MOTI LAL Vs. BADRI NATH

JUDGEMENT

(1.) THIS is an appeal from the order dated 24. 11. 1980, of the Addl. District Judge, Srinagar, dismissing a receivership application. The plaintiff has brought a suit against the defendants for partition of immovable property and dissolution of partnership and rendition of accounts in the court of the Addl. District Judge, Srinagar. Here we are concerned with the partnership business only. The appellant -plaintiff moved an application before the trial court for appointment of a receiver in respect of the partnership business. The trial court dismissed the application on the ground that no receiver can be appointed weere it has the effect of dispossessing the defendants.

(2.) THE case of the plaintiff is that the parties are the members of joint Hindu undivided family. They are carrying on business for the sale and purchase of wines, novelties, including stationery etc, under the name and style of "Nishat Wines". The funds for the business were obtained from the sale of press known as "Nishat Press" which came down into the family from their common ancestor, namely. Pandit Gana Kaul. He and his brothers defendant Nos. 1 and 2 are equal sharers in the business, each having 2/3rd share in it. Defendant Nos. 1 and 2 have made over the management of the business to defendant No. 3 in order to deprive the plaintiff of the benefits flowing from it. He has asserted that defendant No. 3 has no separate or exclusive interest in the said business. On the other hand, the case of the defendants is that defendant No. 3 is running the .business in his own right with defendant No. 1 as his partner. The plaintiff has nothing to do with it. He has no right or interest in it. They have denied that Pt. Gana Kaul, the common ancestor, owned any press or that one came down into the family They have pleaded that "Nishat Wines - is an exclusive, totally independent and separate concern of defendant No 3 except that defendant No 1 is his partner on commission basis.

(3.) THERE is no dispute that the plaintiff and defendant Nos 2 and 1 are real brothers. They are the sons of Pt. Gana Kaul. The father and the sons constituted a joint hindu family. There is material on the file to show that Pt. Gana Kaul owned a press known as "Nishat Electric Press". There is also material on the file to show that after the death of Pt. Gana Kaul his son, Badri Nath Kaul, defendant No. 1 moved an application for substitution of his name in the declaration form pertaining to the press in place of his deceased father. Thus there is prima facie evidence to show that Pt. Gana Kaul owned a press which came down into the family after his death. There is, however, no prima facie evidence to show that defendant No. 3 was having any separate funds. In the circumstances the plaintiffs contention that the defendants have started the business under the name and style of "Nishat Wines", from out or the sale proceeds of "Nishat Electric Press", which was a joint family property ; and that he has a share in it, cannot be dismissed as untenable.