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K. Appalanarasimha Bhukta and ors. Vs. K. Mahadevalla Bhukta and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 10 of 1964
Judge
Reported inAIR1967AP247
ActsHindu Law
AppellantK. Appalanarasimha Bhukta and ors.
RespondentK. Mahadevalla Bhukta and ors.
Appellant AdvocateG. Balaprameswari Rao and ;C. Poorrnaiah, Advs.
Respondent AdvocateAdv. General, ;C.V. Dikshitulu and ;V. Jogayyasarma, Advs.
Excerpt:
family - suit for partition - hindu law - whether defendants guilty of alleged misappropriation of family property to render to general accounting - no item of credit or debt mentioned was specifically challenged - account books produced were not found to be forged - falsification be established by positive proof and not by general scrutiny of accounts - vague and indefinite allegation would not render liability for general accounting - held, appeal for general accounting dismissed. - - (14) the learned counsel for the respondents sri subrhmanyam contended that in a suit for accounts on the basis of fraud accounting as directed by the lower court justified but once the trial court has found that there was no direct evidence of fraud and the plaintiff has failed to prove the.....sharfuddin ahmed, j.(1) this letters patent appeal is directed against the judgment and decree of our learned brother chandrasekhara sastry, j., made in a. s. no 267 of 1961 dated 12th august, 1963. the suit, o. s. no. 3 of 1960, against which a. s. no. 267 of 1961 was filed, was instituted in the court of the additional district judge, srikakulam by the 1st appellant ( k. appalanarasimhga bhukta) against the respondents, 1st respondent being the karta of the family of partition of the plaint schedule properties into four equal shares and sep[arate possession of one such share and for directing the respondents to render an account of the management of the family estate from the date of death of the plaintiff's paternal grandfather to the date of suit and for payment to the plaintiff 1/4th.....
Judgment:

Sharfuddin Ahmed, J.

(1) This Letters Patent Appeal is directed against the judgment and decree of our learned brother Chandrasekhara Sastry, J., made in A. S. No 267 of 1961 dated 12th August, 1963. The suit, O. S. No. 3 of 1960, against which A. S. No. 267 of 1961 was filed, was instituted in the Court of the Additional district Judge, Srikakulam by the 1st appellant ( K. Appalanarasimhga Bhukta) against the respondents, 1st respondent being the Karta of the family of partition of the plaint schedule properties into four equal shares and sep[arate possession of one such share and for directing the respondents to render an account of the management of the family estate from the date of death of the plaintiff's paternal grandfather to the date of suit and for payment to the plaintiff 1/4th share on such ascertaiment. A further relief was sought for directing the respondents-defendants to pay his marriage katnam amounting to Rs. 6000/- with subsequent interest. It was stated that the plaintiff's father the late Lakshmi Narasimhbulu, the father of defendants No. 3 to 6 Surya Prakash Rao and defendants No. 1 and 2 are brothers and sons of the late Appalanarasimha Bhukta. The 2nd defendant is the son of Appalanarasimha Bhukta by his second wife the 8th defendant in the suit. The rest of the defendants are the sons of the 1st wife Pedda Kamamma. Appalanarasimha Bhukta and his sons constituted a Hindu Mitakshara joint family of which Appalanarasimha Bhukta was the manager during his life-time. He died on 22-11-1933. The father of the plaintiff predeceased him. Surya Prakash Rao died on 9-5-1946 and later the management of the estate passed on to the 1st defendant. The family property consisted of lands, moveable, such as silver-ware, brassware and live-stock etc. The family had an income of roughly Rs. 1,50,000 per annum consisting of paddy, grains and cash. The landed properties are described in schedule 'A' while the house property including the vacant sites the house property including the vacant sites are described in Schedule 'B' and the movable properties in Schedule 'C'. The plaintiff's father died in the year 1959 even before the plaintiff was born. His grand father died when he was only three years old. His mother was residing in her father's house in Lukulam Agraharam and being young and inexperienced entered into an agreement with plaintiff's paternal uncle to receive a sum of Rs. 250/- per month for her maintenance and that of her minor son and for other expenditure during his minority. That was the only amount that the plaintiff and his mother were receiving during that period, the 1st respondent having acquired the management of the family estate subsequent to the death of Surya Prakash Rao, the father of D-3 to D-6, began to divert the family funds and invest a part of the sum in acquisition of properties in the name of other benami for himself. He also secreted large amounts of money and gold with his near relations. The plaintiff further alleged that from the time of the paternal grandfather's death there has been a systematic and dishonest manipulation of accounts with a view to cheat the plaintiff of his legitimate share in the accumulations. The family was receiving 600 garces of paddy from the landed property and it was selling at Rs. 800/- a garce during that period. The 1st respondent was realising huge amounts and secreting the entire amounts. The respondents were, therefore, liable to accounts and the plaintiff's entitled to receive 1/4th share of such accumulations. It was, therefore, prayed that a decree in favour of the plaintiff be passed directing the respondents to render an account of the management of the family estate from the date of the death of the plaintiff's paternal grandfather upto the date of suit and to pay to the plaintiff 1/4th share of the amount on ascertainment.

