JUDGMENT Niamatullah, J.
1. This is an appeal by defendants 1 to 3 and 10 from the decree passed by the Additional Subordinate Judge of Gorakhpur, in a suit for joint possession of a large number of immovable properties, including three mills, all detailed in Schedule A annexed to the plaint, and for a declaration of their right to a share in the sums due from third persons under a number of bonds, detailed in Schedule O, together with mesne profits. The share of the plaintiffs in all the properties in dispute is alleged to be 16 out of 72 "sihams," that is two-ninths belonging to the first three plaintiffs, who have assigned half of their rights to the other three plaintiffs. The contesting respondents are five of the original plaintiffs and the legal representatives of the assignee plaintiff, Maqsud Ali, who died during the pendency of this appeal and is now represented by his heirs. Other defendants, who do not appeal, have been impleaded as pro forma respondents. The following pedigree will explain the position of the first three plaintiffs and the defendants, including the appellants, and will also elucidate the nature of the. plaintiffs' claim:
Hiugan (died about 50 years ago.) |
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2. This pedigree is admitted, except in some particulars to be presently mentioned. Rahimullah, plaintiff 3, is a cousin of Khuda Bakhsh, defendant 2, being the son of the latter's maternal uncle. The defendants deny that Dihu had any daughter. In particular they deny that he left a daughter named Jumman alias Minti. On the contrary, they allege that Dihu had a son named Jumman, who predeceased him, and that Mt. Nakchhedi, an alleged daughter of Shukrullah, defendant 1, was also known as Minti. Plaintiff 2, Mt. Zulekha, though admittedly the daughter of Rahimullah, is not admitted to be the daughter of a daughter of Dihu, so that if the defendants' allegation on this part of the case is correct, plaintiffs 2 and 3 can have no interest in the property in. dispute.
3. The plaintiffs' case, as stated in the plaint and supplemented by counsel's-statements in the earlier stages of the suit, is that the three sons of Hingan had a joint business consisting of trade and banking on a small scale. They were joint in mess and residence. Their joint savings were invested in business and acquisition of properties. After the death of Muharram his sons remained joint with Dihu and Shukrullah, their uncles, and after Dihu's death his son Ismail was similarly joint with Shukrullah, defendant 1, and the sons of Muharram, and that all the properties acquired up to-the year 1907 belonged jointly to Shukrullah, defendant 1, and the heirs of Muharram and Dihu, including Ismail. No male descendant of Dihu was left after the death of Ismail, and the latter's widow and sister, who were his heirs-and who inherited a share in the property, remained joint with Shukrullah, defendant 1, and the descendants of Muharram. Mt. Zohra, plaintiff 1, was-maintained by the defendants like other members of the family. Ever since the death of her mother, which occurred in; 1910, Mt. Zulekha lived with and was-brought up by Mt. Zohra, plaintiff 1, all her expenses being defrayed out of the property in. which she had a share. According to the plaintiffs, no one was considered to own any definite share in the joint property which descended from the common ancestor or was subsequently acquired with joint funds; each person interested in it had his expenses defrayed out of joint funds; and the entire property was managed by some male member of the family. Muharram, Dihu, Wazir and Noori Mian successively managed the business and the property. The family became very prosperous during the management of Noori Mian, which lasted from 1902 to 1921, when he died leaving no less than three mills at three different places which yielded considerable income to the family, The gist of the plaintiffs' case is that the three sons of Hingan, their descendants and the heirs of such descendants constituted a joint family, similar in all respects to a joint Hindu family, with the difference that fresh interests were created not by birth but by death of those owning an interest, that there was commensality in mess, residence and business and that the entire property was join and manged by the male co-owners on behalf of all interested in it. On these facts, according to the plaintiffs, the widow and sister of Ismail were entitled to S/9ths of the entire property.
