Holding

The High Court erred in not considering the admitted document and the limitation issue; the Supreme Court set aside the judgment in part and remitted the case for fresh determination of the accounts and limitation matters.

Summary

The plaintiffs, sons of the family Karta, sued the appellants for partition of two properties and for a decree directing the appellants to render accounts of a poultry‑tube manufacturing joint venture, claiming a 2/3 share in one property and a 4/9 share in the other. The appellants contended that the business was their exclusive concern and that the suit was barred by limitation. The High Court dismissed the appeal without considering the effect of an admitted document (Ex. B‑8) showing a settlement of accounts and without addressing the limitation issue, relying only on the absence of a signature. The Supreme Court held that an admission under Sections 58 and 145 of the Evidence Act is admissible even without a signature, and that the limitation question is a jurisdictional fact that need not be pleaded. It found that the High Court erred in ignoring Ex. B‑8 and in failing to frame issues under Order 41 Rule 31 CPC. Consequently, the Court set aside the impugned judgment in part and remitted the matter to the High Court for fresh consideration of the settlement of accounts and limitation issues.

Issues considered

Whether the poultry business constitutes a joint venture or a partnership.
Whether the accounts of the joint venture were settled as reflected in Ex. B‑8.
Whether the respondents are entitled to the share claimed in the properties.
Whether the suit is barred by limitation.
Whether a document without a signature, admitted by a party, is admissible under Sections 58 and 145 of the Evidence Act.
Whether the limitation question, being a jurisdictional fact, must be pleaded.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 31
Indian Evidence Act, 1872s. 145, s. 58
Limitation Act, 1963s. 3

Subjects

joint venturepartnershiplimitationadmission of documentevidence actpartition suitHindu undivided familyaccountscivil appealOrder 41 Rule 31section 58section 145

Judgment

...
GANNMANI ANASUYA AND ORS. A
--~-. v.
PARVATINI AMARENDRA CHOWDHARY AND ORS.

MAY 17, 2007

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

;, Evidence Act, 1872-ss. 58 and 145-Document without signature-
Admitted by executor-Document has bearing effect on limitation-Not
. considered by High Court-Hence matter remitted back for reconsideration-
Code of Civil Procedure, 1908-0rder. 41 r. 31.
c
Pleadings-Necessity of-On jurisdictional facts-Held: A jurisdictional
fact need not necessarily be pleaded.

Respondent Nos. 1 and 2 (plaintiffs) filed a suit against the appellants
D
(defendant Nos. 2, 3 and 5 to 7) and respondent No. 3 (defendant No. 1) claiming
2/3rd share in the property described in Schedule A to the plaint and 4/9th
..\
share in the property described in Schedule B to the plaint and seeking
direction to defendants 1 to 3 to render fair and proper accounts, in respect
of the poultry business which was being run in Schedule B property, from
the year 1968 and for future profits thereon. Plaintiffs claimed the properties E
as members of Hindu undivided family. Defendant No. 1- respondent No. 3
was the 'Karta' of the family. It was alleged by the plaintiffs that their father
(defendant No. 1 - respondent No. 3) had made investments for the poultry
business started by the appellant Nos. 1 and 2. Arrangement was entered into
between the parties that profits of the said business was to be shared by their
grandfather on one hand and their father and appellant No. 1 on the other F
~

I
hand equally after giving due credit to the expenditure and interest to
investments. Land was purchased in the name of the grandfather and appellant
No. 1 from the money advanced. Poultry business was started on that With
the profits from the poultry business a tube manufacturing plant was installed.
On death of their grandfather they inherited 2/3rd undivided interest in the G.
two business. Defendant No. 1 (father of the plaintiffs) supported their case.
Appellants (defendant Nos. 2 and 3) denied the allegations in the suit. They
also took the plea that the suit was barred by limitation. Defendant Nos. 2 and
-r 3 pleaded that the busineses were exclusively theirs. They had started the

