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2004 DIGILAW 944 (AP)

Rajoli Fakruddin v. Maryam Bee

2004-09-02

GOPALA KRISHNA TAMADA, T.MEENA KUMARI

body2004
T. MEENA KUMARI, J. ( 1 ) THE appeal is directed against the judgment and decree dated 17-4-1995 in O. S. No. 5 of 1993 passed by the learned Subordinate judge, Gadwal. ( 2 ) FIRST defendant is the appellant and the second defendant is the second respondent and the plaintiff is the first respondent herein. The parties will be referred to as they were arrayed before the court below for the sake of convenience. ( 3 ) PLAINTIFF filed the suit for rendition of accounts, declaring that the plaint schedule properties are acquired out of the profits of Khaji Traders and assets of sri Khaji Abdul Khader Saheb, for partition and separate possession by metes and bounds of the Plaint "a", "b" "c" and "d" schedule properties between the plaintiff and 2nd defendant in equal shares and for mesne profits and correction of pahanies. ( 4 ) THE case of the plaintiff is that the plaintiff and the 2nd defendant are daughters of late Khaji Abdul Khader Saheb. Late khaji Abdul Khader Saheb brought up first defendant and entrusted his business affairs to him. In the year 1976 Khaji traders firm was established and since its inception he has been looking after the affairs of the firm as managing partner. After the demise of late Khaji Abdul khader Saheb, the said firm was reconstituted and he continued the business. In spite of repeated demands, the 1st defendant failed to show the accounts for acquiring the properties and also failed to hand over the possession of the plaint schedule properties. The 1st defendant stealthily recorded his name in the revenue records as adopted son and grand son of late Khaji Abdul Khader Saheb and inamdar etc. The plaintiff is under the impression that the 1st defendant is maintaining the fair accounts of the said firm. Subsequently, when she came to know about the mala fide attitude of the 1st defendant, she issued legal notice dated 22-7-1991. On 15-8-1991 the 1st defendant issued reply notice alleging that a schedule properties were his self acquired properties, b Schedule properties were got by him on lease, c schedule properties were given to him by plaintiff s father and out of the income from the agriculture and business of his own, he purchased d Schedule properties. On 15-8-1991 the 1st defendant issued reply notice alleging that a schedule properties were his self acquired properties, b Schedule properties were got by him on lease, c schedule properties were given to him by plaintiff s father and out of the income from the agriculture and business of his own, he purchased d Schedule properties. The 1st defendant did not inherit any movable or immovable properties through his natural father Shali sab and the properties in question were acquired by him only after he became the managing Partner without knowledge of the plaintiff. ( 5 ) ON the contrary, the 1st defendant filed written statement contending that his natural father was wealthy person having business and landed properties and that there was no entrustment of business belonging to Khaji Abdul Khader Saheb to him. Out of his own earnings, he purchased the properties in question and they exclusively belong to him. M/s Khaji traders was started in the year 1974 and after the death of Khaji Abdul Khader saheb, the firm was closed in the year 1982. On 29-1-1980 Khaji Abdul Khader saheb died. Subsequently, the plaintiff and the 2nd defendant partitioned their properties and they are in possession and enjoyment of the same and both of them colluded with each other and filed the suit belatedly after 12 years. Therefore, the suit is liable to be dismissed. ( 6 ) THE first defendant also filed additional written statement contending that the suit filed by the plaintiff is barred by limitation and the alleged Khaji Traders firm was dissolved and as the plaintiff failed to mention the names of all the partners, the suit is bad for non-joinder of necessary parties. ( 7 ) THE 2nd defendant also filed written statement contending that late Khaji abdul Khader Saheb and M/s Khaji traders have nothing to do with the suit properties and the same were partitioned between the plaintiff and 2nd defendant as per the will dated 1-6-1979. ( 8 ) ON the above pleadings, the following issues have been settled for trial by the Court below:1. Whether the plaintiff is entitled for declaration that the plaint schedule properties are acquired out of the income from the Khaji Traders Firm? 2. Whether the plaintiff and D-2 are entitled to equal shares partition and separate possession of plaint a to d schedule properties? 3. Whether the plaintiff is entitled for declaration that the plaint schedule properties are acquired out of the income from the Khaji Traders Firm? 2. Whether the plaintiff and D-2 are entitled to equal shares partition and separate possession of plaint a to d schedule properties? 3. Whether the plaintiff and defendants are partners of M/s Khaji Traders, a registered Firm? If so, whether D-1 has to render accounts from 1976 to 1987, and profits to be paid to plaintiff after the accounts are rendered? 4. Whether the plaintiff is entitled to the declaration that entries in R. O. R/ revenue records showing D-1 s name as son, grandson and adopted son are illegal and if so to be deleted? 5. Whether the plaintiff is entitled for the mesne profits as claimed? 6. Whether all the properties of late khaji Abdul Khader as per his will deed dated 1-6-1979 are already partitioned between plaintiff and defendant No. 2 by arrangement dated 8-10-1993? 7. Whether the plaintiffs son and D-2 s son were admitted as partners after the death of Abdul Khader and they too retired by 29-8-1982 closing the said Firm? 8. Whether all the plaint schedule properties except b schedule and house No. 4-3-97 belongs to D-1 and are his self acquired properties? 9. Whether D-1 is in possession of sy. No. l91/a and the Sy. No. 82/a as service holder? 10. To what relief? the Court below also framed the following additional issues on 24-11-1994: 1. Whether the suit of plaintiff after a lapse of 14 years after death of her father, is barred by limitation? 