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Judgment
S.V. Maruthi, J
This appeal isfiled against the judgment and decree in OS No.55 of 1985 dated 23-4-1993 passed by the Subordinate Judge at Ramachandrapuram. The defendants 2, 3 and 5 to 7 are the appellants.
The plaintiffs filed the suit for the partition of plaint A schedule properties into 3 equal shares by metes and bounds and to allot 3 such shares to the plaintiffs and for partition of plaint B schedule property into 9 equal shares by metes and bounds and to allot 4 such shares to the plaintiffs through the process of Court and for directing defendants 1 to 3 to render fair and proper accounts in respect of the poultry business run in the plaintiffs B Schedule property from the year 1968 onwards till the date of filing of the suit and for future profits and costs.
The averments in brief in the plaint are as follows:
The plaintiffs are brothers and sons of the first defendant. Both of them are studying engineering and are students. The father of the ] st defendant Narasimha Murthy died on 24-6-1971 and the mother of the 1st defendant predeceased her husband having died in or about 1947. During the life time of late Narasimha Murthy, the 1 st defendant partitioned the joint family land under a registered partition deed in 1961. In the said partition, only landed properties were partitioned keeping the family house and vacant sites at Pulagurtha joint. After the death of the 1st defendant, the said house property and vacant sites at Pulargurtha were being enjoyed as joint family properties of the 1st defendant and the plaintiffs, though the landed property was divided earlier amongst themselves. The 2nd defendant is the daughter of the natural brother of late Narasimha Murthy and her parents died when she was very young and unmarried. Late Narasimha Murthy and his another brother brought her up and got her married to the 3rd defendant. At the time of marriage the 3rd defendant was a student of Veterinary Science at Madras and after securing BVSc, degree he joined the Veterinary department.
In the year 1968, at the request of the 2nd and 3rd defendants. Late Narasimha Murthy purchased Ac.7-14 Guntas of land in Atapur near Hyderabad in the name of late Narasimha Murthy and the 2nd defendant for the purpose of setting up a poultry business as the 3rd defendant has experience in poultry farms by virtue of his holding office in the Veterinary department. Late Narasimha Murthy also invested money for running the poultry business with a view to share the profit arising out of the business. Thus, the poultry farm was set up and the business was developed by raising several sheds and also raising residential quarters and bungalows and also by installing feed mixing plant and other machineries in the said premises. During the continuance of the said business, Narasimha Murthy died in 1971. The business also became self-sufficient and in 1971 tubes manufacturing plant was also installed in the same premises with the profit arising out of the poultry business. The 2nd and 3rd defendants, with the profit arising out of the poultry business, performed the marriages of their daughters and acquired various moveable and Immovable properties. After the death of late Narasimha Murthy his interest devolved upon the 1 st defendant. Thus, the business became joint family trade and business as far as the 1 st defendant and the plaintiffs are concerned, each having l/3rd interest in the said 2/3rd undivided share of the said poultry and tubes manufacturing business etc., while the 2nd defendant is having the remaining 1/3rd share.
After the plaintiffs attained majority, they pressed the 1st defendant for partition of the family property, viz., the house and vacant sites at Pulugurtha and the plaint ''A'' and ''B'' properties including the poultry business and tubes plant, etc., and give them their separate shares. However, the 1st defendant was postponing to do so on some pretext or the other.
Defendant No.4 is the sister of the I st defendant. Her marriage was performed long back and she was living with her husband at Kakinada. Because she was giving properties adequately by the father of the 1st defendant late Narasimha Murthy, she did not claim any share in the family property of the 1st defendant and she has relinquished her right in the property of her father late Naratimha Murthy. However, by way of abundant caution she was added as a party to the suit. Since the plaintiffs are students, they have executed a General Power of Attorney in favour of their maternal uncle. Defendants 5 to 7 are the children of 2nd and 3rd defendants who were pressed into service with ulterior motive though they never invested any monies in the various types of business undertakings made by the 2nd and 3rd defendants or in any of the properties acquired or improved by the 2nd and 3rd defendants. The allegation that part of land i.e., Ac.1-00 in S. No.335/3 in plaint ''B'' schedule was purchased or belongs to defendants 5 to 7 is false and it is a vain effort by the 2nd and 3rd defendants to exclude some extent from the scope of the suit. The allegation of defendants 2, 3 and 5 to 7 that the 2nd defendant alone purchased Ac.7-14 cents of land and that the money of 1st defendant''s father was only utilised is not correct. Further the allegations that in 1972 the 1st defendant wanted the 2nd and 3rd defendants to repay the total amount 12% per annum interest and that he agreed in principle to transfer half share and purchased stamp papers, etc., are not true. Hence, the suit for partition.
The 1 st defendant filed a Written Statement admitting the partition between his father late Narasimha Murthy and himself in 1961 under a registered partition deed dated 20th April, 1961 and he further stated that he has no objection for partition of the plaint schedule properties. In addition he stated that at the instance of the 2nd and 3rd defendants, his father late Narasimha Murthy advanced money not only for the purpose of purchasing land, but also for the purpose of setting up a poultry business on the understanding that the 2nd and 3rddefendants run the business and that he and his father are entitled for the 1/3rd share each besides repaying the moneys advanced by him and his father with interest at 15% per annum. Pursuant to the said arrangement he and his father made several advances by way of money orders, DDs, etc., and also by way of cash to the 2nd and 3rd defendants in various instalments to a tune of Rs. 1.5 lakhs by the end of May, 1971. Because of the relationship and attachment and confidence he and his father did not take any thing in writing for the amounts advanced by them. But the 3rd defendant who was supervising the business and its accounts credited the amounts sent by him and his father in the account as and when they were sent and the 3rd defendant used to show the account to him when he visited Hyderabad. The monies sent by him and his father from the year 1968 onwards were invested in the poultry business by the 2nd and 3rd defendants and after purchase of an extent of Ac.7-14 guntas of land, the business was shifted into the sheds which were already in existence in the said land. Since the business was carried on profitably, expansion of infrastructures were found necessary with the result that it was represented that profits along with capital were being reinvested. Therefore, the occasion to look into the settlement of accounts did not arise. After the death of the father of 1 st defendant, he is entitled to his father a share. Amounts were also being sent now and then to him after the death of his father towards amounts due in the business as well as interest and principal on the amounts advanced. The infrastructures and the buildings referred to in the plaint ''B'' schedule including the residential house bearing D. No.7/26 were constructed with the amounts realised in the business. Therefore, the 1st defendant stated that he is entitled to 2/3rd share in the business besides the amounts advanced together with interest at the rate of 15% per annum and also to a half share in plaint ''B'' schedule properties together with the incomes thereof.
