Decided on November 25,1952

Parsam Venkataramayya Appellant
Parsam Venkataramappa And Ors. Respondents


Krishnaswami Nayudu, J. - (1.) THE main question that arises for determination in this appeal is as to whether a certain interest which the plaintiff -appellant had in a business is joint family property or the separate property of the plaintiff. The plaintiff and defendant 1 were brothers. Defendants 2 to 4 are the sons of defendant l and defendants 5 to 7 are the sons of a predeceased son of defendant 1 by name Thimmih. The suit, is for partition of the joint family properties. Defendant 1 was the manager and the elder brother of the plaintiff. He died on 28 -8 -1946, a day after the institution of the suit, the suit, having been instituted on 27 -8 -1946. The Joint family was possessed of about 60 acres of lands and a house at Kothur village and some valuable moveables including gold and silver. Defendant l was also conducting a small retail shop at Kothur and doing money lending business. There is no dispute that the plaintiff left his ancestral village of Kothur for Anantapur at which place he was married to the daughter of P.W. 4, Rentala Bala Venkataswami, From 1933 onwards he continued to remain in his father -in -law's place and never came back to Kothur excepting probably on certain occasions. The feelings between the members of the joint family and the plaintiff have always been cordial. In the written statement filed on behalf of defendants 3 and 4, while not disputing the plaintiff's right to a partition of the joint family properties, It was alleged that the plaintiff was carrying on a mandy business on behalf of the family in partnership with the plaintiff's brother -in -law, Rentala Venkatasubbayya (D.W. 5), son of P.W. 4, and that the plaintiff should be directed to bring the family's interest in the said partnership into the hotchpot and the defendants given a share therein. The defendants also claimed a share in two houses at Anantapur, one acquired in the name of P.W. 4 and the other in the joint names of the plaintiff's wife and his brother -in -law D.W. 5. The case of the defendants is that they were fraudulently obtained in their names, though really the properties belonged to the family, that they were benami transactions and that therefore, they must be declared to be the properties of the joint family. The learned District Judge held in favour of the defendants that the plaintiff's share in the business at Anantapur was Joint family business and that the defendants are entitled to an account of that business. As regards the houses, the learned Judge reserved it for decision, in the final decree proceeding directing the impleading of necessary parties to the transaction.
(2.) IT is well established that there is no presumption that a business carried on by a member of a joint Hindu family is Joint family business and it is for those who set it up to establish it that though the business was carried on by an Individual member it was the business of the family. The plaintiff's case is that in 1932 or 1933 on account of some differences among the womenfolk and misunderstandings with defendant 1, he left for Anantapur, borrowed a sum of Rs. 1000 under Ex. A. 5 from P.W. 2 and out of the sum he contributed about Rs. 600 or Rs. 700 to the partnership business of himself & his father -in -law and that later he discharged that liability. He is supported by P.W. 2 who has also filed the promissory note Ex. A. 5. The learned District judge declined to accept this evidence and it is unnecessary for us, in the view which we are taking of the other evidence in the case, to differ from the conclusion of the learned Judge as regards the truth of this portion of the plaintiff's case as to his securing a sum of Rs. 1,000 from P.W. 2 required for providing for the capital of the partnership business of himself and his father -in law. On behalf of the defendants, while it is conceded that the plaintiff left the village about 1932 or 1933, the capital required for the business was stated to have been furnished by defendant 1 by realisation of a sum of Rs. 600 due from D.W. 1 to whom a sum Rs. 1,000 was lent on a promissory note by defendant l which was family money. Defendant l having died, D.W. 1 who is the person who borrowed from the family and paid Rs. 600 to the plaintiff says that he borrowed a sum of Rs. 1,000 on a promissory note, that Rs. 600 was required by the plaintiff with a view to enable him to start the business in Anantapur, that he paid the same to the plaintiff and defendant 1 in the presence of others and that an endorsement was made in the promissory note. D.W. 2 supports D.W. 1 that he was taken to the house of defendant 1 by D.W. 1 and that he was present when the sum of Rs. 600/ - was paid and endorsed on the promissory note. This evidence the learned District Judge has preferred to accept.
(3.) WE are, however, unable to agree with the learned District Judge on this finding. The promissory note which is stated to have been discharged has not been produced and the more Important circumstance is that the account books admittedly maintained by the defendants which must necessarily have contained an entry as to this lending of Rs. 1000 if it was true and the repayment of Rs. 600 by D.W. 1 have not been produced. But on the other hand the learned Judge was of the opinion that defendants 2 to 4 have suppressed these accounts. In the absence of the promissory note and these accounts, it is not possible to accept the oral testimony of two witnesses on an important question as to payment of a sum of money on a certain occasion to the plaintiff for a particular purpose. We are therefore, unable to attach much weight to the oral testimony furnished by D. Ws. 1 and 2.;

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