(2) The main contesting party was the 1st respondent i.e., the 1st defendant in the suit. He denied all the allegations made in the plaint. According to him Surya Prakash Rao was himself managing the affairs during his life-time as Manager. It was after his death that he took over the property. He pleaded that he had not misappropriated the accumulated family income nor made any secret investments and the allegations were wholly false and malicious. Even in regard to the income the figures as stated by the plaintiff were denied. It was pointed out that the income of the family was never Rs. 1,50,000 or Rs. 50,000 as stated by the other defendants. On the other hand, the family lands were fetching about 350 garces of paddy a year and the income was only Rs. 12,000 per year. There were difficulties in collection of the rents because the family land mostly consisted of inam lands and some of them were estates. Later 10 villages were altogether abolished, and thus they ceased to be family properties. He had to incur consisderable expenditure in litigation with the tenants of the villages and subsequently the enforcement of Rent Reduction Act etc. Had the effect of further reducing the family income. The family had to pay Rs. 12,000 towards land revenue and the ulluate (sic) expenses amounting to Rs. 2,000 annually. The family was maintaining 24 clerks and 30 servants till 1949 at an annual expense of 40 kutties of paddy per servant per annum. Subsequently they were maintaining only six clerks and six servants. On 18-6-1952 the paddy stock of the family was divided into four shares and the plaintiff took away his share leaving only a small amount for common expenses. In the year 1959 a list of family gold and silver was prepared and in the year 1956 all the gold and silver was actually divided.

(3) The 2nd defendant filed his written statement denying all the allegations made by the plaintiff and more or less taking the stand of the 1st defendant.

(4) The statement of the 3rd defendant was adopted by his brothers, Defendants Nos. 4 to 6 and his mother defendant No. 7. They lend support to the plaintiff's case joining with him in the allegations made against the 1st defendant in respect of the management of the family estate and the income.

(5) The 8th defendant who is the mother of the 2nd defendant claimed that her husband had directed his sons to give Rs. 10,000 to each of his daughters and to set apart the lands which the family owned for the maintenance. She also claimed a sum of Rs. 4,000 for her pilgrimage etc. The 10th defendant was interested in certain items of property was interested in certain items of property and claimed that these were not liable to partition.

(6) On these pleadings the trial court framed as many as 18 issues to which six additional issues were added on a subsequent date. Thereafter the parties proceeded to adduce their evidence; one witness was examined by the plaintiff while 7 witnesses were produced by the defendants besides making numerous documents. The trial court on a consideration of the evidence decreed the suit of the plaintiff and made a preliminary decree for partition directing the plaintiff to apply for the appointment of a commissioner to take accounts from the 1st defendant, the Karta of the family in regard to the outstandings of the family estate as on 9-5-1946.