On 11-12-1982, the 3rd defendant stated that the accounts were to be finalised and final settlement of all affairs between the 1st defendant and the 2nd and 3rd defendants had to be arrived out in the month of February, 1983 and that he should co-operate in dealing with the financial institutions for the purpose of shifting to another business. Thus the 3rd defendant acting for himself and on behalf of the 2nd defendant acknowledged his liability to render accounts of the joint business and also the right to partition. However, he realised that the 2nd and 3rd defendants were acting prejudicial to his interests. The attempts to settle the issue peaceably proved futile and, therefore, the defendants 2 and 3 are liable to account for the profits in the business.
The 3rd defendant filed a Written Statement and the 2nd defendant adopted the same. Defendants 4 and 5 to 7 were also filed separate Written Statements.
The defence set up by the 3rd defendant is one of denial except the fact of partition between the 1st defendant and late Narasimha Murthy in 1961 and that the 2nd defendant is the daughter of the natural brother of late Narasimha Murthy. In addition he has stated that the land covered by item No.1 of ''B'' schedule in Sy. No.335/2 was purchased jointly in the name of the 2nd defendant and late Narasimha Murthy under a registered sale deed dated 2-12-1970 as at that time the 2nd defendant was not having sufficient funds on hand and as late Narasimha Murthy was a well-wisher of defendants ''2 and 3, he advanced a sum of Rs.5,000/- as a gesture good will at the instance of the I st defendant and, therefore, his name was also included as one of the vendees along with the 2nd defendant. The said Narasimha Murthy had never shown any interest in the said property and in fact he has been stating that the property exclusively belongs to the 2nd defendant and he wanted return of Rs.5,000/- at a reasonable rate of interest at the convenience of the 2nd defendant and that the name of late Narasimha Murthy in the sale is only nominal and never intended to be acted upon. Even accepting that late Narasimha Murlhy has 1/2 share in the land covered by the said sate deed, that does not mean that he has got a share in the business carried on by the 2nd defendant with the assistance of the 3rd defendant or in the business carried on by M/s. Anasuya Poultry Farm or by M/s. Anasuya Plastics. The building bearing D. No.7-26/1 is not situated in S. No.335/2 which is covered by sale deed dated 2-12-1970. It is constructed by the 2nd defendant with her own monies and neither Narasimha Murlhy nor the 1 st defendant has anything to do with the said building. The 1st defendant is fully aware of the building being constructed with her own monies and he never objected to it. Similarly for the business, the sheds are constructed by the 2nd defendant by obtaining loans from State Bank of India and neither late Narasiinha Murthy nor the !st defendant ever objected for their construction.
The poultry business was started by the 2nd defendant as the sole proprietrix and the said business was shifted to the site covered by the sale deed dated 2-12-1970 when some sheds were constructed by her. The business incurred loss during the years 1971-73 and so it was temporarily closed down. In 1973, in her capacity as the sole proprietrix, the 2nd defendant obtained a loan of Rs.70,000/- from State Bank of India and revived the business for which the 1st defendant stood as guarantor. If really the 1st defendant has any interest in the business, he would have stood as the principal debtor and not guarantor. The 2nd defendant not being able to run the business profitably admitted her three daughters into business in 1977 which was evidenced by partnership deed dated 6-3-1978. The business was carried on till 30-9-1982 when it was closeddown. Thereafter the 3rd defendant and his three married daughters started a firm known as ''Anasuya Plastics'' and registered with the Registrar of firms by virtue of a partnership deed dated 1-10-1982. The said firm took a shed belonging to the 2nd defendant on lease through lease deed dated 29-11-1982. As the poultry business was closed on 30-9-1982, the sheds in which poultry business were leased out to one Jayarami Reddy for one year. In view of the above, he sought for dismissal of the suit in limine.
The 3rd defendant filed an additional Written Statement stating that an extent of Ac. 1-00 guntas in Sy. No.335/3 belongs to the 7th defendant and that the plaintiffs have no right to claim the property covered by Sy. No.335/3.
The 4th defendant filed a Written Statement staling that she is not claiming any interest in the property belonging to late Narasimha Murthy or her brother-1st defendant and in the business carried by him and sought for dismissal of the suit as against her.
Defendants 5 to 7 filed a Written Statement reiterating the contents of the Written Statements filed by the 3rd defendant. In addition it is stated that after the death of P. Narasimha Murthy in 1971, the 1 st defendant wanted the defendants 2 and 3 to repay the amounts advanced by him and his father together with interest at the rate of 12 % per annum and this was agreed to in principle by the defendants 2 and 3. It was also agreed in 1973 that the 1st defendant should reconvey the half share in Ac.7-14 guntas of land which constitutes a part of plaint ''B'' schedule property to the 2nd defendant and he agreed to receive the amounts due to him and his father with 12% per annum. Further in the year 1973 itself the 1st defendant wanted to convey his half share in Ac.7-14 guntas of land and he also purchased stamps to execute the necessary document for conveying his half share of land in Ac.7-14 guntas in S. No.335/2 of Atapur Village in favour of the 2nd defendant. In the last week of May, 1979, the 1st defendant prepared a statement in his own hand showing the amounts received by the 2nd defendant from late P. Narasimha Murthy and the 1st defendant and the amounts repaid by them. In the said statement, the 1st defendant had shown that a total sum of Rs.84,955/-was given by his father and himself since 1963 and that the said amount came upto Rs.2,34,381/- with interest at the rate of 12% per annum till 30-5-1979. The said statement also shows that defendants 2 and 3 paid a sum of Rs.1,93,366/- together with interest upto 30-5-1979. Therefore, the plaintiffs are not entitled for any relief and the suit is liable to be dismissed as it is barred by limitation.
On the basis of the above pleadings, the trial Court 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 allotment of two such shares in their favour?
(2) Whether the plaintiffs are entitled for partition of plaint ''B'' schedule property into 9 equal shares by metes and bounds and allotment of four such shares in their favour?
