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Bishamber Dayal Vs. Ram Pershad, Etc. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtDelhi High Court
Decided On
Case NumberSuit Appeal No. 128 of 1970
Judge
Reported inILR1981Delhi272
ActsIncome-tax Act; Shops and Establishment Act; Code of Civil Procedure (CPC), 1908 - Sections 14, 16, 17, 20, 116 and 120; Code of Civil Procedure (CPC) (Amendment) Act, 1951 - Sections 14; Court Fees Act - Sections 7 - Schedule - Article 17; Suits Valuation Act - Sections 9
AppellantBishamber Dayal
RespondentRam Pershad, Etc.
Advocates: J.K. Seth and; B.S.C. Singh, Advs
Cases ReferredState Bank of India v. Himalayan Exporters
Excerpt:
hindu law--suit for partition and rendition of accounts--suit properties whether joint family properties--proof--whether high court can grant relief when immovable properties are situated within the jurisdiction of different courts--valuation for purposes of court fees, how made.; in the suit for partition and rendition of accounts between brothers, the question arose whether a joint hindu family existed between them, and what was the effect of the brothers earlier treating their business concerns as belonging to the family in their income-tax returns, civil suits, bank accounts etc. it also came up for determination whether partition could be allowed by the delhi court when some of the properties were situated in district rohtak, and further whether the suit for purpose of court-fee.....d.r. khanna, j.(1) this suit for partition and rendition of accounts brought by bishamber dayal, was initially against his two brothers, namely, ram pershad and chhotey lal. chhotey lal, however, died during the pendency of this suit some time in the year 1972. he was unmarried and has not left behind any issue. there is no dispure that the plaintiff and his brother ram pershad who is the other defendant, were his only heirs. his name, thereforee, was struck off from the plaint.(2) according to the plaintiff, he and ram pershad defendant came to delhi in late twenties from village subhana, district rohtak, and started joint business on road pavements of selling old books and periodicals. from the earnings saved there from, they obtained shop no. 5701, nai sarak, delhi on rent under .their.....
Judgment:

D.R. Khanna, J.

(1) This suit for partition and rendition of accounts brought by Bishamber Dayal, was initially against his two brothers, namely, Ram Pershad and Chhotey Lal. Chhotey Lal, however, died during the pendency of this suit some time in the year 1972. He was unmarried and has not left behind any issue. There is no dispure that the plaintiff and his brother Ram Pershad who is the other defendant, were his only heirs. His name, thereforee, was struck off from the plaint.

(2) According to the plaintiff, he and Ram Pershad defendant came to Delhi in late twenties from village Subhana, District Rohtak, and started joint business on road pavements of selling old books and periodicals. From the earnings saved there from, they obtained shop No. 5701, Nai Sarak, Delhi on rent under .their names Ram Pershad Bishamber Dayal in about the year 1936, and continued the same business under the name 'Vaish Book Depot'. Still another shop bearing No. 892-893, Nai Sarak. Delhi, was tatken by them on rent in about 1945, and in this they extended the same business under the name All India Book House. The rent deed was in the no me of Ram Pershad defendant who being the elder brother, was acting as the karta of Joint Hindu Family consisting of the plaintiff and himself.the accounts of the two business were kept joint at the premises of All India Book House, and the sale-proceeds of Vaish Book Depot too were entered there.

(3) These defendants further obtained three godowns in Charkhewalan, Balli Maran and Nai Sarak for their said business. The rent deeds were again in the name of Ram Pershad defendant, he being the karta of the family. The payments of rent of all these godowns and shops were debited in the business accounts.

(4) In the income-tax assessment of the business which took place from the year 1945 onward, the business was throughout shown as belonging to their Hindu Undivided Family. Suits were also instituted by the defendant acting as the karta of the family. The bank accounts were also opened of the business in the Punjab National Bank and the Oriental Bank of Commerce in which both the brothers were shown as proprietors/partners.

