TARA CHAND Vs. HOLKAR MAL

JUDGEMENT

(1.) respondent no. 1 in the two appeals before us, filed a suit against Bhani Ram Gupta (appellant in R.F.A. No. 42 of 1966). Tara Chand (appellant in R.F A. No. 7 of 1966) and Kirpa Ram for rendition of accounts pertaining to a portion of property known as Medgunj' on Bahadurgarh Road, Sadar Bazar, Delhi. Tara Chand is the natural son of Holkar Mal but had been adopted by Harbilas, a brother of Holkar Mal. By a sale-deed dated December 15, 1955 registered on December 16, 1955, executed by one Haji Abdul Gani (Exhibit D. 1), two-thirds of the property known as Medgunj was shown as sold to Holkar Mal Tara Chand and one-third to Bhani Ram Gupta, Kirpa Ram and others. The consideration for the sale was Rs 2,50,000.00 out of which Rs. 2,35,000.00 was paid by Bhani Ram Gupta on behalf of the purchasers in the presence of the Sub- Regstrar on December 16, 1955 at the time of the registration of the sale-deed. A partition was effected by a registered-deed of partition dated September 8, 1956 between Holkar Mal and Tara Chand on the one hand and Bli-ini Ram Gupta and others on the other of their respective two-thirds and one-third shares. Holkar Mal says in his plain that on July 20, 1957 he and Tara Chand executed a power of attorney in favour of Bhani Ram Gupta and his brother, Kirpa Ram, to manage their property. This power of attorney is stated to have been cancelled some time in 1961. Some portions of the property were sold by the respective or tensible owners to other parties. Holkar Mal had failed a suit against Tara Chand and others challenging the partition above referred to but this suit was dismissed on May 30, 1964 on the ground that it was not maintainable in the form in which it was filed, being a mere suit for declaration. A first appeal filed against the said judgment and decree by Holkar Mal was dismissed by this Court on July 27, 1975. Holkar Mal then filed the suit out of which the present appeals arise contending that he was the sole owner of two-thirds portion of the property known as Medgunj, Tara Chand being merely a benamidar. As such Bhani Ram and Kirpa Ram were liable to render accounts to him of realisations made by them of the rents of the property being managed by them by virtue of the power of attorney dated July 20, 1957 and any account rendered by them to Tara Chand was of no avail. In this suit Holkar Mal contended that he with his money bought two-thirds share of the property known as Medgunj while Bhani Ram and Kirpa Ram along with their brothers bought one-third of the property. Tara Chand was mentioned as one of the co-purchasers along with Holkar Mal merely as a benamidar because he was the real son of Holkar Mal. Bhani Ram and Kirpa Ram were appointed as attorneys by Holkar Mal for realisation of rents and performing other various acts of management and were liable to render account to him, Bhani Ram and Kirpa Ram had been realising rent of the property of Holkar Mal but in collusion with Tara Chand were contending that they have rendered account to him which they were not authorised to do. Therefore, they should be directed to render account to him and after the accounts have been rendered a decree for amounts realised by them on behalf of Holkar Mal be passed in favour of the latter.

(2.) Bhani Ram and Kirpa Ram filed a joint written statement while Tara Chand filed a separate one. According to Bhani Ram and Kirpa Ram they along were not appointed attorneys on July 20, 1957 but two 'other persons, Phool Chand and Bindraban, were also appointed attorneys and so, on account of non-joinder of necessary parties the suit was liable to be dismissed. They further pleaded that they had rendered full accounts to Tara Chand, the co- owner with Holkar Mal, who is the real son of Holkar Mal and, therefore, the suit was not maintainable. According to these defendants Holkar Mal and Tara Chand were co-owners of two-thirds share. They pleaded that they had remitted all amounts recovered by them to Holkar Mal and Tara Chand. It was also contended that Tara Chand who was in Delhi when asked by these two defendants why Holkar Mal had served a notice on them to render account disclaimed all knowledge about such notice and again went through the accounts with them. On scrutiny of the accounts it was found that Rs. 4100/was due to Bhani Ram and Kirpa Ram. As this amount was claimed from Holkar Mal, he, by way of counter-blast, has filed the present suit. The contention that Tara Chand was a benamidar of Holkar Mal was denied.

(3.) Tara Chand, defendant No. 3 in the suit, by his separate written statement supported the written statement jointly filed by defendants 2 and 3, namely, Bhani Ram Gupta and Kirpa Ram. He asserted that he was not a benamidar of Holkar Mal and that to Holkar Mal's knowledge two-thirds of the property had been purchased by him and Tara Chand as equal owners with the money of Holkar Mal and Tara Chand. Instances of sales by Holkar Mal and Tara Chand after partition between the owners of two-thirds and one-third shares of property as well as instances of mortgage were mentioned in the written statement. It was further pleaded that in several suits filed by Holkar Mal this aspect had been admitted by him.