LINGAMALLU VARADHA RAGHAVIAH Vs. LINGAMALLU VENKATARAMANAYYA (DEAD) AND LINGAMALLU RAGAVENDRA RAO (MINOR) BY MOTHER AND GAURDIAN KANTA RATNAMMA, THE LEGAL REPRESENTATIVE OF THE DECEASED

JUDGEMENT

(1.) This is an appeal from the judgment of the Temporary Subordinate Judge of Guntur in a partition suit and raises questions of some importanae which have been elaborately argued before us.

(2.) Part of the joint family assets consisted of a joint family trade and the Subordinate Judge seems to have been under the impression that this made a difference as to the form of account which should be ordered. It must really now be taken to be well-settled in this Presidency that, an account in a partition suit is an account of the assets and liabilities of the joint family as they existed on the date of the plaint. This is down in Balakrishna Aiyar v. Muthusawmy Aiyar 3 Ind. Cas. 878 : 32 M. 271 : 5 M.L.T. 145 : 19 M.L.J. 70. It is there said that this is so in the absence of fraud or misappropriation. What appears to be meant is that, what has to be ascertained is, what are really the assets of the joint family and that, if any of the no parceners has attempted to misappropriate any of the joint family property by putting it in the name of the third parties or otherwise it may still be followed and made available for division. But it is not the case, as apparently the learned Judge seems to think, that disproportionate expenditure by any co-parcener in the past is a matter which can be taken into account, when a partition is being effected, The doctrine which has prevailed in this Court, as Mr. Rangachariar pointed out to us, is based upon very ancient authority indeed, namely, a passage in Katyayana, which is quoted in Colebrook s Digest, Volume II, page 303 and in West and Buhler, page 763: "Effects which a kinsman has embezzled, let not a no-heir use violence to make him restore nor let a heir be obliged to make good what he has expended before partition." The Subordinate Judge, therefore, proceeded altogether on a wrong basis in this case when ha ordered an account to be taken from the death of the father in 1896 and the decree will have to be modified by directing an account to be taken of the assets as they existed on the date of the plaint in this suit.

(3.) The next question which arises is as to a certain agreement, which is alleged to have been come to, that as from 1911, separate accounts should be opened in the name of each of the co-parceners in whish the separate expenditure of each co-parcener should be entered, and it is said to have been agreed that, on partition, each co-parcener should be debited with the amounts shown in those accounts. It is not admitted on the other side, that such an agreement would be perfectly legal but it is denied that there was any such agreement in this case. It does not necessarily follow from the fast that it was arranged to keep accounts in this fashion that it was also agreed that the amounts should be debited in partition, because it might well be that it was thought advisable to keep the accounts in this way just to show whether the enjoyment during the state of non- division was fair between the parties. But, however this may be, the existence of any agreement that these sums were to be debited against the several co- parceners in the partition was not made the subject of any issue, and I am not prepared upon the evidence to hold that any such agreement is proved. We must accordingly direst that the account to be taken should be simply an account of what the joint family property was at the date of the Sling of the plaint.