J SNANMUKHESWARA RAO Vs. T VENKATAPPAIAHAND SONS

JUDGEMENT

(1.) All these three appeals are against the common judgment in O.S. Nbs. 37/74, 37/63 and 1/1971. The plaintiffs are appellants in all the appeals.

(2.) O.S. 37/74: The essential averments in the plaint may be stated One late Tunuguntla Venkatappayya had four sons Nagaratnam Venkatakrishnayya Subbarao and venkatarao (4th defendant). They have been carrying on the business under the name and style of Tunuguntla Venkatappaiah and sons. After the death of Venkatappaiah also the trade was continued and carried on by the members of the joint family under the same name. On 3-12-1941 the partition was effected between the main four branches ot the joint family in respect of certain assets and some immoveable properties were allowed to be continued to be joint and the lease income is shared by four branches. The partition effected on 3-12-1941 was reduced to writing by a document dated 2-9-1953. In 1943 the 4th defendant ie., the father of the plaintiffs and Venkata Krishnaiah started another firm under the name and style of M/s. T. Venkatarao and company and Venkatarao was the partner in the said firm along with the other partners. At about the same time the 4th defendant ie., the father of the plaintiffs and his brother Venkata Krishnaiah and one Vanama Venkataratnam a stranger to the family and another person Gollapudi Subbarao started a firm under the name and style of T. Venkata Krishnaiah and company, the 3rd defendant herein, with effect from 1-1-1955; the 8th and 10th defendants were taken as partners in both the firms, 2nd and 3rd defendants. It is stated that the plaintiffs, 4th defendant and 10th defendant effected a division of the assets of the family in the firms defendants 2 and 3 and entered into a memorandum of partition in February, 1955. The joint family members become divided in status though some properties were kept joint. By the Said partition the defendants 4 and 10 intended to continue as partners in the business and they are continuing as partners in the said firm with varying shares pursuant to the division and the representation of the erstwhile joint family of the firm came to an end. The amount standing to the credit of the 4th defendant as manager of the ersiwhile joint family consisting of himself and his sons has been divided between all the members and as a consequence of the same relevant debit and Credit entries have been made in the accounts of the firm of defendants 1,2 and 3 in the name of the four members. Defendants 1 to 3 and partners there of ie., defendants 4 to 14 have been carrying on trade intended to utilise the monies thus became payable to the plaintiffs and standing to their credit in their accounts for the purpose of the trade on the understanding to pay interest thereon at 12% p.a. By reason of the partition the plaintiffs are entitled to 1/8th share in the assets of the 1st defendant firm, The plaintiffs came to know that the 8th defendant filed a suit for dissolution of the concerns and the settlement of accounts and in the suit being O.S. 77/55 on the file of Sub-Court, Guntur the plaintiffs were not impleaded as parties. The plaintiffs got impleaded themselves in the suit. As the rights of the plaintiffs cannot be fully adjudicated in the said suit, the plaintiffs are obliged to file the suit for working out their rights and for appropriate reliefs. As the sale proceeds of the assets were realised by the receiver in 0. S. 77/65 and the amount is lying in the court the plaintiffs are entitled to 1/8th share in the entire amount repesenting the sale proceeds to the credit of that suit. On the basis of the said averments the plaintiffs sought for relief of partition of the A schedule property into 16 shares and for separate possession of such two shares to the plaintiffs or in the alternative for payment of 1/8th share in the amount realised therefrom and lying deposit in O.S- 77/65 on the file of the Sub-court, Guntur free from all claims of the defendants and the narration of other reliefs sought for in the suit is not necessary as they are not the subject matter of the appeal. 2. The 8th defendant filed a written statement stating that the suit was filed at the instance of the 4th defendant and the other major son, the 10th defendant with the collaboration of defendants 5 and 6 as a counter blast to O.S. 77/65 filed for dissolution of defendants 1 to 3 firms. The plaintiffs have already come on record in O.S. 77/65 and urged the very same claim in the suit and hence this suit is misconceived. Subsequent to the partition in 1941 between the four brothers the 1st defendant firm alone was doing business and continued to do so till 1942 and the business was suspended later. This defendant has nothing to do with the defendants 2 and 3 firms at the inception and therefore they cannot be considered as a joint family concerns in so far as defendant is concerned and the circumstance that this is a joint family enterprise as between the plaintiff and defendants 4 and 10 cannot be a consideration for treating the firm as a joint family concern including this defendant. In the regular partitiondeed executed in 1953 there was no mention of the defendants having any interest in defendants 2 and 3 concerns. It is only in 1955 that this defendant was admitted as partner for the first time in defendants 2 and 3 firms. Subsequently defendants 4,5,6 and 7 committed several acts of omissions and commissions and therefore this defendant was obliged to file the suit 0. S. 77/65 for dissolution and rendition of accounts. The aliegation of division between the plaintiffs and defendants 4 and 10 is denied and that the defendants 4 and 10 only intended to continue as partners in the business is false. The plaintiffs and defendants 4 and 10 are living together in the same roof as members of Hindu joint family. The 4th defendant, the managing partner of defendants 1 and 2 firms and the 5th defendant, the managing partner of the 3rd defendant firm colluded and manipulated accounts taking advantage of their position. The 4th defendant's family holds a share in the 1st defendant firm and the plaintiffs and defendants 4 and 10 put together are entitled to 1/4th share in the assets of that firm which was converted into cash when the 4th defendant filed a petition to retain 1/8th share of the realisations. It is further stated that most of the creditors filed suits and obtained decrees against all the properties of defendants 2 and 3 firms and there is no immoveable property to be divided and the plaintiffs are not entitled to any portion of the amount lying in the court.

(3.) O.S. 37/69 : The plaintiff in this suit is the 2nd plaintiff in O.S.37/74. The same averments have been reiterated with regard to their interest in the 1st defendant firm and also their .right to recovery the money from the defendants 2 and 3. It is stated that as per the ledger of the 1st defendant as on 1-4-65 he has to get an amount of Rs. 933.10 and interest thereon and from the 2nd defendant firm Rs. 9, 145.60 as on 20-7-65 as per the entries in the ledger with interest at 12% p.a. and he is also entitled to get an amount of Rs. 30.652 70 from the 3rd defendant firm as per the entries in the accounts as on 1-1-1965 with interest at 12% p.a. The 8th defendant filed written statement reiterting the averments made in the written statement filed in O.S. 37/74. It is further stated that the relief claimed in this suit is the part of the claim in the suit O.S. 37/74 (O.S. 99/67 Sub-court, Guntur) which is comprehensive, referring to this claim also. The allegation with regard to the division and also the claim for the amounts as creditors are denied. Defendants 7,9, 11 to 14 filed written statement stating the facts similar to that of the allegations made in the written statement of the 8th defendant.