(3) Whether the plaintiffs are entitled for separate possession of such shares in plaint ''A'' and ''B'' schedule properties by process of Court?
(4) Whether the plaintiffs are entitled for rendition of accounts by defendants 1 to 3 in respect of the poultry business that is being run in ''B'' schedule property from the year 1968 onwards?
(5) Whether the 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? And
(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 guntas in S. No.335/2 of Attapur village?
(3) Whether the 7th defendant is the absolute owner of Ac. 1-00 of land in S. No.335/3 of plaint ''B'' schedule?
(4) Whether item No.2 of plaint ''B'' was constructed by the 2nd defendant with her own monies?
(5) Whether item Nos.3 to 10 of the plaint ''B1 schedule in Sy. 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 Sy. No.335/3 of Attapur belongs to the 7th defendant?
The plaintiffs in support of their case examined PW1, the 2nd plaintiff and PWs.2 and 3 while the defendants examined DW1, the 1st defendant; DW2, the 3rd defendant and DW3, K. Swarupa Rani. The plaintiffs marked on their behalf Exs.A1 to A51 while the defendants marked Exs.B1 to B43 and the Commissioner marked Exs.Cl to C79. Ex.XI, the balance sheet of Anasuya Poultry farm was also marked.
On the basis of the evidence, both oral and documentary, the Subordinate Judge, Ramchandrapuram decreed the suit for partition of plaint ''A'' schedule properties into 3 equal shares by metes and bounds and allotted 2 shares to the plaintiffs and partition of plaint ''B'' schedule properties into 9 equal shares by metes and bounds and allotment of 4 shares to the plaintiffs and defendant Nos. 1 to 3 were directed to render the accounts in respect of poultry business that is being run in the plaint ''B'' schedule property from 1968 onwards till such date of rendering of account. It was also held that the plaintiffs are entitled for future profits on a separate application. The suit was dismissed as against Defendant No.4 as no relief was claimed against her. Aggrieved by the same, defendants 2, 3, 5 to 7 have filed the present appeal.
The parties are referred to as appellants and respondents respectively.
The main arguments of the learned Counsel for the appellants Shri J. V. Suryanarayana is that his clients have no objection for partition of ''A'' schedule property. However, he, contended that the 1 st appellant is the natural brother''s daughter of late Narasimha Murthy as late Narasimha Murthy went in adoption to another family. Since the 1st appellant lost her parents he and his natural brother brought her up and got her married to the 2nd appellant. Appellants Nos.3 to 5 are the daughters of the 1st and 2nd appellants. Since the 3rd appellant is a graduate in Veterinary Science and have experience in poultry farm, he along with his wife-1st appellant approached Sri Narasimha Murlhy for advancement of a loan for the purpose of starting poultry business in Hyderabad. Sri Narasimha Murthy advanced certain amounts and the poultry business was actually started in 1968. Thereafter, the 1st and 2nd appellants requested Sri Narasimha Murlhy to advance some more amount for the purpose of purchasing land for the poultry business. Accordingly Sri Narasimha Murlhy, out of love and affection, agreed to advance a loan of Rs.5,000/- subject to the condition of repayment of the same together with interest at the rate of 12% per annum. With the said amount, Sri Narasimha Murlhy and the 1st appellant purchased Ac.7-15 guntas of land at Atapur, near Hyderabad, under Ex.B15 dated 2-12-1970. Since Sri Narasimha Murlhy advanced a loan of Rs.5,000/- his name was also incorporated in the sale deed. The poultry business which was being run in Hyderabad was shifted to the land purchased under Ex.B15 and since then the business was carried on in the said land. Sri Narasimha Murthy was advancing the money for the purpose of the poultry business till his death in 1971. Though late Narasimha Murthy was advancing money, he never evinced interest in the business and after the death of Sri Narasimha Murthy, the 1st respondent has not advanced any amount. Neither late Narasimha Murthy nor the 1st respondent ever asked for the profits of the poultry business. Since 1971, the business was running in loss and, therefore, the business was actually closed in 1973. As the intention of late Narasimha Murthy and the 1st respondent was only to advance the money as a loan and get back the same with interest at the rate of 12% per annum, they have neither evinced any interest in the business nor there was any demand for accounting the profits earned in the poultry business. While so, since the poultry business was running in loss, in 1979 the 1st respondent himself looked into the accounts and prepared a Statement of Account. In the said settlement of Account he recorded the amounts advanced by late Narasimha Murthy and the amounts repaid by the 2nd appellant and arrived at a balance of Rs.41,050/- and, thus, there was a statement of Account tinder Ex.B8 dated 30-5-1979. Ex.B8 discloses that the intention of. the appellants as well as the respondents is to treat the amount advanced by late Narasimha Murthy for the purpose of starting the poultry business and for the purpose of purchasing the land is to treat the amount as only a loan repayable with interest at 12% per annum and, thus, the said amount was repaid and repayment started from 1976 and the balance was arrived after deducting the payments already made by the 2nd appellant. Therefore, the respondents are not entitled for any profits in the business carried on by the appellants. The business is an exclusive business of the 1st and 2nd appellants. The fact that the business is an exclusive business of the I st appellant is coiroborated by the fact that after the death of Sri Narasimha Murthy, the 1 st respondent has not advanced any money. When once it is an exclusive business of the I st appellant, the respondents are not entitled for any share in the business. The respondents allowed the appellants to utilise their half share of the property belonging to late Narasimha Murihy for the purpose of carrying on their business. In other words, the appellants were allowed to carrying on their business by using the property belonging to late Narasimha Murthy which is in excess of the halfshare to which the 1st appellant is entitled. The only relationship between the appellants and the respondents is that they are the co-owners of the landed property. No doubt at one stage, the 2nd appellant proposed for constituting partnership business. However, there was no response either from late Narasimha Murthy or from the respondents. Therefore, no partnership business had come into existence. The fact that neither late Narasimha Murthy nor the 1st respondent had ever evinced any interest in the business is evident from Ex.A29 dated 28-9-1973, a letter written by the 2nd appellant to the 1st respondent. Further after settlement of account under Ex.B8, the 1st respondent, with a view to relinquish his interest in the land to an extent of Ac.7-14 guntas, purchased stamp papers under Ex.812 on 12-6-1974. The conduct of late Narasimha Murthy and the 1st respondent unequivocally establishes that the poultry business is an exclusive business of the 1st and 2nd appellants and neither late Narasimha Murthy nor the 1st respondent have a share in it. Till the date of filing of the suit the respondents have never asked for the profits of the poultry business. In addition, the appellants have paid Rs.10,000/- and Rs.13,000/- to the 1st respondent after the account was settled under Ex.BS which is in the handwriting of the 1st respondent. No doubt for the payment of the said amount they have not obtained any receipts evidencing the payment of the same. After the settlement of accounts under Ex.B8 the appellants obtained loan from various banks for which the 1st respondent stood as a guarantor/surely.
