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Bhagwati Pershad Vs. Babu Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in63Ind.Cas.548
AppellantBhagwati Pershad
RespondentBabu Lal and ors.
Excerpt:
.....106 - hindu law--joint family--separation--partnership between separated member--dissolution of partnership--partition, suit for, maintainability of--limitation--procedure--party failing to carry oat order, effect of. - - certain facts must be set forth clearly in order to enable us to understand the case. so far as the business itself is concerned, there is clearly no force in this contention. the two brothers, were separate and if they ran a business, they clearly must have been partners within the definition of section 239 of the contract act, it is equally obvious that the partnership was not for a fixed term, and it is also obvious that both by his actions as well as by his words janki das put an end to whatever partnership had ever existed. article 120 clearly would not apply..........a minor but on the verge of majority, whish he attained in the year 1837. after the separation of tika ram baldeo das employed the shares of his mother and janki das and himself in working up a business, one branch of which dealt in sloth, one in the pawn of ornaments and one in the hundi and money-lending business the cloth shop was opened in the name of janki das alone. in the year 1905 when janki das was major and before the birth of the present plaintiff, a dispute arose. apparently janki das wanted to claim a share in what had been allotted to tika bam. he wanted to go behind the partition of 1886 and claimed that everything was still joint. the cause of this is not apparent, though it is probably due to the fact that tika ram had perhaps prospered whereas janki das had not. be.....
Judgment:

1. This appeal arises oat of a suit brought by the plaintiff appellant, who is a minor, for partition of property, which he claims to be joint family property, owned by the joint family consisting of himself and the defendants, who are the sons of his uncle, Baldeo Das. The property, the partition of which is sought, consists of an ancestral house situated at Agra and a certain business which was divided into three parte, one being a sloth business, one a business of money lending on pawn of ornaments and the third an ordinary banking and hundi business. There was also a claim in respect to other moveable properties, sash as ornaments, etc.

2. The defense of the defendants was that there was to joint family and that so far bask as the year 1885 there had been a complete separation in the time of the plaintiff's father. It was further pleaded that the plaintiff had no title or interest in the ancestral house.

3. The Court below held that the separation alleged by the defendants was acrrest; that the family had long been separate; that after that separation there had been a partnership between the plaintiff's father and the defendants' father, which partner ship tarried on the sloth business, the pawnbroker's business and the money lending business; that that partnership had some to an end at the latest in 1913, if not in the year 1906; that a suit for accounts, (sic), of any such partnership was barred by limitation. It held that the plaintiff was the owner of a share in the ancestral house, but it dismissed the suit because the plaintiff point-blank and deliberately refused to make the sons of Tika Ram, his other uncle, parties to the suit, they being members of the family which originally owned the house.

4. The plaintiff has some here on appeal. It is admitted in the beginning that the point of jointness cannot now be pressed in view of the arbitration award of the year 1906. The plaintiff' claim, therefore, for partition on the basis of the existence or a joint Hindu family falls to the ground, but it is urged that in respect to the business the plaintiff must be deemed to be a co-owner and as such entitled to a division and that his suit would fall under Article 120 of the Limitation Act and not Article 106, and as the suit was within six years of 14th of April 1913 it is within time and the plaintiff is, therefore, entitled to a decree for the taking of the amounts and the payment to him of anything that may be found due. In regard to the house it war urged that the plaintiff's suit should not be dismissed for nonjoinder of the necessary parties, that the Court itself could have made the sons of Tika Ram parties and could have gone on to divide the house and to have allotted the plaintiff his share therein. Certain facts must be set forth clearly in order to enable us to understand the case. Janki Das, the father of the plaintiff, Baldeo Das and Tika Ram were three brothers; their father died leaving them alive and also their mother, Musammat Biahhitra. Baldeo Das died on the 27th of January 1915. Janki Das died on the 4th of April 1916. The present suit was brought on the 23rd of January 1918. In the year Sambat 1943, that is 1886, admittedly Tika Ram separated from his two brothers. The plaintiff in his plaint alleged that though Tika Ram separated, Baldeo Das and Janki Das remained joint, Janki Das in that year, 1886, was still a minor but on the verge of majority, whish he attained in the year 1837. After the separation of Tika Ram Baldeo Das employed the shares of his mother and Janki Das and himself in working up a business, one branch of which dealt in sloth, one in the pawn of ornaments and one in the hundi and money-lending business The cloth shop was opened in the name of Janki Das alone. In the year 1905 when Janki Das was major and before the birth of the present plaintiff, a dispute arose. Apparently Janki Das wanted to claim a share in what had been allotted to Tika Bam. He wanted to go behind the partition of 1886 and claimed that everything was still joint. The cause of this is not apparent, though it is probably due to the fact that Tika Ram had perhaps prospered whereas Janki Das had not. Be that as it may, there was an agreement between the three brothers to submit their dispute to arbitration. That was done on the 29th of September 1905. The arbitrators appointed met and they passed an award. They held in their judgment that the brothers had separated, that there had been complete separation between all three branches and that a share had even been allotted to the mother, Musammat Bichhitra. The arbitrators were unable to settle the accounts between Janki Das and Baldeo Das, for the simple reason that Janki Das, who at that time was in charge and in possession of the sloth shop, had refused to produce his books to enable the arbitrators to go into them. The arbitrators, therefore, had to leave unsettled the settlement of the account between him and Baldeo Das. Janki Das sued to set aside this award and he fought his case up to the High Court. The first Court dismissed his suit on the 5th of June 1909 and his appeal was dismissed by this Court in November 1911. It is in view of the result of this litigation and of the award that the learned Vakil for the appellant has not pressed the claim of the plaintiff that the family was joint on the date of the present suit. There are certain other fasts to which attention must be tailed. On the 14th of April 1913 Janki Das sent a notice to his brother, Baldeo Das, through a lawyer. The meaning of that notice is very clear. It runs as follows:

