Research › Browse › Judgment

Kerala High Court · body

1989 DIGILAW 478 (KER)

V. P. Veerankutty Haji v. V P Kunhalankutty

1989-10-31

P.K.SHAMSUDDIN, V.SIVARAMAN NAIR

body1989
JUDGMENT Shamsuddin, J.- 1. A.S. No. 159 of 1978 arises out of O.S. No. 42 of 1977 and A.S. No. 137 of1980 arises out of O.S. No. 126 of 1971 on the file of the Subordinate Court,Kozhikode. The above suits were tried jointly and evidence was recorded inO.S. No. 126 of 1971. Against the judgment and decree in O.S. No. 126 of1971, the 1st defendant filed A.S. No. 78 of 1978 before the District Court,Kozhikode and against the judgment and decree in O.S. No. 42 of 1977, theplaintiff filed A.S. No. 159 of 1978 before this court. As both the appeals arisefrom a common judgment, this court in C.M.P. No. 16449 of 1979 withdrewA.S. No. 78 of 1978 to this court and renumbered as A.S. No. 137 of 1980.The 1st defendant has filed a Cross Objection in A.S. No. 159 of 1978. 2. O.S. No. 126 of 1971 was filed by plaintiff for rendition of accounts of apartnership business known as M/s V. P. Alikutty Haji and Go. and also forpartition of assets of the partnership firm. O.S. No. 42 of 1977 was filed by theplaintiff for a declaration that a gift deed executed by deceased Alikutty Haji on27th September, 1967 in favour of 1st defendant evidenced by Ext. B-1 is void,inoperative and. unenforceable and for setting aside the same and for partitionof properties described in plaint A and B schedules and allotment of 14 sharesout of 64 shares to the plaintiff together with mesne profits. 3. We shall first deal with A.S. No. 159 of 1978 which arises out of O.S. No. 42of 1977. Plaintiff and the 1st defendant therein are sons of Alikutty Haji anddefendants 2 to 5 are daughters of Alikutty Haji, who died on 9th November1968. According to the plaintiff, the plaint schedule properties belonged toAlikutty Haji along with other items of properties. All the properties belongingto Alikutty Haji other than the plaint schedule properties were divided betweenthe plaintiff and defendants 1 to 6 under partition deed evidenced by Ext. B-2,dated 21st November 1969. Admittedly, the plaint schedule properties werenot included in the partition. It is the plaintiff's case that Ext. B-1, a gift deedexecuted by deceased Alikutty Haji on 27th September 1967 is void andunenforceable and is liable to be set aside. It takes in items 1 to 4 of plaint Aschedule properties. B-2,dated 21st November 1969. Admittedly, the plaint schedule properties werenot included in the partition. It is the plaintiff's case that Ext. B-1, a gift deedexecuted by deceased Alikutty Haji on 27th September 1967 is void andunenforceable and is liable to be set aside. It takes in items 1 to 4 of plaint Aschedule properties. In regard to items 5 and 6, the contention of the 1stdefendant is that they are dedicated as wakf by Alikutty Haji and his brotherKunhalikutty under document No. 3009/1912, which was destroyed during theMappila rebellion and that taking advantage of this position, the plaintiff hasclaimed right in respect of these items also. 4. The Trial Court upheld the gift deed and found that items 1 to 4 covered bythe gift deed are not partible. However, it took the view that items 5 and 6 arepartible item and granted a decree in favour of the plaintiff for partition of thoseitems and allotment of his share. It also found that the value of a lorrydescribed in B Schedule as item 1 is also liable to be partitioned. The TrialCourt also directed that quantum of mesne profits will be fixed in the finaldecree proceedings. It is challenging the finding of the Trial Court that items 1to 4 of the plaint A schedule are not liable to be partitioned, that the plaintifffiled A.S. No. 159 of 1978. In that appeal, the 1st defendant filed crossobjection challenging the finding of the Trial Court that items 5 and 6 arepartible. 5. In O.S. No. 126 of 1971, the Trial Court passed a preliminary decree forrendition of accounts in relation to the partnership firm M/s V. P. Alikutty andCo. In A.S. No. 137 of 1980, the 1st defendant has challenged this finding.While the appeals were pending, the 1st defendant died and his legalrepresentatives were brought on record. 