Since the land admeasuring Ac.7-14 guntas was purchased in the name of late Narasimha Murthy and the 1st appellant for Rs.12,000/- out of which late Narasimha Murihy advanced Rs.5,000/- and though the appellants have repaid the said amount, u/s 45 of the Transfer of Properties Act, when the document is in joint names, the inference is that the joint holders are entitled to equal share in the property. Therefore, they have no objection for giving the halfshare in the property in spite of 1st respondent expressing his intention to relinquish his right in the half share of landed property admeasuring Ac.7-14 guntas in Atapur covered by Ex.B15. After the settlement of accounts under Ex.B8, the appellants obtained loans from various banks for the purpose of reviving the poultry business and also setting up of business in plastics. In all the loan transactions, the 1st respondent signed the loan documents as a guarantor. If really he is interested in the business, he would have been one of the principal debtors and not a guarantor. That indicates that the respondents have no interest in the poultry business carried on by the 1st appellant. Further the 1st respondent got himself examined on Commission as lie does not want to face the Court since his case is false.
As regards the share of the 4th defendant who is the daughter of late Narasimha Murlhy is concerned, the respondents are not entitled to her share as relinquishment of her share in the property is not evidenced by any document except Ex.B9 which is not a registered document. Therefore, the respondents cannot claim the share of the 4th respondent. Since neither late Narasimha Murthy nor respondent No. 1 obstructed the 1st appellant from carrying on the business in the half share of Ac.7-14 guntas of land, the appellants are not liable to account for profits earned by them by their own labour. If really the case of the respondents is that the poultry business carried on by the appellants is not the exclusive business of the 1st appellant, at the time of Ex.B8 they would have demanded for accounting of the profits. As regards the building constructed in the site, it is constructed with the money belonging to the 1st appellant and, therefore, the respondents are not entitled for a share in the said building. At the most the value of the site on which the building is constructed may be awarded to the member of the joint family on which the coowner constructs a building. The suit for accounts is barred by limitation as the business was closed in 1973. At the most the respondents arc entitled for profits 3 years prior to the filing of the suit. Hence, the appeal is to be allowed and the decree in so far it directs the appellants to account for the profits is liable to be set aside.
While the learned Counsel for the respondents Sri T. Veerabhadrayya contended that respondent No.4 who is the daughter of late Narasimha Murlhy never claimed any share in the property of late Narasimha Murthy as she was sufficiently provided for at the time of her marriage. In addition, she has executed a Retinquishment Deed. Even if the Relinquishment cannot be looked into, by virtue of ouster she is not entitled for any share. If really her intention is to exercise her right in the property belonging to late Narasimha Murthy and claimed a share, she would have filed an appeal against the judgment and decree of the Subordinate Judge. Therefore, the 4th respondent is not entitled for any share and the respondents are entitled for partition of the entire share of late Narasimha Murthy.
The evidence and the letters written by the 2nd appellant indicate that the relationship between the appellants 1 and 2 and late Narasimha Murlhy and the 1st respondent is not that of Debtors and Creditors, but it is a joint venture. The 2nd appellant in his tetter dated 28-9-1973 admits that the poultry business is a joint venture. Since for the joint venture a premises is required, late Narasimha Murlhy advanced Rs.12,000/- not only for the purchase of land but also for construction of sheds. The 1st appellant was not having any money at the time of starting the poultry business. Therefore, late Narasimha Murthy invested the money not only on his behalf, but also was advancing the amount as a loan towards the share of the 1st appellant. When once it is a joint venture, it is open to the respondents to ask for accounting of profits for any number of years and the question of limitation does not arise. Further, the plea of limitation was not taken by the appellants and there was no issue on the question of limitation and no finding was given by the trial Court. The right to sue accrues when there was a demand and refusal. Under Ex.A1, when the respondents issued a notice, the appellants by their reply under Ex.A5 denied their liability to account for the profits. Therefore, the suit is within the period of limitation. There is no evidence that the 1st appellant has constructed the building. Further the appellants have not produced any accounts. Had they produced their accounts, it would have established the profits that are derived from the poultry business and also whether the building is constructed by the 1st appellant or not in the said premises. It is for the 1st appellant to adduce evidence to establish that the building is constructed with her own funds. The contention of the appellants that there was a settlement of account under Ex.B8 is neither pleaded by the 1st and 2nd appellants nor by the appellants 3 to 5. It is only in 1991 after a period of 6 years of filing of the suit appellants 3 to 5 filed a written statement setting up a plea of settlement of account under Ex.B8. That itself shows that there was no settlement of account under Ex.B8. At any rate Ex.B8 is inadmissible in evidence as it is not signed by either of the parties nor that it disclose the nature of the contents of Ex.B8. From Ex.B8 no conclusive inference can be drawn that it relates to settlement of account relating to profits or repayment of loan. The appellants in their reply under Ex.A5 have not referred to the so called settlement of account which indicates the falsity of the claim of the appellants. The reason for not demanding the profits arising out of the poultry business is on account of the intention of both parties to reinvest the profits in the business. The appellants have not filed any revision against the order in IA 745 of 1985 under which the 1st respondent was ordered to be examined on Commission. Even in the grounds of appeal they have not taken any ground that the evidence of 1st respondent cannot be looked into on the ground that he was examined on Commission. Therefore, the appellants areprecluded from raising any objection. Further, the argument that the business is the exclusive business of the 1st appellant is a new case set up in the arguments, different from the pleadings of the appellants. Further, there is no reference of Ex.B8 in the Written Statement filed by the 2nd appellant adopted by the 1st appellant and it is only during the course of evidence that Ex.B8 was produced and was put to the 1st respondent. Therefore, Ex.B8 cannot be looked into.
