1967 Supreme(AP) 131

Andhra Pradesh High Court
Judges : SAMBASIVA RAO, SHARFUDDIN AHMED
D.Raja Ahmed - Appellant
Versus
Pacha Bi - Respondent
Decided On : 09-26-67

Headnote:

SAMBASIVA RAO, J. ( 1 ) THIS is a first defendant s appeal with cross-objections preferred by the plaintiff. The respondent-plaintiff filed the suit O. S. No. 39 of 1958 on the file of the Subordinate Judge s Courts, Kurnool in forma pauperis (1) for partition and separate possession of her 1/3rd share in the plaint C. D. E. and F. schedule properties; (2) for account of the assets, cash, balances and outstandings collected and profits earned by the 1st defendant in respect of the dalali business and (3) for account of the rents, mesne profits, interests, outstandings collected and accreditions made to the estate and for other incidental reliefs.

Fact of the Case:

The propositus of the family was one Dharwar Ghouse sab. He married twice. Through his first wife he had one son by name Mohd. Haneef and through his second wife he had two sons by names Alla Baksh and Rajah saheb, the latter being the first defendant in the suit. Through his second wife he had also three daughters who were defendants 2, 3 and 4. By the time of the suit, the father, Ghouse Sab, the eldest son Haneef Sab and the second son Alla baksh were dead. It is common case between the parties that Haneef Sab died first though the parties are not agreed as to who of Ghouse Sab and Alla Baksh died first. In the present suit the heirs of the decreased Haneef Sab are not parties as their claim was settled long ago. Alla Baksh left behind him his widow, Mahboob bi the 5th defendant and two daughters, Raj Bi and Pacha Bi, the 6th defendant and the plaintiff respectively. Defendants 7 to 9 are the alienees in respect of certain properties which are the subject matter of the suit from the first defendant. The 10th defendant is the daughter of the third defendant who died since filing the suit.

Finding of the Court:

We have already found that the properties acquired under Exhibits B-25 and b-26 were not acquired by the two brothers with the aid of the business. They were acquired by the father, Ghouse Sab, in the years 1888 and 1910 respectively in his own name. It is therefore, clear that he owned these properties exclusively and he died possessed of them. Since he predeceased Alla Baksh the latter also would be a heir. Since the parties in the suits, have also become heirs to the interest of alla Baksh on his death their total shares in the properties acquired under Exhibits b-25 and B-26 were also calculated by the learned Counsel for both sides. We have examined the calculations and found it to be correct. Therefore, in the properties acquired by Ghouse Sab under Exhibits B-25 and B-26 (which form part of f Schedule) the following will have their shares as per the table given hereunder -

Issues: None

Ratio Decidendi: The law does not recognise a Mohammedan joint family as a legal entity and has not provided rules applicable to the family sa such. It is, however, very common in the areas of the State of Andhra Pradesh, formerly belonging to the Madras State for descendant mohammedans to live and trade together and to acquire properties together. There is nothing contrary to law, in Mohammedan adult male members of a family carrying on the trade for the benefit of all the members interested, including the minors and females. Courts have upheld such legal arrangements and the legal consequences as in law followed from them. When an adult male member holds the assets and carries on the business on behalf of all the persons interested therein he stands in a fiduciary relationship to the other persons interested in them. Section 23 (f) and 88 and 90 of the Trusts Act are applicable to those cases.

Final Decision: The decree of the lower Court is, therefore, modified accordingly and the appeal and the cross-objections are allowed and dismissed to the extents stated above. The parties will pay and receive proportionate costs. The first Defendant (Appellant) will pay the entire Court-fees payable on the plaint in the lower Court as well as on the memorandum of cross objections in this Court to the Government.