(5) In or about the year 1952 a plot of land bearing No. E-26, Kamla Nagar, Delhi, was purchased and a house constructed thereon. The investment in this regard again came from the said business, and in the municipal and other recolds of water and electricity departments, both the brothers were shown as joint owners. They also started residing there jointly, though it was the plaintiff who was ' first to shift there. In part of this house, some tenants were inducted who paid rent to both the brothers, or partly to one brother and partly to the other.

(6) In this way the plaintiff claims that he and defendant are partners of the businesses known as Vaish Book Depot and All India Book House, and co-owner's of the property in Kamla Nagar. In the alternative, he claims that the business and the property and godowns belong to their Joint Hindu Family. Relief by way of partition and rendition of accounts has, thereforee, been sought.

(7) There are next stated to be a house and two plots situated in village Subhana, District Rohtak. which are ancestral qua the parties and in which they along with Chhotey Lal, had equal shares. This Chhotey Lal, it has been stated, was previously working at Hardwar, and since he was unemployed he was allowed to work in the business of Vaish Book Depot and All India Book House and used to be paid remuneration for his work. Some time he resided with the plaintiff and some time with the defendant. His status was treated to be as a licensee and he had no interest or share in the business. The plaintiff, thereforee, claimed that in the said properties in village Subhana, District Rohtak, he. Ram Pershad and Chhotey Lal had I [3rd share each. Their partition was, thereforee, accordingly sought. This part of the controversy as to how much shares each had in these properties has been rendered academic with the death of Chhotey Lal, as admittedly now both the sides have equal shares in them.

(8) The reason which the plaintiff claims, has prevailed with him to file the suit was that Ram Pershad defendant has started misbehaving and on some occasions even beat him plaintiff and pushed him out of the shop.

(9) Ram Pershad defendant in his written statement apart from taking certain objections to the valuation of the suit for purposes of court-fee and jurisdiction, and the competency of the Delhi Court to award any relief with respect to the Rohtak properties, has asserted that it was he who firsi migrated to Delhi some time in the year 1927, and started working first as a palledar and then as a pavement vendor of books. In 1932, the plaintiff also came to Delhi and began living with him, and it was in the next year that the shop where Vaish Book Depot was started was taken on rent. According to him, this business is also the other business All India Book House which was started in 1945, belong to him exclusively, and that it was out of sheer love and affection that he had associated the plaintiff with them. His status was claimed to be no better than a mere employee.

(10) So far as the income-tax assessments, filing of suits and opening of bank accounts etc., it has been contended that they were under legal advice in order to save tax and did not represent the real state of affairs. It has, however, been conceded in the written statement that the three brothers formed a Joint Hindu' Family, lived and messed together, but there was no joint family property. The tenancies of the three godowns are similarly claimed to belong to him only.

(11) As regards the Kamla Nagar house, this defendant has asserted that the same was purchased and built with the funds of the said business belonging to him, and, thereforee, the properly also is owned by him exclusively. The name of the plaintiff is pleaded to be shown as benami in the documents and the bank accounts etc. It is however admitted that rent realisation were credited in their joint, bank account.

(12) The plaintiff, it has further been pleaded, misappropriated considerable amounts as detailed in para 15 of the written statement, from the business All India Book House and as such he was turned out by the defendant for his criminal activities.

(13) As a counter-claim, the plaintiff has further claimed that rendition of accounts and partition be also effected of the business known as Bansal Bros., which the plaintiff has started with the amounts so misappropriated from the business. This is as an alternative plea in case the plaintiff's version of the existence of Joint Hindu Family and partnership is accepted.

(14) Chhotey Lal deceased in his written statement had supported the version set up by Ram Pershad defendant. He pleaded that in case the business belonged to the Joint Hindu Family, he should also be allowed his share in the same.

(15) On the pleadings of the parties, following issues were framed:

'1. Whether the suit is properly valued for purposes of court fee and jurisdiction O.P.P.

2.Whether this court has jurisdiction to entertain the suit with respect to the property situated outside Delhi O.P.P.

3.Whether the suit is bad for non-joinder of the necessary parties and mis-joinder of causes of action O.P.P.

