The finding is based on good evidence which has been found credit worthy after due companysideration by the two companyrts.
312 and 313 relate to the previous years ending on 12 11 1947 and 22 12 48.
313 on December 22, 1953, both by defendant 2.
The Court, however, upheld the appellants companytention that the old accounts had been destroyed in fire and that the plaintiff was entitled to interest at 12 per cent per annum.
Resolution, Ex.
1 and 2 were prejudiced on account of some domestic reasons, they began to live separately in the year 1945.
295 dated September 15, 1949, passed on its basis was entirely reliable.
In the witness box, defendant 1 had companyceded that all the immovable property that had been allotted to defendant 2 under the award had been sold away by him, and that pursuant to the award, Rs.
310, 311 and 314, submitted on March 15, 1948, November 12, 1949 and February 13, 1954, respectively, the High Court numbered that these refer to the accounts of the two companycerns and companytain somewhat different description in the management.
316, an order dated June 20, 1950, of the Income tax officer showing that defendants 1, 2 and 3 were being assessed on the basis that each of them had 1/3rd share in the business.
The High Court has given reasons why the evidence furnished by the deed of partnership Ex.
Defendant 1 admitted the companyrectness of the companytents of this receipt.
N died on July 8, 1946.
The defendants denied that there was ever a partition of the joint family.
Defendants 1 and 2 in their joint written statement admitted that there was an ancestral tobacco business of the family managed by N till his death in 1946 that after Ns death, the family business was managed by them M A and that all the defendants were jointly liable for the plaintiffs claim.
Mahalingappa, the prepositus of the joint family died in 1922, survived by three sons, namely, Malappa, Defendant 1, Appa saheb, Defendant 2, and Neelkanth The sons are hereafter referred to as M,A and N , Mahalingappa and his sons companystituted a joint Hindu family.
309 is the income tax return relating to the previous year ended on November 4, 1945.
He resisted the plaintiffs claim, traversed the allegations in the plaint, and denied that there was any acknowledgment made on his behalf on April 15, 1953 by his mother, Defendant 4.
Defendant 3 filed a separate written statement.
Thereafter as the minds of the plaintiffs father and of the defendants Nos.
In the witness box, Defendants 1 and 2 admitted that on November 11, 1945, each of the brothers got Rs.
The case of Defendant 3 is that on November 4, 1945, the accounts of the joint family were worked out and closed.
Regarding the affidavit Ex.
221, 247 and 248, the High Court has said that there is numberevidence as to for what purpose these affidavits were sworn to and has rightly emphasised that in the absence of such evidence, it is difficult to draw any inference about the implications of their companytents.
294 dated October 30, 1948, and the decree Ex.
This award is a registered document.
6/ per cent per annum.
Mahalingappa, J as Karta was managing the joint family business.
There used to be periodical verification of accounts and acknowledgements were made from time to time by the Manager of the family.
294 can be safely accepted.
Against that judgment and decree of the trial companyrt, the plaintiff preferred an appeal to the High Court.
247, Smt.
1, 2 and 3 were living joint and all the three persons carried on the business of the joint family.
She stated that Defendants 1 and 2, had taken her thumb impressions on certain papers on the representation that they had been properly managing the Tennis Bidi Factory which had fallen to the share of her husband.
294 dated November 3, 1948, followed by the decree Ex.
16000/ and odd were to the credit of defendant 3 in the account books of M. S. Sadalge Shop.
Similarly, the pattern of the accounts of a joint Hindu family business maintained by the Karta is different from those of a partnership.
The High Court has affirmed the findings of the trial companyrt and dismissed the appeal.
In the light of what has been said above, it cannot be held that there was numberlegal evidence before the companyrts below to base the finding that the joint family had disrupted on November 4, 1945.
of the family Now the defendants Nos.
69,465/15/ , as principal, plus interest at 12 per cent per annum Subsequently by an amendment of the plaint, he added an alternative ground that if the Defendants proved that there had been a partition in the family, they were still liable for the dues pertaining to the ancestral business carried on by all the defendants either as members of the joint Hindu family or as partners of a firm.
It was found that there was a capital balance of Rs.
1254 and 1264 may be cancelled and the name of defendant 1 may be entered again for both the numbers.
309 to 314 filed after the death of Neelkanth.
169 called upon Defendant 1 to produce in companyrt the account books, in his possession.
Defendant 4 in her written statement denied the plaintiffs claim and supported the companytentions raised in his written statement by Defendant 3.
Hence this second appeal by the plaintiff.
7,000/ had been paid to Heerabai and her son, Suryakant.
Defendant 3 further stated that there was a disruption of the joint family status on November 4, 1945 when M, A and N unequivocally expressed their intention to separate, and divided the movables, and thereafter, a decree for partition of the immovable property of the family was passed in 1949 on the basis of an arbitration award.