4. It is not disputed that some of the properties in question belonged to Dihu and his brothers and that Dihu's share therein devolved on his son Ismail, at any rate, in part. It is also not disputed that some other property, included in Schedule A and acquired after Dihu's death belonged to Ismail in common with Shukrullah, defendant 1, and others. The rest of the properties were acquired after the death of Ismail by Noori Mian, Shu-krullah, defendant 1 and Khuda Bakhsh, defendant 2 who were the principal members of the family after the death of Ismail in 1907. Apart from other defences, it was pleaded by the defendants that Mt. Zohra, plaintiff 1, relinquished all her rights which she might have had in the property left by her husband under an oral arrangement by which she accepted a small cash allowance of Rs. 12 a month besides Rs. 610 in case she desired to go on a pilgrimage to Mecca. She did go on such pilgrimage and was paid that sum of money. If therefore the defendants' case as regards Mt. Jumman, the alleged daughter of Dihu, and the relinquishment by Mt. Mohra, plaintiff 1 be accepted no other defence falls to be considered. They also pleaded that according to a custom obtaining in the community of Iraqis to which the family belongs females such as widow, and daughters are not entitled to inherit being excluded by male collaterals. The pleas of limitation and adverse possession were also taken. It was further pleaded that in view of the plaintiffs' allegations the suit was virtually one for dissolution of partnership and the only relief to which the plaintiffs were entitled was one for dissolution and rendition of accounts of partnership business, as to which their claim was barred by three years' rule of limitation. The most important part of the defence however relates to the acquisitions made after the death of Ismail. It is said that even if the plaintiffs be considered to be entitled to a share in the property which existed,at the time of his death they cannot have any right to what was acquired through the good management and personal exertion of Noori Mian and his male cosharers. (After discussing the evidence their Lordships proceeded as follows:) Sir Tej Bahadur Sapru, who argued the case for the appellants with great skill and ability and brought under contribution a large number of decided cases made a vigorous attack on the frame of the suit and the ratio deci-dendi adopted by the learned Subordinate Judge. It is pointed out that the plaintiffs claim a share in the property in dispute on the ground that Hingan's descendants formed a joint family analogous to a joint Hindu family and that for that reason the plaintiffs, who claim to be members of such family are entitled to certain shares in all properties belonging to the family at any given time. The plaintiffs' case as gathered from the plaint and their counsel's statement on oral pleading, has been thus summarised by the learned Subordinate Judge:
The case for the plaintiffs is that the common ancestor of plaintiffs 1 to 3 and the defendants, named Hingan, had a joint business with his three sons, named Moharram, Dehu and Shukrullah, alias Shukru Mian. Shukrullah is defendant 1 and Abdul Majid, defendant 10, is his son. The other defendants are descendants of Moharram and plaintiffs 1 to 3 represent the branch of Dihu. The case for the plaintiffs is that even after the death of Hingan, his three sons and after them their descendants and heirs continued that joint family business. That joint business flourished and out of the income of that joint business the family acquired zamindari property, sugar and rice mills, collieries and carried on trade in money lending, silver, gold and other business. Hingan and his descendants all lived and messed together and behaved like a Hindu joint family. They acquired properties indiscriminately in the name of one or the other members of the family out of the "joint funds, and their personal expenses were met out of the joint funds according to their actual requirements. There was no specific share in the business, no division of profits from the time of Hingan up to the year 1921, when the family dispute arose. In short, according to the plaintiffs, plaintiffs 1 to 3 are co-owners of all the properties in dispute along with the defendants and they have a right to sue for joint possession as the defendants now interfere with their possession.
5. The learned Judge proceeded to state the defendant's case as follows:
The case for the defendants is that no doubt Hiagan and his three sons had a joint business but it was not a joint family business but of partnership within the meaning of Section 253, Contract Act and therefore the plaintiffs' remedy was in a suit for dissolution of the partnership and not for joint possession. The defendants also plead that besides the joint business there was some business of individual members of family and the plaintiffs therefore could not, in any sense, claim any share in the property acquired out of that business.
6. The question emerging from these pleadings which the learned Subordinate Judge set down for trial is:
is the property in dispute a joint family property, or is it a case of partnership contended for by the defendants.