On the basis of the respective contentions, the following issues arise for consideration :
(1) Whether the poultry business carried on by the appellants is a joint venture?
(2) Whether there was a settlement of account under Ex.B8?
(3) Whether the respondents are entitled to the share of defendant No.4? and
(4) Whether the suit is barred by limitation?
Issue No. 1:
The plea in the plaint is that in 1968 the appellants 1 and 2 approached the ] st respondent and late Narasimha Murthy and requested them to invest monies in poultry business at Hyderabad as the 2nd appellant has sufficient experience in poultry farm and profits arising of the said business can be shared by them equally after giving due credit to the expenditure and interest to investments made at 15% per annum and that Ac.7-15 guntas of land at Atapur near Hyderabad was also purchased with the monies thus advanced by late Narasimha Murthy and the 1 st respondent in the name of late Narasimha Murthy and the 1st appellant. The 1st respondent supported the said plea in the written statement. The 2nd appellant denied the said plea. On the other hands, he sets up a plea that plaint ''B'' schedule property covered by Survey No.335/2 was purchased jointly in the name of late Narasimha Murthy and the 1st appellant under the registered sale deed dated 2-12-1970 as at the time of registration of the sale deed the 1 st appellant was not having sufficient funds on hand and since late Narasimha Murthy was a well-wisher of appellants 1 and 2, he advanced an amount of Rs.5,000/- as a gesture goodwill at the instance of the 1st respondent. Therefore, the name of late Sri Narasimha Murthy was included as one of the vendees along with the 1st appellant. Late Narasimha Murthy wanted the 1st appellant to enjoy the property exclusively and only wanted return of Rs.5,000/- at a reasonable rate of interest at the convenience of the 1st appellant. Late Narasimha Murthy has no share in the business carried on by the 2nd defendant with the assistance of the 3rd appellant It is further the case of the 2nd appellant that the 1st appellant with his assistance started the poultry farm in 1968 as a sole proprietrix. Later the business was shifted to the site covered by the sale deed dated 2-12-1970 and some sheds were also constructed by her at the said site. The business incurred loss during the years 1971-72 and, therefore, it was temporarily closed down. In 1973, in her capacity as the sole proprietrix of the poultry farm the 1st appellant obtained a loan of Rs.70,000/-from the State Bank of India and revived the business and the 1 st respondent stood as guarantor. Thereafter since the 1st appellant was not able to run the business profitably, she admitted her daughters into the business in 1977 under the partnership deed dated 6-3-1978 and the said business was carried on till 3rd September, 1982 when it was closed down. Thereafter another partnership business between the 1st appellant and appellants 3 to 5 was constituted in October, 1982. Appellants 3 to 5 supported the case of the 1st appellant.
From the pleadings it is clear that the claim of the appellants is that the poultry business in their exclusive business and the money was advanced by the 1st respondent and late Narasimha Murthy for the purpose of purchasing the land is a loan. While the respondents contend that it is a joint venture. Though in the written statement filed by the 2nd appellant it is stated that late Narasimha Murthy advanced a loan of Rs.5,000/- for the purchase of land, the learned Counsel for the appellants Sri J. V, Suryanarayana fairly contend that from 1968 to 1971 it is only late Narasimha Murthy who advanced the money not only for the purpose of purchasing land of Ac.7-14 guntas, but also for the purpose of the poultry business. In other words, the undisputed fact is that late Narasimha Murthy advanced the monies till his death for the purpose of purchasing the land and also for the purpose of setting up poultry business.
The next question is what is the intention of the parties. Did the parties intended that the advancement of money by Narasimha Murthy for the purpose poultry business should be treated as a loan or the intention of the parties is to treat it as a joint venture. In this context, the letters written by the 2nd appellant are relevant. From a reading of Exs.C10, C11, C14, C15 to C23, C26, C27, C30 to C38 etc., it appears that the 2nd appellant was requesting late Narasimha Murthy to advance monies from time to time for various purposes of poultry business and he is also giving him the account as to how he spent the money advanced by late Narasimha Murthy and the 1st respondent. The series of letters referred to above are upto 1971. According to Sri J. V. Suryanarayana, a Commissioner was appointed and these letters were recovered from the respondents and the 2nd appellant immediately on filing of the suit. The 2nd appellant in Ex.C36 dated 22-6-1971, a letter written to late Narasimha Murthy, says that "I could also know that there is a need regarding the maintenance of proper accounts. As stated by you, I shall prepare the credit, debit account books etc., from the beginning and send a copy of the same to you. It is true that Sri Subba Rao sent me a sum of Rs.15,000/-." He also says that "I am spending every single pie received from you only to the farm but not for any other purpose." After the dcatli of Sri Narasimha Murthy, the 1st letter written by the 2nd appellant to the 1st respondent is Ex.C39 dated 28-2-1972. In this letter also he refers to the poultry business and says that "the 2nd batch of 3500 may come to production by end of March. On 10th March I am getting another batch of 2000 and they have to be reared for another 5 1/2 months." Another indent for 4000 chicks by May this year. I would meet our full.....(not clear) without any wastage of space, men and material....." He further says "There will not be any loss but the profit may be only marginal." Similarly, in Ex.C40 dated 26-7-1972 the 2nd appellant writes to the 1st respondent about the poultry business. Again Ex.C42 dated 21-8-1973 the 2nd appellant informs the 1st respondent about the poultry business, investment and the price at which the chicks were sold. From these letters, it appear that the 2nd appellant was informing the 1st respondent about the poultry business regarding investment, returns, prices of eggs, chicks, etc, In other words, the 1st respondent was being informed about the poultry business and he was put on notice about what is happening in the poultry business. Under Ex.A29 dated 28-9-1973, the 2nd appellant wrote to the 1st appellant categorically stating that ".....you may not be feeling happy with our joint venture and you are anxious to get rid of the botheration since you are already worried with so many other things." He further wrote that "you please go into the accounts in detail and judge for yourself the correctness of all those things. I shall not hold you responsible for any loss and I am always for taking the disadvantage part to my side, since I am the actual executor and since you have reposed full confidence in me all these years. This is again an opportunity when I can payback major part of the capital with interest out of the loan, which is sanctioned to us after great difficulty and the rest of course would be received by you at an early date." From this letter it is clear that the intention of the parties is to treat the business as a joint venture. The 2nd appellant categorically admitted that it is a joint venture and since it is ajoint venture and since the 1st respondent reposed full confidence in him, he will not hold responsible for the loss to the 1st respondent and he will make up the loss, if any. Making a person responsible for loss or gain arises only in a case of joint venture. If it is a case of creditor and debtor, the question of making the creditor responsible for the loss does not arise. Whether the business suffers loss or not, the creditor would like to take back the money advanced by him. The very fact that the 2nd appellant says that he would suffer the loss and does make the 1st respondent suffer the loss and that he would pay back the major part of the capital with interest out of the loan and the rest would be paid at an early date indicates that late Narasimha Murthy and the appellants treated the business as ajoint venture. This letter reflects the intention of the parties that the capital is to be repaid with interest from out of the profits. Under Ex.C45 dated 11-12-1982, a letter written by the 2nd appellant to the 1st respondent, he says that he has fed up with the poultry farm and they are facing labour problem and that he is sending two SB! forms and a revival letter, that they have signed on the other form and that there is a debt of Rs.70,000/-, that out of the above amount Rs.38,000/- is in default and that if this amount is not paid by them immediately they will not get loan for the industry. He further says in the said letter that if our affair is not settled finally in any way, it is necessary to give you trouble now and them. I think it is better to settle the same by fixing time in the month of February."
