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.

(2) In order to clearly appreciate the contentions of the parties their relationship inter se has to be noted. 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. The plaintiff's case, as stated in the plaint, is her father alla baksh was doing dalali (commission) business since 1923 under name and style of dharwar mahammad haneef and brother. Alla baksh was the exclusive proprietor of the said business and it was prosperous. The said business is described in schedule (d) to the plaint. He acquired immoveable properties described in the 'c ' schedule.

(3) In addition to the ' c ' schedule properties and ' d ' chedule business, father alla baksh acquired other assets like mortgage deeds and house property. He died exclusively owning all these assets. At the time of his death the plaintiff and her sister the 6th defendant were minors. Their mother, the fifth defendant was an illiterate purdah nashin lady, having no experience of wordly affairs. They were all living with the first defendant and were under his care and protection. The first defendant who was also entitled to a 1/12th share in the properties left by the father, allah baksh entered into possession of the properties and the management of the business. The 1st defendant was not only a sharer holding a 1/12th share but at that time happened to be the only adult male member of the family. The fifth defendant reposing confidence in the first defendant allowed him to continue the business and to be in possession and management of the various assets left by alla baksh. Later the 6th defendant and the plaintiff were married. Taking advantage of the fact that they were living with their husbands and that the fifth defendant was a weak, illiterate gosha lady the first defendant changed his attitude towards them and with the ulterior motive of depriving them of their rightful share in their father's properties he sold away item (1) of the c schedule properties to defendants 7 to 9 in the year 1954 without their knowledge, as if he was the full owner thereof. The plaintiff came to know of the alienation only recently. She and defendants 5 and 6 were not bound by the sale. Besides these alienations the first defendant was appropriating to himself the entire profits of the business and also the income from the properties. He acquired out of the said profits and income the properties described in the ' f ' schedule. Therefore the plaintiff and defendants 5 and 6 were also entitled to their respective shares in the ' f ' schedule properties also.

(4) Since the first defendant continued the business in the name and style of dharwar mahammed haneef and brother, as a co - heir and manager and as a person bound in a fiduciary capacity to protect the interests of the female heirs, he was bound to render an account of the assets and cash left by the father alla baksh and also the outstandings collected and profits made in the business and the income derived from the properties and the accretions made to the estate as a trustee. The outstandings and cash and movables left by alla baksh were described in schedule 'e' to the plaint. Since there was no partition or accounting done by the first defendant to her the plaintiff was in constructive possession of the properties and was, therefore entitled to sue for converting the joint possession into separate possession and for account. It was further stated in the plaint that the defendants 1 to 6 were entitled to the shares mentioned against their names in the following table as they belong to the sunni sect of the mohammadens.

(5) Since the third defendant died after the suit her 1/24th share devolved on defendants 1, 2,4 and 10. Since she had no means to pay the court - fee the plaintiff was obliged to file the suit as a pauper. The first defendant was the main contesting defendant in the suit. He denied in his written statement that alla baksh, the plaintiff's father did any dalali business.

(6) On the other hand his case was that his father, darwar ghouse sab started the dalali business long prior to 1923. The plaintiff's father was an illiterate person leading a wayward life and suffered from diseases like tuberculosis and died in the year 1934. He never had anything to do either with the dalali business or with the acquisition of the properties described in schedules ' d ' and ' f '. Nor did he leave behind him any mortgages or promissory notes. In the year 1935 or so the father, ghouse sab, retired from the business and thereafter he (d - 1) started his own dalali business in the name and style of d. Raja ahmed sab and was continuing the same till the day of written statement. Some properties were acquired by the father ghouse sab and most of the properties mentioned in the ' f ' schedule were his own (d - 1's) acquisition, and, therefore, they belonged to him exclusively. Father, ghouse sab, died in the year 1939, since the plaintiff's father predeceased him having died in the year 1934, neither the plaintiff nor defendants 5 and 6 can get any share in the properties. The properties mentioned in the 'c' schedule were in his open uninterrupted enjoyment since 1935 for nearly 24 years and therefore, he perfected his title thereto by adverse possession. The items mentioned in schedule 'e' were non - existing and he alone was exclusively entitled to the properties mentioned in the ' f ' schedule. He also stated that the plaintiff and defendants 5 and 6 never lived with him after the death of alla baksh and that they were only living separately. He did not perform the marriages of the plaintiff and the 6th defendant. Hie merely lent his name to the invitation cards. He also averred that the plaintiff was aged 25 years as on the date of the institution of the suit and that, therefore, the suit was barred by limitation since it was more than three years after the attainment of the majority by the plaintiff.