(7) Aggrieved by this judgment and decree, the 1st defendant filed A. S. No. 267 of 1961 and our learned brother Chandrasekhara Sastry, J., who heard the appeal, allowed the same setting aside the decision of the trial court ion so far as it directed the 1st defendant estate from 9-5-1946 till 17-6-1955 while the judgment and the decree of the lower court was upheld in other respects. This Letters Patent Appeal is directed against the said judgment.

(8) In order to appreciate the rival contentions advanced in the appeal it is necessary to refer to the relevant issues framed by the trial court and its decision thereon, which as is stated above, has been reversed by the 1st appellate court. The Plaintiff had come with the allegation that the income of the family was and had always been over Rs. 1,50,000 that the 1st defendant as Kata of the family had secreted large amounts, purchased properties benami for him in the name of others and there had been a systematic attempt to deprive the plaintiff of his share in the accumulation by manipulation of accounts. This was emphatically denied by the Karta, the 1st defendant in the suit and the appellant herein. Issue No. 3 settled in the following words related to this aspect of the of the case.''Whether any of the defendants are guilty of the alleged misfeasance, nonfeasance, mis appropriation of property and secretion of family properties and monies

(9) The next relevant issue for the purpose of this appeal is;

'Whether the defendants are liable and to accounts, if so, which of the defendants are liable and to what periods and regarding what properties?'

(10) In regard to the former issue, the lower court observed as under:-

'Though there is no direct evidence of misappropriation of the income by the Ist defendant as observed by me there was an attempt on his part to secret a portion of the family income for his benefit. It is only on taking of the accounts it can be possible to sat how much was secreted by him,'

(11) In respect of the latter issue it was held that the Ist defendant was liable to render accounts. On those findings clauses 8 to 12 of the decree were drafted to the following effect:-

Clause 8. 'That the Ist defendant do render an account of the management of the family estate from 9-5-46 onwards and a commissioner be appointed for this purpose on the application of the plaintiff.'

9. 'That the commissioner, while taking accounts from the Ist defendant do determine the outstanding of the family estate as on 9-5-1946, the total income from the day onwards, the amount utilized by the Ist defendant made by each sharer, and the amount saved, in each year of the accounting.'

(12) Clauses 10,11 and 12 contained further directions to the commissioner in regard to the settlement and adjustment of accounts. The main arguments advanced on behalf of the Ist defendant in the appellate court was that the Karta of the family was not liable to a generate; accounting as directed by the trail court in the absence of any finding against him in regard to misappropriation, fraud etc. This, as stated above, was accepted by the appellate court with the substitution of the following directions:

'The Ist defendant will render an account of his management only from 17-6-55 till each sharer was put in possession of his share of the family property.

(13) The learned counsel for the appellant Sri G. Balaparameshwari Rao has conceded at the outset that Karta of a Hindu joint family was not liable to a general accounting. This was obviously in view of the fact that he occupied a position of trust and a certain sort of sanctify was attached to high office. But according to him when it is apparent on the face of the record that correct and complete accounts have not been maintained, important account books admittedly in the possession of Karta have not been produced and convincing explanations in regard to certain apparent discrepancies in the account books have not been explained, the lower court was justified in directing the commissioner to verify the account books. It is urged that in cases of this nature tie ipse dixit of the Karta cannot be accepted. It has to be certified to the satisfaction of the plaintiff and the court.

(14) The learned counsel for the respondents Sri subrhmanyam contended that in a suit for accounts on the basis of fraud accounting as directed by the lower court justified but once the trial court has found that there was no direct evidence of fraud and the plaintiff has failed to prove the allegations of secreting etc, against the Karta, There was no question of directing the general accounting.

