SUDARSANAM MAISTRI Vs. NARASIMHULU MAISTEI
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Bhashyam Ayyangar, J -
(1.) This is an appeal preferred by the plaintiff against the judgment of Mr. Justice Boddam in Civil Suit No. 159 of 1900, dated 16 January 1901, dismissing the suit with costs. The suit was brought by the plaintiff for taking an account of property alleged to have been jointly acquired by the plaintiff and the first defendant as undivided brothers, for ascertaining the respective shares of plaintiff and first defendant therein and for a decree awarding to him his share in such properties.
(2.) The cause of action, as disclosed in the plaint, is that the plaintiff and the first defendant carried on jointly some contract business until the year 1894, when, disputes and differences having arisen between them, the first defendant and his wife, the second defendant, left the house in which they were till then living with the plaintiff, as members of an undivided family, and went and lived separate. The property acquired from the funds of the contract business both prior to 1894 and apparently subsequent thereto is estimated at Rs. 60,000 and a schedule of such property is annexed to the plaint. The plaintiff charges that the first defendant as the senior brother and member of the joint family, consisting of himself and the plaintiff, has been and continues to be in possession of such property and that he has fraudulently transferred or pretended to transfer a portion of this property to his wife, the second defendant. Though it is not stated in the plaint that the plaintiff is entitled to an equal share with the first defendant in such property, yet it is evident that he claims an equal share on the footing that the property, of which an account is sought to be taken, forms the joint property of an undivided family, consisting of himself and his brother, the first defendant, such property representing the profits of the contract business carried on by himself and his brother with the aid and assistance of their sister, though not with the aid of any ancestral property belonging to them.
(3.) The first defendant, while admitting the relationship alleged in the plaint, denies that he carried on any joint contract business with the plaintiff or that they were members of a joint and undivided family, and jointly acquired the property in question; he also relies on the plea of limitation, if the suit is regarded as based on an alleged partnership between himself and the plaintiff in the business referred to in the plaint.;
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