- (1.) THESE two appeals, which arise from the same suit between the parties, are disposed-of by common judgment. D. B. Civil Special Appeal No. 9a/1998 is directed against the judgment of the learned Single Judge dated 19. 11. 1987 confirming the preliminary decree dated 25. 4. 1973 in a partition suit passed by the Civil Judge, Udaipur with the modification that the entire property mentioned at item Nos. 1 to 7 in Schedule `ka' annexed with the plaint is liable to be partitioned instead of only property mentioned at item Nos. 1, 2, 3 and 4 of the Schedule. Another Appeal being S. B. Civil First Appeal No. 126/1990 is against the second preliminary decree dated 11. 7. 1990 passed by the Additional District Judge, Udaipur in Civil Suit No. 28/1966.
(2.) IN order to understand and relationship of the contesting parties, it would be apposite to give pedigree of the family, which is given below: Hamirji Bhimraj Chunilal Handawat (died on 25. 12. 65) Anoplal (died on 26. 12. 87) (D-1) Smt. Sushila Devi (Suit) (D-3) (Uncontested) Shantilal (by first wife) d Mahendra Kumar (by second wife) plaintiff Chunilal with his son Anoplal carried-on his joint family business at Udaipur in the name & style of M/s Hamirji Bhimraj. Plaintiff Mahendra Kumar is the younger son from the second wife of first defendant Anoplal. The second defendant Shantilal is the plaintiff's elder brother being son of Anoplal from the first wife. Third defendant Smt. Sushila Devi in Anoplal's married sister. She has not contested the suit. Chunilal is the grand father of plaintiff Mahendra Kumar. It is alleged that late Chunilal and his son Anoplal with his sons Shantilal and Mahendra Kumar constituted a joint Hindu Family and its business was carried-on in the name of M/s Hamirji Bhimrajji. This joint Hindu Family not only owned joint family business but also certain properties which are mentioned in Schedule `ka' annexed with the plaint. It is also alleged that for the sake of convenience and to avoid tax liabilities, the joint family concern was converted into a partnership Firm in January, 1962 with equal shares of Chunilal, Anoplal and Shantilal. The Firm was converted into a partnership Firm from the capital and assets as also stock in trade of the old family business and all the contracts which the joint family Firm entered-into, were transferred to the partnership Firm. The plaintiff Mahendra Kumar, who was minor at that time, was not allowed benefit of the partnership Firm. This partnership Firm stood dissolved on 25th Dec. , 1965 on the death of Chunilal. The case of the plaintiff is that this apportionment of shares in the Firm was prejudicial and injurious to his interest. IN these circumstances, he has claimed 1/3rd share in the joint family business and the entire properties as mentioned in Schedule `ka'. The first and second defendants are duty bound to render accounts of the Firm. The suit was filed by the plaintiff Mahendra Kumar through his natural guardian on 20th Sept. 1966 seeking a decree for partition of the joint family business and all the properties mentioned in Schedule `ka' by metes and bounds. The first defendant Anoplal almost admitted the plaint allegations and asserted that all the accounts are in possession of Shantilal, therefore, he alone is answerable to render the accounts. He also alleged that Shantilal tried to grab the entire property. He also asserted that the joint family business was transformed in the partnership Firm only for the purpose of income tax otherwise for all good reasons, it was a joint family business. The suit was resisted by the second defendant Shantilal. He pleaded that his relations with father Anoplal were not cordial. His father Anoplal alongwith his second wife and son Mahendra Kumar used to live separately. He used to live with his wife and grand father Chunnilal. The business of the joint family was looked after by him for last ten years. It is alleged that on 1. 1. 1962, the accounts of the joint family were settled and a partnership firm was formed. On 14. 6. 64, the accounts of the partnership firm were also settled and his father Anoplal separated the business under the name and style of `kamal Kirana Merchants'. The accounts of the partnership firm were settled with the intervention of one Khemraj and Chandraraj. It is also alleged that on 14. 6. 65, Chunnilal executed a Will whereby he bequeathed his share in his (Shantilal) favour. It was also pleaded that the ancestral house in which he was living, has already been partitioned and Anoplal and Mahendra Kumar have no interest therein. On the basis of the pleadings of the parties, the trial Court framed seven issues. The plaintiff examined P. W. 1 Laxmilal. The first defendant Anoplal entered in the witness box as D. W. 1. Shantilal examined himself as D. W. 2/1 and also examined Santosh Lal as D. W. 2/2. The trial Court found that after separation. Anoplal started another business in the name of M/s Kamla Kirana Merchants in his own name and in the name of Mahendra Kumar. It also found that Anoplal was protecting the interest of Mahendra Kumar and he, subsequently, started his business with his son. The trial Court further found that the partition was neither unfair nor prejudicial to the rights of the plaintiff Mahendra Kumar. Accordingly, issue No. 1 was decided against the plaintiff and in favour of defendant No. 2. Dealing with the second issue, the Court found that the partition of 1. 1. 62 was partial. The partition of the business and as a consequence, it cannot be said that the family disrupted. It remained joint for other property of the joint family. Accordingly, the learned Judge decided the issue No. 2 as well against the plaintiff and in favour of second defendant. Regarding the issue No. 3, it was admitted by the parties to the suit that all the property except the business was ancestral. In view of this admission at bar, the Court decided the issue in favour of defendant. Regarding the most crucial issue being issue No. 4, the Court held that the second defendant Shantilal failed to establish that the Will dt. 16. 8. 65 was executed in his favour by Chunnilal. Thus, the issue No. 4 was decided against the defendant and in favour of plaintiff. Issue No. 5 was decided in favour of the plaintiff having held that the defendants No. 1 and 2 are liable to render account of the joint family which remained in common stock after partial partition. The sixth issue as to whether Anoplal had relinquished his share in the firm M/s Hamirji Bhimrajji on 14. 6. 64, was decided in favour of the plaintiff and against defendant No. 2. The contention of the second defendant that on 14. 6. 64, Anoplal and Mahendra Kumar started separate business in the name of M/s Kamla Kirana Store, so he had no share in his partnership, was rejected. Reading Ex. A. 5, the Court observed that it merely shows the list of property and there was no partition or distribution of share. The court also found that Ex. A. 5 did not bear the signature of Anoplal. No amount was paid to Anoplal in terms of Ex. A. 5, the fact which has been admitted by second defendant Shantilal. In view of the findings, the trial court partly decreed the suit and passed a preliminary decree for partition of the joint family property as mentioned at item Nos. 1, 2, 3 and 4 of the Schedule. The Court Commissioner was appointed to divide the property by metes and bounds. The Court directed that Mahendra Kumar, Anoplal and Shantilal each will have 1/3rd share in the property.