4.Whether the property as mentioned in Schedule 'A' of the plaint is a joint Hindu Family Property of which the plaintiffs, defendant No. 1 and defendant No. 2 are co-parceners having equal shares ' O.P.P.

5.Whether defendant No. 1 is the sole proprietor of the property and the business mentioned in Schedule 'A' and the plaintiff is the benami O.P.D. No. 1.

6.Whether the plaintiff and defendant No. 1 are the partners of the business and the property mentioned in Schedule 'A' and if so, what is the share of each party O.P.P.

7.Whether the plaintiff is entitled to decree for partition and rendition of accounts or in the alternative for dissolution of the firm and rendition of account and if so what properties have to be partitioned and what is the share of each party and who is the accounting party O.P.P.

8.Whether the business of All India Book House and Vaish Book Depot are joint Hindu Family business O.P.P.

9.Whether defendant No. 1 is entitled to the decree for rendition of accounts against the plaintiff of Kamla Nagar property O.P.D. No. 1.

10.Whether defendant No. 2 has 1 /3rd share in the entire property O.P.D. No. 2.' Issue NO. 10 :

(16) So far as this issue is concerned, the same does not survive after the death of defendant No. 2. As already stated above the plaintiff and Ram Pershad defendant are his only heirs.

(17) It farther follows that since the plaintiff and defendant are -the only surviving brothers, each would be entitled to 1/2 share in case the business, properties, plots and tenancies are held to be joint qua them. It matters least whether this jointness is as co-partners and co-owners, or this is on account of they being co-parceners of the Joint Hindu Family. In either case, the plaintiff would be entitled to dissolution/partition and given 1/2 share. This part of the controversy, thereforee, need not be adjudicated. The defendant's case, on the other hand, is that all these exclusively belong to him, although he admits the existence of Joint Hindu Family between him and the plaintiff. In case he fails to so establish and prove that the plaintiff was only a benamidar and his employee, the partition will have to follow. Issues NO. 4 to 8:

(18) There is plethora of evidence on record which shows that both the parties have been all through living and running business jointly. 'This had continued till shortly before the institution of the present suit. The pavement soiling of old books and periodicals was jointly done by them, and it mattered little who was the first to migrate to Delhi and set the ball rolling. Thereafter when the Vaish Book Depot shop was taken on rent it was in the names of both of them, though, the rent, deed was executed by the defendant. There was nothing unusual in the same as he was elder of the two brothers. Even Chhotey Lal was younger to him. The business of the All India Book House was started some time in 1945, and this was a mere extension of the other business in a bigger shop. This too was operated by both of them. Although the rent deed of this shop was executed by the defendant, it does not militate against the existence of jointness as he could do so as the karta of the family. The significant circumstance is that the rent paid for this show was debited in the account-books of the business.

(19) Thereafter from 1946 till the institution of this suit, the business was assessed, to income-tax, and all through the returns were filed and assessment followed in the status of Hindu Undivided Family. In those returns and assessments, the co-perceners mentioned were the three brothers. It was only after the institution of the suit that the defendant started filing returns as sole owner and the same, thereforee, need not be given much significance, being motivated. This long course of conduct on the part of the parties acknowledging the business as belonging to their Hindu Undivided Family, cannot be lightly ignored, and rather reflects how they were treating the same and in what manner they were representing that to the outside world. It is now a plea of escapism on the part of the defendant in order to back out from the long course of admissions to conveniently plead that this was meant to avail some income-tax benefits. In my opinion, this deserves to be rejected as no material evidence has been brought on record to hold that the defendant had succeeded in withdrawing those admissions. Apart from the circumstance that those declaration with the income-tax authorities correctly reflected the state of affairs of the business and the relationship inter-se parties, it can as well be said that even if it be taken that the business of Vaish Book Depot and the All India Book House was initially of the defendant only, although there is nothing to hold so, still the conduct of the defendant in filing the returns for a large number of years in the status of Hindu Undivided Family had the effect of throwing that business into the hotchpotch of the family and imprinting it with the character of Hindu Undivided Family, (see in this respect the decisions reported as Goli Eswariah v. Cgt : [1970]76ITR675(SC) (1); Cgt v. Getti Chettiar : [1971]82ITR599(SC) (2), C.T.T. v. Keshav Lal Patel; 55 Itr 635 (3); Commissioner of Income Tax v. Stremann, : [1965]56ITR62(SC) (4 ), and 1976 S.C. 1715 K. B. Narayanan v. K. V. Ranganathan(5).

