S. Khat/er S/tn'il v. Gounder & Ors.

Consequently, in a case where an election was challenged on the the candidate returned was intcrt:sted in a contqct ground entered into by his father, bcnami in the name of another, with the Government for felling trees and transporting timber, and as such disqualified to stand ior 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 if believed,. consid_cring the evidence might sustain a finding the father was acting on behalf of the fa.mily, presumed as a matter of law that the son had -interest in the contract and declared the election void. on the other point which, 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. CML APPELLATE Jua1soicnoN: Civil Appeal No. 136 of 1955. Appeal by Special Leave from Order dated the 15th November 1954 of Travancore-Cochin, Tribunal, Quilon, Petition No. 18 of 1954. the Judgment and the Election in Election S. Mohan Kumara Mangalam, H. /. Umrigar and Ra;inder Narain, for the appellant. T. R. Balakrishnan, 1955. September Court was delivered by for respondent No. 1. Judgment of

#19. The VENKATARAMA AYYAR leave against is an appeal by the Election Tri election of the appellant the Legislative Assembly oi the State of. Travancore- special bunal, Quilon declaring the J.-This the order of 1955 Chaltanatlia Earayalar v. RamJJ<handra ljer and anothl' V enkalarama A»ar ]. 2S.C.R. SUPREME COURT REPORTS 479 Cochin from the Shencottah Constituency void on to stand for election ground under section 7(d) read with section 9(2) of Act No. XLIII of 1951. . that he was diSA.ualified if he is interested Under section 7(d), a person is disqualified for be ing chosen as a member of the Legislative Assembly of a State, 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 the disqualification men tioned in section 7(d); but that 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 h2ving no share or interest that business shall not be disqualified under section 7 ( d). forest and transporting The contract in the present case was of which the appellant felling trees in a Government There is for delivery at the places specified therein. dispute that this contract is one that falls The point in contro within section 7 ( d) of the Act. the Gov versy is simply whether the contract with ernment was entered into on behalf of is a member. The family, the name of one Kuppuswami ap; reement stands in the petition are that Karayalar, and the allegations he is one - Krishnaswami a mere name-lender Karayalar, who is the manager of a joint family con sisting 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, that Kuppuswami whose name appears in the con the benefits tract was that he was not a name-lender 'for Krishna thereof, swami 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. the person solely entitled 1955 C/rJJU-tq Eulf10/• v. R~ltatlra l.Jtr ""'1 nPl/itr Ymk•,.,•m• ..i_,_,., ]. 480 SUPREME COURT REPORTS [1955] The following issues were framed on the above con tentions: family 1omt the contract for "(2) Is the said right and benefits of removal of Taluq, entered Travancore-Cochin State? Has interest in the said contract ? the felling and timber from Coupe No. 4, Nedumangad the Forest Department, the joint family any the owner of into with ' a benamidar the Tribunal the respondent family, of which the real contracting party, and (3) Is Mr. Kuppuswami Karayalar whose name for the is a appears as the contractor only a name-lender joint Hindu family of which member?" that Krishnaswami On issue 3, Karayalar was Kuppuswami was for him, and on issue that the contract was entered into on behalf of the 2, the appellant was a member. On these findings, it held that the appellant was dis qualified under section 7(d) read with section 9(2), and declared his election void. The appellant ques tions the correctness of this order firstly on the ground is a benamidar for by the Krishnaswami Karayalar evidence, and secondly on the ground that the finding that Krishnaswami entered into the ·contract on be half of the joint family is based on a mistake of law, and is unsustainable. the finding that Kuppuswarni not warranted there .is evidence On the first question, Mr . Kumaramangalam for the appellant ad~its that in support of that Kuppuswami was a benamidar the conclusion for Krishnaswami, but contends that it is meagre and worthless. The question whether a person is a bena is purely one of fact, and a finding midar or thereon cannot be interfered with in special appeal, if there is evidence on which it could be based. We the finding of the Tribunal must, therefore, accept that it was Krishnaswami, the father of the appellant, who was to the agreement with the Government. the real contracting party not, The next question is whether Krishnaswami entered in h.is own personal capacity or The Tnbunal found into the contract as manager of the joint family. 