From the correspondence between the 2nd appellant and late Narasimha Murthy and the 1st respondent referred to above, the only conclusion that can be arrived at is both the parties treated the venture as a joint venture and the 2nd appellant was keeping late Narasimha Murthy and after his death the 1st respondent informed of the details of the business carried on by them. It is true that after the death of Narasimha Murthy, the correspondence between the 2nd appellant and the 1st respondent was not regular. We find on record 4 or 5 letters. The ,2nd appellant himself admits in one of the letters that they are corresponding very rarely and only when an occasion arises. It may be due to the fact that the poultry business was in full swing and there is no need to further invest as the profits earned are sufficient to reinvest in the business. Moreover, by the time of the death of Narasimha Murthy there is a lot of change in the business dealings at the banks are advancing loans for the purpose of business and there is no need to depend upon investment by individuals.
In addition, the Commissioner''s report in IA No.745 of 1985 dated 30-9-1985 indicates that the poultry business was being carried on even on 30-9-1985. The Commissioner speaks about the chicks that were available and the sheds found in the business premises and the feed available in the premises. From the Commissioner''s report, it appears that the account books for the years 1977-78, 1978-79 (Day Book, Cash Book, Pay Book) were recovered from the premises and he noticed that the pages were torn and tearing of pages was fresh. Therefore, from the report of the Commissioner it is clear that the poultry business was being carried on even in September, 1985 after filing of the suit. Therefore, the contention of the learned Counsel for the appellants that the poultry business is the exclusive business of the 1st defendant and it was closed down in 1973 as it was running at loss and that the relationship between late Narasimha Murthy, 1st respondent and the appellants is that of creditor and debtor cannot be countenanced. In view of the report of the Commissioner stating that pages in the day book, cash book, pay book, etc., were torn out, it is clear that the intention of the 2nd appellant is not fair. In this context we may also refer to the plea in the written statement filed by the 1st respondent wherein it is stated that after the business made a good start and being carried on profitably, expansion of infrastructure like some more sheds and other constructions were found necessary and also investment for more works was also thought and with the result that it was represented that the profits along with the capital were being reinvested. Therefore, the occasion to look into the settlement of account did not arise. It is further stated that he was informed that after the death of his father late Narasimha Murthy, his father''s share was tagged on to his share and the accounts are being maintained accordingly and the amounts are also being sent now and then to him towards amount due in the business as well as interest and principal on the amounts advanced. In other words, the profits derived from the business were reinvested and the business was being extended from time to time. There is no answer by the 2nd appellant in the written statement nor any evidence was adduced to establish what the 1st defendant pleaded is not correct in view of the above, the argument of the learned Counsel for the appellants that if really the business is a joint venture, neither late Narasimha Murthy nor the 1st respondent ever demanded for payment of profits and, therefore, the intention of the parties is to treat the relationship between the appellants and late Narasimha Murthy or the 1st respondent as that of creditor and borrower, cannot be sustained. Therefore, we are of the view that the poultry business carried on in the name of the I st appellant is a joint venture and not the exclusive business of the 1st appellant.
The contention of the learned Counsel for the appellants is that the 1st appellant, after 1973 when the poultry business was closed down, started taking loans from the State Bank and other banks and that the 1st respondent stood as guarantor. If really the 1st respondent or late Narasimha Murthy are interested in the business, they would have joined as principal debtors and not as guarantors. The Counsel also submitted that neither late Narasimha Murthy nor the 1st respondent evinced any interest in the business and, therefore, it is not a joint venture. The question of late Narasimha Murthy or the 1st respondent not evincing any interest in the venture does not arise as the 2nd appellant himself was informing late Narasimha Murthy and the 1st respondent about the day to day affairs of the poultry business. Further the intention of the parties is that the 2nd appellant has to manage the business and, therefore, the question of evincing interest in the day to day affairs does not arise except when the moneys are to be advanced and loans are to be obtained. Again, when once they are getting information about the poultry business the question of not evincing any interest in the business does not arise. The loan application dated 29-10-1979 indicates that it was signed by both the 1st respondent and the 2nd appellant. Similarly in the said loan application it is mentioned that the 1st respondent stood as a guarantor along with the 2nd appellant. From the evidence adduced it is not clear as to the understanding between the parties for giving guarantee by the 1st respondent. However, from this circumstance alone we cannot draw an inference that the business is not a joint venture.