(20) Apart from these income-tax returns, the defendant had been instituting suits against third parties in the name of the business describing it as belonging to the Hindu Undivided Family, and giving his status as that of karta. These are valuable admissions and unless shown to he successfully withdrawn, are enough to call for the acceptance of the existence of the Hindu Undivided Family, (see in this respect the decision of the Supreme Court in Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others, 1960 Sc (100) (6). In fact, not much scope for controversy is left over as the defendant has in his written sattement plainly admitted that there existed a Joint Hindu Family of the parties. All that was stated was that there was no presumption that it was possessed of joint property. This presumption was squarely made out with the admission of the parties in their long course of conduct that the business belongs to the family.

(21) At the stage of the hearing of arguments in this suit, the plaintiff made it clear that he primarily relies upon his alternative case set up in the plaint, that the business and. the properties belong to Hindu Undivided Family, the partnership case set up in the first instance, has been relied upon as a second alternative. About this, it has already been observed above that it matters least now whether the parties were running the business as coparceners or partellers, as in either case they are entitled to equal shares.

(22) There has further been evidence of the tenancies of the shops and godowns recorded in the municipal registers as belonging to both the parties. The rents were paid by the business, and when the same is treated as belonging to the family, there is no escape that the tenancies also belong to the family. The rent deed of Vaish Book Depot was clearly in the joint names while the others, though in the name of the defendant, can be treated as held by him as karta of the family.

(23) In the bank accounts which the business opened in different banks, both the parties were shown as co-proprietors partners of the business, and both were entitled to sign the cheques. At no stage 'before the institution or the suit, the defendant, at any time, asserted before any court, income-tax authority or the banks that he was the sole proprietor of the business.

(24) There has further been evidence of a large number of witnesses examined by the plaintiff who have stated that both had been running the business, and most of the attending to the cash used to be by the plaintiff. These witnesses include the employees and relations of the parties. In the Mercantile Association of which the business was member, both the parties used to attend. The traders dealing with this business, were treating them as joint proprietors.

(25) Much has been sought to be made out from the side of the defendant to the plaintiff being, on some occasions, allowed salary by the business. In some of the income- tax returns the amounts of these salaries paid to him were displayed in the employees' register for a limited period too the plaintiff was shown as an employee. In my opinion, however, this circumstance need not be given undue significance as in several of the income-tax returns, salary payments to the defendant were also shown. Before the incorporation in the Income-tax Act of the provision baring payment of salaries to partners etc., the practice of allow ing salaries was not unknown. Similarly, kartas and co-parceners of the Hindu Undivided Families were allowed salaries. It is significant to mention hers that the defendant had been claiming salary for himself as well in several of the income-tax returns. The income-tax authorities also disallowed salary deductions to co-parceners on the ground that they were not allowable. In some of the attendance or employees' registers, the plaintiff was not shown amongst the employees, and one of such registers is signed by the defendant himself.

(26) The plaintiff had been 'withdrawing money off and on from the business which was incompatible with his being a mere employee. Both the parties have been allowing loans to third parties from the business.

(27) I now proceed to discuss the evidence in details. The first set is constituted of the income-tax returns from the assessment years 1946-47 onward till the time of the institution of the present suit. Ex. Public Witness 29/14 is the assessment order of the assessment year 1946-47 in the status of Hindu Undivided Family. Its name is mentioned as Ram. Pershad Bishamber Dayal. Its members are shown as the three brothers, namely. Ram Pershad, Bishamber Dayal and Chhotey Lal. It concerns the business of both the shops. It thus clearly brings out not only the existence of the Hindu Undivided Family, but also that the business belong to it. Ex. Public Witness 29/15 concerns assessment year 1947- 48 in the status of Hindu Undivided Family. Similar was the position for assessment years 1948-49 and 1955-56 vide Ex. Public Witness 29/16 and Ex. Public Witness 29(17 respectively. The salary to three brothers was disallowed on the ground that payments to persons other than employees did not call for deduction. Instead salaries paid to the rest of the employees were allowed. There is a narration in this assessment order that the entire family was joint, and the business right from the beginning was being carried on by all the three brothers.

