PANDURANG N VANARASE Vs. JANARDHAN NARAYAN VANARASE

JUDGEMENT

(1.) THIS is a defendants appeal against the judgment and decree dated 2nd November, 1977 in Special Civil Suit No. 52 of 1972 on the file of Civil Judge, Senior Division at Satara. I have heard the learned Counsel appearing for both the parties.

(2.) THE appellant was the third defendant in the Court below. The first respondent to this appeal was the original plaintiff. For the purpose of convenience I refer to the parties as per their rank and title in the Court below. The plaintiff Janardhan filed a suit against the appellant and other defendants, respondents to this appeal, for a partition and separate possession of his 1/6th share in the joint family properties. His case is that he and defendants 1 to 4 and 9 are brothers. The suit properties are joint family properties. The father of the parties died in 1934 and the mother in 1947. Each brother is entitled to 1/6th share in the suit properties. The father was running a cloth shop. Subsequently, after the fathers death the said shop was converted as a partnership business by the six brothers sometime in 1942. Sometime in the month of September, 1948 the brothers decided to become separate in order to do independent business and the old joint family partnership firm was closed and each brother got his 1/6th share in the assets of the shop. The employees of the joint family were also divided amongst the brothers. Then the cloth business was started in partnership by the plaintiff and defendants 1 to 3. Defendants 4 and 9 were in Government service. It was also agreed between the brothers that their shares in the immovable properties to be got recorded in the revenue extracts. An agreement to this effect was prepared and signed by all the brothers on 30th of September, 1948. Then an application was given by all the brothers to the concerned officer for recording the shares of each brother. Then it was also agreed that each brother should be given independent and separate possession of different properties for the purpose of management, subject to keeping accounts. The details of the properties which were to be in charge of each brother are disclosed in the plaint. After this family arrangement each brother was in respective possession and management of the property to be in his charge. In the new partnership firm started by plaintiff and defendants 1 to 3 in 1978, subsequently defendants 1 and 3 retired from the partnership after taking the amount due to them. The defendant No. 1 was having his own separate and independent business. Then plaintiff and second defendant continued the cloth shop business as surviving partners in their own right and the joint family has nothing to do with this business. Then there is some reference to some Court proceedings which are not necessary to be stated at this stage. The third defendant, the present appellant, was given possession of the agricultural lands of the family and he is continuing in possession of the same. In 1970 an attempt was made by the brothers to sell all joint family properties, but there was no proper offer by any purchaser and hence the idea was dropped. Then the plaintiff got issued an advocates notice demanding partition. Then subsequently he filed the present suit praying for a partition and possession of his 1/6th share in the suit properties and for accounts from all the brothers regarding the joint family properties which are in their respective possession.

(3.) THE appellant, who was the third defendant in the Court below, was the contesting defendant. His defence is that the family has continued to be joint notwithstanding the writings made in 1949. It is asserted that the business which was continued even after 1949 is a joint family concern and all the brothers are entitled to a share in the same. It is alleged that there was no division of movables as alleged in the plaint. Some documents came into existence in order to avoid income-tax and other taxes at the instance of the first defendant, who was the eldest brother and the manager of the joint family. That the writings made in September, 1948 are not acted upon, and they are only make-believe documents which came into existence at the instance of first defendant to save or avoid taxes. There was no partition in the family either regarding movables or immovables. The interpretation of the family arrangement alleged in the plaint is incorrect. It is asserted that number of properties have been acquired by the plaintiff and other members of the family subsequent to 1949 out of the income from the joint family properties and joint family business. Therefore, all those properties should be treated as joint family properties and this defendant is entitled to get his 1/6th share in the same. It is stated that even though defendants 1 and 3 formally retired from the partnership the business that was continued was still a joint family business. That even the business which is being done by the first defendant separately is also a joint family business. Then there is reference to the Court proceedings which is not necessary to be stated at this stage. Then it is also pleaded that this defendant has raised some loans for the improvement of the agricultural lands and other brothers are liable to give their share towards this loan amount. That the plaintiff is not entitled to ask for accounts. He is not entitled to relief of partition. Hence it is prayed that the suit be dismissed with costs.