Case: Shankar Sitaram Sontakke And Another Vs. Balkrishna Sitaram Sontakke And Others

2. The appeal arises out of a partition between 6 brothers of a joint Hindu family. The joint family carried on joint family business of a grocery shop, liquor shops, a ration shop, a motorbus service and also money-lending under the name of "Sontakke Brothers". The family also possessed immovable and movable property. Balkrishna Sitaram Sontakke is the eldest of the brothers and is the plaintiff to respondent in the present appeal. He will be referred to hereafter as the plaintiff.3. It is common ground that up to 1944 the brothers were living and messing together and the income from the family business used to be kept with the plaintiff. From. April 14, 1945, the situation changed and the parties began to appropriate the proceeds of the various businesses carried on by them separately to themselves. The plaintiff was running the liquor shops, defendants 1 and 2, who are the appellants, were carrying on the motor-.bus service business while defendant 4 was running the grocery shop. The parties tried to have partition effected between them through arbitrators but the attempt failed. On June 29, 1945, all the five brothers filed a suit for partition against the plaintiff of all joint family properties including the accounts of all the businesses. The suit was numbered 39 ofIt was compromised on March 7, 1946.By this compromise it was declared that prior to 1942 all the accounts of the various businesses had been correctly maintained and shown, that the parties had agreed to have arbitrators appointed through court for examining the accounts from 1942 up to March 31, 1946, and for determining the account due up to that date. Each of the brothers was to get one-sixth share in the cash balance as found on March 31, 1946, upon examination of accounts by the arbitrators. All the moveable property of the joint family including the stock-in-trade of all the family businesses was to be divided equally among all the brothers. The compromise further declared that the plaintiff was to have one-sixth share in the motor garage and that defendants 1 and 2 were to pay the price of one sixth share to him. These are the material provisions of theof the brothers was a minor and the court finding the compromise to be for the benefit of the minor accepted it and passed a preliminary decree in terms of the compromise on July 25,1947. If nothing else had happened to disturb the natural course of events, the proceedings would have ended in a final decree forplaintiff, however, commenced a fresh suit on February 23, 1949, confining his relief to his share of the profits and assets of the motor business carried on by defendants 1 and 2 after March 31, 1946. His case was that the compromise was made in a hurry, that the parties omitted to provide in the compromise about the future conduct of the motor business was still a joint family business and that he had a right to ask for accounts of that business subsequent to March 31, 1946.4. In defence it was pleaded that the compromise was made after due deliberation, that accounts of the motor business and the grocery shop should actually have been taken up to April 14, 1945, the date of disruption of the joint family status, but the parties agreed by way of compromise that account of all family business should be taken up to March 31, 1946, It was also pleaded that the claim was barred by res judicata.Upon the Issues framed in the case the Civil Judge found that the suit was not barred by reason of the decision in the previous suit No. 39 of 1945, that the decision in that suit was not obtained by fraud and misrepresentation and that the compromise in the previous suit was not due to a mistake or misunderstanding. Despite these findings the Civil Judge held that although the motor business carried on after the partition had ceased to be a joint family business yet as it was carried on by some members of a family their position was analogous to that of a partner carrying on partnership after dissolution and applying the principle underlying Section 37 of the Partnership Act he held that the two brothers carrying on the motor business were liable to account.Accordingly he passed a preliminary decree directing the accounts of the motor business to be taken from March 31, 1946, up to the date on which final decree for payment of the amount found to be due would be made. A Commissioner was appointed to take the accounts to ascertain the profits earned by the use of the capital belonging to the shares of brothers other than those who carried on the motor business. In appeal Bavdeker. J. with whom Dixit, J. agreed modified the decree of the trial court by directing that the accounts were to be taken up to the date when the businesses discontinued and not up to the date of the final decree.The learned Judges held that the cause of action for the present suit was different from the cause of action in the previous suit and that the suit was not barred by res judicata or by Order II, Rule 2 of the Code of Civil Procedure. After delivering themselves of some conflicting observations to which reference will in detail be made hereafter they held that the consent decree did not expressly negative the right for accounts of the motor transport business. Finally the learned Judges recorded the conclusion that regardless of the pleadings in the case the defendants 1 and 2 had made use of the joint family property and that they stood in the position of co-owners and as contemplated in Section 90 of the Indian Trusts Act were liable to render accounts for the profits which were attributable to the employment of the assets owned by the parties jointly.

