Back
2001 Supreme(AP) 1528
Andhra Pradesh High Court
Judges : B.PRAKASH RAO
Thumati Paripurna Govindamma - Appellant
Versus
Thatha China Venkata Subbaiah - Respondent
Decided On : 12-03-01
Headnote:
Indian Partnership Act - Section 69 - Suits were filed for recovery - Suit for recovery of amount Whether suit promissory note is true and supported by consideration - Defendant are appellants-petitioners who are aggrieved against judgment and decrees - AS per plaint allegations was doing business in Tobacco and he was joint family consisting of defendants - He died was running business name and style Tobacco Private limited Ongole and Re-Drying factory Ongole - Defendant wife was also one of Directors in said firms - That apart was a partner in Oil mill and was also having lands at and other places - Transfer of certain amounts and on settlement of account - Held, There is also no dispute nor any challenge in regard to returns filed said document is long prior to execution of suit promotes - Once a partition is effected in pursuance of a registered document same cannot be challenged except on available grounds as to fraud etc - Even on the ground of unequal partition it is difficult to accept any argument to disbelieve partition though it all depends of each case to say as to really such unequal partition has any effect on its validity – However of this case document was long prior to suit promotes and parties were filing their respective income tax returns – Thus remains that partition was very much acted upon - Even though in court like non-examination of mother defendant and there being no partition by metes and bounds were sought to be taken as basis to reject however it has to be seen that these themselves would not have any such effect on validity - There is a division between father and son and same was being reiterated in income tax returns and therefore there is nothing to cast any doubt on said partition – Revision allowed
( 1 ) THE defendants 1, 2 and 4 are the appellants-petitioners herein who are aggrieved against the judgment and decrees in O. S. No. 185, 186 and 187 of 1983 dated 10-9-1993 and the orders passed in LA. Nos. 2355, 2356 and 2357 of 1993 dated 14-9-1994 on the file of the Principal subordinate Judge at Ongole.
( 2 ) ALL the three suits were filed for recovery of Rs. 1,19,662-40, Rs. 35,024-64 and rs. 1,90,662-40 on the foot of promissory notes of the even date 23-12-1980 marked as exs. A-11, A-9 and A-12 executed by late thumati Rangaiah Choudhary.
( 3 ) THE first defendant is the wife, the second defendant is the son and defendants 3 and 4 are the daughters of the said late rangaiah Choudhary.
( 4 ) AS per the plaint allegations, Rangaiah choudhary was doing business in Tobacco and he was the kartha of the joint family consisting of the defendants 1 to 4. He died on 1-6-1982. Late Rangaiah Choudhary was running the business under the name and style of M/s. Lavanya Tobacco Private limited, Ongole and Lavanya Re-Drying factory, Ongole. The defendant No. l, the wife, was also one of the Directors in the said firms. That apart, Rangiah Choudhary was a partner in Sri Ramlingeswara Oil mill, Uppugundur and was also having lands at Maddiralapadu (Ongole), chadalawada and other places.
( 5 ) THE plaintiffs are the partners in the firm M/s. Thatha Iron Company, Ongole dealing in Iron, steel, cement and hardware etc. , wherein late Rangaiah Choudhary was having an account for his necessities as to the building materials for the aforesaid two firms. By 23-12-1980, he became indebted in a sum of Rs. 2,00,000. 00 and after transferring an amount of Rs. 7,113-23, there was a settlement of account and late Rangaiah choudhary undertook to pay a sum of rs. 2,00,000/- and in accordance therewith, he executed two promissory notes on 23-12-1980 for Rs. 1,00,000. 00 each. In spite of demands, as no amounts were forthcoming, the two suits in O. S. Nos. 185 and 187 of 1983 were filed for recovery of the amounts under the said two pronotes along with interest thereon as agreed to. In regard the other suit in O. S. No. 186 of 1983, similarly, in regard to the said account, the amount was struck at Rs. 18,374-18 which was ascertained after transfer of certain amounts and on settlement of account, Rangaiah choudhary agreed for payment of the same and duly executed the suit pronote Ex. A-9 for Rs. 18,374-18. Though Rangaiah choudhary issued a cheque dated 19-4-1981 for a sum of Rs. 20,000. 00 as part payment, the same was dishonoured. Hence the suit for recovery of the amount thereunder along with interest.
( 6 ) THE common defence in all the three suits was that the defendant No. l was not aware about any transaction except merely signing on papers. There was already a partition between late Rangaiah Choudhary and the second defendant long ago under a registered partition deed and, therefore, no liability in regard to the suit debts could be fastened on the other defendants. The entire business was that of Rangaiah Choudhary and the other defendants are not in possession of any assets of Rangaiah choudhary. That apart, late Rangaiah choudhary was also indebted heavily and there was a suit in O. S. No. 53 of 1983 filed by the Baroda Bank, Guntur for recovery of amounts on the basis of a mortgage. In view of the heavy debts and taking advantage of the financial breakdown and mental inability and the habit of drinking, late rangaiah Choudhary was made to execute the suit pronotes and, therefore, the same are not valid and without consideration. Further, the plaintiffs firm being unregistered, the claim is barred under section 69 of the Indian Partnership Act.
( 7 ) ON these and other allegations, the court below has framed the following issues:"o. S. No. 185 of 1983: (1) Whether the suit promissory note is true and supported by consideration? (2) Whether the second defendant and his father became divided long prior to the date of the sui
