GULAM RASOOL Vs. JAWAHAR BEEGUM

JUDGEMENT

(1.) This second appeal by the second defendant arose out of a suit for partition of the assets of one Gulam Mohammed Sahib. Plaintiff and defendants 4 to 6 are his daughters and defendants 2 and 3 are his sons. First defendants is the widow. In the plaint, there are three schedules. A schedule is the land and B schedule is a copra yard attached to it. C schedule is an oil mill which is now finally held to be not a partible item. It is now concluded that A and B schedules are partible items. There was a controversy whether another business is a partible item that belonged to the father or a separate asset of the appellant. Now that is also finally held to be a partible item. Daughters are entitled to 7/64 each and sons 14/64. Balance belongs to the first defendant. Those are also not disputed and concluded by the preliminary decree and subsequent orders.

(2.) The suit was originally filed before the Sub Court. At that time, appellant was appointed as Receiver for the suit properties. The suit was then returned and represented before the Munsiff's Court. Before the preliminary decree, the appellant purchased the shares of the plaintiff and defendants 1,3 and 4. Fifth defendant was thereafter transposed as additional second plaintiff. Preliminary decree took note of the purchases not opposed by the other contestants and held as if the additional second plaintiff and sixth defendant are entitled to 7/64 each and the entire balance goes to the appellant. By the impugned order passed by the Trial Court, as directed by this Court in C.R.P. No. 1888 of 1979, it was held that purchases of the shares of the plaintiff and defendants 1, 3 and 4 by the appellant were with funds that came to his hands as Receiver by way of income from the common business and hence those shares will enure to the benefit of additional second plaintiff and sixth defendant as well. This finding confirmed by the appellate court is under challenge in this second appeal. It is not disputed that the purchases of shares made by the appellant were with funds that came to him as Receiver.

(3.) The only dispute to be solved is whether the purchases will enure to the benefit of the appellant alone and he is only liable to account for the income and profits or whether he is also liable to share the proceeds of the purchases with the second plaintiff and sixth defendant. In solving that controversy, the two further questions that crop up are whether the appellant could be treated as a trustee of the other coowners and even if so construed, is it possible for the Court in the final decree proceedings to go behind what is decided by the preliminary decree.