APPASAHEB PEERAPPA CHANDGADE Vs. DEVENDRA PEERAPPA CHANDGADE

JUDGEMENT

(1.) THIS appeal is directed against the order passed by learned Single Judge of the High Court of Karnataka at Bangalore whereby learned Single Judge has set aside the order and decree passed by the Additional Civil Judge, Chikodi in O.S. 160 of 1988 whereby learned trial court decreed the suit relating to family property i.e. Schedule - B, II, item No. 2 T.M. C. No. (Old 1846A, New 2178 (House)), III, Item -1 M.H. No. 202/235 Hindwadi Belgaum, item 2 M.H. No. 687/1 (Raviwar Peth), Item - 4 C.T.S. No. 1551 (open space) (Hindwadi). The plaintiff also filed a cross-objection with reference to three business mentioned in IV (schedule-B) namely Mahaveer Trading Company, Indu Oil Mill Company and Srikant Oil Company. The decree in respect of these companies has been granted and these companies have been held to be partnership concerns. So far as item - 1 in VI schedule, namely goods truck bearing No. MEI 7567, separate regular first appeal being RFA No. 428 of 1993 was filed and the same has been disposed of with which we are not concerned.

(2.) THE real dispute between the parties is whether the properties for which a decree was passed by the trial court was joint Hindu family property or those were self-acquired property of the defendants and their children.

(3.) IN order to appreciate the controversy between the parties, it may be appropriate to reproduce the genealogy. The genealogy of the whole family is as under : <IMG>JUDGEMENT_5562_AIR(SCW)_2006Image1.jpg</IMG> The propositus of the said family was one Peerappa. He died in the year 1975 and his wife Kashibai predeceased him in the year 1965. The plaintiff and defendant Nos. 1,4,9 and 10 are sons and defendantNos. 5,7 and 11 are the daughters of Peerappa. Defendant No. 2 is the daughter and defendant Nos. 6 and 7 are the sons of defendant No. 5. Defendant Nos. 1 and 2 are the husband and wife and Defendant No. 3 is their son. Another son of Peerappa by name Balappa has gone in adoption outside the joint family. The plaintiff and defendant Nos. 1,4,9 and 10 formed co-parcenary along with their deceased father. The co-parcenary family as well as the family properties given in schedule B are said to be still undivided. The landed properties of the suit family is described in Item Nos. 1 to 4 of Schedule B (I). The house and open space described at SI. No. 1 of (II) of the B schedule are the ancestral properties of the joint family. The property at SI. No. 2 of Schedule B(II) was purchased in the name of defendant No. 5- Gangubai out of the joint family funds on or about 1964-65 which was an open space and subsequently it was got transferred in the name of defendant No. 2 after constructing RCC building thereon out of the joint family funds. IN this building the plaintiff is running joint family shop in the name and style of "Dhana Laxmi Stores" in the southern portion and an the northern portion has been leased out to Syndicate Bank at Sadalaga. The property at SI. No. 3 of Schedule B (II) was purchased in the name of Defendant No. 7 in the year 1984-85. Similarly, the suit properties at SI. Nos. 4 to 7 of Schedule B (II) were purchased in the name of defendant No. 9 for the benefit of the said undivided family. The properties mentioned in SI. No. (III) of Schedule B were purchased and acquired at Belgaum out of the joint family funds for joint family business described in SI. No. (IV) of the B schedule. Item No. (i) in Schedule B (III) was purchased in the name of defendant No. 1 and RCC double storeyed building was constructed for the purpose of joint family out of the joint family funds. Item No. 2 of Schedule B(III) was acquired in the name of defendant No. 3 out of the joint family funds. Item No. 4 of Schedule B (III), was putchased in the name of defendant No. 2 for the joint family. Out of the joint family funds Item No. 3 of Schedule B (III) was purchased in the name of defendant No. 6 along with some other properties. The joint family during the lifetime of Peerappa started Kirana business shop at Sadalaga in the year 1946 out of the joint family funds from various properties. The said business prospered and gave good profit within a short period. Defendant No. 1 during that period acquired experience in business and trade the family thought it better to expand the family business and seek fortune in addition to agriculture and kirana business in larger business centres. IN the year 1960 a business shop was started for dealing in bhusari, oil and sugar by investing huge amount out of the joint family in the name of 'D.P. Chandgade' in Chikodi town, the taluka place. That was kept upto 1967 and Chikodi was felt a small place and as such all the brothers and their father intended to shift the business to the vast business centre. So the entire business was shifted to Belgaum in 1967 and established the business in Raviwar peth, Belgaum. The Kirana shop at Sadalaga was looked after by the plaintiff along with defendant No. 9 and defendant No. 6 upto 1967-68. The plaintiff then went to Belgaum along with defendant No. 1 in the year 1967. The business at Belgaum also prospered. The kirana shop at Sadalaga was being looked after by defendant Nos. 6 and 9 up to 1974. As the business at Belgaum prospered being expanded, in the year 1976 a partnership business was floated in the name of "INdu Oil Company" and thereafter, another partnership business in the name and style of "Mahaveer Trading Company" was started by the plaintiff and defendant No. 1. IN the year 1967-68 another tobacco company in the name and style of "Anand Tobacco Company" was managed by defendant No. 9 along with kirana shop with defendant No. ,7. The business further expanded and then the son of defendant No. 1 namely defendant No. 3,.became an adult and therefore, he entered into business and then the business further expanded: As the family business expanded, defendant Nos. 1 and 2 wanted to corner the entire business including the interests of other defendants. Therefore, the plaintiff thought that it would not be proper to continue in a joint family business and demanded partition and separate possession and share in the family business and also demanded rendition of accounts of the family business. The defendant No. 1 in collusion with defendant Nos. 2 to 11 avoided to have partition on some pretext or the other. Therefore, ultimately, no option was left to the plaintiff except to file a suit for partition and separate possession and taking accounts of the family business. Since the plaintiff's father Peerappa died after the Hindu Succession Act, 1956 came into force, therefore, the male and female both heks of the deceased Peerappa were entitled to their share and accordingly, the plaintifficlaimed that he has 9/48th share. The defendant No. 1 being a shrewd businessman land expert in trade, though he was not the eldest member of the family, with the consent of all other members of the family managed the family as the manager of the joint family after the death of the father. Hence the present suit was filed along with the following prayers :