Decided on January 23,1953



Rajamannar, C.J. - (1.) A. S. No. 393 of 1947 is an appeal by defendants 1 to 3 in O. S. No. 12 of 1940 on the file of the Court of the Subordinate Judge of Tenali against the final decree passed therein. The suit was filed by the first respondent for a partition of the properties alleged to belong to the joint family and for incidental reliefs. Originally, there were five defendants to the suit. The parties were related as follows. The plaintiff was the widow of one Venkataratnam, and the first defendant his son by a predeceased wife. Defendants 2 and 3 were the minor sons of the first defendant. The fourth defendant was the natural son of the first defendant but had been adopted to one Venkatappiah, a brother of Venkataratnam. The fifth defendant was the daughter of Venkataratnam. The fourth defendant died during the pendency of the suit, and his minor son and widow were brought on record as his legal representatives and added as defendants 6 and 7 respectively. The fifth defendant died 'pendente lite'.
(2.) Venkataratnam died on 1-5-1938. The plaintiff as his widow claimed a fourth share of the joint family properties under the Hindu Women's Rights to Property Act. The properties in which she claimed a share included agricultural land, houses, moveable properties and assets of family businesses. The learned Subordinate Judge passed a preliminary decree for partition on 27-1-1941 declaring that the plaintiff was entitled to a fourth share of the joint family properties and incorporating the terms agreed upon by the parties for further proceedings for division and accounting. These terms 'inter alia' provided for the appointment of a commissioner to ascertain the joint family assets of all kinds as they existed on the date of the suit. There was an appeal against this decree by defendants 1 to 4 (A. S. No. 25 of 1941), the main ground of appeal being that the Hindu Women's Rights to Property Act was not a valid enactment, in any event, in so far as it affected agricultural land and therefore the plaintiff could not claim a share in such land. This court held that the plaintiff was not entitled to a share in the agricultural properties following the decision of the Federal Court in -- 'In the matter of Hindu Women's Right to Property Act' (1937)', AIR 1941 FC 72 (A) and modified the preliminary decree passed by the lower court in the following among other particulars, It declared that the plaintiff be entitled to one fourth of the nonagricultural properties, defendants 1 to 3 one fourth and the fourth defendant to one half. It further declared that the plaintiff do get no share in the agricultural properties and that half the agricultural properties do go to defendants 1 to 3 and the other half to the fourth defendant. Certain matters which had Been referred to the Commissioner were directed to be decided by the Subordinate Judge himself. In pursuance of the preliminary decree-as thus modified by the High Court, there were further proceedings by way of division of immoveable properties and taking of accounts, and a final decree was eventually passed on 31-5-1947. This appeal is against that decree by defendants 1 to 3. The defendants 6 and 7 have filed a memorandum of cross objection, A S. No. 14 of 1948 is by the plaintiff.
(3.) There is now no dispute as regards immoveable properties. The dispute centres round certain items which form part of the account taking which are referred to in the judgment of the learned Judge as items of surcharge. Even among these, the appellants' counsel in A. S. No. 393 has attacked before us the findings only in respect of some of them, and we shall deal with them seriatim. 'Surcharge item No. 4': This relates to the jaggery business run under the name of Mattuppalli Venkatappaiah Jaggery Shop from 30-12-1917 to 13-12-1935. The plaintiff claimed that this business, though run in the name of the fourth defendant's father alone, was really a joint family concern and she claimed a share of the profit of this business. The amount of profit from this business in which the plaintiff claimed a share is Rs. 31,550. The first defendant states that out of this amount a sum of Rs. 5,550 was drawn by Venkatapiah himself by 8-3-1931 and after Venkatappiah's death the balance of Rs. 26,000 was drawn by Venkatappiah's son, the fourth defendant. It also appeared from the evidence that these amounts were invested in a tobacco business which was being conducted by the first and fourth defendants along with other partners as their separate business. The learned Judge found that the jaggery shop, though run in the name of Venkatappiah alone, was a joint family business and Came to the conclusion that though the amount of Rs. 26,000 was shown in the accounts as having been drawn by the fourth defendant, it was really the first defendant who must be deemed to have drawn it on his own behalf and as the first defendant was in custody of the properties left by the fourth defendant he was liable to account. As, however, the sum of Rs. 5,550 had been drawn by Venkatappiah himself during his lifetime the learned Judge held that the first defendant could not be held liable to account for that sum. In the result he directed the first defendant to give to the plaintiff a fourth share of this amount of Rs. 26,000.;

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