*THE HONOURABLE SRI JUSTICE B PRAKASH RAO AND THE HONOURABLE SRI JUSTICE R KANTHA RAO +A.S. NO. 1930 OF 1993 %19.4.2010 #Mr.Gannamani Anasuya ….petitioner Vs. $Mrs.Parvathi Amarendra Chowdary …. Respondents !Counsel for the Appellants: Mr. J Venkateshwar Reddy Counsel for the Respondents: Mr T S Anand. <Gist : >Head Note: ? Cases referred: THE HONOURABLE SRI JUTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE R R.KANTHA RAO A.S.No.1930 of 1993 JUDGMENT: (Per Hon’ble Sri Justice B Prakash Rao) This appeal under Section 96 of the Code of Civil Procedure is at the instance of the defendants 2,3 and 5 to 7 in the suit aggrieved against the judgment and decree in O.S.55 of 1985 dated 23-4-1997, on the file of Subordinate Judge at Ramchandrapuram, East Godavari decreeing the suit filed by the plaintiffs viz., the respondents 1 to 2 herein for partition in respect of plaint ‘A’ and ‘B’ Schedule properties and allotting the shares to the parties. The respondent no.1 is defendant No.3 and respondent no.4 is defendant no.4. In brief, the emerging facts in this cause are that parties on both the sides are closely interrelated. For convenience sake, they are referred to as arrayed in the Court below. The respondents 1 and 2/the plaintiffs have filed the suit inter alia seeking for partition of the plaint ‘A’ schedule property into 3 equal shares by metes and bounds and to allot two such shares to them and for partition of plaint ‘B’ schedule properties into 9 equal shares by metes and bounds and to allot 4 such shares to them through the process of Court and directing the defendants 1 to 3 to render accounts in respect of poultry business, which was allegedly run in the plaint ‘B’ Schedule property from the year 1968 till the date of filing of the suit and for awarding future profits and costs. The defendant No.1 is arrayed as respondent No.3 whereas the defendant No.4 is arrayed as respondent No.4 in this appeal. The plaintiffs are real brothers and are sons of defendant No.1 whereas the defendant No.2 is the wife of defendant No.3 and defendant Nos.5 to 7 are the children of defendants 2 and 3. Defendant No.4 is the sister of defendant No.1. The father of the defendant No.1 and defendant No.4 viz., Sri Narsimha Murthy died on 24-6-1971 whereas the mother predeceased him since died in about year 1947. It is stated in the plaint that during the life time of late Sri Narsimha Murthy, defendant No.1 partitioned the joint family land under the registered partition deed in the year 1961 excluding the family house and a vacant site at Pulagurtha as joint. The defendant No.2 is the daughter of natural brother of late Sri Narsimha Murthy. Her parents died when she was a minor and therefore late Narsimha Murthy brought her up and got married her with defendant No.3. The defendant No.3 happened to be a veterinary science student, and in view of his education qualifications, after obtaining B.VSc decree, the late Narsimha Murthy got the said marriage performed. After completion of the said degree, the defendant No.3 joined the service in Veterinary Department and was working as B.D.O in Urban Development Project in Municipal Corporation of Hyderabad and settled at Hyderabad. The defendants 2 and 3 sought assistance for establishing a poultry business at Hyderabad and in view of their sufficient experience in that business they requested late Sri Narsimha Murthy for investing the money with an understanding that the profits arising there from can be shared by late Sri Narsimha Murthy, defendant No.1 and defendant No.2 equally after meeting the necessary expenses apart from the interest for such investment at 15%. For that purpose, an extent of Ac.7-14 gts of land was purchased at Attapur with the finances provided by late Narsimha Murthy and a poultry farm was started, which was developed substantially by providing several sheds, residential quarters and feed mixing plant etc., in the premises. The said business has become very profitable and later two manufacturing plants were installed in the very same premises with the profits arising from the said poultry business. Therefore, it is stated that all these properties have been treated as joint family properties. In the plaint there is a denial as to the claim that an extent of Ac.1-00 in Sy.No.335/3 in ‘B’ Schedule was purchased by or belongs to defendant No.3. Hence, the case of the plaintiff in short is that all this land and properties in scheduled ‘A’ and schedule ‘B’ apart from the aforesaid business being joint are liable for partition and they are entitled to the shares as set forth in the prayer. The case of the defendant No.1 in his written statement is a