Chattanatha Karayalar Vs. Ramachandra
Iyer & ANR  INSC 39 (19 September 1955)
AIYYAR, T.L. VENKATARAMA BOSE, VIVIAN SINHA,
CITATION: 1955 AIR 799 1955 SCR (2) 477
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).
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
Ram Nath v. Chiranii Lal, ( I.L.R. 57
All. 605), Chhotey Lal Chaudhury v. Dalip Narain Singh, ( I.L.R.
17 Patna 386), Hayat Ali Shah v. Nem Chand
(A.I.R.  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
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.
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.
61 480 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)
 I.L.R. 57,All. 605. (2)  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
It is therefore necessary that there should
be a remittal of the case for 'a consideration of this question on the
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.
Case remitted for hearing.