Issue No.2:
The case of the appellants is that tinder Ex.B8 dated 30-5-1979 the 1st respondent examined the account books and prepared a statement of the amounts paid by late Narasimha Murthy as advance for the purpose of starling the poultry business and the amounts repaid by the 1st and 2nd appellants to the 1st respondent from 1976 were taken into account and the balance was arrived at Rs.41,015-00. Therefore, there was a settlement of the account under Ex.B8. While the learned Counsel for the respondents Sri Veerabhadrayya contended that Ex.B8 cannot be relied upon as it is not proved. It is true that the 1st respondent in his evidence admitted that Ex.B8 is in his handwriting and that he has prepared the settlement from the account books in 1973. However, he says that in order to verify the accounts, he has copied from the account books and he asked them as to why they have added interest at the rate of 12% instead of 15% compound interest as agreed and he also requested the appellants to deliver him as to the amounts they have paid and the amounts repaid by the 2nd appellant. He denied the suggestion that there was a settlement of account under Ex.B8 on 30-5-1979. He also denied the suggestion that under Ex.B8 the balance payable to him has been settled. We have perused Ex.B8. On a perusal of the said document, we find that it was not signed either by the 1st respondent or by the 2nd appellant. It records the amounts under the heading principal from 30-8-1968 to 30-4-1971 and it also gives the total amounts, years and months. It also says receipts at the rate of 12% yearly compounded, etc. From the total amount of Rs.2,34,381/- an amount of Rs.1,93,366/-was deduced and the balance was indicated as Rs.41,0IS/- as on 30-5-1979. We do not know what these figures are. Since it is the case of the appellants that there was a settlement of account under Ex.B8, it is for them to explain the figures indicated in Ex.B8. Evidently, Ex.B8 does not reflect the case of the appellants. Therefore, they restrained themselves to speak anything about Ex.B8. The 2nd appellant does not say that under Ex.B8 there was a settlement of account. The mere fact that the 1st respondent admitted that Ex.B8 is in his writing, it does not follow that the figures and cnlries made in Ex.B8 relate to settlement of account. Even otherwise, the case of the 1st respondent is that the investment made should be returned with interest and that the profits should be shared between the 2nd appellant and the 1st respondent. In the absence of any explanation by the 2nd appellant, Ex.B8 cannot be relied upon. Further, if really there was a settlement of account, in Ex.B5 - reply issued by the appellants to the notice given by the respondent, there is no reference to the so called settlement of account under Ex.B8 which was the first stage at which the appellants should have raised that since the matter was settled under Ex.B8, the respondents are not entitled for any relief. Further, there is no plea in the written statement filed by the 2nd appellani. It is only after a period of 6 years in 1992 the appellants 3 to 5 raised the plea of so-called settlement under Ex.B8. For these reasons, we are of the view that there is no settlement of accounts under Ex.B8. If really there is settlement of account under Ex.B8 the appellants could have produced the accounts book to support their case. They have not produced the account books. On the other hand, on a perusal of accounts books we found that they have torn the pages in the account books, which indicates lack of bona fides. From this act of appellants the only inference that can be drawn is that they are suppressing the evidence and they are afraid that if the accounts books are produced the truth will come out.
Issue No. 3:
As regards the share of Respondent No. 4, she herself filed a Written Statement relinquishing her share in her father''s property. When once she herself relinquished her share in the Court by filing a Written Statement and the suit was dismissed against her and when once she has not filed an appeal against the dismissal of the suit against her, it automatically follows that the respondents are entitled to her share in the share of late Narasimha Murthy. Further, it is not the 1st or 2nd appellants to dispute the share to which the respondents are entitled to. They are neither the legatees nor the heirs of late Narasimha Murthy. Therefore, they have no right to dispute the share to which the respondents are entitled. It is only the 4th respondent who have the right or authority to dispute the share to which the respondents are entitled. Since no appeal is filed by the 4th respondent against the dismissal of the suit against her, the decree and judgment of the trial Court has became final and the respondents are entitled to her share.
Issue No.4:
The plaint was presented on 12-9-1985. We have already referred to above Ex.C45 dated 11-12-1982, a letter written by the 2nd appellant to the 1st respondent. In this letter the 2nd appellant writes about the poultry business to the 1st respondent. He says that he is fed up with the poultry business and he wants to start polythene pipe business and the estimate for the same is Rs.3.4 lakhs, that the State Financial Capital loan is Rs.1.62 lakhs, bank loan is Rs.0.82 lakhs, his investment is Rs.1.02 lakhs and that if they start the same there will be no worry or otherwise they can close the business for one month. He also says that he is sending two forms v/z., SBI forms and revival letter and requested to sign the same. He also says that there is debt of Rs.70,000/-, out of which an amount of Rs.38,000/- is in default and if this amount is not paid immediately, he will not get the loan'' for the industry. From this letter it is clear that even in 1982 the poultry business is being run and the 2nd appellant is accounting for the poultry business. Since this letter is dated 11th December, 1982 and the suit was filed in September, 1985, the suit is within the period of limitation. Further, we find that the poultry business was being carried even in September, 1985 in view of the report of the Commissioner and we also find that there was no settlement of account under Ex.B8 dated 30-5-1979. When once the business is being carried on and it is continuing, the question of limitation does notarise for the purpose of filing the suit.
in this context a reference may be made to the judgment of a Full Bench of the Madras High Court in Yerukola alias Penta Jogulu v. Yenikola alias Penta Tolayya ILR(1922) Mad 648, wherein it was held that in a suit for partition where a claim is made for an account being taken of the Immovable properties, outstandings and collections made by the various members in respect of properties in which the parties were once joint, but subsequently became separate, the proper Article is Article 120 of the Limitation Act. It was further held that Time begins to run from the time of demand and refusal, or from the time when the defendant asserted a hostile title to the knowledge of the plaintiff. It is interesting to refer to a passage in the said judgment which reads as follows:
".....in cases where a partition has to be effected of properties that were once held as joint tenants and subsequently as tenants in common the accountability of each member being an essential element in the consideration of the division of shares, it would lead to injustice if in taking accounts each member is allowed to keep whatever he collected three years prior to the suit."
In Kedarnath v. Shiv Dayal AIR 1933 Lah. 951, it was held that:
"A suit by one cosharer against another cosharer (who is in exclusive possession of the joint property) for his share of the rents of the joint property is governed not by Article 109, but by Article 120."
in (Peria) Syed Levvai Rowther and Another Vs. Syed Ammal, , it was held that:
"..... It is true that this particular point did not arise for decision in those cases but the reasoning on which the learned Judges held that Article 120 applied and not Article 62 clearly shows that the liability to account would extend for more than six years prior to the suit, the right to partition being a continuing one."
"..... So according to the trend of the decisions of this Court, having regard to the findings that the demand for the income and its refusal in this case was only in the year 1921 the plaintiffs right to demand from defendant 4 an account of the income from October, 1911 to the date of the suit though the period is for more than six years cannot be held to be barred tinder Article 120, Limitation Act."