7. After discussing a number of authorities, he observed that:
It will appear that none of the cases relied on by the defendants are any authority for holding that a Mahomedan family cannot live and trade on the analogy of a joint Hindu family. They are no authorities for holding that such a joint Mahomedan family cannot acquire joint properties, the succession to which will be regulated by the law of inheritance under Mahomedan law.
8. On a consideration of oral and documentary evidence which led the learned Subordinate Judge to the conclusion that Hingan's sons and their male descendants carried on business jointly, had a common mess and residence and acquired the properties out of joint funds, he held "that the property in suit is joint property of the parties being joint family properties of the descendants of Hingan and their heirs."
9. It is clear to us that a so called Mahomedan joint family cannot be treated as a legal unit having a corporate existence and as such possessing property. In our opinion for the determination of the rights of individuals supposed to belong to it any analogy drawn from the joint Hindu family system is misleading. The entire conception of a joint Hindu family, its constitution and the rights and obligations of its component parts are foreign to a Muslim joint family which implies nothing more than a group of individuals living and messing in commensality and owning property and carrying on business jointly. The position of total strangers combining their labour and capital in acquiring property and agreeing to live and mess together will not materially differ from that of a joint Mahomedan family, if all other conditions are identical. A joint Hindu family, both under the Bengal and Benares law, is described by Mayne as a family consisting o£ males and females constitutes a sort of corporation, some of the members of which are coparceners, that is persons who on partition would be entitled to demand a share, while others are only entitled to maintenance.
10. In a so-called Mahomedan joint family there are many males and females who have no interest in the joint property, and on the other hand there may be many who have an interest in the joint property but are no part of the family, e.g., married daughters of a deceased male co-owner. It is only in a loose sense that property is said to belong to a joint Mahomedan family. The law does not recognize a Mahomedan joint family as a legal entity, and has not provided rules applicable to the family as such. The rights of its individual members, both as regards the original joint property and its subsequent enlargements must be determined by an appeal to general law. Jointness in mess, residence and property and acquisition by one member in his own name with joint funds will go a long way in attracting the application of those provisions of law which entitle a person to a beneficial interest in the property acquired by another. In the generality of cases in which Mahomedans belonging to the same family live in commensality, own property as tenants-in-common, carry on business jointly and make fresh acquisitions, their rights and those of their heirs can be determined with reference to express or implied agreement, relation of principal and agent, partnership, constructive trust or the like. In support of each claim it must be shown that it is justified by some known principle of law. Mere a priori conclusions based on the analogy derived from the law applicable to joint Hindu families, if they cannot be shown to be in conformity with a definite rule applicable to Mahomedans cannot be accepted.
11. The fact that all the male descendants of Hingan had joint residence, mess, property and business for several generations and made acquisitions from time to time with joint funds is not conclusive as regards the right of every heir to every porosities however high in the properties subsequently acquired by the surviving male members with the aid of the profits of the property left by the ancestor. There may be circumstances which entitle an heir to no more than his share of the property as it was at the time of his ancestor's death. On the other hand the surviving members may so intermeddle with the estate of their deceased partner or co-owner as to make themselves liable to such heir for not only his share of the property as it existed at the time of his ancestor's death but also to profits accruing therefrom or to acquisitions made therewith. A large number of cases were quoted by both sides in course of the arguments, some of which merely lay down that there is no presumption, in cases of Mahomedan joint families, that a property acquired by one of the members in his own name was acquired with the aid of joint funds. The plaintiffs conceded this proposition of law, and established by definite evidence that such of the properties now in dispute as were acquired after the death of Dehu or Ismail were acquired with joint funds and that none of the members of the family had any source of income other than the joint business and property. The learned advocate for the appellants criticized some of the observations of Sadasiva Aiyar, J., in Hussain Saib v. Hasan Saib [1915] 31 I.C. 927. The parties to that case belonged to aNavayat family described as newcomers being the descendants of a party of Arab merchants who migrated to Bhatkal near Goa some 770 years ago and took for their wives converts from the Hindu Konkanis of the place.