(15) Before dealing with these arguments certain facts not seriously controverted may be noted. The Ist defendant came into the management of properties from 9th June 1945 and was in management till 31st May 1951. The 2nd defendant who is only 5 years younger to him living with him as a member of the joint family and assisting him in the management. In September 1950 on the dispute raised by the plaintiff who attained majority in 1947, members of the family sat together and made out lists of gold and silver ornaments. In 1952 several branches refused to have a common granary and began to take away their share of the paddy directly . The procedure for the collection of paddy or its price in terms of money seemed to be that the several clerks employed by the family were in charge of the collection works. They received the amount from the ryots and handed over the same entered into the family account books. The plaintiff came with the allegation alleging fraud etc. On the part of the Karta. The main allegations were to the effect that he had acquired property in the name of others benami for himself, secreted away gold and silver and large amounts of income derived from the sale of paddy and there had been systematic manipulation of accounts. None of these allegations, however, could be substantiated. On the other hand later the plaintiff accepted the statement of the Karta in regard to the actual state of property and found the accounts maintained by him. In the plaint he did not with reference to any specific amount or item of property challenge the veracity of the accounts as not representing the true state of affairs. Even in the rejoinder he did not come out with any specific allegations apart from the general and vague charge that the accounting was bad and large sums of money had been secreted etc. The lower court on evidence held that no charge of fraud or misappropriation or even of secreting had been made out, but observed that the accounting was not proper and verification of accounts was necessary to ascertain the amount secreted by the Karta. It is well settled that the rules applicable to strict accounts was necessary to ascertain the amount secreted by the Karta. It is this mode of accounting that is not permissible against the Karta . It is well settled that the rules applicable to strict accounts between trustees and cestui que trust that exist in England do not apply to the relationship that exists between manager is not even bound to keep accounts and cannot be held liable for his negligence, but where the accounts produced by the manager are shown to be vitiated by errors sufficient in number or importance for reopening the accounts, the Court can order the accounts to be reopened, whether the errors are due to mistake or fraud.

(16) To substantiate his arguments the learned counsel for the appellant has relied on the marginally (here below) noted cases out of which we will deal with only those which have a direct bearing on the question before usviz.: whether on the basis of data on record the respondent was liable to a general accounting or not

(17) The case of 41 Mad LJ 503: (AIR 1921 Mad 443) has been strongly relied upon, wherein it was held as follows:-

'Although the manger of Mitakshara joint Hindu family is not responsible for the manner in which he disposed of the family income in the past, except in case of fraud and misappropriation, he cannot when a partition is demanded evade his liability to give an account of the assets of the family as it existed at the time of partition. The other members of the family are not bound to accept the statement of the Karta as to what the properties at the time of the partition consisted of and the court can order an account of the properties to be taken.'

(18) In that case the Karta had evaded production of a box containing all current documents belonging to the family and had not produced any accounts and had relied on only one document, Exhibit EE which was prepared round about 1909 showing that there were outstandings due to the family to the extent of 5 to 6 thousand rupees. The Karta admitted only a total of Rs. 3,300 whereas the plaintiff stated it to be Rs. 18,000. On the facts of the case it was held that the Karta had not been fair in this case and having regard to the tax paid by him it was presumed that he had a capital of Rs. 12,000, which he had reduced to the figure of Rs. 3,000. In that case, the accounting as ordered by the Subordinate Judge was found to be in accordance with law.

(19) It is thus clear that there was material before the court for arriving at an estimation of the income which the Karta had not rebutted by producing the relevant documents and a general accounting on that basis was held to be proper. The facts of the instant case are materially different. Here account books have been produced, which have not been found to be forged or prepared for meeting the claim of the plaintiff. No item of credit or debt mentioned therein has been specially challenged. In fact their veracity and authenticity is not seriously disputed. Therefore, it cannot be urged that the said ruling is applicable to the present case.