197 dated October 25, 1946, the award Ex.
He denied that Defendants 1 and 2 had ever acted manager of the joint family with the companysent of the other members, and added that this question companyld number arise because of the earlier division of the family.
In Ex.
As regards the applications Exs.
316 is the order of the Income tax officer passed on June 20 1950 wherein it is stated that 1/3 share of defendant 1 in the profits of this firm was assessed on that date.
She was never informed of the companytents of the documents by the Defendants, who took undue advantage of her illiteracy.
Application dated August 13, 1946 Ex.
It is next companytended by Mr. Datar that even if there was some declaration of separation in 1945 and subsequently a decree for partition based on an award was passed in 1949, then also, such declaration, award and decree were never acted upon.
Appeal by special leave from the judgment and order dated the 21st September, 1962, of the Mysore High Court in Regular Appeal B No.
and have taken the same The award bears the signatures of the three arbitrators, and on its basis the companyrt passed a decree on August 9, 1949.
Reference has already been made to Ex.
Notice of this application was received by Defendants Counsel on July 18, 1955.
315, is the income tax return relating to the income tax year 1948 49, the previous year of which ended on November 12, 1947.
208, dated September 30, 1946 made by defendants 1 and 2 on their behalf and on behalf of Chandrakant Defendant 3 informing the City Surveyor about the death of Neelkanth and requesting him to enter the Khata in the names of all the three defendants 1 to 3.
In this companynection, the High Court referred to the statement of defendant 1, wherein he has admitted that during defendant 3s minority, defendant 1 and defendant 2 were the only persons who looked after the business and defendant 4 never objected to whatever they did.
3 wife of Neelkanth Def.
69,465/15/ was found due to the plaintiff from the defendants.
Emphasis is on a sentence in this statement to the effect Two months have passed since the said partition.
1, 2 and 3 Mallappa, Appasaheb and Basawabai, widow of Mahalingappa were members of joint family.
Despite this numberice defendant 1 did number produce the account books when he appeared in the witness box on July 21, 1955.
It further found that these documents had been acted upon.
3 widow of Mahalingappa as per agreement deed The companytentions of the defendants Nos.
That suit was instituted by Chandrakant, and Basawwa, widow of Mahalingappa, Suryakant, an illegitimate son of Nilkanth, Mallappa Mahalingappa Sadalge and Appasaheb were impleaded as defendants.
287 of 1956 .
312 was submitted on December 26, 1949 and Ex.
64,023/11/ which was equally divided among the three brothers and the fact of this division was numbered in the account books which were in the possession of Defendant 1.
75,000/ , companyprising of Rs.
On April 15, 1953 accounts were taken, and the amount due from the defendants family to the plaintiff was worked out and verified The accounts thus stated were acknowledged and signed by Defendant 1 and by Defendant 4, as guardian of her minor son, Defendant 3.
221, 247 and 248 sworn on July 20, 1946, before a Magistrate by Defendants 2, 4 and 1 stating that they are members of a joint Hindu family and Defendant 2 is the manager of the family.
A balance of Rs.
This arrangement companytinued to be in force till the partnership was dissolved by another registered deed on April 20, 1951.
No.4 .
197 and the Arbitration Award, Ex.
The explanation regarding the number production of the books, given by defendant 2, who had managed the business after 1951, was equally unsatisfactory and was rightly discarded.
Defendant 3 asserted that this decree had been acted upon by the parties.
It was added that after the interim attachment of the property, Defendant 3, taking advantage of these bogus documents, obtained an ex parte decree to show that there had been division of the joint family, and that this decree was number opposed by the answering defendants because they were assured that it would number be executed.
They admitted that the appellants claim was partially true, but denied companyrectness of the total balance claimed as due.
In the alternative he pleaded that she had numberauthority to acknowledge the debt so as to bind him as he was then a minor.
After 1951, the family business was managed by M Defendant 1 .
The trial companyrt held that the joint family had disrupted in 1945 and the plaintiff was aware of this fact that the acknowledgements of the debt had been made by Defendants 1 and 2 and number by Defendant 3, and on that account the suit was within time only as against Defendants 1 and 2 that Defendant 3 had on attaining majority repudiated his liability as partner that the thumb impressions of Defendant 4 on the acknowledgement had been taken by practising fraud that in any case defendant 4 had numberauthority to acknowledge the debt on behalf of her minor son.
Balabi Def.
The appellant had business dealings in tobacco and money dealings with the Defendants joint family.
on these findings, the trial companyrt decreed the plaintiffs claim in toto against Defendants 1 and 2 but dismissed it against Defendants 3 and 4.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
2 died on 8 7 46 Chandrakant Smt.
310, relating to the year ending October 24, 1946, it is stated that N and defendants 1 and 2 were Kartas of the family.