6. In A.S. No. 159 of 1978, the learned counsel for the plaintiff contended thatthe view taken by the Trial Court upholding the validity of the gift deedevidenced by Ext. B-1 is unsustainable. In this connection, the learned counselfor the plaintiff pressed into service the evidence of P.W. 3 who is alleged tobe the doctor, attending on. Alikutty Haji from 1966 onwards. B-1 is unsustainable. In this connection, the learned counselfor the plaintiff pressed into service the evidence of P.W. 3 who is alleged tobe the doctor, attending on. Alikutty Haji from 1966 onwards. P.W. 3 deposedthat Alikutty Haji underwent an operation for strangulated hernia at Thangal'sHospital, Calicut on 8th September 1967, that he took Alikutty Haji back to hishouse at Kondotty on 23rd September, 1967 and that from. 1966 onwards, tillhe left Kondotty, Alikutty Haji was not in a position to reply to any question put.to him. He also stated that Alikutty Haji was suffering from hypertension,diabetis and uremia and also become unconscious from 1966 onwards andwas not in possession of his mental faculties. He further stated that on 23rdSeptember 1967, Alikutty Haji was in a bad condition and he was in a semicomatose stage and was not in a position to speak or to do anything. 7. In the cross examination, P.W. 3 stated that he was working as a consultingphysician for medical stores, Kondotty P.C.C. Society and that oneMohammedkutty, son inlaw of deceased Alikutty Haji was the Secretary ofP.C.C. Society, that he had not kept any records for treatment and that whenAlikutty Haji was taken to the hospital for operation, both the plaintiff and the1st defendant accompanied him to the hospital. According to him, Alikutty Hajidid not recover from his disease and he was in comatose stage. He admittedthat he did not know who was personally attending on Alikutty Haji at thehospital. He denied the suggestion that he was giving evidence at the instanceand instigation of plaintiff Kunhalikutty and Mohammedkutty. 8. The learned counsel also relied on the evidence of P.W. 1, as plaintiff. Hestated that after the death of Alikutty Haji, there was a partition, but all theproperties belonging to Alikutty Haji were not included therein, that it was the1st defendant who gave instruction for preparation of the document and thatitems 1 to 4 were not gifted by his father to the 1st defendant. According toP.W. 1 at the time when Ext. B-1 came into existence, his father did not haveeither mental or physical capacity to execute a document. He also denied thecontention of the 1st defendant that items 5 and 6 are wakf properties. Headmitted that the property covered by Ext. B-3, which is another documentpurported to have been executed by Alikutty Haji was not included in thispartition or in the earlier partition. He also denied thecontention of the 1st defendant that items 5 and 6 are wakf properties. Headmitted that the property covered by Ext. B-3, which is another documentpurported to have been executed by Alikutty Haji was not included in thispartition or in the earlier partition. He also admitted that the 1st defendant wasreceiving the rent of the school building from 1967 onwards, that he had neverdemanded from the 1st defendant his share of the rent received by the 1stdefendant, that it was the 1st defendant who used to get repair of the schooldone and that the 1st defendant was taking the income from the coconut treesin the school compound and paying the tax. 9. As against this evidence, counsel for the 1st defendant relied on theevidence of D.Ws. 1 to 3. The 1st defendant as D.W. 1 gave evidence thatitems 1 to 4 in the plaint schedule were gifted by his father to him under Ext.B-1 document, that his kudiyirippu is situated just on the southern side ofthese properties, that items 5 and 6 belonged to his father and brotherKunhalikutty that they dedicated these properties as wakf and that thereforeitems 1 to 6 also are not available for partition. He also stated that Ext. B-1document was written by D.W. 2 on the instruction of his father, that he hadseen his father signing the document, that it was registered at the residence ofAlikutty Haji, where the plaintiff, his wife and children and the 6th defendantwere also living at the time, that the plaintiff was present in the house at thetime of registration and that nobody had any dispute regarding the validity ofthe document. He also stated that out of the two attestors of the document,Veerankutty died and Unneenkutty, the other testator was laid up withrheumatic complaint and that his father was fully conscious when thedocument was executed and till his death. He further stated that two otherdocuments were also executed on the day by his father, one in favour of thesister of the mother of the plaintiff and the defendants evidenced by Ext. B-3and the other evidenced by Ext. B-4 in favour of Bangalathu Erammathu, thatbefore registration, the Sub Registrar took the deposition of his father and thatExt. B-5 is the certified copy of the same. B-3and the other evidenced by Ext. B-4 in favour of Bangalathu Erammathu, thatbefore registration, the Sub Registrar took the deposition of his father and thatExt. B-5 is the certified copy of the same. He also said that on the date of giftdeed, the property was put