From the facts what emerges is that insofar as the poultry business is concerned, the 2nd appellant and the respondents are cosharers and the 2nd appellant is in exclusive management of the said business and her possession and management of the business cannot be treated as wrongful. If once the possession of the 2nd appellant is not wrongful and that she is in exclusive possession and management of the said business, it would lead to injustice if she is allowed to keep whatever she has collected 3 years prior to the suit. The 2nd appellant and the respondents being cosharers, the accountability of each cosharer is an essential element in the consideration of division of shares. Therefore, the relevant Article that is applicable is Article 113 of the Limitation Act and the right to sue accrue on the date when the respondents issued a notice to the appellants demanding a share in the profits and when there was a refusal by the respondents. Hence, the suit is not barred by limitation and the respondents are entitledfor accounts for the entire period prior to the filing of the suit. The argument of the learned Counsel for the appellants that the suit is barred by limitation or at any rate that the respondents are entitled to claim mesne profits only 3 years prior to the filing of the suit cannot be sustained. There cannot be any dispute about the proposition that under Explanation II of Section 7 of the Limitation Act, the Manager of a Hindu Undivided Family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property. The question of discharge by the Manager viz., the 1st respondent does not arise on the facts of the present case.
The argument of Sri J. V. Suryanarayana that Ex.C45 dated 11-12-1992 cannot be treated as acknowledgment of liability in respect of accountability of profits or rendition of accounts for profits cannot also be countenance. We have already referred the contents of Ex.C45 in which the 2nd appellant gives the financial position of the poultry business and says that there is a debt of Rs.70,000/- out of which an amount of Rs.38,000/- is in default and if the said amount is not paid immediately, he will not get the loan for the Industry. In other words, under this letter the 2nd appellant is intimating the state of affair with regard to the poultry business. In our view, it constitutes an acknowledgment of liability in respect of rendition of accounts for profits and it cannot be held that the suit is barred by limitation. In the light of the view which we have taken, it is not necessary to refer to the arguments of the learned Counsel relating to Section 18 of the Limitation Act.
The next argument of Sri J.V. Suryanarayana relying on Maharaja Sir Lnchmeswar Singh Bahadoor v. Sheik Manowar Hossein LRIA 19 48 andRobert Watson v. Ram Chand Dutt LRIA 17 10, is that even assuming that the 1st respondent has a share in the land admeasuring Ac.7-14 guntas, he cannot claim a share in the profits earned by the appellant in the poultry business. It is true in Robert Watson''s case (supra), the House of Lords observed that:
"In India a large portion of the lands, including many very large estates, is held in undivided shares, and if one share holder can restrain another from cultivating a portion of the estate in a proper and husband like manner, the whole estate may, by means of cross injunctions, have to remain altogether without cultivation until all the share holders can agree upon a mode of cultivation to be adopted, or until a partition by metes and bounds can be effected - a work which, in ordinary course, in large estates would probably occupy a period including many seasons. In such a case, in a climate like that of India, land which had been brought into cultivation would probably become waste or jungle, and greatly deteriorated in value. In Bengal the Courts of justice, in cases where no specific rule exists, are to act according to justice, equity, and good conscience, and if, in a case of share holders holding lands in common, it should be found that one share holder is in the act of cultivating a portion of the lands which is not being actually used by another, it would scarcely be consistent with the rule above indicated to restrain him from proceeding with his work, or to allow any other share holder to appropriate to himself the fruits of the other''s labour or capital."
The observations made in Robert Watson''s case (supra), were followed in Maharaja''s case (supra).
In our view the above judgments are distinguishable on facts. The other share holder who claimed a share in the fruits of the labour of the another share holder has not contributed anything for the earning of the profits by the another share holder. The another share holder by his own efforts and by his own investment and contribution has earned the profit. In that context, it was held that the other share holder cannot be allowed to appropriate the fruits of the another shareholder''s labour or capital. Whereas on the facts of the present case, the capital or contribution of capital or investment of capital is by the 1st respondent and his father late Nurasimha Murthy. It is not a case where the business in poultry is carried on by the contribution or investment exclusively by the 2nd appellant. Had it been so, perhaps the learned Counsel is right in contending that the respondents are not entitled to ask for appropriating themselves the fruits of the labour of the 2nd appellant. Therefore, the argument of the learned Counsel for the appellants is rejected.
The next contention of Sri J.V. Suryanarayana is that the house is constructed in a portion of the land viz., Ac.7-14 guntas exclusively by the 2nd appellant. Therefore, the respondents are not entitled to claim a share in the said house. There is absolutely no evidence on record that the house is constructed exclusively by the 2nd appellant. At any rate it is a matter to be ascertained in the final decree proceedings after ascertaining the profits that are derived from the poultry business right from 1968 till the date of filing of the suit. While passing the final decree, the trial Court may consider observations made in Periakaruppan v. Arunachalam AIR 1927 Mad. 676, wherein it was held that:
"When a person builds with his self-acquisition on land which is ancestral and in which a person subsequently gets an interest by birth and when it cannot be said that the builder built with knowledge of another person''s rights in the land and without his consent or against his will, the proper rule on partition is to allot the building and site to the person who built the superstructure and taking into consideration the value of the site to give the share of its value or equivalent joint property to the other coparcener; a coparcener claiming a share is not entitled under such circumstances to the value of the building also or to reacquire its demolition."
Sri J. V. Suryanarayana also contended that the 1st respondent at the time of settlement of account under Ex.B8 decided to relinquish his interest in Ac.7-14 guntas of land in favour of the 2nd appellant and purchased stamp papers marked as Ex.A12 and, therefore, the respondents are not entitled to any share in the said property. It is difficult to accept this argument of the learned Counsel. No inference can be drawn that the 1 st respondent is entitled to relinquish his share in Ac.7-14 guntas of land merely by looking at the stamp papers under Ex.A12. In the absence of a Relinquishment Deed executed in favour of the 2nd appellant or any other evidence either oral or documentary, it is difficult to accept the contention of the learned Counsel. There is absolutely no evidence to this effect except marking the stamp papers. Therefore, we reject this argument.
As regards the land of Ac. 1-00 covered by S. No.335, it is a matter to be ascertained in the final decree proceedings.
In the light of the above, we do not see any merit in the appeal and it is accordingly dismissed with costs.