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TMI Blog1976 (3) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... over the management of the family and its properties. By registered deed dated May 29, 1929 (Exh. A1) a partition of Joint family properties was effected between Subramanyam Chettiar on the one hand and Kota Venkatachala Pathy and his brother Kota Narayanan, who, was then a minor, on the other, each branch taking a half share. As karta of the joint family. Subramanyam Chettiar had, before November 20, 1927 incurred debts to the tune of ₹ 9,506/- from several creditors. Five items of joint family properties detailed in Schedule D-1 to the deed of partition were earmarked for the discharge of the aforesaid debts and were given over to Kota Venkatachala Pathy who was made responsible for the discharge of the debts. These debts were discharged by Kota Venkatachala Pathy before March 26, 1934. On September 7, 1956. Kota Venkatachala Pathy brought a suit, being suit No. O.S. 87 of 1956, in the Court of the Subordinate Judge of Vellore, North Arcot, for partition and separate possession of 3/4th of the properties set out in Schedule 'A' to the plaint, 1/2 of the properties set out in Schedule A-1 to the plaint and whole of the properties set out in Schedule 'B' to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;D' to the aforesaid deed of partition Was discharged by Kota Venkatachala Pathy not only the sale of the properties set out in Schedule 'D-1' to the deed to partition but also by substantially utilising other Joint family properties available for division. It was also contended by the appellant that since Kota Venkatachala Pathy acted as Karta of his branch, the aforesaid deed of partition should be construed as meaning that any item salvaged or saved after the discharge of the aforesaid family debts would be ancestral property and not exclusive property of the plaintiff. As regards the properties' other than item No. 1 of Exhibit 'B' of the plaint it was contended by the appellant that they were also to be shared half and half between him and Kota Venkatachala Pathy as they were purchased from the joint family funds. With regard to the relief for rendition of accounts, the appellant contended that he became the karta of the joint family in 1947 and Kota Venkatachala Pathy was not entitled to the relief of rendition of account till the date of the suit when alone there was a division of status and not in 1933 as claimed by Kota Venkatachala Pathy. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaint from 1947 onwards but did not give directions as to the assets and funds of capital nature withdrawn by Kota Venkatachala Pathy from out of the joint family utilised for his own separate and independent business. 7. Aggrieved by this judgment, Kota Venkatachala Pathy, the original plaintiff, whose legal representatives are the respondents herein, preferred an appeal to the High Court of Judicature of Madras. By its judgment dated December 8, 1966, the High Court allowed the appeal in part, set aside the judgment and decree of the Trial Court and decreed the suit brought by the original plaintiff with regard to item No. 1 of Schedule B to the plaintiff holding that the properties mentioned in Schedule B-l to the partition deed were conveyed absolutely to the original plaintiff in lieu of his undertaking to be liable to discharge the entire debts mentioned in Schedule 'D' to the partition deed whether the properties were sufficient or insufficient to discharge the same and if there was any surplus out of the properties he was to have the tame absolutely, but if the properties were not sufficient he was to discharge the debts on his own responsibility without le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in any event D-1 Schedule properties lost the character of separate properties as they were blended by Kota Venkatachala Pathy with the joint family properties. He has lastly urged that the directions given by the Highs Court with regard to accounting cannot be sustained as they are neither clear nor Justified. 9. The principal question for determination in this case is whether the properties mentioned in D1 Schedule to the deed of partition were separate properties of Kota Venkatachala Pathy or retained the character of ancestral properties. The answer to this question depends largely on the construction of the deed of partition (Exh. A1), material portion whereof is reproduced below for facility of reference: Venkatachalapathi she individual No. 2 shall discharge she debts described in 'D' Schedule, the debts payable to outsiders by Subramanyam Chetti amongst us for the amount borrowed for conducting she family business prior to 20.11.27 and individual No. 2 for discharging the loans, shall enjoy absolutely the properties mentioned in Schedule D-1. Venkatachalapathi Chetti, the individual No. 2 shall either discharge the debts within a month from the date of regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the managing director's remuneration received by the assessee was assessable in his individual hands or in the hands of the assessee's Hindu undivided family, this Court expressed the view that the remuneration was assessable as the assessee's individual income and not as the income of his Hindu undivided family. We are, therefore, of the view that Schedule D-1 properties were given absolutely to Kota Venkatachala Pathy as his separate properties. 12. Let us now see as to whether the aforesaid arrangement entered into between the members of the Hindu undivided family whereby properties mentioned in Schedule D 1 to the deed of partition were made over to Kota Venkatachala Pathy was valid according to Hindu Law. A reference to page 426 of Mayne's Treatise on Hindu Law and Usage (11th Edition) makes it clear that while dividing the family estate, it is necessary for the joint family to take account of both the assets and the debts for which the undivided estate is liable and to make provision for discharge of the debts. It is also well settled by the decisions of this Court in Sahu Medho Das v. Pandit Mukand Ram (1955) 2 S.C.R. 22 Maturi Puilaiah v. Maturi Na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kiraddi Chinna Venkata Reddi and Ors. v. Lakkireddi Lakshmana (1964) 2 S.C.R. 1/2 and G. Narayana Ram v. C. Chamaraju and Ors. [1968]3SCR464 . 14. In the instant case we are unable to find that there was an; Intention on the part of kota Venkatachala Pathy of abandoning his separate rights over the properties set out in Schedule D. 1 to the deed of partition. The mere fact that these properties were not separately entered by kota Venkatachala Pathy in the account books or that no separate account of the earnings from these properties was maintained by him cannot rob the properties of their character of self acquired properties. We are accordingly of the view that there was no blending of the properties by kota Venkatachala Pathy as contended by the appellant. 15. The mere fact that some amount out of the joint family funds was used for discharge of the debts mentioned in Schedule to the deed of partition is also of no consequence. If any amount out of the joint family funds was used for the discharge of the outstandings payable to the outside debtors the legal representatives of Kota Venkatachala Pathy would, as pointed out by the High Court be liable for them. 16. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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