Reasoning:
7. It seems to us that upon a fair reading of the compromise arrived at between the parties in the circumstances then existing, the only legitimate conclusion possible is that the parties had agreed to confine the taking of all accounts up to March 31, 1946, and had closed the door to reopening them beyond that date. If the compromise was arrived at after full consideration by the parties and was not vitiated by fraud, misrepresentation, mistake or misunderstanding as held by the trial Court - a finding which was not interfered with by the High Court it follows that a matter once concluded between the parties who were dealing with each other at arms length cannot now bearrangement was apparently acceptable to all the brothers as being fair and reasonable and as not giving undue advantage to any party over the other. This being our construction of the compromise, it follows that the plaintiffs conduct in going back upon that arrangement by filing a fresh suit in regard to the motor business only is anything but honest. The plaint filed in the previous suit leaves no manner of doubt that the plaintiffs in that suit sought a complete division of all the family property both moveable and immoveable and a final determination of all the accounts in respect of the familysaid all this they record the conclusion that the compromise did not expressly negative the right of the plaintiff to an account of motor business. We are unable to accept this conclusion. The observations quoted above negative the plaintiffs case about mistake or misunderstanding in regard to the true effect of the compromise and show that the plaintiff abandoned the right to account after the crucial date and the status of the parties thereafter changed into one of tenants in common. If the plaintiff really intended that accounts of the motor business or indeed of all other businesses were to be taken up to the date of the final decree, there was no point in mentioning the 31st March, 1946. The normal course, after the preliminary decree was passed by the court, was to divide all the property by the metes and bounds and to award monies as found on examination of the accounts right up to the date of the final decree. But for the compromise which limited the period of the account the plaintiff would have obtained the relief he is now seeking in the partition suit as accounts of would have been taken of all the businesses up to the date of the final decree. The plaintiff has himself to thank for preventing the natural course of events and for forbidding the accounts to be taken after the 31st March, 1946. The plaintiff on the other hand has no real grievance in the matter, for although the defendants 1 and 2, who continued to run the motor business, may have made some money with the help of the two old motor buses, the plaintiff whose keeneses to run the liquor business is apparent from the notice referred to above was not precluded from reaping the fruits of that business. It is hard to conceive that the plaintiff would have agreed to share his burden of the loss if the motor business has sustained any. We hold, therefore, that the compromise closed once for all the controvers about taking any account of the joint family businesses including the motor business after the 31st March, 1946 and the plaintiff is bound by the terms of the compromiseThe obvious effect of this finding is that the plaintiff is barred by the principle of res judicata from reagitating the question in the present suit. It is well settled that a consent decree is as binding upon the parties thereto as a decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has the binding force of  res judicata.10. We are also of opinion that the plaintiffs claim is barred by the provisions of Order II, Rule 2(3) of the Code of Civil Procedure. The plaintiff by confining his claim to account up to March 31, 1946, only, implicitly if not explicitly, relinquished his claim to the account for the subsequent period. Sub-rule 3 clearly lays down that if a person omits, except with the leave of the court, to sue for all reliefs to which he is entitled, he shall not afterwards sue for any relief so omitted. We do not agree with the High Court that the cause of action in the subsequent suit was different from the cause of action in the first suit. The cause of action in the first suit was the desire of the plaintiff to separate from his brothers and to divide the joint family property. That suit embraced the entire property without any reservation and was compromised, the plaintiff having abandoned his claim to account in respect to the motor business subsequent to March 31, 1946. His subsequent suit to enforce a part of the claim is founded on the same cause of action which he deliberately relinquished. We are clear, therefore, that the cause of action in the two suits being the same, the suit is barred under Order II, R. 2(3)of the Civil Procedure Code.11. As the suit is barred both by res judicata and Order II, Rule 2(3) of the Civil Procedure Code, no further question as to the applicability of Section 90 of the Indian Trusts Act can possibly arise under the circumstances.