A 1 were number intended by the parties thereto to be given to Kota Venkatachala Pathy as his separate properties but were given to him only for a specific purpose viz.
The appellant resisted the claim of extra share made by Kota Venkatachala Pathy and companytended that the latter was entitled only to half share in all the suit properties.
The High Court further held that in determining the net drawals by the original plaintiff from the joint family funds, credit would be given to him for drawings made by the appellant by way of receipts of rents from item No.
By its judgment dated December 8, 1966, the High Court allowed the appeal in part, set aside the judgment and decree of the Trial Court and decreed the suit brought by the original plaintiff with regard to item No.
The Trial Court negatived the claim of Kota Venkatachala Pathy for a share in excess of one half in the aforesaid properties and held that he was entitled to only one half of all the suit properties.
1 of Exhibit B of the plaint, it was companytended by the appellant that they were also to be shared half and half between him and Kota Venkatachala Pathy as they were purchased from the joint family funds.
With regard to item No.
The relief for accounts was based by Kota Venkatachala Pathy on the ground that there was an oral division in status in 1938 and it was the appellant who was managing the properties either as a companyowner or as an agent since then.
In other words, the companyveyance of the properties to Kota Venkatachala Pathy was in the nature of remuneration for the services to be rendered by him.
He has further urged that in any event D 1 Schedule properties lost the character of separate properties as they were blended by Kota Venkatachala Pathy with the joint family properties.
O. S. 87 of 1956, in the Court of the Subordinate Judge of Vellore, North Arcot, for partition and separate possession of 3/4th of the properties set out in Schedule A to the plaint, 1/2 of the properties set out in Schedule A 1 to the plaint and whole of the properties set out in Schedule B to the plaint.
One of the items namely, item No.
1365 of 1968 From the Judgment and Decree dated the 8 12 66 of the Madras High Court in Appeal No.
9,506/ from several creditors.
2 for discharging the loans, shall enjoy absolutely the properties mentioned in Schedule D 1.
The facts culminating in this appeal lie in a short companypass and may be briefly stated thus Kota Venkatachala Pathy whose legal representatives are the respondents herein and Kota Narayanan, the appellant herein, were real brothers being the sons of one Kota Rangaswami Chettiar.
Subramanyam Chettiar had, before November 20, 1927 incurred debts to the tune of Rs.
The High Court affirmed the judgment of the Trial Court in regard to the properties companyered by Exhibits B 1 and B 4 holding that these were acquired with the companymon funds of the original plaintiff and the appellant which he was managing.
9,506/ only Rs.
1 of Schedule D 1 to the deed of partition was saved by using the joint family assets, the said property companyld number but be regarded as the ancestral property of the parties which was subject to partition.
The Trial Court also upheld the appellants plea of blending of all the properties by Kota Venkatachala Pathy.
1 of Schedule B to the plaint as his self acquired property by virtue of the terms of deed of partition and also to the rest of the properties detailed in the said Schedule B as he had purchased the same with his own funds.
The Trial Court also found that as the defendant appellant herein was a minor at the time of 1929 partition and Kota Venkatachala Pathy, the original plaintiff had acted as his guardian, the latter must be deemed to have acted for the former also when he undertook to discharge the debts and that as between the original plaintiff and defendant to whom the properties were jointly allotted under Exhibit A 1, there was a position of implied trust in respect of properties set out in Schedule A and B to the plaint.
A 1 , material portion whereof is reproduced below for facility of reference Venkatachala Pathy the individual No.
It was also companytended by the appellant that since Kota Venkatachala Pathy acted as Karta of his branch, the aforesaid deed of partition should be companystrued as meaning that any item salvaged or saved after the discharge of the aforesaid family debts would be ancestral property and number exclusive property of the plaintiff.
The answer to this question depends largely on the companystruction of the deed of partition Exh.
By registered deed dated May 29, 1929 Exh.
The learned companynsel for the appellant has, while supporting the appeal, strenuously urged that the properties mentioned in Schedule D 1 to the deed of partition Exh.
He has lastly urged that the directions given by the High Court with regard to accounting cannot be sustained as they are neither clear number justified.
As regards the properties other than item No.
1 of Schedule B to the plaint that the original plaintiff was number liable to account for the joint family properties as there was numberproof of mismanagement, mishandling or improper application of joint family properties or funds and that the defendant was also number liable to account to the original plaintiff for the management of the properties of which he was in charge.
The Trial Court accordingly held that the properties namely item No.
1 of Schedule B to the plaint, the Trial Court held that the total amount of debts paid was Rs.
2 shall discharge the debts described in D Schedule, the debts payable to outsiders by Subramanyam Chetti amongst us for the amount borrowed for companyducting the family business prior to 20 11 27 and individual No.
On a companysideration of the evidence adduced in the case, the Trial Court by its judgment and decree dated September 12, 1960, held that there was numberdivision in status till the date of the suit.
2,575/ were realized from the sale of four items thereof and the balance of the debts were discharged from out of the joint family assets like jewels, outstandings realized and other immovable properties allotted to Rangaswamy Chettiars branch in 1929 partition and that the companyversion of such joint family assets was made by Kota Venkatachala Pathy who was managing the family till 1957.
1 of Schedule B to the plaint which companysists of four shops is what remains undisposed out of the properties mentioned in Schedule D 1 to the deed of partition which were set apart for the purpose of discharging the aforesaid debts incurred by Subramanyam Chettiar before 1927.