201 H
GANNMANIANASUYAv. PARVATINIAMARENDRACHOWDHARY 203
in the lis, issuance of a document purported to have been authored by one of A
-...\- the parties was required to be taken into consideration. In terms of Section
58 of the Indian Evidence Act, I872, a thing admitted need not be proved.
[Paras 22 and 23) [2IO-B, C, D)

Shreedhan Govind Kamerkar v. Yesahwant Govind Kamerkar and Anr.,
(2006) I4 SCALE I74, referred to. B
4. It is also a trite law that when in cross-examination a witness accepts
+ the correctness of a document, the same would be relevant A pleading in
)
regarcl to existence of a document may be necessary for advancing the case of
·a party, but when a witness admits a document to be in his own handwriting
without anything more, the effect thereof may have to be considered having c
regard to the provisions contained in Section I45 of the Indian Evidence Ad
in terms whereof the only requirement would be that his attention is drawn
before a writing can be proved. These relevant facts have not been considered
by the High Court. The High Court merely proceeded on the basis that Ex.B-
8 did not contain anybody's signature. If defendant No.I accepted the conten~ D
of the said document, which, according to him were noted by him from the
-.,~
books of accounts, authenticity thereof is not in question, and, thus, even in
absence of books of accounts, relevant pages whereof were found to have been
torn, the High Court ought to have taken the same into consideration as well
as the admission on the part of defendant No.I and the effect thereof: Such an
admission could be taken into consideration both for the purpose of arriving E
at a finding in regard to the fact as to whether a full and final settlement of
accounts had been arrived at, which was a relevant fact as also for determining
the question oflimitation. [Para 24) [210-D-G)

5. There is no document in writing to prove partnership. Accounts had
F
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 e>fthe
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 piaintiffs and defendant no.I had 1/2 share in the property in G
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 indicia 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
H
204 SUPREME COURT RE~ORTS (2007) 7 S.C.R.

-
A not been reduced to writing, conduct of the parties how they dealt with affairs
of the businesS' would be relevant [Para 25] [210-H; 211-A, B, C] ~:i---

6. If the contents of Ex. 8-8 were accepted, it was not for the High Court
to consider the consequences flowing therefrom, and, thus, but the fact
whether the figure(s) contained therein could be verified from the books of
B account might not be very relevant Whether, it would be in consonance with
the pleadings of appellants was again of not much significance if it can be
used for demolishing the case of plaintiffs and defendant No.I. If the figures
contained in Ex. 8-8 were accepted, it was for defendant No.1 to explain the ._-~
same and not for appellants. The High Court thus committed a manifest error
c in not taking into consideration the contents of Ex. 8-8 in its proper
perspective. [Para 27] [211-E, F, G]

7. In terms of Section 3 of the Limitation Act, it is for the court to
· determine the question as to whether the suit is barred by limitation or not
irrespective of the fact that as to whether such a plea has been raised by the
D parties. Such a jurisdictional fact need not, thus, be pleaded. [Para 27]

8. It was for the High Court to frame appropriate points for its I..·
determination in the light of the submiss_ions made on behalf of appellants in l--'

terms of Order 41Rule31 CPC. Thus, apart from Issues regarding settlement
of accounts under Exbt. 8-8 and limitation, other points which for its
E consideration including the extent of the share of plaintiffs and defendant No.1
were required to be specifically gone into particularly in view of the fact that
such a contention had been considered by the Trial Judge. Issue regarding
Exbt 8-8 and limitation. therefore, require fresh consideration at the hands
of the High Court It may also be necessary for the High Court to consider
the applicability of the relevant articles of the Limitation Act.
F [Paras 28, 29 and 30) [212-H; 213-A, B]
"1-
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7318 of2000.

From the Final Judgment and Order dated 29.10.1999 of the High Court
of Andhra Pradesh at Hyderabad in Appeal No. 1930 of 1993.
G
A. Subba Rao for the Appellant.