1955 Chauanalha Karayalar v. Ramochantlra Jy" and another Venkafarama .1'Jar J. 2 S.C.R. SUPREME COURT REPORTS 481 to consider on the business started by Krishnaswami as a fact ~arayalar was a new venture, and instead of _proceed mg next evidence whether in the contract he acted for himself or for ·entering it entered into a discussion whether the joint family, under the Hindu law there was a presumption that a business started by a coparcener was family business. After observing there was no such presumption "in the case of an ordinary manager", it held that "the law the manager happens 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 .ibove joint family of ~he respon dent is the owner or the right and benefit of the pre iCnt contract". to be also the father". is different when authorities that the It the father it was based is erroneous, and that a business standing in The appellant contends that tJie statement of law by the Tribunal that that a is a presumption new business started by family that its finding that business the appellant was a member had joint family of which the contract of Krishnaswami could an interest not be supported, as solely on. the view which it took of the law. This criticism is, in our the Hindu law, there ?Pinion, well founded. Under 1s no presumption name of any member is a joint family one even when that member is the manager of the family, makes no difference in this respect that the manager is the father of the coparceners. It is no doubt true that with to a trade newly started there is reference this difference between the position of a father and a therefor by manager, the former would be binding on the sons on the theory of pious obligation, 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 Lal(t ), Chotey Lal v. Dt1lip Narain(') and Ha}'at Ali v. Nem Chand( 8 ). But (') [1934] I.L.R. 57 All. 605. that while the debts contracted (1) [1938] I.L.R. 17 Patna 386. incurred by (')A.LR. 1945 Lah. 169. 1955 Ckallll1Ullha Karaya/M y, Ramaehandra Jyar and another Vmkatorama ~.,,., J. 482 SUPREME COURT REPORTS [1955] liable father it is one thing to say that the sons are debts contracted by the trade newly started by him, and quite another thing to treat the trade itself as a joint family concern. We arc there fore 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. entered This conclusion, however, is not sufficient to dis-· pose of the matter. The case of the respondent that Krishnaswami the contract with Government of Travancore-Cochin on behalf of rests not merely on a presumption of law joint family but on evidence as to facts and circumstances which, if accepted, would be sufficient to sustain a finding in. In the view it took of the law on the his favour: question, 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 Tribunal did not discuss But entered record a finding The appellant contends that there is· only the evi-· dence of the respondent in rnpport of the plea that into by Krishnaswami on the contract was that this Court could behalf of the joint family, and itself it is thereon. argued the judgment of by the respondent that there are in the Tribunal several observations which would port the conclusion that the contract was entered on behalf of the joint family. Thus, it is. pointed out the Tribunal observes that in para 5 of that Krishnaswami Karayalar started this new bu,i ness with family debts. a view the business requir It further observes to Rs. ed an initial investment of about Rs. 25,000 30,000, and that about Rs. 7,000 had been borrowed by Krishnaswami Karayalar,. there is no evidence how the balance was made up. that this must The contention of the respondent have proceeded from the joint family funds, and this is implicit in the finding of the Tribunal. It is the Tribunal that' also mentioned to discharge in para 6 that in the judgment of there is evidence the judgment that while 1953 Chattanlllho. Karo,>alar , .. R(JtnJJ(;handra l)'ar and another Venkatarama /glr]. 1955 ~20 2 S.C.R. SUPREME COURT REPORTS 483 anxious to support his K.rishnaswami was appellant, present really anxious We do not, however, desire these contentions, as we propose decision of the Tribunal. that many of the witnesses the respondent was obliged to examine;, were the appellant. (Vide para 12). to express any opinion on to the to leave to help son, the Tribunal to hear and decide We accordingly set aside the order ~f the Tribunal, and direct that the Election Commission do reconsti the question whether Krishnaswami Karayalar entered the Government of Travancore-Cochin contract with on behalf of the joint family · or for his own personal benefit, on a consideration of the evidence on record. that no further evidence will be It their own costs in this allowed. The parties will bear Court. is made Appeal allowed. Case remitted for hearing. M/S. RAM NARAIN SONS LTD. "· ASST. COMMISSIONER OF SALES TAX AND OTHERS (and other cases) (S. R. DAS, ACTING c. J., BHAGWATI, JAGANNADHA DAS, JAFER IMAM and CHANDRASEKHARA AIYAR JJ. l Constitution of India-Article 286(2)-Pro11iso thereto-Whe ther the proviso is meant to lift the ban only under Article 286(2) an4 no other-And thus does not lift the ban under Article 286{1)(a) read with the Explanation-Assessment consisting of a single undi11idetl sum in respect of totality of property-Wrongful inclusion therein of certain item of property expressly exempted from taxation-Legnl effect thereof-Central Pro11inces and Berar Act 1947 (XXI of J.947) -Explanation II to Section 2(g) as originally enacted-before its amendment by Madhya Pradesh' Act IV of 1951-Whether offended Article 286(1)(a) read with the Explanation-Whether the Presidents order issued under the proviso to Article 286(2) protected the same. Held, per S. R. DAs ACTING CHIEF IMAM and CHANDRASEKHARA AIYAR JJ. JAFER JusTICE, BHAGWa\TI, (JAGANNADHADAS J.