SHAH, - (1.) THE following Judgment of the court was delivered by
(2.) THESE six appeals are filed with certificates under Art. 133 of the Constitution granted by the High court of Judicature at Bombay. The appeals arise out of the judgments and decrees in suits Nos. 47 of 1948 and 36 of 1949 in the court of the Civil Judge, Senior Division, Dharwar. The following geneology set out in the plaint in Suit No. 47 of 1948 explains the relationship between the parties: JUDGEMENT_1077_AIR(SC)_1961Image1.jpg The principal contesting party in the suits was Kashinathsa, eldest son of Yamosa, and he was the first defendant in both the suits. For facility of reference, we propose to refer to the parties as they were arrayed in Suit No. 47 of 1948. Bhimasa the plaintiff in Suit No. 36 of 1949 will, therefore, be referred in this judgment as defendant No. 3. At a partition in 1893 between Dongarsa's branch and the other branches, the former branch received property of the aggregate value of Rs. 13,000.00. Members of that branch thereafter carried on business of weaving silk garments and also of sale and purchase of silk garments. In 1912, defendant No. 1 started a cloth shop in the name of Kashinathsa Kabadi. In 1916, be started a commission agency business in the name of H. R. Kabadi Shop, and in 1920 he started, business in money-lending and silk goods. Since 1912, defendant No. 1 was the principal earning member of of the family and was attending to the various lines of business and he was assisted by the other members of the family. The family prospered and in course of time acquired a large estate. Before 1946, Bhaskarsa father of the plaintiffs and Ramakrishnasa and Hanmantsa grandfather and father respectively of defendant No. 3 had expired, and the first defendant was the senior most member of the family. In 1946, disputer, arose between the members of the family and defendant No. 3 declined to continue in jointness with the other members of the family and demanded that he be given his half share after dividing the properties by metes and bounds. Claiming that he alone was instrumental in amassing the vast estate which exceeded in value to Rs. 14,00,000.00, defendant 1 submitted that the estate be divided in four equal shares and that one share be given to him and the remaining shares to the heirs of Bhaskarsa, defendant No. 2 and defendant No. 3. On 17/08/1946, the disputes were referred under a deed in writing to three persons Vithaldas Devidas Vajreshwari a merchant of Betegiri, Devindrasa Tuljansa a common relation of the parties and Parappa Nagappa Jagalur a clerk of the pleader acting for the family-(whom we will collectively refer as the Panchas) with authority to determine what shares should be allotted to the different branches of the family and to determine the extra shares to be given to defendant No. 1 for ' special exertions made by him in acquiring the property ' and to divide the assets of the money lending and other properties of the family_ business as the ' Panchas thought fit and proper.' The Panchas accepted the reference and embarked initially upon an enquiry for ascertaining what shares in the family property should be allotted to the various contesting parties. On 23/09/1946, the Panchas decided that each of the four parties-defendant No. 1, defendant No. 2, the plaintiffs collectively and defendant No. 3-should be given a fourth share in the properties of the family. This decision was reduced to writing: it was signed by the Panchas and was accepted by the parties and in token of acceptance, they subscribed their signatures thereto. On the same day, gold ornaments of the value of Rs. 67,000.00 were divided by the Panchas in four equal shares. A record thereof was made in the proceedings of the Panchas.
(3.) THE Panchas then proceeded to award to each of the parties gold ornaments weighing 167 tolas 15 as. and silver 481 tolas and 4 as. On 24/09/1946, it is the case of defendant No. 1 that the Panchas decided to give him an additional share of the value of Rs. 40,000.00 out of the property for bringing the family ' to the present prosperous conditions ' and the Panchas directed that defendant No. 2 should for that purpose pay out of his share Rs. 30,000.00 to defendant No. 1 and the plaintiffs should pay Rs. 10,000.00 to him and the old house of the joint family be allotted to him as his exclusive property. This was denied by the other parties. On 12/10/1946, the Panchas divided the residential houses and a record of this division was entered in five separate books hereinafter referred to as 'partition books.' In each of the ' partition books the Panchas subscribed their signatures under the record of the division and allotment of the shares and the parties also signed underneath the same in token of acceptance of that division. On 19/10/1946, the Panchas divided an amount of Rs. 64,000.00 entries regarding which had been posted in the family books of account. Each party was given Rs. 16,000.00 and this division was entered in the account books of Yamosa Dongarsa Kabadi and the entry was duly signed in token of acknowledgment of the correctness by all the parties. It is the case of defendant No. 1 that on that day another amount of Rs. 3,20,000.00. which was ' the unaccounted cash lying in the safe of the family but which was not entered in the books of account and details whereof were set out in a Tippan Book,' was also divided and each party was given Rs. 80,000.00. of the two major contentions in this group of appeals, one has centered round the truth of the story about the division of this amount.;