in his possession and that thereafter he was takingthe income from the property and was paying the tax. The building in items 1to 4 was rented out to the Government for running a school and after the giftdeed, the rent of the building was collected by him. He wrote a letter to theHeadmaster along with the gift deed requesting to pay the rent to him on thestrength of the gift in his favour. Ext. B-6 is the reply given by the AssistantEducational Officer to his petition. Ext P-7 is the proceedings of the DistrictEducational Officer dated 17th September 1968 recording transfer ofownership of the building to the plaintiff with effect from 27th September 1975.Ext. B-8 is the covering letter sent while returning the gift deed, D.W. 1 statedthat it was because items 5 and 6 are wakf properties, that those items werenot included in the partition, that wakf deed was destroyed that it was notpossible to obtain a registration copy of the document and that Ext, B-9 is theextract from the register kept in the Office of the District Registrar. Heproduced Exts. B-10, 8-11 and B-12, the receipts for payment of tax in respectof properties gifted to him. He admitted that in 1967 his father was admitted inThangal's Nursing Home for operation for hernia and that he was not aware ofthe registration of items 5 and 6 as wakf properties in the Wakf Board. 10. D.W. 2 is the scribe of Ext. B-1 document. He deposed that he knewAlikutty Haji from 1952 onwards and that he had written documents includingExts. B-1, B-3 and B-4. According to him, Exts. B-1, B-3 and B-4 were writtenon the instructions of Alikutty Haji and he was conscious at the time when itwas prepared and plaintiff and the 1st defendant were present there at thetime of registration. 11. D.W. 3, the Sub Registrar who registered the documents, is anotherwitness whose evidence was very strongly relied on by the counsel for the 1stdefendant. He registered Exts. B-1 to B-3. He deposed that it was at theresidence of Alikutty Haji that he registered Exts. 11. D.W. 3, the Sub Registrar who registered the documents, is anotherwitness whose evidence was very strongly relied on by the counsel for the 1stdefendant. He registered Exts. B-1 to B-3. He deposed that it was at theresidence of Alikutty Haji that he registered Exts. B-1 to B-3, that it wasAlikutty Haji himself who presented the documents for registration before him,that when the document was registered, Alikutty Haji was possessed of hisfaculties so as to know the contents of the documents, that he had takendeposition from him before registration, that Ext. B-5 is the certified copy of thesame and that Alikutty Haji has signed Ext. B-5 deposition. He did not seeAlikutty Haji signing Ext. B-1 document, but he saw Alikutty Haji signing Exts.B-2 and B-3 documents. D.W. 3 further stated that at the time of registration ofthese documents Alikutty Haji was fully conscious and that the plaintiff anddefendant were present at the time of registration. 12. In the cross examination, he stated that he was not aware of the kind oftreatment, which was given to Alikutty Haji or the disease from which he wassuffering, and that when Alikutty Haji signed the documents, his hand wasunsteady. Initially he stated in chief examination that he was not in a positionto say whether he came to the house for registration in a car or by walk, butsubsequently, he corrected by saying that a car was brought by the scribe andthat it was in that car that he went to the house for registration. 13. The learned Subordinate Judge, who had occasion to hear the witnessesand watch their demeanour chose to believe the evidence of D.Ws. 1 to 3 anduphold the gift of items 1 to 4 in favour of the 1st defendant under Ext. B-1. 14. The learned counsel for the plaintiff however vehemently contended thatP.W. 3 is the doctor who was attending on Alikutty Haji and that there is noreason to disbelieve him. He also attacked the evidence of D.W. 3, SubRegistrar as highly interested. According to the counsel D.W. 3 was friendlywith the 1st defendant. Nothing has been brought out to show that D.W. 3 hadany preference for the 1st defendant. It was also pointed out by the learnedcounsel that D.W. 3 did not sec Alikutty Haji executing the document. We donot think that there is any legal requirement that the executant should sign thedocument before the Registrar. Nothing has been brought out to show that D.W. 3 hadany preference for the 1st defendant. It was also pointed out by the learnedcounsel that D.W. 3 did not sec Alikutty Haji executing the document. We donot think that there is any legal requirement that the executant should sign thedocument before the Registrar. No rule is brought to our notice to establishsuch requirement. 