T.L.V. Viswanatha Iyer, Sr .Adv., P.S. Narasimha, Sridhar Polaraju, D.
..,
Julius Riamei, Avijeet Kr. Lala, Dr. K.P. Kaylash Nath Pillai and P.V. Dinesh for
~

the Respondents.
H

~
GANNMANIANASUYAv. PARVATINIAMARENDRACHOWDHARY[S.B. SINHA,J.] 205

~·
The Judgment of the Court was delivered by A
S.B. SINHA, J. I. This appeal is directed against a judgment and decree
dated 29.10.1999 passed by a Division Bench of the High Court of Judicature
at Andhra Pradesh at Hyderabad whereby and whereunder an appeal preferred
by Appellants herein, who were Defendant Nos. 2, 3 and 5 to 7 in the suit,
from a judgment and decree dated 23.04.1993 in O.S. No. 55 of 1985 passed B
by the Subordinate Judge, Ramchandrapuram, was dismissed.

·' 2. Plaintiffs (Respondent Nos. 1 and 2 herein) filed a suit purported to
be one for partition claiming 2/3rd share in the property described in Schedule
'A' appended to the plaint, claiming 4/9th share in the property described in
Schedule 'B' appended thereto, as also for a decree directing the Defendants
c
1 to 3 to render fair and proper accounts in respect of the poultry business
which was being run in the Schedule 'B' property from the year I968 onwards "'
as also for future profits thereupon.

1 3. Plaintiffs are sons of Defendant No.I (Respondent No.3 herein). One
D
Narasimha Murthy was the father of Defendant No.I. Appellants herein
-,J. admittedly are related to the respondents. Appellant No. I 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. l and 2 allegedly were close to the said Narasimha
Murthy. At the time of marriage, Appellant No. 2 was a student of Veterinary E
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;
F
... pursuant whereto 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 hand, and Defendant No.
I and Defendant No.2, on the other, equally after giving due credit to the
expenditure and interest to investments made @ I5% p.a. 7 acres and 14
guntas of land was purchased with the moneys advanced by late Narasimha G
Murthy and Defendant No. I at Attapur near Hyderabad in the name of late
Narasimha Murthy and the Defendant No.2. Poultry business was, thus,
started.
.
-.J.

4. Narasimha Murthy died in the year 1971. With the profits from the
said business going up, a tube manufacturing plant was also installed. H
;
,J
206 SUPREME COURT REPORTS [2007] 7 S.C.R.

A According to the plaintiffs on the death of the said Narasimha Murthy, they
inherited 2/3rd undivided interest of the said poultry and tubes manufacturing
business .and Appellant No.2 had the remaining I/3rd share. The joint family
and Respondent No.3 herein had no interest in the said business concern.

5. Allegedly, a notice dated 27.08. I 985 was served asking the appellants
B · herein to render accounts in respect of the said businesses, but no reply
thereto was given. A suit was thereafter filed on I 2.09 .1985. The father of the
Plaintiffs-Respondents Nos. l and 2, namely, Respondent No.3 herein in his
.\-
written statement for all intent and purport supported the case of the plaintiffs \.
alleging that there had been no settlement of accounts in respect of the said
C businesses and after the death of Narasimha Murthy, he was entitled to the
share to which his father was entitled to from the said business. It was alleged
that further amounts we'"e also advanced after the death of his father by way
of advance as well as interest accrued on principal amounts advanced. It was
further alleged that the infrastructures and the buildings referred to in Schedule
'B' appended to the plaint including the residential house bearing D. No. 7/
D 26 were constructed with the profit earned from the business. It was, therefore,
contended that they were entitled to 2/3rd share in the business besides the
amounts advanced together with interest at the rate of 15% p.a. and also to
a half share in the properties described in Schedule 'B' appended to the plaint
together with income thereof.

E 6. With his written statement, Defendant No.I filed a document a5 an
annexure thereof showing that a sum of Rs.l,55,535.00 had been advanced
during the period 23.08.1968 to 29.05.1971.

