MOHAMMAD ABDUL SATHAR BAIG Vs. HAFIJA BIBI

JUDGEMENT

(1.) This is an appeal from the decree of the Subordinate Judge of Guntur in a suit instituted by the two sons and three daughters of a deceased Mahomedan Yusuf Baig, for a partition and recovery of their shares in the estate left by him. Yusuf Baig died on 3 December 1927. Defendant 1 is his widow and she is the mother of the plaintiff. Defendants 2 and 3, Mohamed Ismail and Mohamed Gaffur, are his younger brothers. Defendants i and 5 are the wives of Mohammed Ismail.

(2.) The three brothers, Yusuf, Ismail and Gaffur were together carrying on a business in the manufacture and sale of beedies. From the profits of the business several immovable properties were purchased. They were treated as part of the assets of the business. On 22nd January 1926, Gaffur, the youngest of the brothers, left the business receiving for his share cash and property of the total value of Rs. 6000. The arrangement come to by the partners at the time is evidenced by a deed of release, Ex. A, executed by Gaffur in favour of his brothers. It is said that there was a counter part of this release, but it has not been produced. This deed of release contains the statement that it was Yusuf who began the business and subsequently took his two brothers into it out of brotherly affection and for business purposes and it goes on to state: But as we (Ismail and Gafiur) requested Mohammed Yusuf Baig Sahib to give me and Mohamed Ismail Sahib some share in all those properties and in the business, he agreed to it out of affection and gratitude towards us and the following are the particulars of the shares which he and we got settled. It was settled that Mohamed Ismail Baig should have one share and that I (Gaflur) should have one share. These recitals show that in the business so far carried on Yusuf was entitled to a half share and his two younger brothers were each entitled to an one-fourth share. The business was continued by Yusuf and Ismail and other properties were purchased from the profits earned. The death of Yusuf on 3 December 1927, brought about a dissolution of the partnership, but nonetheless, Ismail carried on the business but in his own name utilising the entire assets as they stood at the time of Yusuf's death. The partnership was not wound up and the share of Yusuf was not ascertained and paid to the heirs of the deceased. Before proceeding further, it may also be mentioned that a trade mark known as the "Turkey Topee" distinguished the beedies manufactured by the partnership and was largely used on the beedies and the wrappers containing them.

(3.) Although defendant 3 Gaffur is not among the legal heirs of the deceased Yusuf, his father and mother were and they were together entitled to an one-third share. By a deed of assignment dated 18 January 1928, executed by his father and mother, defendant 3 Gaffur acquired their one-third share in the estate of the deceased. Defendant 2 Ismail claimed that he was entitled to a half share in the business carried on by him along with Yusuf since the date of the release deed refer-red to above. In the course of his evidence in the Court below, he stated that the shares mentioned in the deed of release were not correct but that they were so mentioned because Yusuf wanted to cut defendant 3 out with a smaller share. In fact he stated: Yusuf said that unless I pretended that I agreed to one-fourth share defendant 3 would create troubles. So, I agreed. Defendant 3 took his share and separated. His case really is that throughout, both before and after the deed of release, Yusuf and he had an equal share in the business and in the property acquired out of the profits earned. The plaintiffs and defendant 3 contended that the shares of Yusuf and Ismail were in the proportion of 2:1 and this question formed the main point of contest between the parties. The learned Subordinate Judge has held that Yusuf was entitled to a half share while his two brothers were entitled to a one-fourth share each in the business which was carried on till 22 January, 1925, when the release deed came to be executed but that in the partnership assets and the business carried on from that date till the death of Yusuf, Yusuf and Ismail were entitled to a half share each. He rightly dismissed as worthless the oral evidence of defendants 2 and 3 on the points. They are the only persons who were in a position to speak to the shares. The shares mentioned in the deed of release had no doubt reference to the partnership that was carried on till 22 January, 1925, but the provision is undoubtedly a circumstance of great importance in deciding the shares in the business continued after that date. The learned Subordinate Judge however discounted the evidentiary value of this circumstance on the ground that the release was brought about mainly for the purpose of meeting the claim of respondent 3 and not for the purpose of determining the shares between Yusuf and defendant 2 and it cannot therefore be safely relied upon for the purpose of ascertaining the shares of the partners in the subsequent business. He appears to have been influenced by the fact that there was no conclusive evidence to show that defendant 2 had expressly agreed to take a third share only in the properties and in the profits of the business and that being so, he must be held to have possessed an equal share with Yusuf. After giving our best consideration to the point we find ourselves unable to accept the conclusion of the learned Judge as correct.