15. D.W. 3 stated that he registered three documents namely Exts. B-1, B-3and B-4 executed by Alikutty Haji and that before registration he had taken thedeposition evidenced by Ext. B-5 from Alikutty Haji that he was fully satisfiedthat he was conscious at the time of registration of Exts. B-1, B-3 and B-4,documents and that Alikutty Haji was aware of the contents of the documents.The evidence of D.Ws. 2 and 3 show that the plaintiff was present at the timeof registration. According to P.W. 1 at the time of registration, the plaintiff hiswife and children were living at the residence of Alikutty Haji. These items ofevidence have not been seriously challenged in cross examination. 16. Learned counsel for the plaintiff however brought to our notice certainminor discrepancies in the evidence of D.W. 3 as to how he came to theresidence for registration. Though he initially stated at one place that he wentby walk, he corrected it by saying that D.W. 2 the scribe of the documentbrought a car and that he went in that car. This discrepancy might haveoccasioned as a result of lack of memory. There is overwhelming oral anddocumentary evidence in the case that Exts. B-1, B-3 and B-4 were registeredat the residence of Alikutty Haji. Therefore minor discrepancy in his evidenceas to how he went to the residence of Alikutty Haji does not in any way affectthe credibility of his testimony, that he went to the residence of Alikutty Hajiand registered the documents. We also do not find any reason for D.W. 3 tospeak falsehood so as to deprive the plaintiff of his share in the property of hisfather. Plaintiff examined as P.W. 1 stated that he never challenged Exts. B-3and B-4 which were also documents executed by Alikutty Haji on the samedate. Ext. B-3 is executed in favour of maternal aunt of the plaintiff and the 1stdefendant and Ext. Plaintiff examined as P.W. 1 stated that he never challenged Exts. B-3and B-4 which were also documents executed by Alikutty Haji on the samedate. Ext. B-3 is executed in favour of maternal aunt of the plaintiff and the 1stdefendant and Ext. B-4 is another document executed in favour of a stranger.Ext B-2 is the partition deed effecting partition of the properties of Alikutty Hajiafter his death and admittedly the plaint schedule properties as well as theproperty covered by Exts. B-3 and B-4 were not included therein. Ext. B-1 giftdeed takes in items 1 to 4 of the plaint A schedule property and it is notdisputed that there was building in items 1 to 4 which was rented out to theGovernment for running a school. It is difficult to believe that at the time whenpartition Ext. B-2 was effected the plaintiff was not aware of items 1 to 4 wherethe school building is situated. Plaintiff as P.W. 1 admitted that his childrenwere studying in the school. We feel that the conduct of the plaintiff is notinsisting on inclusion of items 1 to 4 in Ext. B-2 partition deed is clearlyindicative of the fact that he was not inclined to challenge at that time the gift infavour of 1st defendant. As indicated above, the evidence of D.Ws. 1 to 3clearly establishes the presence of the plaintiff at the time of registration. If thewife and children of the plaintiff were living at the residence of Alikutty Haji atthe time of registration as stated by D.W. 1 it is difficult to conceive that theplaintiff did not know about the registration. P.W. 3 admitted that he was aconsultant in the hospital run by P.C.C. Society, Kondotty of whichMohammedkutty the son inlaw of Alikutty Haji was the Secretary. P.W. 3stated that he was treating Alikutty Haji from 1966 onwards, that during theentire period of his treatment he was unconscious or in semicomatosecondition and that Alikutty Haji was not in a position to reply to any questionsput to him. D.Ws. 2 and 3 are independent witnesses and there is no reasonfor them, to give false evidence on the mental condition of Alikutty and thepresence of the plaintiff. There are other documentary evidence andcircumstances which weshall presently advert to, indicating that the evidence of P.W. 3 cannot besafely accepted. 17. Exts. A-19 to A-29 are returns submitted on behalf of V. P. Alikutty Hajiand Co. There are other documentary evidence andcircumstances which weshall presently advert to, indicating that the evidence of P.W. 3 cannot besafely accepted. 