2S.C.R. SUPREME COURT RE.l'ORTS 91. The question whether a party to an election pet~ tion is entitled to a notice under the proviso in respect of the very charges w!Hch were the subject-matter of
enquiry in the petition itself, has been considered by this Court in Civil Appeal No. 21 of 1955, and it has been held therein that if the party had opportunity given to him in the hearing of the petition to meet the
very charge in respect of which a finding is to be re- -corded under section 99( 1) (a), then he is not entitled to a further notice in respect of the same matter, under the proviso.
In the present case, the finding under section 99(1)(a) relates to the very payments which were the subject-matter of enquiry in the elec- tion petition, and therefore no notice was required to
be given to the appellant under the pro·1iso. This objection also fails, and the appeal must accordingly be dismissed. The respondent has stated through his counsel Shri Naunit Lal that he does not propose to contest the
appeal. There will accordingly be no order as to costs. Appeal dismissed. CHATTANATHA KARAYALAR RAMACf{A.NDRA IYER AND ANOTHER. {V1v1AN BnsE, VENKATARAMA AYYAR and B. P. SINHA JJ.]
Election Dispute-Returned candidate alleged to be disqualified for being chosen as a member-Hindu fathe1· entering into Government contt·act, if does so en behalf of the undivided family-Presumption ef Hindu Law-Finding of benami, if liable to be intei'fered with in Special appeal-Representation of the People Act (XL!Il of 1951), SS. 7(d), 9(2}.
There is no presumption in Hindu Law that a business stand- ing 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 start- ing new business and a mere manager doing so that while the debts r.ontracted 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 S. Khat/er S/tn'il v. .\funnruwami Gounder and others V enkatarama AY,var J. S1ptemb11 19 ChaJtanatha
Karoyalar Ramachandra Iyer and another. [1955} mcn1bers of the family unless, at least, it can be shown that the starting of the business was necessary. Ram Nath v. Chiranii Lal, ([1934] l.L.R. 57 AIL 605), Chhotey Lal Chaudhury v. Dalip Narain Sing/,., ([1938] l.L.R. 17 Patna 386), Hayat Alia Shah v. Nern Chand (A.LR. [1945] Lah. 169), referred to. But this distinctive position of the father docs not by itself make the new business started by him a joint business of the an- divided family.
The question of benaru; is a question of fact and \Vhcrc there is. evidence to support a finding that a person is a bcnamidar 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 intcrt:sted in a contqct 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 consid_cring the evidence on the other point which, if believed,. might sustain a finding
that 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. 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 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. /. Umrigar and Ra;inder 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 Tri- bunal, Quilon declaring the election of the appellant
to the Legislative Assembly oi the State of. Travancore- 2S.C.R. Cochin from the Shencottah Constituency void on the ground that he was diSA.ualified 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 be- ing 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 men- tioned 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 h2ving 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 contro- versy is simply whether the contract with the Gov- ernment was entered into on behalf of the joint family, of which the appellant is a member. The ap;reement 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 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,
is that Kuppuswami whose name appears in the con- tract was the person solely entitled to the benefits thereof, that he was not a name-lender 'for Krishna- 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. Chaltanatlia Earayalar v. RamJJ<handra ljer and anothl'
V enkalarama A»ar ]. C/rJJU-tq Eulf10/• v. R~ltatlra l.Jtr ""'1 nPl/itr Ymk•,.,•m• ..i_,_,., ]. [1955] The following issues were framed on the above con- tentions: "(2) Is the said
1omt 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 iomt family, of which 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 that the finding that Kuppuswarni 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 be- half of the joint family is based on a mistake of law,
and is unsustainable. On the first question, Mr . Kumaramangalam for the appellant ad~its 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 bena- midar 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 h.is own personal capacity or as manager of the joint family. The Tnbunal found 2 S.C.R.
as a fact that the business started by Krishnaswami ~arayalar was a new venture, and instead of _proceed- mg 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 .ibove authorities that the joint family of ~he respon- dent is the owner
or the right and benefit of the pre- iCnt contract". The appellant contends that tJie 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 ?Pinion, well founded. Under the Hindu law, there 1s 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 Lal(t ), Chotey Lal v. Dt1lip Narain(') and Ha}'at Ali v. Nem Chand( 8 ). But (') [1934] I.L.R. 57 All. 605. (1) [1938] I.L.R. 17 Patna 386. (')A.LR. 1945 Lah. 169.
Chauanalha Karayalar v. Ramochantlra Jy" and another Venkafarama .1'Jar J. Ckallll1Ullha Karaya/M y, Ramaehandra Jyar and another Vmkatorama ~.,,., J. [1955] 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 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. This conclusion, however, is not sufficient to dis-·
pose 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 evi-·
dence of the respondent in rnpport 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 sup- port 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 bu,i- ness with a view to discharge the family debts. It further
observes in para 6 that the business requir- ed 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 how the balance was made up. The contention of the respondent is that this must have proceeded from the joint family funds, and that this is implicit in the finding of the Tribunal.
It is also mentioned in the judgment of the Tribunal that' 2 S.C.R. K.rishnaswami 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 ~f the Tribunal, and direct that the Election Commission do reconsti- tute 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. 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 JusTICE, BHAGWa\TI, JAFER IMAM and CHANDRASEKHARA AIYAR JJ. (JAGANNADHADAS J. Chattanlllho. Karo,>alar , .. R(JtnJJ(;handra l)'ar and another Venkatarama
/glr]. ~20