12. The learned Judge referred with approval to the case of Vellai Mira v. Mira Moidin [1864] 2 M.H.C.R. 414, in which it was held that:
Although the technical rules of Hindu law are not applicable to families of this tribe, the same presumption must arise from facts of a similar kind and the same principle must be equally held to govern cases of family partnership among Hindus and Mahomedans.
13. Observations occurring in the judgment of Spencer, J., in a case which he decided as District Judge were also referred to by Sadasiva Aiyar, J., with approval. They are as follows:
All the circumstances of this ease stow that living in the midst of a country where Hindu usages prevail, and being probably also of Hindu origin, the family has been following the Hindu usage in practice, with regard to joint living and joint enjoyment of property. In this state of things, the Courts have a discretion to apply such of the rules and presumptions of Hindu law which are dictated by the circumstances of the case.
14. Sadasiva Aiyar, J., himself remarked:
I therefore venture to think that Sections 241, 249 and 253 (Clause 10) and similar sections of the Contract Act may not be inapplicable to the business carried on by a Navayat family as a family business though the principle of survivorship and that of right by birth ought not to be imported in considering the rights and liabilities of the persons to whom the business of a Navayat family has descended as heirs. I think that in most other respects the principles and considerations applying to the business of Hindu family firms can be made applicable.
15. With great respect, we are unable to accept the law so widely laid down in the above passages which appear to us to enunciate some propositions which cannot be supported with reference to the law applicable to Mahomedans. Where male members of a family live in union so as to have jointness in mess, business and property, there can be little difficulty in tracing their relations inter se to an implied agreement which clothes each with a representative capacity in reference to his cosharers. Each must be deemed to be acting not only for himself, but for all in his dealings with regard to joint property and business. Accordingly any acquisitions made by any one member should be considered to have bean made by all through the one who actually made it. In such a case, as among partners, each is the manager or agent of the others. The position is not so simple as regards the heirs whose rights are not recognized by any overt act of the surviving male members. The case of female and minor heirs and those not living on the spot, all of whom belong to this category, rests on a somewhat different footing. Their right to share subsequent additions can arise only if the circumstances are such that the male members can be considered to have continued the business and held the joint property on their behalf or in some way made themselves trustees for them in making fresh acquisitions so as to be liable to hold for them part of the resultant benefit.
16. In our opinion, the rights of plaintiffs 1 to 3 should be determined in the light of the foregoing remarks, and we are unable to conclude in their favour straightaway on the finding that the properties and the various business concerns in dispute were acquired with the profits accruing from the property left by Debu and Ismail. The defendants were at pains to establish by oral evidence that after the death of each male member in the family a fresh agreement of partnership was entered into among the surviving members and the male heirs of the deceased. The learned Subordinate Judge has rightly disbelieved the evidence on which such express agreement was sought to be established. At the same time, we see no difficulty in holding that the three sons of Hingan, who carried on business jointly and had a joint purse, were members of a partnership. Section 239, Contract Act, defines partnership as the relation which subsists between persons who have agreed to combine their property, labour and skill in some business and to share the profits between them.
17. That the sons of Hingan had combined "their property, labour and skill" can admit of no doubt. That the understanding was that the profits would be shared by them equally is also clear. Under Section 253 of the same Act the death of a partner has the effect of putting an end to the partnership. On the death of Muharram in 1892, the old partnership should be deemed to have come to an end and a fresh partnership to have come into existence between the surviving members and male heirs of Muharram. Similarly, on Dehu's death, Ismail should be considered to have joined the partnership. After Ismail's death, the remaining male members of the family, who had an interest in the joint property, should be deemed to have agreed to form a partnership among themselves. If there had been no other complications, the rights of the heirs to each deceased partner would have been governed by the provisions of Section 241, Contract Act, which provides that in the absence of any contract to the contrary, property left by a retiring partner or the representative of a deceased partner to be used in, the business is to be considered a loan.