With the preceding allegations, the plaintiff on January 28, 1954 instituted the suit for the recovery of Rs.
147, statement, dated September 26, 1953, by defendant 3 requesting the City Surveyor, Nipani that his joint share in Nipani Revision Survey Nos.
247, purporting to have been sworn by Smt.
The recital in Ex.
Defendant 3 by an application Ex.
So also they effected partitions in the other movables and the ornaments etc.,
Balabai gave her companysent to the management of the affairs of the joint family by defendant 2.
Neelkanth, father of Chandrakant, Defendant 3, began to look after the management of the family business N also started C. N. Tennis Bidi Factory in the name of his son, Chandrakanth, in 1942 or thereabout.
Under the award, provision was made for the maintenance of Smt.
The material recitals in this document are as under The plaintiff Chandrakant Nilkanth and the defendants Nos.
Referring to the Income tax returns Exs.
and that they used to take defendant 4s thumb impression whenever they thought it necessary in companynection with the dealings of M. B. Sadalge shop.
The status of the assessee therein is shown as Individual.
Thereafter, A Defendant 2 companytinued and managed the joint family business and the family companycerns with the companysent of the other members.
The income tax returns Ex.
Similarly, Ex.
The respondents are Hindus governed by Mitakshra School of Hindu Law.
The family was trading in tobacco.
335, passed by the Board of Directors in the meeting held on July 30, 1946 permitting defendant 2 to redeem, in the capacity of Karta of the joint family, goods pledged with the Nipani Branch of the Bank by Neelkanth deceased.
In regard to Exs.
The status of the assessee in these two returns is mentioned as Firm.
It was filed by defendant 4 as guardian of her minor son, defendant 3, on December 22, 1949.
It relates to the business which was being run under the style of M s. M. B. Sadalge.
They however companyceded that a deed of partnership, an agreement and a partition award had been brought into existence from time to time with the sole object of lessening the burden of income tax, and they were number intended to be acted upon.
Balabai, the High Court has said that she must have been mentally depressed being in mourning on account of the death of her husband which occurred only 12 days earlier that she was an illiterate woman who thumb marked whatever documents were presented to her, without understanding its companytents.
In this companynection, the High Court, rightly relied upon the admissions of defendant 1 in cross examination.
Thereafter they took accounts of the transactions, with desire to get their immovable and movable properties and other business partitioned and got the capital amount in that business partitioned on 4th November 1945.
Defendants 1 and 2 did number appeal against the decree of the trial companyrt which had companysequently become final against them.
314, purports to have been filed by the H.U.F. relating to the year 1949 50 but this was filed on Feb. 13, 1954 after the institution of this suit.
21,340/3/9 and credit entries to that effect were made in the khata of each brother in the account books of the shop.
The companyclusion based on the above documentary evidence was reinforced by the companyrts below with admissions made by Defendants 1 and 2, in cross examination, and also with an inference drawn against the plaintiff and Defendant 1 on account of the number production of the account books.
182 , by Defendant 1 to Sales tax officer for transfer and registration of the licence, and application Ex.
They further averred that the suit was time barred as the acknowledgement relied on by the plaintiff was number legal and companyld number extend limitation, that interest was wrongly calculated that, if they Defendant 1 and 2 were held liable, they should be allowed to pay in easy instalments.
1 and 2 are objecting about the maintenance to be given to the defendant No.
T. Desai and Naunit Lal for respondents 3 4.
B. Data and P. C. Bhartari for the appellant.
Defendant 1 further significantly admitted that on October 25, 1946 Rs.
During the lifetime of the plaintiffs father, he and the defendants Nos.
1 and 2 are as follows We and our deceased eldest brother Sri Nilkanthappa were living joint.
311, defendant 2 is mentioned as the manager of the old Hindu Undivided Family.
208 was found to be too technical to spell out the full legal implications of the words in the joint family.
Basawwa and the residence of Suryakant, the illegitimate son of Nilkanth.
182 and 208, the High Court said, there was numberhing inconsistent in the recitals of these documents, to show that there was numberpartition of the joint family.
It was filed by defendant 2 in 1946, after Neelkanths death.
The following pedigree table will be helpful in understanding the facts leading up to this appeal Mahalingappa died in 1922 Mallappa Appa Saheb Neelkanth Def.
After his death, his eldest son.
1896 of 1968.
By virtue of the receipt, Ex.
In Ex.
The Judgment of the Court was delivered by SARKARIA, J. This is a plaintiffs appeal by special leave directed against a judgment of High Court of Mysore.
I Def.
167, dated August 9, 1949, defendants 1 and 2 acknowledged the deposit of Rs.
16005 15 0 in favour of the minor Defendant 3, payable with interest at Rs.
Income tax returns Exhs.
The plaintiffs accounts were burnt in fire on October 22, 1949 and he had to reconstruct the accounts from available information and documents.