(28) EX. Public Witness 1911, Ex. Public Witness 2918, Ex. Public Witness 2919, Ex. P.W. 29110, Ex. Public Witness 29111, Ex. Public Witness 29/12, Ex. Public Witness .1918, Ex. Public Witness 19113 and Ex. Public Witness 1913 next show that assessments from 1961-62 to 1969-70 were all in the status of Hindu Undivided Family. From assessment year 1961-62, the income from Kamla Nagar property was also started to be shown as belonging to the Hindu Undivided Family. In this year, the assessment went up to the Income-tax Appellate Tribunal vide Ex. D.2. It is narrated in that order that the business was being run from 1932. In the assessment year 1967-68 vide Ex. Public Witness 29112 read with statement of account Ex. Public Witness 1918, salary deductions to karta and other coparceners were mentioned. Similar was the position in Ex. Public Witness 1913, Ex. Public Witness 1918 and Ex. Public Witness 1919. Thus even in the assessment year 1969-70, shortly before the institution of the present suit, salary deduction for all the coparceners were being sought in income-tax assessments.

(29) EX. Public Witness 1913, Ex. Public Witness 1918 and Ex. Public Witness 291.13 are the salary registers showing payment of salaries to all the employees.

(30) Another set of evidence is constituted of various bank accounts. Ex. Public Witness 1511 and Ex. Public Witness 15j2 were the accounts which the Hindu Undivided Family opened in the Oriental Bank of Commerce Limited on 14-10-1960. Both the plaintiff and the defendant were shown as members of the family, and were entitled to operate it. Ex.. Public Witness 1513 and Ex. Public Witness 1514 dated 12-5-1961, relate to another account opened in that bank in the name of the Hindu Undivided Family, and both were shown as proprietors entitled to sign on behalf of the All India Book House. Ex. P.W. 1515 and Ex. Public Witness 1516 show the opening of the account in the name of the All India Book House in the same bank on 18-7-1963. This was opened by all the three brothers and all were entitled to sign.

(31) Another bank account was opened in the name of All India Book House in the Punjab National Bank, Nai Sarak Delhi. All the three brothers signed as partners on the specimen signature form vide Ex. Public Witness 2911. Ex. Public Witness 2914 to Ex. Public Witness 2917 which are the ledger accounts from. that bank, further show the three brothers as the operators of the account.

(32) EX. Public Witness 2912 to Ex. Public Witness 2913 and 29122 to Ex. P.W. 29124 Ex. Public Witness 1811 & Ex. Public Witness 1812 are the cheques either issued by the plaintiff, or when issued in the name of their business by third parties were deposited under the signature of the plaintiff. The cheque Ex. Public Witness 29/2, is about payment of rent to the landlord of the Nai Sarak shop. The same is signed by the plaintiff as partner.

(33) Another set of evidence is constituted of different suits which the Hindu Undivided Family of the parties brought against different persons. Those plaints were signed by the defendant as karta of the Hindu Undivided Family, and verified accordingly. The first one was Ex. Public Witness 29/120, brought in the name of the All India Book House, showing it to be the joint Hindu family business. This was in January, 1954, Ex. Public Witness 29/121 is the judgment in that case Ex. Public Witness 291122 is the vakalat nama which the defendant issued as of the family. On 10-10-1956, and Ex. P.W. 29/124 is the affidavit which the defendant filed in that case describing in the heading that All India Book House was the joint Hindu family business. Ex. Public Witness 29/125 is the replication filed by the defendant in the status of joint Hindu family. Ex. Public Witness 29/107 and Ex. Public Witness 29/108 are two other litigations of 1968 and 1969 in the name of the Hindu Undivided Family. Ex. Public Witness 29/109 is the statement given by the plaintiff in one of the suits, in which he stated that he was the karta of the Hindu Undivided Family, and the other members were Chhotey Lal and the present plaintiff. This statement was in the case brought by the All India Book House in the status of joint Hindu Family.