18. If the heirs of a deceased male member agreed to become partners, they themselves become partners. If not, their share in the business is to be considered a loan. There is no evidence in this case which can justify the conclusion that the female heirs to each deceased male became partners by virtue of any agreement, express or implied. In these circumstances, if the rights of the parties rested on the theory of partnership, the defence might have prevailed and the plaintiffs' right would be limited to their shares in the business and properties as they were on the death of Dehu and Ismail. But the matter cannot be allowed to rest on that footing in view of the position of the parties and the conduct of the male members after the death of Dehu and Ismail. When Debu died, his heirs were Ismail and his daughter Jumman. It was open to the surviving male members of the family to wind up the business and to pay off Jumman by valuing her interest in her father's share in the business. They preferred to carry on the business, retaining the entire assets, including her share. In this connexion, Section 88, Trusts Act, seems to us to be fully applicable. It runs thus:
Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.
19. It is argued by the learned advocate for the defendants that the surviving male members cannot be considered to be trustees, executors, partners, agents, directors or legal advisors. This is true; but in our opinion they were "bound in a fiduciary character to protect the interests" of the heirs to the deceased, as is shown by Illus. (f), which runs as follows:
A and B are partners. A dies. B, instead of winding up the affairs of the partnership, retains all the assets in the business. B must account to A's legal representative for the profits arising from A's share of the capital.
20. Reliance is placed on behalf of the defendants on Taylor v. Taylor [1873] 28 L.T. 189 for the proposition that there is no fiduciary relation between the heir of a deceased partner and the surviving partners. It may be true that the mere fact that one person is an heir to a deceased partner will not clothe the surviving partners in relation to him with a fiduciary character; but taken with the additional circumstance referred to in Section 88, Illus. (f), namely, that the surviving partners, instead of winding up the business of the partnership, retained all the assets of the business and continued it, the position becomes materially different. This is specially so in a ease like the one before us in which the female heirs, who are all "pardahnashin" ladies, lived under the protection of the surviving cosharers of Dehu and Ismail. Section 88 is however applicable in regard to the business jointly carried on by the male members of the family and may not in terms apply to the immovable property and its profits; but as to such properties it cannot be disputed that they were co-owners, and the same result is arrived at by applying the provisions of Section 90, Trusts Act, which provides that:
Where...a co-owner...or other qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owners as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment by such persons of their due 'share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage.
21. The combined effect of Sections 88 and 90, Trusts Act, is that the share of Mt. Jumman in the business and property left by Dehu having been retained by the male members of the family, who continued the business and availed themselves of the dominant position they had in relation to the business and property under their control, they must hold for the benefit of Mt. Jumman any profits accruing from such business or the advantage gained by the use of their position. It is argued in reference to Section 88, Illus. (f), Trusts Act, that the heir is entitled to the "profits" accruing from his share of the assets and not to acquisitions made therewith. We are unable to agree with this contention. The profits were merely converted into other properties or were invested in the business and it is open to the person entitled to such profits to claim the improved business and the properties acquired with their aid. Moreover the terms of Section 90 dearly entitle the female heirs to any "advantage" gained by her co-owners by availing themselves of their position as such. It cannot be doubted that it was in derogation of the rights of such heirs that the advantage was gained. The profits of their shares in the business and the property were made use of for improving the business and making acquisitions instead of being paid to them. In this view, Mt. Jumman was entitled to her share under the Mahomedan law not only in the property and the business as they were at the time of Dehu's death but also in the improvements and acquisitions made between the time of Dehu's death and that of Ismail in 1907.
