a c<>-owner. · In
another application, Ex. 'I.which is of the year 1929 the appellant
has dc.9cribed Muniswami Raju as the proprietor of Ambika Stores
C
and he has. described himself as doing out-door commercial busi·
~
with ~bika Stores. Again, in Ex. C which is a loan appli·
catiOll made m 1932 by both the brothers, Muniswami Raju has
been dcacn'bed as the proprietor of Amblka Stores while the appellut ha,, been dc.9cribed . as a General Merchant of Mysore.
Reference was made on behalf of the appellant io recitals in. Ex.
l1I
Dl>:P, a mortgage deed dated June 20, 1934 in which Muniswami
Raju ll!ld the appellant have been descn'bed as proprietors of Ambit& Stores. We have already dealt with this document and for
.the reasons already mentioned we hold that the description of the
472
SUPREME COURT REPORTS
[1968 J 3 S.C.ll.
executants was only given for the purpose of borrowing from the
Bank and it had not the legal effect of making the appellant a
co-owner of the partnership business .. The.re is no ~vidence of any
assenion by the appellant during Muniswami Raju's life-time of his
being a co-owner of the partnership business, nor is there any evidence of recognition by Muniswami Raju of any such right of the
appellant. On the other hand, there is sufficient evidence to show
that whatever the appellant did in connection with the business was
only done with the au¢.ority conferred by Muniswami Raju. In
our opinion the High Court has rightly rejected the claim of the
appellant that he was a co-owner of the pannership business;
For the reasons expressed we hold that this appeal has no merit
and it must be dismissed with costs.
R.K.P.S.
Appeal dismissed.
B
c
,