(34) EX. Public Witness 29/151 is still another suit brought in the name of the All India Book House in the status of joint Hindu family, and signed and verified by the defendant as karta. This was in the year 1956. Ex. Public Witness 29/152, Ex. Public Witness 29/153, Ex. Public Witness 29/154, Ex. Public Witness 29/155 .and Ex. Public Witness 29/156 are various other documents filed in courts in the status of Hindu Undivided Family. Ram Pershad had given an affidavit Ex. Public Witness 291157, again in the status of karta of the family in an application under order 5, rule 20 of the Code of Civil Procedure. Ex. Public Witness 29/109 and Ex. Public Witness 29/111 are the statements given by the defendant as karta of his Hindu Undivided Family. Ex. Public Witness 29/123 shows that the plaintiff had on behalf of the joint Hindu family issued a receipt on receiving decretal amount in a suit.

(35) EX. Public Witness 29/158 is a copy of the order of Hon'ble Mr. Justice H. L. Anand of the Delhi High Court, of the date 2nd August, 1973, in which there is a narration that the parties were real brothel's, and admittedly constituted a joint Hindu family entitled Ram Pershad Bishamber Dayal. It was also admitted that the family owned amongst others plot No. 26-E, Kamla Nagar on which house No. 6722 stood constructed.

(36) Another set of evidence is constituted of the property in Kamla Nagar. Ex. Public Witness 29/148 is the agreement about the purchase of this plot bearing date 14-3-1952. It is in the name of both the plaintiff and the defendant. Ex. P.W. 29/33 is the copy of the receipt concerning this plot of the year 1954, again in the name of both the parties. Ex. Public Witness 29/101, Ex. Public Witness 29/34, Ex. Public Witness 11/1 are some of the rent-deeds of this house in the name of both the brothers or either of them, and further that in the house- tax register both are shown as owners. Ex, Public Witness 29/101,' Ex. Public Witness 29/104 to Ex. Public Witness 29/17, Ex. Public Witness 291 110. Ex. Public Witness 291131 are water and -electricity bills etc., or correspondence exchanged about them. Ex. Public Witness 1711 and Ex. Public Witness 1712 show that in the demand and collection registers of the Municipal Corporation of Delhi both the brothers are entered as owners of this property. Ex. Public Witness 17/3 is the assessment register relating to Vaish Book Depot shop in which both the brothers are shown as tenants. Ex. Public Witness 6/1 to Ex. Public Witness 6/45 are the water tax bills of the Kamla Nagar house. Ex. Public Witness 29 40 to Ex. Public Witness 29/100 are the counter-foils of rent receipts of Kamla Nagar house. They were issued by the plaintiff on behalf of 'Ram Pershad Bishamber Dayal'. Ex. Public Witness 10/1 to Ex. Public Witness 10/40 are other rent receipts of this house. Some of which were issued by the plaintiff and other by the defendant.

(37) The business was member of the Delhi State Book Sellers Association, and both the parties used to attend that. Ex. Public Witness 24/1 is the photo of that Association, showing both the brothers. Public Witness 24 Rameshwar Dass Gupta was the President and Ex-Secretary of that Association, who stated that both used to attend.

(38) EX. Public Witness 29/31 and Ex. Public Witness 29/32 are the certificates under the Shops and Establishment Act of the All India Book House in the name of the defendant, and of the Vaish Book Depot in the name of Chhotey Lal. Their other members arc shown as the other two brothers.

(39) EX. Public Witness 29/30 is the attendance register of the All India Book House which is signed by the plaintiff as employer. Ex. D. 4 and Ex. D. 16 are employees register in the hand of the defendant. The plaintiff is not shown as an employee in them.