supporting the plaintiff. He expressed no-objection for partition of the plaint ‘A’ schedule properties and the aforesaid poultry business and other activities. Further, stating there has been investment in the said business, and therefore, after the death of the father, he is entitled to his shares. It was also claimed that the amounts are being sent once in a while to the defendant No.1 after the death of his father towards the profits arising out of the business and towards interest. In this connection, the defendants sought to place reliance on the various correspondences, which took place between the parties and especially coming forth from the defendant No.3. The defendant No.2 did not file a separate statement, but adopted the written statement filed by the defendant No.3. In the written statement filed by the defendant No.3, it is admitted that there was a partition of joint family properties of late Narsimha Murthy in the year 1961 and there were no joint family properties. Further, the other natural brother Sri Kashiraman performed the marriage, since late Narsimha Murthy was an adopted son. It was stated that the allegation as against defendant No.3 that he did not come from a well to do family was denied. The allegation that there was any advancement of money, sharing of profits or payment of any interest by late Narsimha Murthy and defendant No.1 etc., are denied. There is denial to the allegations that the extent of Ac.7-14 gts was purchased by the monies advanced by late Narsimha Murthy and defendant No.1. The performance of marriage of three daughters from out of the trade fund is denied. The alleged G.P.A Holders of the plaintiffs is only set up by the defendant No.1, who got this collusive suit filed to illegally gain the benefit. There was an inventory of the material after filing of the suit, at which point of time, the plaintiffs nor the said G.P.A Holder were present. No plea of a partnership has been made in the plaint in respect of the alleged business by the plaintiffs, whereas the allegation that there was any understanding between late Narsimha Murthy and defendants 1 and 2 in respect of the schedule ‘B’ property, which is standing in the wife of defendant No.2 are denied. It was stated that the land in Sy.No.335/2 was acquired under registered sale deed dated 2-12-1970 in the name of defendant No.2 and late Narsimha Murthy. Since there was shortage of funds, late Narsimha Murthy advanced as a well wisher a sum of Rs.5,000/-, and therefore, he was shown as one of the vendee in the document, but later late Narsimha Murthy did not evince any interest in the said land, and therefore, the said late Narsimha Murthy has nothing to do with the said land or poultry farm or plastic business. Whereas these business activities were conducted with the own funds and there is absolutely no participation in any manner by late Narsimha Murthy or defendant No.1. In fact defendant No.2 with the assistance of the defendant No.3 started the poultry farm in the year 1968 as sole proprietor. The said business incurred losses in the year 1971 and 1973 and it was temporarily closed. The defendant No.2 has to obtain a personal loan of Rs.46,500/- as sole proprietor from the State Bank of India with the defendant No.3 as a guarantor and revived the business wherein the defendant No.1 stood as guarantor. Yet the defendant No.2 was unable to run the business profitably and admitted her three daughters in the business under a partnership deed dated 6-3-1978. The said business could be carried on till 30-10-1982 and later it was closed. Later the firm M/s. Anasuya Plastics separately registered with the Registrar of Firms constituted the defendants 3 and 5 to 7 as partners under the deed dated 18-1-1982. The shed belongs to defendant No.3 on a monthly rent of Rs.1,000/-. In pursuance of a regular registered lease deed by the defendant No.2 in favour of the firm on 29-11-1982 the other shed was taken on lease by defendant No.5 for running the poultry business on a monthly rent. Hence, it is their case that there is absolutely no property liable for partition at the instance of the plaintiffs or other members nor they are entitled to any shares therein. The defendant No.2 submitted a separate written statement claiming that she does not have anything to do with the subject matter of the suit. The defendants 5 to 7 who were later added as parties to the suit after getting themselves impleaded after coming to know that their properties are included in the suit and the receiver was appointed by court below as per orders in I.A.No.200 of 1991 dated 22-7-1991. They submitted a separate written statement denying the