Blending of property of joint Hindu family by karta

UNLESS SPECIFIC PLEA IS RAISED AND AN ISSUE IS FRAMED AND TRIED, IT IS NOT POSSIBLE FOR THE PARTIES TO KNOW THE CASE OF BLENDING
Division Bench of Karnataka High Court in the case of Gopal Purushotham Bichu (ILR 1989 Kant 169) held that a new business started by the kartha or manager of a joint family is not considered to be the business of a joint family, unless it is started or carried on with the express or implied consent of adult coparceners or it is proved that the joint family funds are utilised for the business to the advantage of the joint family.

This plea was not raised in the plaint. There was no issue in this regard. Blending or treating the new business as a joint family business is a question of fact depending upon the intention and conduct of the parties. Unless specific plea is raised and an issue is framed and tried, it is not possible for the parties to know the case of blending. No doubt in a case where the issue is raised without a proper plea, it may be presumed that the parties were aware of the plea involved and had adduced the evidence even in the absence of a plea, therefore, such a contention could be allowed. Such is not the case here. In the instant case, there is neither a plea nor an issue is raised and tried. However, during the course of arguments, it was raised in the trial Court. The trial Court has not accepted this plea. In the absence of the plea and the issue raised in this regard and tried by the trial Court, in our considered view, it is neither just and proper, nor permissible in law, to allow the plaintiff-appellant to canvass this contention in the appeal.

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