SHANTILAL Vs. MAHENDRA KUMAR

JUDGEMENT

(1.) THESE two appeals, which arise from the same suit between the parties, are disposed-of by common judgment. D. B. Civil Special Appeal No. 9a/1998 is directed against the judgment of the learned Single Judge dated 19. 11. 1987 confirming the preliminary decree dated 25. 4. 1973 in a partition suit passed by the Civil Judge, Udaipur with the modification that the entire property mentioned at item Nos. 1 to 7 in Schedule `ka' annexed with the plaint is liable to be partitioned instead of only property mentioned at item Nos. 1, 2, 3 and 4 of the Schedule. Another Appeal being S. B. Civil First Appeal No. 126/1990 is against the second preliminary decree dated 11. 7. 1990 passed by the Additional District Judge, Udaipur in Civil Suit No. 28/1966.

(2.) IN order to understand and relationship of the contesting parties, it would be apposite to give pedigree of the family, which is given below: Hamirji Bhimraj Chunilal Handawat (died on 25. 12. 65) Anoplal (died on 26. 12. 87) (D-1) Smt. Sushila Devi (Suit) (D-3) (Uncontested) Shantilal (by first wife) d Mahendra Kumar (by second wife) plaintiff Chunilal with his son Anoplal carried-on his joint family business at Udaipur in the name & style of M/s Hamirji Bhimraj. Plaintiff Mahendra Kumar is the younger son from the second wife of first defendant Anoplal. The second defendant Shantilal is the plaintiff's elder brother being son of Anoplal from the first wife. Third defendant Smt. Sushila Devi in Anoplal's married sister. She has not contested the suit. Chunilal is the grand father of plaintiff Mahendra Kumar. It is alleged that late Chunilal and his son Anoplal with his sons Shantilal and Mahendra Kumar constituted a joint Hindu Family and its business was carried-on in the name of M/s Hamirji Bhimrajji. This joint Hindu Family not only owned joint family business but also certain properties which are mentioned in Schedule `ka' annexed with the plaint. It is also alleged that for the sake of convenience and to avoid tax liabilities, the joint family concern was converted into a partnership Firm in January, 1962 with equal shares of Chunilal, Anoplal and Shantilal. The Firm was converted into a partnership Firm from the capital and assets as also stock in trade of the old family business and all the contracts which the joint family Firm entered-into, were transferred to the partnership Firm. The plaintiff Mahendra Kumar, who was minor at that time, was not allowed benefit of the partnership Firm. This partnership Firm stood dissolved on 25th Dec. , 1965 on the death of Chunilal. The case of the plaintiff is that this apportionment of shares in the Firm was prejudicial and injurious to his interest. IN these circumstances, he has claimed 1/3rd share in the joint family business and the entire properties as mentioned in Schedule `ka'. The first and second defendants are duty bound to render accounts of the Firm. The suit was filed by the plaintiff Mahendra Kumar through his natural guardian on 20th Sept. 1966 seeking a decree for partition of the joint family business and all the properties mentioned in Schedule `ka' by metes and bounds.

(3.) THE learned Single Judge reversed the finding of the learned trial court on issue No. 1 and held that partnership firm was constituted on 1. 1. 62 but infact, no partnership took place and no particular share was assigned to Shantilal. THE learned Single Judge concluded that the document was executed only for the purpose of avoiding the income tax liability. It was further observed that the partnership firm was constituted with the same assets, same liabilities and same capital with the same shop but the plaintiff was never excluded from the benefit.