V. SRINIVASAN AND ORS. Vs. SUNDARAMURTHI AND ANR.

JUDGEMENT

(1.) DEFENDANTS 1 to 3 are the appellants. The plaintiff, the younger brother of the first defendant, filed the suit in forma pauperis for partition of his half share in schedules A,B,G mentioned in the plaint and for rendition of accounts of joint family business of Soda and Cigar factories. The learned Subordinate Judge passed a preliminary decree for partition of items 1 and 3 of A schedule properties into two equal shares and to allow one such share to the plaintiff and for a division of items 6 to 8 and 16 to 18 of the moveable C schedule properties. Under the preliminary decree, the plaintiff was made liable to pay a moiety of the debt due under Exhibit B -8. The suit was dismissed in other respects. The plaintiff filed a memo, of cross -objections.

(2.) DEFENDANTS 2 and 3 are the minor sons of the first defendant, the brother of the plaintiff, and the fourth defendant is the wife of the first defendant. The case of the plaintiff is that he and his brother, the first defendant were members of a joint family. Their father Vaithilinga Padayachi, who died, during his life time, purchased item 2 of the A schedule properties bearing door No. 12, Angalamman Koil Street, in 1924. Vaithilinga started a cigar company in or about 1932 with the trade mark Kuttiman and Paladi in the name of the plaintiff as Sundaram and Company. The trade went on till 1948. Vaithilinga also started a soda factory in or about 1940 and was carrying on the business till his death. Items 1 and 3 were purchased during the life time of Vaithilinga from the funds of the family business and items 4 and 5 were purchased subsequent to the death of Vaithilinga from the funds of the soda factory, the family trade carried on by the first defendant. When Vaithilinga had an attack of paralysis in or about 1946 at which time the plaintiff also left for Villupuram to join the Railway Department, the first defendant was managing the affairs and conducting the family business. The soda factory run by the first defendant in the name of Vasan and Company subsequent to the death of Vaithilinga is the continuation of the old business started by Vaithilinga and Kanaka Vilas Soda Factory run in the name of the first defendant's wife, namely, the fourth defendant, was also a family concern. The same business of Vaithilinga was stopped in 1949, but was revived in 1957 by the first defendant and as such that was a family concern. Therefore, the first defendant is liable to render accounts to the plaintiff for the profits. The plaintiff gave a notice to the first defendant demanding partition, on 10th November, 1957, and though this notice was acknowledged by the first defendant, he did not send any reply and therefore the plaintiff again sent a notice on 24th September, 1962 to which the first defendant sent a reply that there were no joint family properties for division and hence, the plaintiff filed the suit.

(3.) AS regards item 3, it is contended by the first defendant that he purchased it in 1946 by borrowing from third parties and from his own funds, and that it did not being to the joint family. As regards item 4 it is the case of defendants 1 to 4 that it was purchased by the fourth defendant in 1962 out of her own earnings and that it belonged to her absolutely. As regards item 5, though it was purchased by the first defendant, in 1951, subsequently in consequence of a litigation in respect of this property which resulted in a compromise, under which the first defendant received Rs. 10,000 he gave up his rights in the suit property.