Case: Jai Narain Vs Ujagar Lal and Ors.. High Court of Bombay (India)
| Judges | Atkinson, Sumner and John Edge, JJ. |
| Issue | Trusts and Societies |
| Citation | 1925 (27) BomLR 713 |
| Judgement Date | October 30, 1924 |
| Court | High Court of Bombay (India) |
Judgment:
John Edge, J.
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The suit in which these two consolidated appeals from a decree of the High Court at Allahabad have arisen was brought in the Court of the District Judge of Mainpuri in the United Provinces on May 20, 1915. The reliefs claimed in the suit were the removal of the then trustees of an endowment for religious and charitable purposes on account of alleged misappropriation of the endowed property, and the appointment of new trustees to whom the possession of the entire endowed property should be given; that accounts Should be furnished of the property of the endowment and the misappropriations should be made good; that a scheme for the management of the endowment should be settled; that any other beneficial relief should be granted; and that costs should be decreed against any of the defendants who might be found 'liable. The suit was brought under Section 92 of the Code of Civil Procedure, 1908. The plaintiffs had obtained the consent in writing of the Legal Remembrancer of the United Provinces to the institution by shem of the suit, such Legal Remembrancer having been the officer appointed under Section 93 of the Act to exercise in those Provinces the powers in that respect which are conferred on the Advocate General by Section 92.
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The parties to the suit are residents of Etawah in the United Provinces, and are Hindus of the Agarwal caste. The caste name is also written Aggarwall. The plaintiffs are through a common ancestor related, more or less distantly, to the defendants, and are persons who were interested in the proper management of the trust properties of the endowment. The defendants are descendants of one Sital Prasad who founded the endowment by his will of February 24, 1904.
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The Agarwal is a well known caste and has caste sub-divisions. The members of the caste in the United Provinces and the Punjab are mainly Zamindars, or agriculturists, or are engaged in other forms of trade. The Agarwals of the United Provinces and of the Punjab carry on their business, whatever it may be, either separately or as joint families. When the business is carried on as the business of a joint family it is as a rule carried on in the name of the managing member of the joint family or in a firm name.
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The first of these appeals is by Lala Jai Narain, who was defendant No. 1. The other of these appeals is by Lala Prag Narain and Lala Brahma Narain, who were respectively defendants Nos. 2 and 3.
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As there are nine defendants in the suit against all of whom a common liability is not alleged it is ad-visible to state at once who the different defendants are. Sisal Prasad, who founded the endowment in question, and his elder brother, Kunj Behari Lal, with their father Lala Gopi Nath, constituted a joint Hindu family, which was governed by the law of the Mitakshara. After the death of Lala Gopi Nath, the brothers Kunj Behari Lal and Sital Prasad separated in 1900, and subsequently Kunj Behari Lal died childless Before the endowment in question was founded Kunj Behari Lal had by his will left all his property to his eldest nephew, Banke Behari Lal. Sital Prasad had married and had sons, Banke Behari Lal, abovementioned, Girwardhari Lal, Banarsi Das and Sheo Narain, defendant No. 8, Banke Behari Lal married and had sons Lala Jai Narain, eldest son, defendant No. 1, Rup Narain, who died before suit leaving a son, Shyam Behari Lal, defendant No. 4, Lala Prag Nraain, defendant No 2, and Lala Brahma Narain, defendant No. 3, Girwardhari Lal, second son of Sital Prasad, married and bad sons Lala Gur Narain, defendant No. 9, and Lachmi Narain. Banarsi Das, third son of Sital Prasad, married and had sons Lala Suraj Narain, defendant No. 5, Brij Narain, defendant No 6, and Keshab Narain defendant No. 7.
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Sital Prasad separated from his sons in or before 1903 and made his will of February 24, 1904, and died on March 5 1901. There is evidence on which their lordships find that Banke Behari Lal separated from his brothers. Banke Behari Lai and his sons constituted a joint Hindu family. Banke Behari Lal and his sons carried on business under a firm name, of "Banke Behari Lal Jai Narain." It is not proved, nor, indeed, has it been even alleged, that Banke Behari Lal and his sons had ever separated, and as such a separation has rot been proved the presumption in law is that they continued joint. It has not been proved that the sons of Banke Behari Lal after he died, on March 5, 1907, separated. Consequently it is to be assumed, unless the contrary has been proved and it has not been proved, that the business which was carried on under the firm name of ''Banke Behari Lal Jai Narain" has continued to be the business of a joint family. At all material times Lala Jai Narain, defendant No. 1, was a member of that joint family, and appears to have acted as the managing member of the joint family, and he was also a member of a committee of trustees which was appointed by the will of Sital Prasad to manage the property of the endowment created by that will. When Shyam Behari Lal, defendant No. 4, was born has not been proved, but it is stated in the plaint of May 20, 1915, that ha was then about, eight years of age; it is thus uncertain 3 w whether he became; a member of the joint family before or after the death of his grandfather Banke Behari Lal, but the question is not material as it appears to their lordships.
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Owing to a misconception of the effect of a judgment of the Board which was delivered by Lord Davey in Balabux Ladhuram v. Rukhmabai it was generally, but erroneously, assumed that the Board had decided that when a Hindu governed by the law of the Mitakshara, who had sons living, separated from his brothers it was a presumption of law that he had separated from his sons and that he and his descendants ceased to constitute amongst themselves a joint family unless it was proved that they had agreed to continue to be a joint Hindu family. It was pointed out, however, by the Board in a judgment which was delivered on January 22, 1924, in Han Bakhsh v. Babu Lal that that was an erroneous conception of the effect of what Lord Davey had said, and that no authority had been brought to the attention of their lordships for introducing a novel principle into the law of joint Hindu families governed by the law of the Mitakshara. In the case of Hari Bakhsh v. Babu Lal (1024) L.R. 51 IndAp 163 the parties were Hindus of the Bakkal Agarwall caste of the Punjab. In the present case the learned Judges of the High Court in appeal decided that Shyam Behari Lal, defendant No. 4, was not liable in respect of the Waqf trust fund, which wan deposited by Banke Behari Lal with "Banke Behari Lal Jai Narain,"...
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