TaxTMI 
TaxTMI 
2007 (5) TMI 630
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....hich was being run in the Schedule 'B' property from the year 1968 onwards as also for future profits thereupon. 3. Plaintiffs are sons of Defendant No.1 (Respondent No.3 herein). One Narasimha Murthy was the father of Defendant No.1. Appellants herein admittedly are related to the respondents. Appellant No. 1 is niece of late Narasimha Murthy. Her parents died when she was very young and unmarried. She was brought up by the said Narasimha Murthy and married to Appellant No.2 herein. Appellant Nos. 1 and 2 allegedly were close to the said Narasimha Murthy. At the time of marriage, Appellant No. 2 was a student of Veterinary Science at Madras. After securing B.V. Sc. Degree, he got an appointment in the veterinary department and later on became a B.D.O., and subsequently a Project Officer in the Urban Community Development of the Hyderabad Municipal Corporation. They allegedly approached Defendant No. 1 and late Narasimha Murthy to invest money in poultry business at Hyderabad; pursuant where to investments were made. Allegedly, an arrangement was entered into by and between the parties that profits of the said business can be shared by late Narasimha Murthy, on the one h....
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....d that during the life time of late Narasimha Murthy, Defendant No. 1 partitioned the joint family properties under a registered deed of partition of the year 1961. But according to him, only landed properties were partitioned keeping the family house and vacant sites at Pulagurtha joint. The allegation to the effect that Appellants herein approached the Defendant No.1 and late Narasimha Murthy for investment of money in the poultry business or that they invested any amount on the premise that the profits arising out of the said business can be shared by late Narasimha Murthy and Defendant No. 1 and the Defendant No.2 equally after giving due credit to the expenditure and interest to investments made at 15% p.a. was denied. The other allegations made in the plaint were also disputed. A plea that the suit was barred by limitation was also taken. 8. There is no document to show that any partnership came into being by and between the parties and/or their predecessors in interest. 9. It is, however, not in dispute that after the suit was filed, an Advocate Commissioner was appointed for making an inventory of the poultry farm. It was stated that late Narasimha Murthy merely advan....
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....? 2. Whether there was a settlement of account under Ex. B8? 3. Whether the respondents are entitled to the share of defendant No. 47; and 4. Whether the suit is barred by limitation." 14. Mr. A. Subba Rao, the learned counsel appearing on behalf of the appellants, would submit that the learned Trial Judge as also the High Court committed a serious error insofar as they failed to take into consideration the effect of Ex.B-8, which categorically goes to show that the accounts had been settled by and between the parties on 30.05.1979. The learned counsel urged that it may be true that no averment was made in the written statement in regard to the said document, but in view of the fact that Defendant No. 1 (Respondent No. 3 herein) having admitted the execution thereof, the same should have been taken into consideration for the purpose of determining the issue of limitation, if not for other purposes. 15. The learned counsel would submit that the High Court has also not bestowed any consideration in respect of the execution of deed of partnership dated 06.03.1978 entered into by and between the appellants with her daughter wherein Defendant No.1 (Respondent No.3) is a w....
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....ppearing on behalf of Defendant No. 1 (Respondent No.3), would submit that the question as to whether the business was a joint venture or not being a question of fact, this Court should not exercise its discretionary jurisdiction under Article 136 of the Constitution of India. 19. So far as issue No. 1 is concerned, we are satisfied that the business was a joint venture and not the sole proprietary concern of the Appellant No. 1, as urged by Mr. Subba Rao. 20. We may furthermore notice that a concession was made before the High Court that so far as the immovable property is concerned, having regard to the provisions contained in Section 45 of the Transfer of Property Act, 1894, Narasimha Murthy had = share therein. It is, thus, not necessary for us to go into the said question as correctness or otherwise of the said concession is not in question before us. 21. However, it is difficult for us to accept the reasonings of the High Court in regard to Ex. B-8. Plaintiffs (Respondent Nos. 1 and 2) were claiming the property as members of the Hindu undivided family. Admittedly, the interest of the Hindu undivided family was being looked after by Narasimha Murthy and after his dea....
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....lement of accounts had been arrived at, which was a relevant fact as also for determining the question of limitation. 25. There is no document in writing to prove partnership. Accounts had not been demanded by the plaintiffs or the defendant no. 3 for a long time. Even an oral partnership had not been proved. What was the subject-matter of the partnership had also not been considered by the High Court. A share in a joint venture, in absence of any document in writing, must be determined having regard to the conduct of the parties. The High Court proceeded on the basis that the plaintiffs and defendant No.1 had = share in the property in terms of Section 45 of the Transfer of Property Act. If the said immovable property formed assets of the joint venture, the same would be an india to determine the shares held by the parties thereto. Ordinarily, the extent of an involvement made shall be the criteria for determining the share of the co-entrepreneurs. In absence of terms and conditions of the joint venture having not been reduced to writing, conduct of the parties how they dealt with affairs of the business would be relevant. 26. The High Court does not say that the concession ....
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....igned 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 he 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 Murthy 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 acco....