Learned companynsel for the appellants has companytested the view of the High Court upon all the points decided, ,against them.
The plaintiff was running the liquor shops, defendants Nos.
4 was running the grocery shop.
554 of 1951, from Original Decree arising out of the Judgment and Decree, dated the 30th day of June, 1951, of the Court of the Joint Civil Judge, Senior Division of Thana, in Special Suit No.
A Commissioner was appointed to take the accounts to ascertain the profits earned by the use of the capital belonging to the shares of brothers other than those who carried on the motor business.
Appeal from the Judgment and Decree, dated the 25th day of March, 1952, of the High Court of Judicature at Bombay Bavdekar and Dixit JJ.
His case was that the companypromise was made in a hurry, that the parties omitted to provide in the companypromise about the future companyduct of the motor business from April 1, 1946, that the motor business was still a joint family business and that he had a right to ask for accounts of that business subsequent to March 31, 1946.
In defence it was pleaded that the companypromise was made after due deliberation, that accounts of the motor business and grocery shop should actually have been taken up to April 14, 1945, the date of disruption of the joint family status, but the parties agreed by way of companypromise that account of all family businesses should be taken up to March 31, 1946.
I and 2 had made use of the joint family property and that they stood in, the position of companyowners and as companytemplated in section 90 of the Indian Trusts Act were liable to render accounts for the profits which were attributable to the employment of the assets owned by the parties jointly.
Accordingly he passed a preliminary decree directing the accounts of the motor business to be taken from March 31, 1946, up to the date on which a final decree for payment of the amount found to be due would be made.
All the movable property of the joint family including the stock in trade of all the family businesses was to be divided equally among all the brothers.
The parties tried to have partition effected between them through arbitrators but the attempt failed.
One of the brothers was a minor and the Court finding the companypromise to be for the benefit of the minor accepted it and passed a pre liminary decree in terms of the companypromise on July 25, 1947.
Upon the issues framed in the case the Civil Judge found that the suit was number.
In appeal Bavdekar J. with whom Dixit J. agreed modified the decree of the trial Court by directing that the accounts were to be taken up to the date when the businesses discontinued and number up to the date of the final decree.
From April 14, 1945, the situation changed and the parties began to appropriate the proceeds of the various businesses carried on by them separately to themselves.
It was companypromised on March 7, 1946.
I and 2 who are the appellants, were carrying on the motor bus service business while defendant No.
The plaintiff, however, companymenced a fresh suit on February 23, 1949, companyfining his relief to his share of the profits and assets Of the motor business carried on by defendants Nos.
It is companymon ground that up to 1944 the brothers were living and messing together and the income from the family business used to be kept with the plaintiff.
Each of the brothers was to get one sixth share in the cash balance as found on March 31, 1946, upon examination of accounts by the arbitrators.
The companypromise further declared that the plaintiff was to have one sixth share in the motor garage and that defendants 1 and 2 were to pay the price of one sixth share to him.
1 and 2 after March 31,1946.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
By this companypromise it was declared that prior to 1942 all the accounts of the various businesses had been companyrectly maintained and shown, that the parties had agreed to have arbitrators appointed through Court for examining the accounts from 1942 up to March 31, 1946, and for determining the amount due up to that date.
S. Krishnaswamy lyengar, J. B. Dadachanji, V.B. Rege and Ganpat Rai, with him for the appellants.
Balkrishna Sitaram Sontakke is the eldest of the brothers and is the plaintiff respondent in the present appeal.
It was also pleaded that the claim was barred by res judicata.
113 of 1953.
B. Jathar, R. B. Kotwal and Naunit Lal for respondent No.
The appeal arises out of a partition between 6 brothers of a joint Hindu family.
12 of 1949.
He will be referred to hereafter as the plain tiff.
Despite these findings the Civil Judge held that although the motor business carried on after the partition had ceased to be a joint family business yet as it was carried on by some members of a family their position was analogous to that of a partner carrying on partnership after dissolution and applying the principle underlying section 37 of the Partnership Act he held that the two brothers carrying on the motor business were liable to account.
The joint family carried on joint family business of a grocery shop, liquor shops, a ration shop, a motor bus service and also moneylending under the name of Sontakke Brothers.
On June 29, 1945, all the five brothers filed a suit for partition against the plaintiff of all joint family properties including the accounts of all the businesses.
dated March 25, 1952, modifying the judgment and decree of the Civil Judge, Senior Division of Thana, dated June 30, 1951.
These are the material provisions of the companypromise.
The suit was numbered 39 of 1945.
The Judgment of the Court was delivered by GHULAM HASAN J. This appeal is brought by leave of the High Court of Bombay against the judgment and decree of a Division Bench of that Court Bavdekar and Dixit JJ.
in Appeal No.
April 12.
The family also Possessed immovable and movable property.