7. In his written statement, Defendant No. 3 (Appellant No. 2 herein)
F accepted that during the life time of late Narasimha Murthy, Defendant No.
I partitioned the joint family properties under a registered deed of partition
of the year I961. 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. I and late
. Narasimha Murthy for investment of money in the poultry business or that
G 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 I5% 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.
H
GANNMANI ANASUYAi·. PARVA TIN! AMARENDRACHOWDHARY[S.B. SINHA,J.] 207
,
_,_
8. There is no document to show that any partnership came into being A
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 fann. It
was stated that late Narasimha Murthy merely advanced a sum of Rs.
5,000/- and as a good gesture of goodwill, his name was included as one of B
the vendees along with Defendant No. 2 in the purchase of the property by
... )
reason of the said deed of sale dated 02.12.1970. According to Appellants,
Narasimha Murthy had never shown any interest in the said property as a
result whereof the business became exclusively theirs and the same was
accepted by late Narasimha Murthy. Even if the said allegations are correct,
Narasimha Murthy would only have = share in the land covered by the said
c
sale deed.

10. Mis Anasuya Poultry Farm or Mis Anasuya Plastics were the
business concerns started by the Defendant No.2 (Appellant No. I herein)
with her own money and late Narasimha Murthy or Respondent No.3 had no D
interest therein. It was furthermore contended that for carrying out the poultry
~~ business, a shed had been constructed by Defendant No.2 by obtaining loans
from the State Bank of India and neither Narasimha Murthy nor the Defendant
No. I even objected thereto. The business, therefore, was a proprietary concern
of the Appellant No.I herein. Although separate written statements were ~led
by the Defendant No.4 and Defendant Nos. 5 to 7, it may not be necessary E
to consider the same. Defendant No. 4 in her written statement relinquished
.
-, her share .

11. A large number of issues were framed by the learned Trial Judge.
The learned Trial Judge by reason of his judgment dated 23.04.1993 passed
F
a preliminary decree directing partition of the properties described in Schedule
;
'A' appended to the plaint into three equal shares by metes and bounds and
allotted two shares to the plaintiffs and furthermore directed partition of the
properties described in Schedule 'B' appended to the plaint into nine equal
shares by metes and bounds and allotted four shares to the plaintiffs. Appellant
Nos. l and 2 herein as also Respondent No. 3 herein were also directed to G
render fair and proper accounts in respect of poultry business from 1968
onwards;
(
-I 12. Appellants herein (Defendant Nos. 2, 3, 5 to 7) preferred an appeal
thereagainst before the High Court, which has been dismissed by reason of
the impugned judgment. H
208 SUPREME COURT REPORTS [2007) 7 S.C.R.

A 13. The High Court having regard to the contentions raised by parties
fonnulated the following questions for its 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. BS?
B ..,
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
c appellants, would submit that the learned Trial Judge as also the High Court
committed a serious error insofar as they failed to tak~ 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
D regard to the said doc 1ment, but in view of the fact that Defendant No. l
1

(Respondent No. j herein) having admitted the execution thereof, the same
should have been taken into consideration for the purpose of determining the ..Y r
issue of limitation, if not for other purposes.

15. The learned counsel would submit that the High Court has also not
E bestowed any consideration in respect of the execution of deed of partnership
dated 06.03.1978 entered in~o by and between the appellants with her daughter
wherein Defendant No. I (Respondent No.3) is a witness. l
~

16. In any event, the learned counsel argued, there is,pothing on record
to show as to how the High Court came to a conclusion that the plaintiffs
F and Defendant No. I had 2/3rd share in the business venture. The learned
counsel submitted that the fact that Defendant No. I (Respondent No.3) was
'\-
himself an Engineering Graduate, there was absolutely no reason as to why
he had not asked for an account annually and having regard to the fact that
the partnership was allegedly entered into in the year I978, the suit was ex
~
G facie barred by limitation.