17. Exts. A-19 to A-29 are returns submitted on behalf of V. P. Alikutty Hajiand Co. A-19 is dated 29th May, 1967, A-20 is dated 27th June 1967, A-21 isdated 27th July 1967, Ext. A-22 is dated 25th August 1967, Ext. A-23 is dated20th October 1967, A-24 is dated 20th November 1967 and A-25 is dated 20thDecember, 1967. In these documents declarations were made by Alikutty Hajihimself. In Ext. A-26, A-27, A-28 and A-29, M. Kuttirayan, in the capacity asManager made the declarations. These are all documents produced by theplaintiff himself. The plaintiff has no case that these documents are notgenuine. Having produced these documents as evidence on his side it wasalso not open to the plaintiff to contend that they are not genuine. So the storyput forward by P.W.3 that Alikutty Haji was in a state of unconsciousness from1966 till his death or was in a semi comatose condition, and that he wasunable to understand questions and reply cannot be believed. In Ext. X-12 file,we find an application dated 1st August 1967 signed by Alikutty Haji foradjournment of assessment proceedings on the ground of ill health andanother authorisation dated 8th August 1967 signed by Alikutty Hajiauthorising the 1st defendant to appear before the Agricultural Income TaxOfficer and give evidence and produce records on behalf of Alikutty Haji. 18. The learned counsel invited our attention to a decision of the Privy Councilin Kunwar Surendra Bahadur Singh v. Takur Bihari Singh and Others AIR1939 PC 117 and submitted that there is no acceptable evidence of executionof the document by Alikutty Haji. In the above ruling the Privy Council held thatone of the essentials of attestation is that each of the attesting witnesses musthave signed the instrument in the presence of the executant. D.W.3 the SubRegistrar has not seen Alikutty Haji signing Ext. B-1; nor has D.W.2 the scribeor D.W. 5 the attesting witness seen Alikutty Haji signing the document andthat in the absence of such evidence the lower court should have foundagainst proper execution of the document. It is no doubt true that D.W. 3 hasnot seen Alikutty Haji signing the document but he had taken the deposition ofAlikutty Haji. Ext. B-5 is the deposition. In Ext. B-5 Alikutty Haji stated that thethree documents (Exts. It is no doubt true that D.W. 3 hasnot seen Alikutty Haji signing the document but he had taken the deposition ofAlikutty Haji. Ext. B-5 is the deposition. In Ext. B-5 Alikutty Haji stated that thethree documents (Exts. B-1, B-3 and B-4) presented for registration were readout to him, that it was after understanding the contents that he signed thedocuments and that he was fully conscious. One of the attestors to Ext. B-1Veerankutty died. The other attestor D.W. 5 was examined on behalf of the 1stdefendant but he pretended that he did not remember anything about the giftdeed executed by Alikutty Haji though he had to admit that he attested thedocument. He stated that he did not see Alikutty Haji signing the document.He was treated as hostile and was cross examined. We do not find any reasonto discard Ext. B-5 deposition recorded by the Sub Registrar. In thisconnection we would like to refer to the following observation of the PrivyCouncil in Gangamoyi Debi v. Troiluckkyanath Chowdhri ILR 33 Calc. 537 inregard to the endorsement of the Registrar: "The registration is a solemn, act to be performed in the presence of acompetent official appointed to act as Registrar, whose duty it is to attend toparties during the registration and see that the proper persons are present andare competent to act and are identified to his satisfaction; and all things donebefore him in his official capacity and verified by his signature will bepresumed to be duly done and in order." In the light of evidence referred to above and the principle enunciated in theruling of the Privy Council in Gangamoyi Debi's case ILR 33 Calc. 537 (supra),we are of the view that execution and registration have been properly provedand are beyond challenge. It follows that items 1 to 4 are not available forpartition. 19. There is a cross objection filed by the 1st defendant challenging the findingof the Trial Court that the 1st defendant has not succeeded in establishing thatitems 5 and 6 are wakf properties. There is no evidence of registration of theseproperties as wakf properties before the Wakf Board. 20. The learned counsel for the first defendant vehemently relied on thesouthern boundary mentioned for item 11 of A schedule property allotted tothe 1st defendant in Ext. B-2 partition among the legal heirs of Alikutty Haji. Itis shown as Padinjare Valtya Peedikakkal Paramba dedicated as wakf. 20. The learned counsel for the first defendant vehemently relied on thesouthern boundary mentioned for item 11 of A schedule property allotted tothe 1st defendant in Ext. B-2 partition among the legal heirs of Alikutty Haji. Itis shown as Padinjare Valtya Peedikakkal Paramba dedicated as wakf. Theeastern boundary of that property is also mentioned as Valiyaveetil Paramba.In the circumstances, we are not in a position to definitely say that the recitalof the southern boundary of item 11 in A schedule to Ext. B-2 relates to item 6of the plaint schedule property as contended on behalf of the 1st defendant.The extract of the deed produced is also not sufficient to establish that itrelates to items 5 and 6 of the plaint schedule property. There is no otheracceptable evidence by the 1st defendant to prove his contention regardingitems 5 and 6. In the circumstances there is no merit in the cross objection.We confirm the finding of the learned Subordinate Judge that items 5 and 6are liable to be partitioned. 