(40) A large number of witnesses have been examined by the plaintiff who have stated that both the-parties used to operate the business and receive and make payments. The plaintiff mostly attended to the cash. Amongst them,, P.W. 6 Girdhari Lal and Public Witness 7 Jai Kishan Dass were the book binders of the business, and Public Witness 12 Ram Bhagat was an employee and nephew of the parties. Public Witness 22 Kailash Chand Mittal was another employee of the shop. The other witnesses are from the banks. Municipal Corporation and other departments, universities etc. It would be relevant to mention here that to several witnesses, the defendant putforth the case as if Chhottey Lal had been adopted in another family.

(41) I have not gone into further details of the evidence as it is voluminous, and overwhelmingly points out to the existence of the Hindu Undivided Family, and that the business and the Kamla Nagar property belone to the family. So is the position of the three rented godowns as their rent was paid from the business.

(42) From the side of the defendant seven witnesses have been examined including the defendant himself. Of them D.W. 4 Mohd, Saeed and D.W. 6 Mohd. Aslam are the relations of the landlords of the All India Book House shop. They stated that the defendant is the tenant. However, as already brought out above, the rent of this show was paid from the business. Some cheques of the payment of rent of Nai Sarak shop were signed by the plaintiff.

(43) The entire business of the All India Book House was purchased in 1945, and the receipt about the same was issued by the defendant vide Ex. D. 17. It is attested by the plaintiff. This, however, does not necessarily had to the assumption that the defendant issued that in his individual capacity, and not as the karta.

(44) The initial payment about the plot of Kamla Nagar amounting to Rs. 12,000 was made by the defendants. According to the plaintiff, he had given that money. However, considering the circumstance how this property was all through held by both the brothers and treated accordingly, there is nothing to hold that the defendant paid that amount from his individual funds. Instead his case in the written statement is that the plaintiff was benami. The onus heavily rests upon him in this regard. Considering the nature of the evidence produced, it is difficult to hold that the onus stands discharged.

(45) It has also been sought to be asserted from the side of the defendant that in the several books published by the business, he was shown as the proprietor of the All India Book House. No such books, however, have been produced. The plaintiff has stated that he got those books written and published and also paid for them. According to him, the name of the defendant, if at all printed, was on account of his being the elder brother.

(46) The defendant has also pointed out to the cross examination of the plaintiff in which he stated that twice stamp papers were purchased for execution of partnership- deed of the business. One was in 1946-47 and the other in 1956-57. This was on the advice of the Income-tax Practitioner that they were likely to be benefited by being assessed as firm. The deeds were, however, not executed. Nothing, thereforee, much comes out from this circumstance.

(47) So far as the Kamla Nagar property is concerned, both the parties have in their deposition admitted that the money for the purchase of the plot and the construction of the building was drawn from the All India Book House.

(48) With this background of the evidence on record, I have little hesitation in holding that the properties and business which are the subject-matter of this suit, belong to the Hindu Undivided Family of the parties. The defendant had in his written statement himself admitted the existence of this family. The fact that the family owns the property and the business stands abundantly proved on record. The income-tax returns and assessments, the bank accounts, various suits which were filed on behalf of the business by the defendant, the municipal and other records and the evidence of a large number of witnesses leaves no doubt that the business in the names of 'Vaish Book Depot' and 'All India Book House' belong to the family, and so also the tenancies of the two Nai Sarak shops and the three godowns. The Kamla Nagar property admittedly stands in the name of both the parties, also belongs to their family as the investment in the same amounted from the family business.