17. Mr. T.L.V. Viswanatha Iyer, the learned counsel appearing on behalf J-

of the plaintiffs (Respondent Nos. l and 2), on the other hand, submitted that l-
\
although the question in regard to the extent of share had been raised before '"\--- (

)..-
the learned Trial Judge, the same was not done before the High Court and, }::
H thus, the same should not be permitted to be raised before us. According to
GANNMANIANASUYAv.PARVATINIAMARENDRACHOWDHARY[S.B.SINHA,J.] 209

the learned counsel as the appellants herein were not in a position to make A
"'°""" any investment and a total sum of Rs.1,55,535/- was advanced by Defendant
No. I, towards the joint venture, a suit for rendition of accounts was
maintainable. The judgment of the trial court, according to the learned counsel,
was unassailable, in regard to the question of limitation. The learned counsel
would contend that Ex.B-8 upon which reliance has been placed, does not
contain any signature of any party nor any amount has been paid pursuant
B
thereto in fell and final settlement of"the accounts wherefor the same was
drawn up. It was pointed out that Defendant No. 1 was only a manager of
-~
.! the Hindu undivided family and the business concerns were being run by the
appellants herein. In view of the fact that profits were being reinvested into
the partnership business, it is idle to contend that the accounts were settled c
particularly when the business was found to be a running one by the learned
Trial Judge. Even the notice issued by the plaintiffs, it was pointed out, had
not been replied by the defendants. The learned counsel would contend that
Article 5 of the Limitation Act, 1963 would not be applicable in a case of this
nature as the same refers to a dissolution of partnership and as in this case,
the provisions of the Indian Partnership Act, 1932 are not attracted, only D
..... Article 113 thereof would apply.
'4

18. Dr. K.P. Kaylash Nath Pillai, the learned counsel appearing 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
E
-( '
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.
l, as urged by Mr. Subba Rao. F
20. We may furthennore 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 G
is not in question before us.

21. However, it is difficult for us to accept the reasonings of the High
.._J·
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 H
210 SUPREME COURT REPORTS [2007] 7 S.C.R.

A Murthy and after his death by Defendant No.1 (Respondent No.3).
Correspondences were exchanged by and betWeen Appellant Nos. 1 and 2
only with Narasimha Murthy and Defendant No. 1 (Respondent No.3). Yet
again admittedly, Defendant No. 1 (Respondent No.3) was the manager.of the
Hindu undivided family. His dealing with the appellant in regard to the affairs
B of the business will have a direct bearing in the matter of determination. of
the issues raised before us.

22. An admission made by a party can be used against him. When such
admission is made by a Karta of the Hindu undivided family, who is managing i .
the family property as well as family business affairs, the same would be a
C relevant fact. When a claim was made by the plaintiffs for rendition of
accounts in the !is, issuance of a document purported to have been authored
by one of the parties, in our opinion, was required to be taken into
consideration.

23. In terms of Section 58 of the Indian Evidence Act, 1872, a thing
D admitted need not be proved. [See Shreedhar Govind Kamerkar v. Yesahwant
Govind Kamerkar & Anr., [2006] 14 SCALE 174]

24. It is also a trite law that when in cross-examination a witness accepts
the correctness of a document, the same would be relevant. A pleading in
regard to existence of a document may be necessary for advancing the case
E of a party, but when a witness admits a document to be in his own handwriting
without anything more, the effect thereof may have to be considered having
regard to the provisions contained in Section 145 of the Indian Evidence Act
in terms whereof the only requirement would be that his attention is drawn
before a writing can be proved. These relevant facts have not been considered
F by the High Court. The High Court merely proceeded on the basis that Ex.
B-8 did not contain anybody's signature. If the Defendant No. 1 accepted the
contents of the said document, which, according to him, were noted by him
from the books of accounts, authenticity thereof is not in question, and, thus,
even in absence of books of accounts, relevant pages whereof were found
to have been tom, the High Court ought to have taken the same into
G consideration as well as the admission on the part of the Defendant No. I and
the effect thereof. Such an admission could be taken into consideration both
.
·)
for the purpose of arriving at a finding in regard to the fact as to whether a
full and final settlement of accounts had been arrived at, which was a relevant
fact as also for determining the question of limitation.
(
H 25. There is no document in writing to prove partnership. Accounts had •
GANNMANIANASUYAv.PARVATINIAMARENDRACHOWDHARY[S.B.SINHA,J.] 211

not been demanded by the plaintiffs or the defendant no. 3 for a long time. A
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. I had 112 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 indicia 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-
entrepreneurs7 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 C
of the business would be relevant.