21. In A.S. No. 137 of 1980 which arises out of O.S. No. 126 of 1971, learnedcounsel for the 1st defendant contended that the decree passed by the lowercourt directing rendition of accounts of the firm "V. P. Alikutty Haji and Co."and also directing that on failure of the 1st defendant to produce the accounts,the Commissioner would have to come to a decision about the assets andliabilities of the firm with reference to Exts. A-7 to A-9 and A-30 to A-33 andany other material placed before the court during the final decree proceedingsis incorrect and unsustainable. There is also a direction in the decree that if noamount can be arrived at on the basis of the above accounts, then the liabilityof the 1st defendant would be decided on the basis of the decision in SurendraNath Sud v. Standard Vacuum Oil Co. AIR 1977 SC 1454 . It was also foundthat liability of the 1st defendant is from 30th June, 1965. A preliminary decreewas also passed for rendition of accounts. 22. Learned counsel for the legal representative of the 1st defendantchallenged these directions in the decree. He contended that there is noevidence to show that the 1st defendant was conducting the partnershipbusiness from 30th June 1965, that Alikutty Haji himself was the ManagingPartner till his death and that therefore no question of rendition of accounts bythe 1st defendant relating to partnership business arises. 23. He contended that there is noevidence to show that the 1st defendant was conducting the partnershipbusiness from 30th June 1965, that Alikutty Haji himself was the ManagingPartner till his death and that therefore no question of rendition of accounts bythe 1st defendant relating to partnership business arises. 23. Ext. A-6 dated 20th January, 1966 is a copy of the letter sent by 1stdefendant on behalf of M/s V. P. Alikutty Haji and Company to the Income TaxAuthorities. It was regarding production of accounts before the tax authorities.Ext. A-16 is another letter dated 8th November 1967 which the 1st defendantsigned on behalf of the firm regarding the opening of a branch at Chalakudy.Exts. A-10 to A-12 are documents regarding a hundi drawn on 20th January1966 by the 1st defendant on behalf of the firm. These letters as well as Ext.A-16 letter sent by 1st defendant on behalf of the firm to the Sales TaxAuthorities would show that 1st defendant was managing the affairs of thefirm. Further question to be considered is whether the firm was in existenceafter the death of Alikutty Haji. After the death of Alikutty Haji, 1st defendantsent Ext. A-13 return of income for the year 1968-69 to the Income TaxAuthorities. Ext. A-13 was signed by 1st defendant on behalf of the firm.Alikutty Haji died on 9th November, 1968. Exts. A-13 and A-9 would show thatthe 1st defendant was in possession of the accounts. In the assessment order,the profit derived by the Company was shown as Rs. 10,780 and the shares ofthe plaintiff and the 1st defendant were shown as Rs. 3,594 each. In Ext. A-7assessment order dated 31st October 1966 there is a statement that all thepartners except V. P. Alikutty Haji actively participated in the conduct of thebusiness. Such a statement is found in Ext. A-8 assessment order for theaccounting year 1967-68 and also in Ext. A-9. In the circumstances, it is clearthat preceding the death of Alikutty Haji, Sri V. P. Kunhalikutty Haji, the plaintiffand the 1st defendant were running the business and since Alikutty Haji wasbedridden, he was not actively participating in the conduct of the business.Exts. X-4 to X-10 relate to hire purchase agreement in regard to lorry bearingregistration No. KLD 5695. Ext. X-4 is a letter signed by the 1st defendant on26th November 1968 for the purpose of a loan of Rs. X-4 to X-10 relate to hire purchase agreement in regard to lorry bearingregistration No. KLD 5695. Ext. X-4 is a letter signed by the 1st defendant on26th November 1968 for the purpose of a loan of Rs. 14,000 on the strength ofa hire purchase agreement in relation to vehicle No. KLD 5695. Ext. X-4 issigned by 1st defendant as the Managing Partner of V. P. Alikutty Haji and Co.Ext. X-5 is also a letter sent in connection with the hire purchase arrangementfor the lorry, which also was signed by the 1st defendant