2. Whether all the partners of dissolved khaji Traders are proper and necessary parties? If so the suit is bad for their non-joinder? ( 9 ) IN support of her case, the plaintiff examined PWs. 1 to 10 and marked Exs. Al to A28 documents. On the other hand, the 1st defendant examined D. W. I and DW. 2, and marked Exs. Bl to B 14 documents. If so the suit is bad for their non-joinder? ( 9 ) IN support of her case, the plaintiff examined PWs. 1 to 10 and marked Exs. Al to A28 documents. On the other hand, the 1st defendant examined D. W. I and DW. 2, and marked Exs. Bl to B 14 documents. ( 10 ) ON a consideration of the material available on record, the Court below with regard to Plaint a schedule properties observed that the 1st defendant is not claiming any right in the properties by virtue of any document in his favour and with regard to Plaint b schedule properties, though the plaintiff claims that the malgies belong to the firm, it is specific case of the 1st defendant that they belonged to gadwal Sanstan and as regards the factory it belongs to late K. D. Satha Reddy which was not denied by the plaintiff and as regards the other properties the documents filed on behalf of 1st defendant clearly disclose that all of them were purchased by him in his name and in the name of his wife, and further held that the plaintiff failed to establish her case that the properties were held by M/s Khaji Traders by the date of these acquisitions. While dealing with the issue related to the rendition of accounts, the Court below by taking the aid of the deposition of the 1st defendant himself as PW. 1 in O. S. No. 1 of 1979 which was marked as Ex. A5 herein held that 1st defendant is the Managing partner of the firm Khaji Traders and he himself maintains the accounts even after the demise of Khaji Abdul Khader Saheb and accordingly held that the plaintiff is entitled to division of Plaint a schedule properties into two equal portions by metes and bounds and also held that plaintiff is entitled for separate possession of one such share and directed to pay the deficit court fee. The Court below further directed the 1st defendant to render accounts in respect of M/s Khaji Traders from 1976 to 1987 and 25% profits therefrom shall be paid to the plaintiff, 50% for D1 and 25% for Defendant No. 2 and accordingly decreed the suit in part. Being aggrieved by the same, the present appeal is preferred by the 1st defendant. ( 11 ) HEARD the learned Counsel on either side. Being aggrieved by the same, the present appeal is preferred by the 1st defendant. ( 11 ) HEARD the learned Counsel on either side. ( 12 ) IT is contended by the learned counsel appearing on behalf of the 1st defendant-appellant that the Court below has misconstrued the document of relinquishment deed as partnership deed and came to the conclusion that the partnership deed should be registered and hence the appellant herein cannot claim any benefit under the dissolution of partnership. In support of his contention, the learned Counsel for the appellant relied upon a judgment of the supreme Court in Gangadhar Madhavrao bidwai v. Hanmantrao Vyankatrao mungale, (1995) 3 SCC 205 , wherein it was held as under:"unregistered deed of dissolution of partnership-Evidentiary value-Appellant and respondent constituting partnership-Land purchased by respondent alone-Deed indicating that the land was in joint ownership of both the partners-Held on facts, the property at the time of dissolution of partnership was partnership property and therefore, the deed of dissolution was not required to be registered and the recital therein admissible in evidence even in absence of registration. " ( 13 ) ON the other hand it is contended by the learned Counsel for the 1st respondent-plaintiff that the reasoning assigned by the Court below, which is clear and cogent, in arriving at the conclusions on the issues, does not call for any interference by this Court. Therefore, the appeal filed by the 1st defendant fails and accordingly the same is liable to be dismissed. ( 14 ) WE have perused the judgment of the Court below. Without touching the merits of the case, the main attack of the learned Counsel for the 1st defendant- appellant on the point is that the document dated 29-8-1982 is rejected to receive in evidence though it is purely a deed of retirement, which is admissible in evidence. It is further argued that the said document does not require any registration inasmuch as it does not deal with the immovable property and that if it were admitted in evidence, it would resolve the issue involved in the proceedings as to the dissolution among all the partners. ( 15 ) IN the light of the principles laid down by the Apex Court in the above decision, the document which was tried to be marked by the 1st defendant-appellant, does not require any registration and it is admissible in evidence. ( 15 ) IN the light of the principles laid down by the Apex Court in the above decision, the document which was tried to be marked by the 1st defendant-appellant, does not require any registration and it is admissible in evidence. At this stage, it is also brought to the notice of this Court that some other documents namely (1) an unregistered document and (2) five income tax returns were rejected to be received in evidence and on this it is submitted that due to non-receipt of the retirement deed or the relinquishment deed as the case may be, and these documents in evidence, much prejudice would be caused to the legal rights of the 1st defendant appellant. ( 16 ) IN this view of the matter, we are of the view that this is a fit case wherein this matter can be remitted back for fresh consideration after affording an opportunity to both parties and after allowing the parties to produce the documentary evidence if any. ( 17 ) ACCORDINGLY, this appeal is allowed and the judgment of the Court below is hereby set aside and the matter is remitted back for fresh disposal in accordance with law. The 1st defendant-appellant is directed to file the documents chosen to file, along with a petition before the Court below. Likewise, the plaintiff is also at liberty to adduce any rebuttal documentary evidence. Since the suit is of the year 1993, the Court below is directed to dispose of the case as expeditiously as possible preferably within a period of six months after affording an opportunity to both the parties and taking into consideration the documents now chosen to file before it as indicated above. Registry is directed to refund the Court fees and also the original papers if any filed along with the appeal.