(49) Issue No. 4 is, thereforee, decided in the affirmative to the effect that the properties mentioned in Schedule 'A' of the plaint are the joint Hindu family properties of the plaintiff and defendant No. I both having equal share. Issue No. 5 is decided against the defendant. Issue No. 6 is answered in the negative as the jointness was on account of the business being of the Hindu Undivided Family, and not on account of any partnership. Issue No. 8 is decided in the affirmative. In view of these decisions, a decree for partition and rendition of accounts is called for under Issue No. 7. Issue NO. 9 :

(50) In the matter of rendition of accounts both the sides are accountable to the extent any joint money or property is with them. In the present case, of course the defendant being the karta is the main accounting party. However, when the plaintiff had also been taking part in the business, Realizing rents of Kamla Nagar property etc., he is also liable to render accounts. The defendant has pleaded that certain amounts were misappropriated by the plaintiff from the joint Hindu family business and the property. To that extent the plaintiff will be liable and the commissioner who is appointed in the case, will go into the merits of the respective contentions of the parties in this regard. In case the plaintiff has utilised the family money in the running of any business, the commissioner will be entitled to look into the same and as the circumstances may permit, consider how far such business and profits are attributable to the joint family.

(51) It has not been shown how the suit is bad for nonjoinder of parties or misguide of Causes of action Issue NO. 2:

(52) There is no dispute that the properties situated in. village Subhana, District Rohtak, are joint Hindu Family properties of the parties. They are liable to be partitioned in equal share between them. In view of the provisions contained in section 17 of the Code of Civil Procedure, this Court has jurisdiction to grant relief with regard to these properties as well. It is clearly envisaged that where a suit is to obtain relief respecting, immovable property situate within the jurisdiction of different Courts, the suit can be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate. 'The defendant has referred to section 120 of the Code of Civil Procedure, and pleaded that sections 16, 17 and 20 of the Code are not applicable to the High Court in the exercise of its original civil jurisdiction. This controversy, I find, came up for adjudication twice before this Court. One was in the case of State Bank of India v. Himalayan Exporters (Suit No. 51 of 1968, decided by a Division Bench on 20-11-1970) (7), and the other in State Bank of India v. 0. P. Gupta, 1979 Delhi 201(8). It has been held that section 120 of the Code cannot be read to exclude the applicability of sections 16, 17 and 20 of the Code to this Court in the exercise of its original civil jurisdiction instead that section 120 is applicable to the three High Courts at Calcutta, Madras and Bombay which were the only High Courts at that time exercising ordinary original civil jurisdiction, when the amendment was introduced in the heading of Part Ix and section 116 of the Code by section 14 of the Civil P.O., Amendment Act 2 of 1951. The issue is, thereforee, decided in the affirmative.

(53) The plaintiff has fixed the value of the suit for purposes of partition at rupees two lacs, and paid court-fee of Rs. 19.50 under Article 17(iv) of the Court Fees Act. Similar court-fee has been affixed with regard to the properties in Schedule 'B' annexed to the plaint concerning village Subhana, District Rohtak, properties. The suit has been valued at Rs. 10,000 for obtaining their partition. As regards the relief for accounts, the valuation fixed is Rs. 130 and court-fee stamp of Rs. 13 has been paid. It has been held by a Full Bench of this Court in the case of Smt. Sheila Devi & others v. Shri Kishan Lal Kaira & others 1974 Vol. n, Delhi 491(9), that paragraph (iv) of section 7 of the Court-fees Act gives a right to the plaintiff in any of. the suits mentioned in the clauses of that paragraph to place any valuation that he likes on the relief he seeks, subject, however, to any rules made under section 9 of the Suits Valuation Act. and the Court has no power to interfere with the plaintiff's valuation. In case at the time of passing the final decree, farther fixation of Court-fee is rendered necessary, its propriety will be considered then. I am satisfied that at this stage the suit has been properly valued for purposes of Court-fee and jurisdiction. Till partition of the properties, both the parties -have to be treated in joint prosession.

(54) The result, thereforee, is that I pass a preliminary decree for partition of the properties shown in Schedule 'A' and Schedule 'B' attached with the plaint. Each party has one-half share. A further decree for rendition of accounts is passed with respect to the properties and business mentioned in Schedule 'A' attached with the plaint. Shri R. K. Baweja, Advocate, is appointed as Commissioner for effecting partition by metes and bounds, and also going into accounts. His fee Rs. 1,500 is fixed tentatively, to be paid by the parties in equal share. Costs of the suit will abide the final result of the suit. Report be submitted by August, 1980.


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