26. The High Court does not say that the concession made by the
learned counsel appearing on behalf of Appellants was incorrect. In a situation
of this nature, particularly when the limitation issue required determination,
Ex. B-8, in our opinion, should have received serious consideration at the D
hands of the courts below.

27. In terms of Section 3 of the Limitation Act, it is for the court to
determine the question as to whether the suit is barred by limitation or not
irrespective of the fact that as to whether such a plea has been raised by the
parties. Such a jurisdictional fact need not, thus, be pleaded. In any event, E
the said evidence was admissible for the putpose of contradicting a witness,
which being a relevant fact should have been considered in its proper
perspective. If the contents of Ex. B-8 were accepted, it was not for the High
Court to consider the consequences flowing therefrom, and, thus, but the fact
whether the figure(s) contained therein could be verified from the books of p
account might not be very relevant. Whether, it would be in consonance with
the pleadings of Appellants was again of not much significance if it can be
used for demolishing the case of Plaintiffs and Defendant No. I If the figures
contained in Ex. B-8 were accepted, it was for Defendant No. I to explain the
same and not for Appellants. The High Court, in our opinion, thus, committed
a manifest error in not taking into consideration the contents of Ex. B-8 in its G
proper perspective.

28. At the cost of repetition, we may state that the effect of the said
document at least should have received serious consideration at the hands
of the High Court. We cannot accept the contention of Mr. Iyer that;.such a H
212 SUPREME COURT REPORTS [2007] 7 S.C.R.

A question had not been raised. From the impugned judgment of the High
Court, it appears that the said such question had specifically been raised. The
High Court noticed the arguments of the learned Advocate in the following
terms:

" ... Therefore, they have no objection/for giving the half share in the
B property in spire of !st respondent ~xpressing his intention to relinquish
his right in the half share of landed property admeasuring Ac. 7-14
guntas in Atapur covered by Ex. B-15. After the settlement of accounts
under Ex. B-8 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
c 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 he does not want
D 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
E document. Therefore, the respondents cannot claim the share of the
4th respondent. Since neither late Narasimha Murthy nor respondent
No. I 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
F
appellants is not the exclusive business of the lst 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 I st appellant and therefore, the
respondents are not entitled for a share in the said building. At the
G 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 comers
constructs a building. The suit for accounts is barred by limitation as
the business was closed in 1973. At the most the respondents are
entitled for profits 3 years prior to the filing of the suit"

H 29. It was for the High Court to frame appropriate points for its
GANNMANIANASUYA>'.PARVATINIAMARENDRACHOWDHARY[S.B.SINHA,J.) 213
detennination in the light of the submissions made on behalf of Appellants A
in tenns of Order 41 Rule 31 of the Code of Civil Procedure. The High Court
failed to address itself on the said issue. Thus, apart from Issues Nos. 2 and
4, other points which for its consideration including the extent of the share
of Plaintiffs and Defendant No. l were required to be specifically gone into
particularly in view of the fact that such a contention had been considered B.
by the learned Trial Judge. Issue Nos. 2 and 4, in our opinion, therefore,
require fresh consideration at the hands of the High. Court.
J
30. For the aforementioned purpose, it may also be necessary for the
High Court to consider the applicability of the relevant articles of the Limitation
Act. We, therefore, are of the opinion that the impugned judgment to the C
extent aforementioned cannot be sustained. It is set aside accordingly in part
and the matter is remitted to the High Court for consideration of the matter
afresh on the said issues, inter a/ia, in the light of the observations made
hereinbefore. The High Court shall also fonnulate appropriate points for its
consideration in terms of Order 41 Rule 31 of the Code of Civil Procedure and
proceed to hear the appeal on merits on the relevant issues apart from Issue D
Nos.2 and 4. This appeal is allowed to the aforementioned extent In the
peculiar facts and circumstances of the case, there shall be no order as to
costs.

K.K.T. Appeal partly allowed.

-l