GUNNA J KRISHNAN Vs. G K RENGACHARI

JUDGEMENT

(1.) THE appeal arises out of a suit, O. S. No. 176 of 1954, Sub Court, tiruchirapalli, filed by the first respondent herein, for partition and separate possession of his one-ninth share, after taking an account of the properties, cash, business assets, bank deposits, jewellery, moveable etc. The plaintiff's suit has been substantially decreed as prayed for by him, and the plaintiff's father, the first defendant in the suit, the latter's wife, the 2nd defendant, and their son (the plaintiff's step brother), the third defendant, are the appellants in the present appeal. In order to appreciate the relationship between the parties, the following genealogical tree is set out. The case of the plaintiff, who is the son of the first defendant through his first wife is that after the death of the plaintiff's grandfather, Guna Jeer Bhagavathar in 1901 his four sons, i. e. , the plaintiff's father and the plaintiff's three uncles, were under the guardianship and protection of their mother, Ahilandammal, that they have been carrying on a business in javuli to start with in a small scale, that with the aid of such meagre nucleus as existed and by joint labour and exertion, the business expanded from time to time, that in 1919 the eldest brother, G. Radhakrishna got himself divided from his three brothers, and went out of the family, that at the time all the assets of the family consisting of the stock in trade, debts, outstanding, ancestral house were divided with the aid of certain well wishers and panchayatdars, that under the scheme of division the brother, radhakrishnan, was given his one fourth share and the other three brothers took (together and as one unit) the other three-fourth share, and that there after the other three brothers carried on the business in javuli under the name and style of gunnaji Krishnan and Bros, and the business expanded and flourished considerably from time to time and out of the income and assets of the said business all the suit properties were purchased and acquired. The plaintiff's father's case is that as and when the sons of the three brothers attained majority, they also attended to and participated in the business, that during the years 194648 when the plaintiff was employed in the railway office at Golden Rock the plaintiff attended to the business during his leisure hours and holidays, that after 1948 the plaintiff completely attended to the afore-said business, Gunnaji krishnan and Bros. The plaintiff has filed the suit for partition on the ground that from 1951 disputes have arisen between the members of his family, particularly between the three brothers, that the dispute took a serious turn about Deepavali time in 1954 on account of the wrongful conduct and unhelpful attitude of the first defendant. There were charge and counter-charges between the first defendant and his brothers and the plaintiff, each charging the other with secretion of assets consisting of the stock in trade, and outstandings and cash deposit in the banks. The complaint of the plaintiff is that in 1951, the plaintiff was driven out of the house by the first defendant and he was living separately with his father-in-law and all attempts on the part of the plaintiff to obtain his legitimate one-ninth share in all the family properties proved futile, as the first defendant took sides with the second wife and her son and denied the right of the plaintiff to a share putting forward that the properties in question are not joint family properties but the self-acquired properties of himself and his two brothers. the immovable properties have been set out in the A schedule while the stock in trade of the business, the outstandings and bank deposits have been set out in the B schedule; the C schedule consisting of the moveables and the jewels. The plaintiff also claimed that the moneys deposited in the names of the female members of the family and in particular in the name of the second defendant, his step-mother, are also joint family properties, having been so done out of the business of Gunnaji Krishnan and Bros.

(2.) THE seventh defendant, one of the brothers, died during the pendency of the audit, leaving behind him his three sons, defendants 8, 9 and 10 and his wife, the 11th defendant. The other two branches namely, of the two brothers (the 4th and 7th defendants) supported the case of the plaintiff substantially, and it is unnecessary to refer to certain matters on which there was some contest between themselves and the first defendant with regard to the separate business which they claimed to have been carrying on and with regard to certain deposits in the banks.

(3.) THE first defendant (with whom his second son, the third defendant joined)contested the suit on the ground that his father left no assets whatsoever, that he and his brothers carried on their own separate business as hawkers in javuli, that from the time of the death of the father till 1919, the four brothers, were carrying on, though jointly, a separate business of their own, that in 1919 there was a division by metes and bounds between all the four brothers, and that the subsequent business which was carried on under the name and style of Gunnaji krishnan and Bros by himself and other two brothers was their own separate business, in which the plaintiff was not entitled to any right or share, and that all the properties involved in the suit were acquired out of the business assets and the income of the business, Gunnaji Krishnan and Bros, that on 14-2-1943, there was a partition and dissolution of the business between himself and defendants 4 and 7, and that the plaintiff is not entitled to make any claim in respect of any of the assets as jointly family properties. The first defendant levelled certain charges against the other brothers, which it is not necessary to refer to at this stage. The second defendant the step-mother of the plaintiff claimed that the deposits and properties standing in her name are her stridhana properties and the plaintiff cannot claim any share therein.