(20) The other cases merely reiterate the principle that a coparcener seeking partition is entitled to an account of property which exists at the date of the partition or at the date when owing to demand for partition there had been a severance of status, and the manager being the accounting party has to file and account as to the properties available for partition. It is further laid down that the other members of the family are not bound to accept the statement of the manager and it is the duty of the court to try to discover what properties do really belong to the family. But, the emphasis is always on the fact that the account is merely an enquiry into the existing assets and that the head of the family cannot be called upon to defend the propriety of his past transactions except in case of fraud, misappropriation or gross reckless waste (vide the decision in AIR 1922 Mad 236). More or les this is the principle that has been enunciated in the rulings referred to above with reference to the facts of each particular case. This principle is so well settled that it is hardly necessary to examine each and every case cited in that behalf. But, the learned counsel for the appellant has further submitted that even if raid, misappropriation etc. Is not made out the coparcener seeking partition is entitled to a verification of accounts, particularly when the accounts are vitiated by mistakes and omissions. For this purpose he has relied upon the case of AIR 1938 Cal 78. That was also a suit by a coparcner for the partition of joint family properties and for taking accounts from the 1st and 2nd defendants in the suit. Certain properties claimed were joint ancestral properties but some of the defendants denied this claim. While decreeing the suit the Subordinate Judge directed the Karta to account for the assets as existing at the date of the suit. On appeal, it was held that:

'The position of a Karta of a joint Hindu family is not that of a trustee or agent. He is only bound to account for what he had in fact received and not for what he might or ought to have received if he had been more prudent or efficient or if the joint family funds in his charge had been more profitably employed ... But this does not mean that his statement or his account of the family assets are final and the members of the family are bound to accept his ipse dixit. They have right to have his statement and his account verified in the usual way.'

(21-22) And this view has been accepted both in the cases of Dayabhaga and Mitakshara families. But, the verification was confined to the accounts which the 1st defendant, the Karta of the family had been ordered to file and obviously this is the direction which our learned brother Chandrasekhara Sastry, J., has given in the instant case. It, therefore, does not in any way advance the case of the appeallant.

(23) It has been next urged that where the accounts produced by the manager are shown to be vitiated by errors sufficient in number or importance for reopening the accounts, the Court can order the accounts to be reopened, whether the errors are due to stakes or fraud vide the decision in Bhowani Proshad v. Juggernath, 13 Cal WN 309. This argument is based on the fact that the account books got produced by the 3rd defendant, marked Ex. B-20 by one S. Narayana Rao, admittedly a clerk of the family, did not tally in some particulars with the account books produced by 1st defendant & marked Exs. B-16, B-18, & B-19. It was brought out that in Ex. B-16 the cash balance on 1-6-1946 was Rs. 12,000/ and odd whereas in Ex. B-20 it was Rs. 14,000/- and odd. Further, there were some credit entries in Ex. B-20 which were not noted in Ex. B-16. There were similar variations in regard to debit entries, but strangely enough the clerk who produced the account books was not examined. Ex. B-20 was admittedly produced from his custody. If the appellant had chosen to examine him it would have come to lighter as to who had made the entries and how the discrepancies had arisen. Ex. B-20 except for the admission of the 1st defendant that some of the entries are in his writing stands un-proved and, therefore, no reliance can be placed on it as against the account books produced by the 1st defendant which were duly submitted to the income-tax authorities and the authority of which has never been challenged by the appellant. In fact it appears that he did not even care to look into it, as observed by the appellate Court. In these circumstances, it is difficult to hold that the accounts produced by the respondents were vitiated by errors sufficient in number or importance for reopening the accounts.

(24) Much stress has been laid by the learned counsel for the appellant on the concession made by the respondents in his statement that he had certain account books with hi vix., D. C. B. Accounts, which he had not produced. No doubt he has made a reference in his statement that he was in possession of certain books, but does it amount to suppression of accounts? Having regard to the facts of the case, we are not inclined to hold that the respondent was guilty of suppression of account books when the authenticity of the account books produced by him had not been challenged. The D. C. B. Accounts, if producted, would have only shown what accounts were realised from the tenants and what was the balance left over. These are accounts maintained in respect of each ryot. The properties are admittedly spread over a number of villages. If the appellant had chosen to challenge any entry in the account books furnished by the 1st respondent, he would have to summon the relevant D. C. B. Accounts and work out with reference to Santanam Chettas and other documents how far the collection in year of a particular village varied from the entries in the account books submitted by the 1st respondent. Obviously this could not be done unless there was a specific allegation to that effect. Otherwise to ask for the production of D. C. B. Accounts or other documents, some of which might not have been in possession of the 1st asking for a roving enquiry, which is not permissible. Thus the mere fact that certain accounts were in possession of the 1st respondent according to his own statement, which he had not chosen to produce, would not amount to suppression of accounts and no adverse presumption would be drawn on that basis against the 1st respondent. IN this context it is not necessary to examine the various cases cited by the learned counsel for the appellant bearing on this aspect of the case. It is well settled that when relevant account books re withheld and not produced a presumption has to be against the person who withholds the same, but in cases where the account books have no relevancy, it is difficult to hold that their mere possession would amount to suppression of accounts.