(3.) THE learned Single Judge reversed the finding of the learned trial court on issue No. 1 and held that partnership firm was constituted on 1. 1. 62 but infact, no partnership took place and no particular share was assigned to Shantilal. THE learned Single Judge concluded that the document was executed only for the purpose of avoiding the income tax liability. It was further observed that the partnership firm was constituted with the same assets, same liabilities and same capital with the same shop but the plaintiff was never excluded from the benefit. In order to appreciate the contention of Mr. Samdaria challenging the findings on issue No. 1 recorded by the learned Single Judge, we have pondered our consideration on Ex. 1 dt. 19. 5. 65. It is an admitted document and it has been proved by P. W. 1 Laxmilal. It is significant to notice that this document bears the signatures of all the three parties. P. W. 1 Laxmilal has stated on oath that he was appointed as Panch by Chunnilal and Anoplal alongwith Dhokal Chand and, advocate Doongar Singh. The list of the properties including ornaments were prepared but infact no such partition took place. It is stated by P. W. 1 Laxmilal that partition could not take place as Anoplal and Shantilal approached to them and informed that compromise was not possible and, therefore, the letter of authority may be returned. The Ex. 1 has been extracted in the order of the learned Single Judge. In the said document, the property has been referred-to as the ancestral property. A bare reading of the document shows that the family of Chunnilal, Shantilal, Anoplal and Mahendra Kumar remained joint upto 19. 5. 65. This supports the plea of the plaintiff that the joint family business was converted into a partnership business on papers only in order to avoid income tax liability. Second defendant Shantilal has admitted in his statement that the partnership firm started on 1. 1. 62 with the same shop with the same capital and with the same assets and liabilities. It has also been admitted that no particular share was assigned to Shantilal. They utilised the same capital, liabilities and the same shop for continuing the business of the firm. The emphasis has been laid on the fact that Anoplal started the separate business in the name and style of Kamla Kirana Merchants. In our view, simply because Anoplal started separate business, he did not cease to have any interest in the business of the joint family. More particularly, when it has been admitted that Kamla Kirana Merchants was not started by taking money from the found of M/s. Hamirji Bhimrajji. Thus, the finding of the learned Single Judge does not call for interference. The learned Single Judge reversed the finding of the trial court on the second issue as well. The learned Judge held that the properties mentioned at item No. S. 1 to 5 of Schedule `ka' formed part of the joint family property, as they have already been acquired, purchased or mortgaged with the joint family prior to 19. 6. 65. On careful consideration of the matter, we are of the view that finding of the learned Single Judge on issue No. 2 deserves to be confirmed. It may be noticed that the learned Single Judge while dealing with the issue No. 1 clearly observed that the conversion of the joint family business into a partnership firm was only done for the purpose of avoiding tax liability, otherwise the family business was joint. It is alleged that the accounts of the joint family were settled by Khemraj and Chanderraj on 14. 6. 64 and they decided the share amount to be paid to Anoplal. It is significant to notice that when second defendant Shantilal was examined, he did not say a word about the family partition on 14. 6. 64. On the contrary, the case of Shantilal is that on 13. 6. 66, Khemraj and Chanderraj settled the accounts of old partnership firm and prepared the document Ex. A1. It is significant to notice that Shantilal has admitted that the said document does not bear the signatures of Khemraj and Chanderraj, in such state of affair, the finding of the learned Single Judge on issue No. 2 is unassailable. The learned Judge has rightly held that the properties mentioned at item Nos. 1 to 5 to Schedule `ka' formed part of the joint family property as they have been acquired with the joint family prior to 19. 5. 65. Similar is the finding with respect to item No. 6 of Schedule `ka', which has not been seriously challenged by the learned counsel for the appellant. ;