THIRUVENKATA KOUNDAR Vs. RAMACHANDRAN

JUDGEMENT

(1.) The plaintiff in O.S.No.268 of 1976, Sub Court, Cuddalore, is the appellant in this appeal. The appellant instituted that suit praying for the reliefs of declaration of his exclusive title to sight items of immovable properties and for the recovery of a sum of Rs.96,172 with subsequent interest or alternatively for taking accounts of a dissolved partnership of the name of M/s.T.K.Rathnaswamy Koundar. The appellant and the deceased Rathnaswamy Koundar were brothers. Respondents 1 and 2 in this appeal are the sons of the deceased Rathnaswamy Koundar, while, respondents 3 and 4 are his daughters. The fifth respondent is the widow of the deceased Rathnaswamy Koundar. According to the case of the appellant, neither the deceased Rathna-swamy Koundar nor he had any ancestral properties and that items 1 to 8 were purchased by the appellant out of his own earnings, Claiming that the deceased Rathnaswamy Koundar did not contribute any funds for the acquisition of these items of immovable properties and stating that the patta for lands as well as the registry on the Municipality for the houses stood in his name and further that he bad also prescribed titles by adverse possession, the appellant sought a declaration of his title with reference to these items of immovable properties on the ground that after the death of his brother Rathnaswamy Koundar, the respondents adopted an attitude of hostility towards the appellant and prevented him from enjoying, the properties. The further case of the appellant was that on 7.4.1972, the deceased Rathnaswamy Koundar and he entered into a partnership for the purpose of carrying on cashew trade, the appellant having contributed towards his share capital in the partnership a sum of Rs.50,000 given by the deceased Rathnaswamy Koundar as gift to the appellant in consideration of the services rendered by him. The appellant claimed that according to the terms of the deed of partnership, he is entitled to a one-third share in the profit, while the deceased Rathnaswamy Koundar was entitled to a two-third share and the accounts were looked into and a sum of Rs.96,172 was due to him. On the death of Rathnaswamy Koundar, the partnership became dissolved, but the respondents, who had succeeded to his estate inclusive of the partnership assets, denied the claim made by the appellant in relation to the partnership and this necessitated the recovery of a sum of Rs.96,172 as borne out by the accounts of the partnership, according to the appellant. By way of abundant caution, the appellant also prayed for a preliminary decree for accounting.

(2.) In the written statement filed by the first respondent, which was adopted by the rest, he put forth the plea that the appellant never contributed anything for the acquisition of items 1 to 8 of the suit properties, but that his father the deceased Rathnaswamy Koundar made all the purchases and was also in possession and enjoyment of the properties so purchased by paying land revenue as well as the property tax etc. The claim of the appellant that he purchased items 1 to 8 of the suit properties was thus disputed by the respondents. The acquisition of title by prescription put forth by the appellant was also questioned by the respondents. With regard to the partnership business, it was the case of the respondents that in or about 1972, with a view to reduce the income-tax payable, the deceased Rathnaswamy Koundar made a fictitious entry in the accounts for the gift of Rs.50,000 to the appellant, but that the appellant never contributed any amount at all and there was no intention on the part of the deceased Rathnaswamy Koundar to gift any amount to the appellant. The claim of the appellant that he is entitled to recover a sum of Rs.96,172 or a preliminary decree for accounts was stoutly disputed by the respondents on the ground that he did not contribute anything at all and that the claim was misconceived as well as unjust. An objection was also raised by the respondents that the suit is bad for mis-joinder of causes of action.

(3.) In an additional written statement, the respondents contended that the appellant and respondents continued to live as members of a joint family having common mess even after the death of Rathnaswamy Koundar and that the appellant must be debited with one.-half of the expenses incurred for the maintenance of the family for the years ending 31.3.1973. 31.3.1974, 31.3.1975 and 31.3.1976.