As instructed by your brother Lala Janki Das, you are requested to explain the account of the partnership business within 15 days and to pay the amount due to my client, and you are informed that my client does not wish to keep the business in partnership and that if you will not explain the account and pay the amount due to my client, a suit will have to be instituted and you will be saddled with costs unnecessarily.

5. There are copies on the record which show that from the year 1908 onwards Janki Das has been putting himself forward as the sole owner of that branch of the business which dealt in cloth. He obtained a number of decrees against persons who owed debts to the shop. On one occasion when it was pleaded that he alone was not entitled to sue, he came into Court on the 10th of May 1910 in Suit No. 4718 of 1910 in the Court of Small Causes at Agra and swore on oath that he and he alone was the sole owner of the sloth shop. Assuming, therefore, that after the separation of Tika Ram, Baldeo Das' and his brother, Janki Das, continued to work together in partnership so far as the three businesses were unearned, it is quite evident from the fasts we have narrated above that he very soon separated entirely in every way from that partnership. After the arbitration award of 1906, in his suit by means of which he attempted to upset the award, he put forward the case that the family was joint and that there never had been any separation at all and that everything was the property of the joint family. Yet at the same time while that litigation was going on, he was in other litigations claiming that he was the sole owner of the sloth shop. Finally on the 14th of April 1913 he gave the notice to his brother Baldeo Das as pointed out above. It is quite clear, therefore, that very soon after the arbitration award he started fighting with his brothers and had been constantly at ill will with them since that date. The present plaintiff is a small boy who was born somewhere about the year 1914. It is obvious that no partnership existed at least from the 14th of April 1913, the date of the notice. It is urged on the plaintiff's behalf that there was really no partnership at all between Baldeo Das and Janki Das; that it was a sort of a co-ownership. So far as the business itself is concerned, there is clearly no force in this contention. The two brothers, were separate and if they ran a business, they clearly must have been partners within the definition of Section 239 of the Contract Act, It is equally obvious that the partnership was not for a fixed term, and it is also obvious that both by his actions as well as by his words Janki Das put an end to whatever partnership had ever existed. Section 253, Clause 8, of the Contrast Act will apply and the only suit which Janki Das could have brought against Baldeo Das was a suit for and account and the share of the profits of a dissolved partnership. Such a suit must be brought within a period of three years from the date of the dissolution. At the very latest this partnership was dissolved in the year 1913 and the present suit, as we have noted above, was not brought until the year 1918. Therefore, as a suit under which the plaintiff seeks to have his share of the profits of the dissolved partnership, the suit is out of time. Article 120 clearly would not apply to the circumstances of the present case.

6. There remains the question of the ancestral house. The plaintiff's right to a share therein is denied by the defendants. On the plaintiff's own showing the sons of Tika Ram are necessary parties to the suit. It is the ancestral house and at the time of the partition of 1836 a share each was allotted to all three sons and one to the mother. The mother has since died and her share would go in equal portions to each son, Tika Ram's sons would, therefore, be entitled to the same share in the house and in the circumstances of the case they were necessary parties to this suit, so far as the house was concerned. It was unnecessary for the plaintiff to as knowledge that they had any right, but in order to decide the case properly it was absolutely necessary that they should be parties. The plaintiff, for some reason best known to himself or to his lawyer, refused point-blank to make the sons of Tika Ram parties to the suit. He refused to take a necessary step whish the Court ordered him to take and as he point-blank refused to do so, the Court was justified in dismissing his suit. We are, therefore, of opinion that there is no force whatsoever in the appeal. We accordingly dismiss it with costs, including tern on the higher scale.


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