(25) The learned counsel for the respondent Sri B. V. Subramanyam has strongly urged that the only right open to the appellant was of surcharge and falsification of accounts. According to him the 1st respondent as Karta of the family had filed full lists of the properties liable to partition and given a detailed account of the income and expenditure, Exs. B-16 to B-19. The account books were subjected to scrutiny by the Income-tax authorities, at least two of them, Exs. B-18 and B-19. The appellant had not found fault with them and no item of the expenditure or income has been seriously challenged. The liability of Karta extended only to an account of the property of the joint family as on the date of partition or of severance of status and the word account is to be construed as meaning statement or narration of list of schedules of properties liable to be partitioned. Such a list has been furnished by the 1st respondent along with his written statement. It consisted of the properties liable to partition and outstandings due to the family and was accompanied with daily cash book indicating all the income and expendite of the family between the period he took over as Karta and the date of severance of status. None of these items has been seriously challenged and the appellant has not come forward with the allegation that there were other items of property which had not been included in the said list or certain items of outstandings had been suppressed. If there had been any specific mention of such properties and its existence was duly established the liability of the Karta for accounting could not be denied, but in the absence of such allegations and proof of it, the statement furnished by the Karta has to be accepted and is not open to general accounting. Even in regard to items of expenditure it has not been alleged, much less proved, that any item of the expenditure mentioned in the account books is false. Falsification has to be done by positive proof and it cannot be established by a general scrutiny of accounts. To substantiate his arguments the learned counsel has relied on the following cases

AIR 1922 Mad 236(2); ILR 43 Cal 459; (AIR 1916 Cal 500(2); 41 Mad LJ 503: (AIR 1921 Mad 443); Official Assignee of Madras v. Rajabardar Pillai, AIR 1924 Mad 458; Ranga Thathachariar v. Srinivasa Thathachariar, AIR 1927 Mad 801; Ramakrishna Ayyar v. Parameshwar Ayyar; 1931 Mad WN 215; Vaikuntam v. Avudiappa, AIR 1937 Mad 127; Swaminath v. Gopalaswami, AIR 1939 Mad 81; Nibaran v. Nirupama, AIR 1921 Cal 131; Jyotibati v. Lackhmeshwar Prasad, AIR 1930 Pat 1; Simadri Subudhi v. Simadri Subudhi, ILR 1960 Cut 604; Ramnath v. Goturam, AIR 1920 Bom 236; Newport (Mon) Slipway Dry Dock and Engineering Co., Ltd. V. Paynter, (1886) 34 Ch D 88, at p. 93; Gething v. Keighley, (1878) 9 Ch D 547 and Air 1955 Mad 394.

(26) It does not seem necessary to deal with all the case cited above. The principle enunciated in the said cases is succinctly laid down in the case last cited with reference to almost all the cases cited above. It was a suit for partition against the Karta of the family by one of the coparaceners. It was observed as follows:-