allegations as contained in the plaint and supported the pleas and the case of the defendant No.3. Further, it was added that in the first week of June 1973 defendant No.1 claimed the balance amount of Rs.41,015/- as on 30-5-1979 from defendants 2 and 3 and the defendants 2 and 3 came to Kakinada in 1979 for attending Pushkaram where the defendant No.3 paid a sum of Rs.10,000/- to defendant No.1. Thereupon, the defendant No.1 agreed to transfer half share in the immovable property in the land admeasuring Ac.7-14 gts at Attapur village to defendant No.2 and as differences arose, defendant No.1 got filed the present suit purportedly through his son as G.P.A holder. Further, it was asserted that defendants 2, 5 to 7 constituted the firm Anasuya Plastics under a registered partnership deed dated 6-3-1978, who obtained an amount of Rs.1,30,000/- from State Bank of India, Hyderabad for which the defendants 1 and 3 stood as guarantors. This itself shows that defendant No.1 could not possibly gave any interest in the business of the firm. In the land acquisition proceedings by the State Government, where under an extent of ac.7-14 gts were acquired, a writ was filed by defendants 1 and 2 in W.P.No.6143 of 1983 in this Court wherein the defendant No.1 admitting that defendant No.2 is a half share holder developed the land and constructed a big building including walls making huge investments. In regard to the firm M/s Anasuya Plastics, it was stated that it was closed in the year 1982 and the defendant No.1 has nothing to do with the said M/s.Ansuya Plastics, since it is a registered firm under a partnership deed dated 7-10-1982. However, for the purpose of obtaining the loan, since it was insisted upon that the consent of the owners of the land viz., defendants 1 and 2 were required, and therefore, the defendant No.1 gave a letter of acceptance on 30-11-1982 stating that he has no-objection to the lease granted to M/s.Anasuya Plastics. Thereupon, an amount of Rs.1,62,000/- was sanctioned by the A.P.S.F.C and later the defendant No.1 withdrew his consent and the loan could not possibly be fructified. The jurisdiction of the Court is also assailed. Further, it was stated that Sy.No.335/1 does not belong to any of the parties, whereas the defendant No.1 obtained permission for himself for construction in the land in Sy.No.335/2 and that the sale deed dated 2-12-1970, the land in Sy.No.335/3, to an extent of Ac.1-00 is not the subject matter, hence, sought for dismissal of the suit and rejection of the claim of the plaintiffs. Later on the defendant No.3 has filed additional written statement raising a further plea that Ac.7-14 gts, which was purchased under the sale deed on 2-12-1970 only covering Rs.335/1 and 335/3 and the same does not form part of the sale transaction dated 2-12-1970. Therefore, the land in Sy.No.335/1 belongs to a third party and the land in Sy.No.335/3 is only to an extent of Ac.1-00 and that of Defendant No.7. On these and other detailed allegations as contained in the aforesaid pleadings from both sides, the Court below framed the following issues: 1. Whether the plaintiffs are entitled for partition of the plaint ‘A’ schedule properties into three equal shares by metes and bounds, and allot two such shares to them? 2. Whether plaintiffs are entitled for partition of plaint B schedule property into 9 equal shares by metes and bounds and allot 4 such shares to them? 3. Whether plaintiffs are entitled for separate possession of such shares in plaint A and B schedule properties by process of Court? 4. Whether plaintiffs are entitled for rendition of accounts by defendants 1 to 3 in respect of the poultry business since that is being run in B schedule property from the year 1968 onwards? 5. Whether plaintiffs are entitled for future profits? 6. Whether the suit must have been framed for dissolution of partnership and accounts to which Hyderabad court alone has got jurisdiction? 7. Whether the question of jurisdiction has to be decided as a preliminary issue? 8. Whether the 4th defendant has no interest in the subject matter of suit and thus, not necessary party? 9. To what relief? Additional Issues framed on 30-8-1991 1. Whether the plaintiffs had no interest or right in the business of M/s. Anasuya Poultry farm and M/s.Anasuya Plastics? 2. Whether the first defendant received all the amounts due to him from defendants 2 and 3 for conveying the half share in the land of Ac.7.14 kuntas in S.No.335/2 of Attapur village? 3. Whether the 7th defendant is the absolute owner of Ac.1.00 of land in Sy.No.335/3 of plaint B schedule? 4. Whether items No.2 of plaint B schedule was constructed by the 2nd defendant with her own monies? 