D RAJA AHMED Vs. PACHA BI

JUDGEMENT

(1.) This is a first defendant's appeal with cross-objections preferred by the plaintiff. The respondent-plaintiff filed the suit O.S. No. 39 of 1958 on the file of the Subordinate Judge's Courts, Kurnool in forma pauperis (1) for partition and separate possession of her 1/3rd share in the plaint C. D. E. and F. schedule properties; (2) for account of the assets, cash, balances and outstandings collected and profits earned by the 1st defendant in respect of the dalali business and (3) for account of the rents, mesne profits, interests, outstandings collected and accreditions made to the estate and for other incidental reliefs.

(2.) In order to clearly appreciate the contentions of the parties their relationship inter se has to be noted. The propositus of the family was one Dharwar Ghouse Sab. He married twice. Through his first wife he had one son by name Mohd. Haneef and through his second wife he had two sons by names Alla Baksh and Rajah Saheb, the latter being the first defendant in the suit. Through his second wife he had also three daughters who were defendants 2, 3 and 4. By the time of the suit, the father, Ghouse Sab, the eldest son Haneef Sab and the second son Alla Baksh were dead. It is common case between the parties that Haneef Sab died first though the parties are not agreed as to who of Ghouse Sab and Alla Baksh died first. In the present suit the heirs of the decreased Haneef Sab are not parties as their claim was settled long ago. Alla Baksh left behind him his widow, Mahboob Bi the 5th defendant and two daughters, Raj Bi and Pacha Bi, the 6th defendant and the plaintiff respectively. Defendants 7 to 9 are the alienees in respect of certain properties which are the subject matter of the suit from the first defendant. The 10th defendant is the daughter of the third defendant who died since filing the suit. The plaintiff's case, as stated in the plaint, is her father Alla Baksh was doing dalali (commission) business since 1923 under name and style of Dharwar Mahammad Haneef and Brother. Alla Baksh was the exclusive proprietor of the said business and it was prosperous. The said business is described in Schedule (d) to the plaint. He acquired immoveable properties described in the 'C ' schedule.

(3.) In addition to the ' C ' schedule properties and ' D ' chedule business, father Alla Baksh acquired other assets like mortgage deeds and house property. He died exclusively owning all these assets. At the time of his death the plaintiff and her sister the 6th defendant were minors. Their mother, the fifth defendant was an illiterate Purdah Nashin lady, having no experience of wordly affairs. They were all living with the first defendant and were under his care and protection. The first defendant who was also entitled to a 1/12th share in the properties left by the father, Allah Baksh entered into possession of the properties and the management of the business. The 1st defendant was not only a sharer holding a 1/12th share but at that time happened to be the only adult male member of the family. The fifth defendant reposing confidence in the first defendant allowed him to continue the business and to be in possession and management of the various assets left by Alla Baksh. Later the 6th defendant and the plaintiff were married. Taking advantage of the fact that they were living with their husbands and that the fifth defendant was a weak, illiterate gosha lady the first defendant changed his attitude towards them and with the ulterior motive of depriving them of their rightful share in their father's properties he sold away item (1) of the C schedule properties to defendants 7 to 9 in the year 1954 without their knowledge, as if he was the full owner thereof. The plaintiff came to know of the alienation only recently. She and defendants 5 and 6 were not bound by the sale. Besides these alienations the first defendant was appropriating to himself the entire profits of the business and also the income from the properties. He acquired out of the said profits and income the properties described in the ' F ' schedule. Therefore the plaintiff and defendants 5 and 6 were also entitled to their respective shares in the ' F ' schedule properties also.