' A member who seeks partition is entitled to an account of the family properties as they stand at the date of partition but is not entitled to open up past inequality of enjoyment of the family properties. All that he is entitled to is an account of the family properties as they exist at the time he demands partition. But if he alleges and proves past acts of fraud or misappropriation on the part of the manager the rule would not apply. The true view regarding the onus of proof is this. When the manager of the joint family places before the Court the properties, which according to him are liable for division the Court is not bound to accept that as a final word on the subject and it is open to the plaintiff to let in the evidence to show that some properties belonging to the joint family have been excluded from the list furnished by the manager and if the Court is satisfied that it is so, they will be included. The omission to include such properties might be by an inadvertent mistake or because of some other reason. In such cases it cannot be said that the manager is guilty of fraud or misappropriation. Likewise it is open to the plaintiff to shown by evidence that the manager has been acting fraudulently during the course of his management and that acts of misappropriation, malversation or of fraud have taken place in which case the Court is at liberty to direct a general account of the management. Without clear evidence regarding acts of fraud or misappropriation there cannot be a general back accounting by the manager.'

(27) We find ourselves in respectful agreement with the said view viz., that a vague and indefinite allegation would not render the Karta liable to back accounting. A specific allegation as to be made and proved before the accounts can be reopened and direction can be given to the commissioner to scrutinize the accounts. It has to be borne in mind that in the present case the plaintiff himself did not have any suspicion in regard to the correctness of the accounts and none of the coparceners came torward with any specific allegation in that regard, while there is material on hand to show that in spite of an attempt to discover flaws in the accounting either of inadvertent omissions or deliberate suppression, the 3rd defendant has not been successful in discovery and as conceded by him in Ex. A-3 addressed to the plaintiff. In these circumstances, there was no question of reopening the accounts by appointing a commissioner to look into the accounts.

(28) In regard to the suppression of accounts and the presumption arising therefrom, the learned counsel has urged that unless it was clearly established that the account books and registers have been suppressed no presumption adverse to the party producing the accounts can be drawn. In the instant case, much stress has been laid on the fact that the 1st respondent examined as D. W. 1 has admitted having D. C. B. Accounts in his possession without producing them in spite of a notice. Further, he has not produced leases in respect of Government Zirathi lands nor the records relating to the villages not taken over by the Government. At the same time he has asserted that he has produced the accounts of all the properties which are truly kept and not even the 2nd defendant who admittedly was associated with the 1st defendant in maintaining accounts had courage to rebut the same. The plaintiff , as stated above, has not even cared to look into the accounts. In this context we will have to consider how the non-production of the D. C. B. Accounts and other documents will amount to suppression and help in raising a presumption against the 1st defendant. The D. C. B. Accounts are in respect of each village separately and admittedly the property extends to about 30 villages, the number of ryots roughly being about 500. These accounts would merely indicate what was the demand from the ryots, the amount received and the balance due from them. The collection was done by the clerks who received the paddy or amount in cash and after recording the same in Santanam Chettas made payment of the same to the Karta of the family for being recorded in the account books. A persual of the accounts would show that the income thus realised was entered in the assets of the family. Therefore, there was no question of looking into the D. C. B. Accounts for each village unless any item of the receipt was specifically challenged. To illustrate, if the plain tiff had come with the allegation that in respect of a particular village the amount realised was Rs. 5,000/- while the entry in the account books showed that only Rs. 500/- were credited to the assets of the family in that year, it could be urged that the production D. C. B. Accounts or any other accounts had no relevancy. Therefore, we are not inclined to accept the contention that the mere admission of the 1st respondent that he was in possession of certain accounts would account to suppression. Consequently no adverse presumption would arise as against the 1st respondent for their non-production. If an authority is needed for this purpose we may refer to the case of Ramanathan v. Viswanathan, AIR 1941 PC 43, wherein it has been held that:

'The evidence acquished in by the plaintiff negatived any deliberate withholding of account books on the part of either defendant and no adverse inference could be drawn from the non-production of the account books'.

(29) The argument of the learned counsel for the respondent that no inference could be drawn against the 1st defendant for non-production of these documents seems to be well founded.

(30) No other point has been urged before us. In view of the above discussion, we are of opinion that no case for general accounting has been made out against the 1st respondent. The appeal is accordingly dismissed with costs.

(31) Appeal dismissed.


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