5. Whether item Nos.3 to 10 of the plaint B schedule in S.No.335/2 were constructed by defendants 2 and 3? 6. Whether defendants 5 to 7 are liable to pay any damages? 7. Whether the suit is bad for misjoinder of causes of action? Additional issues framed on 31-12-1992 1. Whether the boundaries mentioned in item No.1 are not correct? 2. Whether the extent of Ac.1.00 in S.No.335/3 of Attapur belongs to the 7th defendant? Thereafter, the parties went into trial and on behalf of the plaintiffs the 2nd plaintiff was examined as PW.1 supported by other two witnesses viz., PWs.2 and 3 and Exs.A.1 to A.52 were marked. On behalf of the defendants, defendants 1 and 3 were examined as DWs.1 and 2 and they are supported by another witness DW.7 and Exs.B.1 to B.43 were marked. That apart, through the Commissioner, who was appointed in the Court below, Exs.C.1 to C.79 and X1 were marked. At the initial stage, after filing of the suit at the instance of the plaintiffs as per orders in application I.A.No.741 of 1985, dated 27-9-1995 an Advocate Commissioner was appointed, who seized the books of records from the defendants 1, 2 and 3. Thereupon, the said Advocate Commissioner visited the defendant No.1 on 28-9-1995 at Pulugurtha village and visited the ‘B’ schedule properties on 30-9-1995 and filed a report. It is to be noticed, as pointed out during the course of the arguments that at the time of inspection of the said Advocate Commissioner, it is only defendants 2 and 3 were present whereas the plaintiffs were not present. On an appraisal of the entire evidence and material on record, both oral and documentary, the Court below decreed the suit as stated above in the preceding para holding on issue No.1 that the plaintiffs are entitled for partition of schedule ‘A’ property into 3 equal shares with metes and bounds and allotted two shares to them. On this aspect, there has been no challenge on behalf of the appellants, even at this stage as well. Coming to the issues 2 to 4 and additional issues 1 to 4 and the further additional issue No.2, it was held that the plaintiffs are entitled to 4/9 share out of the plaint schedule properties, and the plaintiffs and defendant No.1 continued to be in possession of the joint family property even after partition as pleaded. Further, the defendant No.1 and his father advanced huge amounts for the poultry farm and business, and therefore, the plaintiffs were entitled to share in plaint ‘B’ schedule property and the defendant No.2 is entitled to 1/3rd share in the investment made by her. The plaintiffs are entitled for rendition of accounts in respect of plaint ‘B’ schedule property from 1968 on the ground that the contributions of late Narsimha Murthy and defendant No.1 by providing finance are as the partners/co- partners. Further, it was held that the defendant No.7 is not the absolute owner of Ac.1-00 of land in Sy.No.335/3. Thus the plaintiffs have got right and interest in the business of M/s.Anasuya Poultry and M/s.Anasuya Plastics. The aforesaid issues 5 and 6 went in favour of the plaintiffs, whereas no answer was given on issue No.7 on the ground that it has become infructuous. On the additional issue No.6, this Court held against the plaintiffs, whereas the additional issue No.7, which was framed later, remained un-answered. On the additional issue No.1 which was framed later, it was held in favour of the plaintiffs and on issue No.9, it was held that the plaintiffs are entitled for the decree as prayed for. Thus, ultimately the trial Court passed a preliminary decree by awarding costs. However, no relief has been granted as against the defendant No.4 and the suit against the said defendant No.4 was dismissed. Aggrieved by the said Judgment and decree, which was dated 23-4- 1993 earlier this very appeal was filed in A.S.No.1930 of 1993 in this Court. However, this Court did not find in favour with any of the contentions urged on behalf of the appellants, and the same was dismissed as per the judgment and decree dated 29-10-1999, confirming the decree of the Court below. Thereafter, the appellants filed further appeal to the Supreme Court in Civil Appeal No.7318 of 2000, which was allowed as per the orders dated 17- 5-2007 remanding the appeal to this Court for fresh disposal on the directions as pointed out therein. It is needless to mention that in regard to the issue No.1 the Hon’ble Supreme court held as under: The Hon’ble Supreme Court held that the question as to whether the business was a joint venture is not being a question of fact, the court should not exercise discretionary jurisdiction under Article 136. Insofar as the immovable property