22. On the death of Ismail, his widow and his sister inherited a portion of what belonged to him. It should be noted that the sister had already a share by virtue of her position as the heir to her father Dehu. For the reasons already given, Mt. Zohra, the widow, should be considered to be entitled not only to a share in the properties and business as they were at the time of Ismail's death but also to a similar share in the improvements and acquisitions made after Ismail's death up to the time when Noori Mian died. Mt. Jumman should be considered to have likewise obtained an interest in the improvements and acquisitions made up to the time of her own teath in 1910. Her rights devolved upon dor daughter, plaintiff 2, and husband, plaintiff 3. The nature of the rights of plaintiff 2, who was an unmarried girl living with plaintiff 1 under the protection of the defendants, is the same as that of her mother or of Mt. Zohra. Rahimullah, plaintiff 3, was somewhat differently situated but we think Section 88, Illus. (f) and Section 90, Trusts Act, equally apply to him. It was open to the defendants to settle his claim by payment of cash equivalent of his share, or otherwise, they however preferred to retain his share of the assets in the business and employ the profits of his share of the assets with the rest of the funds in their hands in improving the business and making fresh acquisitions.
23. It is pointed out that the skill and personal efforts of the defendants, no less than the capital invested in the business, contributed to the prosperity of the business and to the acquisitions of new properties! It was open to the defendants to charge for their personal services a reasonable remuneration. They did not however do so and cannot now insist on account being taken of their personal services which it is impossible to assess in terms of money or a share in the improvement and acquisitions. The learned advocate for the appellants objected to the decision of the case being, made to rest on the provisions of Sections 88 and 90, Trusts Act, which were referred to in course of the arguments. It is contended that the plaint and the counsel's statement in pleadings are absolutely silent as regards that aspect of the ease. It is true the plaintiff's claim was based solely on the allegations that the property in dispute belonged to a joint family consisting of Hingan's descendants and their heirs and that therefore the plaintiffs were entitled to a share not only in the properties left by Dehu and Ismail but also in those subsequently acquired. We are however of opinion that all the facts, necessary for the application of Sections 88 and 90, Trusts Act, are alleged in the pleadings. They might not have made allegations as regards the law rightly applicable to such facts. On the facts alleged by the plaintiffs being established, they are entitled to such reliefs as the law applicable to those facts entitles them to.
24. The only other question that remains to be considered is one of limitation and adverse possession. It is argued that the proper relief which the plaintiffs should have claimed was one of dissolution of partnership to which Article 106, Lim. Act, providing a period of limitation of three years, would be applicable and that the plaintiffs cannot be allowed to circumvent the law of limitation by asking for joint possession. In our opinion if the plaintiffs are entitled to joint possession, as they claim, there can be no objection to the suit being so framed as to make a longer period of limitation applicable. On the frame of, the suit as launched, Article 106, Lim. Act, can have no application. The proper article applicable is Article 144, as to which, it is said that the cause of action accrued to the plaintiffs more than 12 years before the institution of the suit. It appears that a suit was instituted by Shukru, Ismail and Islam against third persons for declaration of their right to certain immovable property. Ismail died during the pendency of the suit. The surviving plaintiffs or Noori Mian applied that Noori Mian be substituted for Ismail as his heir and legal representative. The defendants of that suit objected to Noori Mian being treated as "the sole heir of Ismail" and to Ismail's widow not being impleaded. Accordingly, Mt. Zohra was joined not as plaintiff but as a defendant.
25. It is said that the male members who were plaintiffs in that case should be considered to have denied the right of the widow, and therefore did not implead her as the legal representative of the deceased. We do not think that any denial of her right can be inferred from the proceedings above referred to. Noori Mian, though not an heir of Ismail, waa set up as the legal representative, which term includes a person who intermeddles with the estate as a deceased person. The grounds on which the application for substitution was based and the reasons for not joining the widow do not appear from any of the certified copies taken from that record. In this state of the evidence, we cannot hold that the right of Ismail's widow as an heir was denied. Similarly the right of Mt. Jummah as the heir to her father or to her brother Ismail does not appear to have ever been called in question. The same remarks apply to Zulekha, plaintiff 2 and Bahimulla, plaintiff 3. Accordingly we hold that the plaintiffs' suit is not barred by limitation and that the defendants have failed to establish adverse possession for more than 12 years of the properties now in dispute. The result of our findings is that the appeal fails and is dismissed with costs.