A.N.Varma, J. - (1.) THESE two second appeals arise out of two cross suits Nos. 148 of 1977 and 29 of 1978. Suit No. 148 of 1977 was filed by Mohd. Yusuf, the respondents in these two appeals while suit No. 29 of 1978 was instituted by Ali Mohammad, the appellant. The trial court dismissed the suit of Mohd. Yusuf and decreed the filed by Ali Mohammad. Two appeals were thereupon filed against the decrees passed by the trial court The lower appellate court has by the impugned judgment allowed both the appeals decreeing the suit filed by Mohd. Yusuf and dismissing that filed by Ali Mohammad. Hence these second appeals by Ali Mohammad. Two appeals are being disposed of by a common judgment. In suit No. 148 of 1977 instituted on December 16, 1977 the plaint case set up by Mohd. Yusuf was that the four shops in suit and the business carried on therein was the joint property and ventures of himself and Ali Mohammad, though it is Ali Mahammad and his sons who were looking after the businesses. However, Mohd. Yusuf discovered recently that the income from these businesses was being misappropriated and misutilised by Ali Mohammad and his sons and consequently, he wants that a proper accounting be done and he be given his half share therein. A relief for partition of the land and the shops was also claimed.
(2.) SUIT No. 29 of 1978 was filed on February 22, 1978 on the allegation that in 1978 differences arose between the female members of the two families as a result of which they separated in business. The family business, -which was continuing from the lift time jointly continued notwithstanding the separation in mess. A little later in 1971, Ali Mohammad with the help of the money obtained from the sale of the jewellery of his wife who had died and the loan raised from relations and money lenders, Ali Mohammad took a piece of land on a monthly rental of Rs. 5.00 constructed a building thereon and installed an oil speller and a thrasher and started an independent business with the help of the machinery so installed. So far as the ancestral business was concerned, Ali Mohammad asked his son to look after his interest therein. Taking advantage of his inexperience and tender age of Ali Mohammad's son Mohd. Yusuf started misappropriating the income from the ancestral business. Ali Mohammad thereupon demanded an accounting of the income from that business. After accounting a memorandum was prepared according to which the share of Ali Mohammad worked out to Rs. 11400.00 which Mohd. Yusuf promised to give within a month. Mohd. Yusuf, however, did not honour his commitment where upon suit No. 29 of 1978 was filed for a decree for Rs. 11400.00. The defence of Mohd. Yusuf in Ali Mohammad's suit was the plaint case set up in his own suit No. 148 of 1977. In addition it was pleaded by Mohd. Yusuf that no accounting was done nor was memorandum alleged by Ali Mohammad prepared. It was further pleaded that the land, oil speller and the thrasher installed thereon together with the business being carried on in respect thereof were of joint property and business of Ah Mohammad and Mohd. Yusuf but all the business including these were being looked after by Ali Mohd. and his sons but the income accruing therefrom was being misappropriated by the father and the sons.
(3.) THE learned Civil Judge trying the two suits together accepted the case of Ali Mohammad. He held that the oil speller and the thrasher together with the land on which the same were installed were the exclusive property and business of Ali Mohammad. He further found that a memorandum was executed between the parties after the accounting under which Ali Mohammad was held entitled to receive Rs. 11400.00. On these findings the trial court decreed the suit filed by Ali Mohammad and dismissed that of Mohd. Yusuf.;