was concerned, having regard to the provisions contained in Section 45 of the Transfer of Property act, it was conceded that Narasimha Murthy had half share. At paragraph 21, the Hon’ble Supreme Court observed that the reasoning of the High Court in regard to Ex.B.8 was not acceptable, dealing of affairs by Defendant No.1 will have a direct bearing on issues. An Admission by Karta H.U.F. would be relevant. There was an admission by Narasimha Murthy of the Hindu undivided family, who was managing the family property, that in terms of Section 58 of the Indian Evidence Act, admitted need not be proved, the document is admitted (Ex.B8) and having regard to the provisions of section 145 of the Indian Evidence Act, the Hon’ble Supreme Court held that the relevant factors have not been considered. That no signatures as such is required on Ex.B.8 in view of the admission made by defendant No.1, and such admission should have been taken into consideration. In paragraph 25 of the said judgment, there is a discussion about the partnership and …. Joint ventures and that the conduct of the parties and how they dealt with the business of the partnership is relevant. …in view Section 3 of the Limitation Act was relevant and D1 had to explain Ex.B.8 figures and that it was not for appellants… that it is for this Hon’ble Court to frame the points for determination in the light of th submissions made on behalf of the appellants and apart from this, issue Nos.1 and 4 should be decided afresh. ` After the remand, the main appeal was once again taken up and both sides were heard in detail going through the entire record. Sri J.Prabhakar, the learned counsel appeared on behalf of Sri J.Venkateshwar Reddy for the appellants whereas Sri V.L.N.G.K.Murthy and T.S.Anand canvassed on behalf of the respondents. During the course of the arguments there has been much discussion across the Bar from both sides as to scope after remand and to what extent this matter requires to be gone into. There has been much variance in the approach even on the points that are required to be addressed. However, on the request made, the learned counsel appearing for the appellant came forth with certain suggestions as to the points, which according to them, arises for consideration since there has been a finding that the business was a joint venture transaction, therefore the appellants seek the following questions for consideration. 1. Whether plaintiffs are entitled for partition of plaint B schedule property into 9 equal shares by metes and bounds and allot 4 such shares to them? (Issue No.2 in suit). 2. Whether plaintiffs are entitled for rendition of accounts by defendants 1 to 3 in respect of the poultry business since that is being run in B schedule property from the year 1968 onwards? (Issue No.4 in suit). 3. Whether the suit is not barred by limitation? 4. In case the business is said to be a joint venture, what are the terms of the joint venture and as to whether the plea that defendant No.1 and the plaintiffs are entitled to interest in the investment at 15% per annum on the investment of late Narasimha Murthy together with share in the profits in the ration of 2/3rd to their branch and 1/3rd to defendant No.2 can be sustained? 5. Whether the conduct of the parties is such that the joint venture is deducible and also whether the share and the interest can be decided by the conduct of the parties? 6. Whether the plaintiffs are entitled to have a share in Anasuya Poultry and Anasuya Plastics and also the land and house not covered by the sale deed dated 2-12-70 (Ex.B15) (covering land in Sy.No.335/2 in favour of late Narasimha Murthy and D2) also the land in Sy.Nos.335/1 or 335/3 in Attapur village though not covered by Ex.B.15 registered sale deed …. Late Narasimha Murthy and defendant No.2). Thereafter, once again the appellants came forth with different version by narrating following points for consideration (revised) which are extracted below. 1. Whether plaintiffs are entitled for partition of plaint B schedule property into 9 equal shares by metes and bounds and allot 4 such shares to them? (Issue No.2 in suit). 2. Whether plaintiffs are entitled for rendition of accounts by defendants 1 to 3 in respect of the poultry business since that is being run in B schedule property from the year 1968 onwards? (Issue No.4 in suit). 3. Whether the suit is not barred by limitation? 4. Whether the conduct of the parties is such that the joint venture is deducible and also whether the share and the interest can be decided by the conduct of the parties, if so, what is the share of each of the parties? 5. whether the plaintiffs are entitled to have a