MODI NATHUBHAI MOTILAL Vs. CHHOTUBHAI MANIBHAI DESAI

JUDGEMENT

(1.) This is a first appeal by the original defendants Nos. 1 to against the judgment and decree of the Civil Judge Senior Division Broach in Special Jurisdiction Suit No. 11 of 1955. The respondent Chhotubhai who was the original plaintiff had filed the suit to recover Rs. 52 720 with costs and running interest at 6 per cent from defendant No. 1 personally and from the joint Hindu family properties and other properties of defendants Nos. 2 to 5. The defendants Nos. 2 to 4 are the sons of defendant No. 1 and defendant No. 5 is the wife of defendant No. 1 It was alleged in the plaint that defendant No. 1 as manager of the joint Hindu family of the defendants had appointed the plaintiff as Paka Adatia for the purpose of making purchases of timber for defendant No. 1 and sending the same to him. It was also alleged that in respect of these transactions there was a settlement of accounts between the plaintiff and defendant No. 1 on 16-3-1952 when it was agreed that the balance due to the plaintiff was Rs. 54 891 It was also alleged that there was a settlement of accounts also on 25-12-1952 when it was agreed that an amount of Rs. 53 891 was due to the plaintiff. According to the plaint subsequently a payment of Rs. 8750/was made by defendant No. 1 to the plaintiff leaving a balance of Rs. 45 131 The suit was filed to recover this amount together with interest amounting to Rs. 75793.00. He therefore prayed for a decree for this amount against all the five defendants.

(2.) The main contention of the defendants was that the suit was not maintainable because it did not relate to all the transactions between the plaintiff and defendant No. 1. It was also denied that the business in timber carried on by defendant No. 1 was a joint family business. It was also denied that the business was carried on by defendant No. 1 as manager of the joint family. According to the defendants the business was carried on by defendant No. 1 as his own independent business and defendants Nos. 2 to 5 were in no way liable in respect of amount claimed in the plaint. It was also alleged in the plaint that there was a partition between the defendants on 8-4-53 and that the partition was not genuine. This was disputed by the defendants.

(3.) The learned Civil Judge held that the suit was maintainable that the suit was within limitation that the business to which the suit related was an ancestral or joint family business of the defendants that it was carried on by defendant No. 1 as manager of the joint Hindu family of the defendants and that the alleged settlements of accounts between the plaintiff and defendant No. 1 dated 16th August 1952 and 25th December 1952 were proved. He also held that the writing dated 16th August 1952 was admissible in evidence although it was not stamped. He also held that the defendants Nos. 2 to 5 ware liable for the amount due to the plaintiff which was held to be Rs. 52 710 He also held that the partition alleged to have been effected between the defendants on 8-4-1953 was not bona fide and that notwithstanding the Partition all the joint family properties of the defendants including the shares shown in the partition deed to have been allotted to defendants Nos. 2 to 5 are liable in respect of the plaintiffs claim. He also held that the plaintiff was not liable to show in the present suit the accounts relating to the part of the dealings between the parties not included in the plaint. On these findings the learned Judge decreed the plaintiffs suit.