& Ors Vs. Yoga Bai  Insc 111 (24 February 2003)
Kumar D.M. Dharmadhikari Brijesh Kumar J.
appeal is preferred against the judgment and order passed by the Andhra Pradesh
High Court allowing the appeal of the plaintiff-respondent(herein) and setting
aside the judgment and decree passed by the trial court dismissing the suit for
appears that one Purandas had established his business in Hyderabad after having shifted there from Burhanpur
in the State of Madhya
Pradesh. The business
was being carried on under the name & style of Purandas Ranchhoddas &
Sons. It appears that he had different businesses mainly perfume business in
two places in Hyderabad. He had four sons, namely, Ranchhoddas,
Dwarkadas, Motilal, Babulal and a daughter Yoga Bai. Purandas died in the year
was eldest son. That being the position, Ranchhodddas continued to look after
the business. Dwarkadas died in the year 1966. His wife, Purna Bai and sons Daya
Bhai and Raj Kumar filed a suit for partition of the properties as joint family
property impleading Ranchhoddas as the Defendant No.1 and his sons as
Defendants 2 to 5. Sons of Motilal, namely Raman Lal and Shanti Lal, were impleaded
as Defendants 7 and 8 and Yoga Bai, daughter of Purandas was impleaded as
Defendant No.9. The plaintiffs claimed 1/5th share in the property. The
appellants (herein) filed their written statements denying the fact that there
was any joint family property as claimed by the plaintiffs. The trial court
dismissed the suit with a finding that Purandas had left Hyderabad and went back to Burhanpur in 1942
and before leaving he gave one shop at Secunderabad to his son Dwarkadas , the
shop at Gulzar House, Hyderabad to his other three sons. By this
arrangement, Purandas left no property in respect of which any partitition
could be made. The appeal preferred by the plaintiffs in the High Court has
been allowed holding that plaintiff is entitled for 1/5th share in the
property. The present appeal is against the judgment of the High Court.
appeal stood disposed of by order dated 2.9.1994 on the basis of a compromise
except as against Respondent No.7.
respondents 1, 2 and 3 are the plaintiffs and Respondent No.4 Motilal is son of
Purandas who has died and respondents No.5 and 6 are sons of Motilal.
Respondent No.7 is Yoga Bai, namely, the daughter of Purandas. She also died
during the pendency of the case and her legal representatives have been brought
on record. The position as it stands is that the appeal stands disposed of by
means of a compromise between the parties including the plaintiff except in so
far it related to Yoga Bai Respondent No.7, who was defendant No.7 in the suit.
The appeal was ordered to continue in respect of Respondent No.7.
has turned up for Respondent No.7, namely, the legal representatives of Yoga Bai.
Legal Representatives of Respondent No.7 have chosen not to put in appearance
counsel for the appellant has vehemently urged that the High Court while dealing
with the appeal has appreciated the evidence in detail and has set aside the
findings of fact recorded by the trial court. We see that it is within the
scope of first appellate court to go into the question of fact and appraise the
evidence available on record. The High Court has considered the statements of
different witnesses who deposed during the proceedings of the suit as well as
the documentary evidence. The High Court considered the evidence to the effect
that business was orginally started by Purandas and after the birth of Ranchhodas
it was shifted to Gulzar House in the name and style of Purandas Ranchhodas
& Sons and that all the sons and the father Purandas were running the
High Court particularly noted the fact that even according to the defendants
prior to alleged division in 1942 entire business belonged to all of them and
the income therefrom was enjoyed by all. Therefore, the High Court found that
the question which was to be considered was as to whether property acquired by
the father and the sons by putting their efforts together in their family
business would be amenable to partition at the instance of the sons or not.
Referring to several decisions of different High Courts, namely, Bombay High
Court, Oudh Chief Court, Madras High Court as well as Andhra Pradesh High Court
on the point, it came to the conclusion that the property in question was
raised and developed by the joint efforts of Purandas and his sons and
therefore it was joint family property, amenable for partition among the father
and sons etc. We do not find any flaw in the conclusion drawn by the High Court
on the point enumerated above.
High Court has not believed the case of the defendants that there had already
been a settlement in respect of the properties in question in 1942. It at least
indicates that even according to the contesting defendants, some settlement of
the property amongst the members of the family was necessary which had already
taken place earlier i.e. to say existence of joint property cannot be denied.
Once their case of settlement in respect of the same property having taken
place earlier has been dis-believed, there remain hardly any ground to resist
the claim of the plaintiff for partition and 1/5th share in the properties. The
case of the defendant that after the settlement the brothers have been residing
separately and they have been carrying on their business separately, hence
there remained nothing which was joint amongst the members of the family which
could be partitioned is rightly held to be untenable.
find that after appreciation of the evidence the High Court has arrived at a
finding that no such settlement had taken place in 1942. Learned counsel for
the appellant has vehemently urged that Exhibit B-3 is the deed of settlement
which should have been given due weight by the High Court while considering the
evidence. He has also submitted that the High Court has not taken into account
documentary evidence placed on record, namely Exhibits B-2, B-3, B-4,B-5, B-6
etc. as well as Ex.B-15 and B-16. He has also placed reliance upon the decision
in Surinder Singh versus Hardial Singh and others 1985 (1) S.C.C. 91 to the
effect that findings of fact recorded, ignoring the documentary evidence on
record is vitiated. We find that the High Court has considered a number of
documents on record except a few which may not have been considered necessary
to be referred to in the judgment.
High Court has taken a note of Ex.B-3, the alleged deed of settlement executed
by Purandas in 1957 and has dealt with it in detail. Referring to the statement
of DW-1, the High Court has taken a note of the fact that according to him B-3
came into existence since the Government was demanding inspection of their
account books. DW-1 also could not indicate the order of handing over the shop
to him by Purandas prior to 1942. The settlement was said to be in 1942 and
deed is executed in 1957.
the evidence on record as a whole the case of the defendant of settlement of
properties in 1942 and the deed executed in 1957 have not been believed. We
find no good reason to interfere with that finding of fact which is supported
by evidence and cogent reasons. In so far the other documents, which according
to the appellant have not been considered, they are some partnership deeds
which have been entered into between different members of the family in
different combinations. It is sought to be established that they have been
running their business separately under different partnerships. We feel that no
such inference can be drawn. In a family which carries on a number of business,
it is quite often that it is carried out under different names and styles and
often constitutes different companies or partnerships for better handling of
business or to keep it managable or for various other reasons. It is no proof
of separation nor are the letters which are sought to be relied upon, written
to the income-tax authorities and the assessment orders passed by the
income-tax authorities. It has already come in evidence that even B-3 came into
existence since the government wanted to inspect the account books. Therefore,
once the settlement before the suit for paritition was filed is not accepted by
means of a finding of fact recorded by the High Court, the case of the
defendant falls through.
indicated earlier, the matter stands settled and disposed of by compromise
among the parties except Respondent no.7 whose legal heirs have not turned up
to put in appearance. We do not find any good reason to interfere with the
judgment of the High Court except to the extent as may stand modified in view
of the order passed by this Court on 2nd September, 1994 to the following effect :
is disposed of on the basis of a compromise except against respondent no.7.
shall continue in respect of respondent no.7 and will be disposed of according
to law." There is no merit in the appeal, it is accordingly dismissed. Costs