PETITIONER: CHATTANATHA KARAYALAR Vs. RESPONDENT: RAMACHANDRA IYER AND ANOTHER. DATE OF JUDGMENT: 19/09/1955 BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA BOSE, VIVIAN SINHA, BHUVNESHWAR P. CITATION: 1955 AIR 799 1955 SCR (2) 477 ACT: Election Dispute-Returned candidate alleged to be disqualified for being chosen as a member--Hindu father entering into Government contract, if does so on behalf of the undivided family-Presumption of Hindu Law-Finding of benami, if liable to be interfered with in Special appeal- Representation of the People Act (XLIII of 1951), ss. 7(d), 9(2). HEADNOTE: 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 v. Chiranii Lal, ([1934] I.L.R. 57 All. 605), Chhotey Lal Chaudhury v. Dalip Narain Singh, ([1938] I.L.R. 17 Patna 386), Hayat Ali Shah v. Nem Chand (A.I.R. [1946] Lah. 169), 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 s. 7(d) read with s. 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. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil 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.
S. 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.
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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 v. Chiranji Cal(1), Chotey Lai v. Dulip Narain (2)
and Hayat Ali v. Nem Chand(3). But
(1) [1994] I.L.R. 57,All. 605. (2) [1988] I.L.R. 17 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.