These debts were discharged by Kota Venkatachala Pathy before March 26, 1934.
As karta of the joint family.
Aggrieved by this judgment, Kota Venkatachala Pathy, the original plaintiff, whose legal representatives are the respondents herein, preferred an appeal to the High Court of Judicature of Madras.
With regard to the relief for rendition of accounts, the appellant companytended that he became the Karta of the joint family in 1947 and Kota Venkatachala Pathy was number entitled to the relief of rendition of account till the date of the suit when alone there was a division of status and number in 1938 as claimed by Kota Venkatachala Pathy.
609 of 1961.
Dissatisfied with this judgment and decree, the defendant has companye up in appeal to this Court.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
After 1927 Kota Venkatachala Pathy took over the management of the family and its properties.
The Trial Court also decreed that the appellant shall render true and proper accounts in respect of the income and expenses regarding half share of the respondents in the properties mentioned in Schedule A, A 1 and to the plaint from 1947 onwards but did number give directions as to the assets and funds of capital nature withdrawn by Kota Venkatachala Pathy from out of the joint family utilised for his own separate and independent business.
Five items of joint family properties detailed in Schedule D 1 to the deed of partition were earmarked for the discharge of the aforesaid debts and were given over to Kota Venkatachala Pathy who was made responsible for the discharge of the debts.
1 of Schedule to the plaint holding that the properties mentioned in Schedule D 1 to the partition deed were companyveyed absolutely to the original plaintiff in lieu of his undertaking to be liable to discharge the entire debts mentioned in Schedule D to the partition deed whether the properties were sufficient or insufficient to discharge the same and if there was any surplus out of the properties he was to have the same absolutely, but if the properties were number sufficient, he was to dis charge the debts on his own responsibility without making Subramanyam Chettiar liable for the same that though a portion of the debts were discharged out of the joint family funds that only cast on the legal representatives of the original plaintiff a liability to account to the appellant for such drawings as the original plaintiff might have made and whatever amount was found to be so drawn would have to be debited against his i.e. the original plaintiff, after giving him credit for whatever amount he might have put into the companymon fund.
A 1 a partition of joint family properties was effected between Subramanyam Chettiar on the one hand and Kota Venkatachala Pathy and his brother, Kota Narayanan, who was then a minor, on the other, each branch taking a half share.
Kota Venkatachala Pathy based his claim of 3/4th share in properties detailed in Schedule A to the plaint on the ground that he was entitled to 1/4th by birth as a companyarcener and the rest of the half share allotted to Subramanyam Chettiar as he had purchased the same from auction purchasers.
On September 7, 1956, Kota Venkatachala Pathy brought a suit, being No.
609 of 1961.
Prior to 1927, Subramanyam Chettiar was the manager and karta of the family.
Jayaram for the Respondent.
The Trial Court also found that properties companyered by sale deeds Exhibit B 1 and Exhibit B 4 which originally formed part of the half share allotted to Subramanyam Chettiar though purchased by the original plaintiff in his own name were joint family properties and as such were liable to partition in equal shares.
The Judgment of the Court was delivered by JASWANT SINGH, J. This is an appeal by certificate granted by the High Court of Judicature at Madras under Article 133 1 a and b of the Constitution of India against its judgment and decree dated December 8, 1966 in A. No.
15,669 6 2 and out of D 1 Schedule properties of the estimated value of Rs.
1 of Schedule B to the plaint should be deemed to have been salvaged by detriment to the paternal estate.
The principal question for determination in this case is whether the properties mentioned in D 1 Schedule to the deed of partition were separate properties of Kota Venkatachala Pathy or retained the character of ancestral properties.
N. Balasubrahmaniam and Miss Lily Thomas for the Appellant.
According to the appellant, the family debts set out in Schedule D to the aforesaid deed of partition was discharged by Kota Venkatachala Pathy number only by the sale of the properties set out in Schedule D 1 to the deed of partition but also by substantially utilising other joint family properties available for division.
for discharging the family debts that the ancestral properties companyld number be companyverted into separate properties by means of an arrangement arrived at between Subramanyam Chettiar and Kota Venkatachala Pathy that the character of a property has to be decided after companysidering whether it is saved as a result of detriment to the paternal estate and as in the instant case, property mentioned at item No.
Together with their companysin Subramanyam Chettiar, the son of Kota Kuppuswami Chettiar, the brother of Kota Rangaswami Chettiar, they formed a joint family which was a trading one.
The case as set out by Kota Venkatachala Pathy in his plaint was that the properties set out in Schedule B 1 to the deed of partition were given over to him absolutely for the discharge of the aforesaid debts set out in Schedule D to the deed of partition and it was provided in the said deed that either he would discharge the debts mentioned in the deed or undertake to pay the same himself within a month from the registration of the document and obtain and hand over to Subramanyam Chettiar receipts from the creditors specifically mentioned there that Subramanyam Chettiar was number liable for payment of the aforesaid debts and that if the aforesaid companyditions were number satisfied by him i.e. by Kota Venkatachala Pathy and any loss was occasioned to the former, the latter would be liable for those losses.
The case of Kota Venkatachala Pathy further was that since he had discharged the debts detailed in Schedule D to the deed of partition, he was entitled to the exclusive possession of item No.
