RAJU PILLAI Vs. PALANISAMI PILLAI

JUDGEMENT

(1.) THIS appeal has been instituted by the plaintiff in O. S. No. 123 of 1956 on the file of the learned Subordinate Judge, Tiruchirapalli from the judgment of kailasam, J. , in App. 93 of 1958 and the memorandum of cross-objections before the learned Judge. The background is a suit for partition filed by the plaintiff-appellant in regard to an alleged joint family business, and the main relationships of the members are as follows: Plaintiff, the first defendant and the second defendant are brothers, and the sons of a certain person named Periasami Pillai. They formed members of a joint Hindu family, whose main business was trade commenced by the grandfather of the plaintiff. We might here add that the third defendant is the widow of Periasami Pillai, who died in August. 1953. Plaintiff was still recently a station master in railway service, and the first defendant is now a. Revenue Divisional Officer in State service. The second defendant is in the village supervising the affairs of the family.

(2.) BOTH in the trial Court and before the learned Judge, (Kailasam, J.), the crux of the controversy centered round commission mundy business which was established and conducted from door Nos. 61 and 62 in Mylamchandai belonging to the Begum Mosque and leased to the family. As we shall indicate later, there are subsidiary grounds of appeal by the plaintiff appellant, but they are within a very restricted compass. Since this is the main issue between the parties, certain of the facts on this aspect have to be set forth for a proper appreciation of the issue, and the manner in which it was dealt with by the learned Judge (Kailasam, j. ).

(3.) WE might take it as the common case between the parties that the premises comprising door Nos. 61 and 62 Mylamchandi were leased to this joint family. That lease-hold right was one possessed by the family as such, and the commission mundy business was initially a joint family business. It is equally indisputable that, after 9-7-1954, the second defendant purported to alter the vilasam of the business into his own name, and! claimed to conduct the business as his personal business, with regard to profits of which the other members of the joint family had no subsisting right. Both the trial Court and the learned Judge (Kailasam, J. ,) have held affirmatively in its favour as far as the joint family is concerned, with regard to certain equities and rights, even though the business might strictly be one conducted by the second defendant after 9-7-1954, after which date the other members of the family might have no title to participate in the profits. In that respect, however, the learned Judge and the trial Court were at variance. As the learned Judge himself points out, not merely were the leasehold premises utilised by the second defendant after 9-7-54, but it appears as if the second defendant collected outstanding, namely, monies due to the family, and utilised them for the capital of his business. The learned! Judge added "i am unable to place any reliance on the testimony of the second defendant that he used his own capital". Further, the second defendant utilised the goodwill of the business, and is accountable for the value of this intangible asset, which was of service to him in the conduct of his business. Old customers continued to patronise the shop, the nature of the business being receipt of provisions brought by the villagers to this shop, their storage, sale of such provisions on a profit basis by the proprietor of the shop, and the disbursement by the proprietor of monies realised by such sales to the villagers, who stocked their provisions here subject to commission being derived by the establishment. Even the old servants were employed as before, though we do not find that merely because the customers continued to patronise the shop or old subordinates were employed, the second defendant would be accountable for such employment of staff or for such sales. But in any view of the matter, and assuming that the second defendant conducted this business as his own after 9-7-1954, upto which date he admits that he is accountable for the profits, he would still be accountable (1) for the utilisation of the goodwill, (2) with regard to rents in respect of the premises on the basis of the original lease held by the family and (3) for the collection of certain outstanding which were utilised by him as capital. These matters are really not in controversy, and all that is necessary is to amend the decree in these respects. But the learned Judge (Kailasam, J.), held, differing from the conclusion of the court below, that the business ceased to be a joint family business after 9-7-1954, that it was the exclusive business of the second defendant conducted by him as such, and that, subject to accountability upon the equities that we have just specified, the second defendant is not liable to share the profits of the business with the erstwhile coparceners after 9-7-1954. Here certain broad aspects are not in dispute. Previously, a suit was filed by the plaintiff (O. S. No. 281 of 1953 on 2412-1953) and that automatically brought about a severance in status between the members of the joint family. Again, on 9-7-1954, itself the second defendant filed i. A. 257 of 1954, intimating that he was closing the joint family business, and that he was commencing his own business on and from 10-7-1954.