on behalf of V. P.Alikutty Haji and Co. In regard to this arrangement, the 1st defendant alsoproduced a solvency certificate from the Village Officer and that is Ext. X-6.Ext. X-7 is the printed proposal form regarding the hire purchase of motorvehicles from Sampath Financiers, Calicut. In this document also, 1stdefendant signed as the Managing Partner of V. P. Alikutty Haji and Co. Ext.X-9 is a promissory note executed by the 1st defendant on behalf of the firm infavour of Sampat Financiers regarding the hire purchase loan. Ext. X-10 is thenotification of termination of the agreement of hire purchase sent to theRegional Transport Officer, Kozhikode. In this also, the 1st defendant hassigned on behalf of the firm. These documents clearly show that the 1stdefendant, was conducting the business after the death of Alikutty Haji at leasttill 26th November 1968. Exts. A-19 and A-29 are certified copies of monthlyreturn submitted to Sales Tax Authorities for M/s V, P. Alikutty Haji and Co. forthe months of April 1967 to March 1968. These documents and Exts. A-32 toA-34 audited accounts would show that the firm was sending returns inrespect of the firm and that there were audited accounts for the firm. In thecircumstances, it is clear that the accounts of the firm were available and thatthe 1st defendant was managing the business and handling the affairs of thepartnership. Though the 1st defendant contended that the plaintiff wasmanaging the affairs of the firm, documentary evidence referred to above doesnot support the contention of 1st defendant. It is also not born out that plaintiffwas actively participating in the business. It is in these circumstances that thelower court found that 1st defendant is liable for rendition of accounts. 24. Though the 1st defendant contended that the plaintiff wasmanaging the affairs of the firm, documentary evidence referred to above doesnot support the contention of 1st defendant. It is also not born out that plaintiffwas actively participating in the business. It is in these circumstances that thelower court found that 1st defendant is liable for rendition of accounts. 24. It is however contended by learned counsel that the relief of rendition ofaccounts granted against 1st defendant by the lower court has becomeinfructuous since 1st defendant died pending disposal of the appeal. According to learned counsel, legal heirs of 1st defendant cannot be saddled with liability to render accounts. 25. In this connection, reliance has been placed by learned counsel appearingfor legal representatives of 1st defendant, on a Division Bench ruling of theMadras High Court in Karri Venkayyamnu v. Goluguri Tirapayya AIR 1955Mad. 32. Court held thus: "It is settled law that the legal representative of a partner is not liable to renderaccounts to the other partners. The other partners must allege and establishthe liability of the deceased partner, and the amounts so as certained could berecovered from the assets of the deceased in the hands of his legalrepresentatives." We are in respectful agreement with the proposition laid down in the aboveruling. However, there are Exts. A-7 to A-9 which would show the income ofthe firm in respect of assessment years 1966, 1967 1968 and 1969. Shares ofprofit of each individual partner shown their in can be accepted as income ofthe firm during relevant years and liability of deceased partner can beascertained on the basis of these documents and the amounts so found liablecan be recovered from the assets of 1st defendant in the hands of legalrepresentatives. Of course, it is open to legal representatives of 1st defendantto adduce evidence in final decree proceedings on the question whetheramounts shown as share of profits of the plaintiff were drawn by plaintiff. Weset aside the decree for rendition of accounts passed against 1st defendantand instead direct the lower court to determine the share of profit of plaintiff onthe basis of Exts. A-7 to A-9 in final decree proceedings. Legal representativesof 1st defendant are at liberty to adduce evidence on the question whetherplaintiff has drawn share of profits which belonged to him in respect of theseyears. A-7 to A-9 in final decree proceedings. Legal representativesof 1st defendant are at liberty to adduce evidence on the question whetherplaintiff has drawn share of profits which belonged to him in respect of theseyears. Amounts finally ascertained as liable from 1st defendant to plaintiff infinal decree proceedings, can be recovered from the assets of 1st defendant inthe hands of his legal representatives. 26. In the result, A.S. No. 159 of 1978 and Cross Objection are dismissed andA.S. No. 137 of 1980 is disposed of as above. The parties will bear theirrespective costs.