(7) Defendants 3, 5, and 6 remained ex parte. In fact d - 3 died after the suit. The surviving sisters, defendants 2 and 4 and the alienees 7 to 9 filed memos adopting the written statement of the first defendant. The lower court framed as many as 9 issues. It found that the business was started by haneef sab and after his death, was continued by his two brothers, alla baksh (father of the plaintiff) and the first defendant. It further found that allah baksh must have died some time in 1939 - 40 and after his death the business was continued by the first defendant. It was also found that the father of the plaintiff did not carry on the dalali business exclusively by himself and that the first defendant did not continue the business as manager in the interest of all heirs and was not liable to account. Since the plaintiff instituted the suit on the basis of her case that the business belonged exclusively to her father but as it turned out to be that it jointly belong to the plaintiff's father and the first defendant the plaintiff's claim in regard to ' d ' schedule business and accounts in respect thereto could not be granted because the plaintiff did not even seek an amendment of her plaint. It was further held that article 106 of the limitation act governs the case. In that view the lower court dismissed the suit in respect of partition, possession and accounts of the suit business. In regard to the 'f' schedule properties the lower court found that they belonged exclusively to the first defendant and that therefore, the plaintiff's claim in regard thereto was rejected. It further found that the 'e' schedule items had not been proved and that, therefore, they do not exist. As far as ' c ' schedule properties are concerned it was held that the plaintiff's father was exclusively entitled to them and that the defendants had not perfected their title by adverse possession. It was further held that the age of the plaintiff given in the plaint was correct and the suit is not barred by limitation. In the result, the lower court passed a preliminary decree for partition of the plaintiff's share in the plaint ' c ' schedule properties with proportionate costs.

(8) In so far as the lower court granted a decree in favour of the plaintiff in respect of 1/3rd share in the plaint ' c ' schedule properties, the first defendant has preferred the main appeal in this court in a. S. No. 230/62 and the plaintiff has preferred the cross objections in regard to her claims rejected by the lower court.

(9) All the findings of the lower court have been questioned before us by one side or the other. We first deal with the question as to the nature and ownership of the business described in the 'd' schedule to the plaint. It has been contended before us by the learned counsel for the appellant, who will be hereinafter referred to as the first defendant, that the business belongs to the first defendant exclusively. On the other hand, the learned counsel for the respondent, who will be hereinafter referred to as the plaintiff, has endeavoured before us to establish that the business was originally started by the eldest brother, the late haneef sab and on his death it was jointly owned and run by alla baksh and the first defendant and after the death of alla baksh the first defendant has been carrying on the business for himself and on behalf of the plaintiff and defendants 5 and 6, who are the heirs of late alla baksh. It has to be noted, in this connection, that the case of the plaintiff in the lower court was different. There, the plaintiff contended, that the plaint 'd' schedule business was exclusively that of her father, alla baksh and that the first defendant has been continuing and managing that business only as one of the heirs to late allah baksh. We will now proceed to consider which of these two contentions has been established by the evidence on record. Before we consider the evidence we must also notice a change in the case of the first defendant as it was put forward in the written statement and as it was stated by him in his evidence, examined as d. W. 7. He stated in his written statement that his father, d. Ghouse sab, started a dalali business long prior to 1923 under the name and style of dharwar mohammad haneef. Subsequently in about the year 1924 or so, the father carried on the same business under the name and style of dharwar mohammad haneef brothers and that in the year 1935 or so d. Ghouse sab, who had started the dalali business retired from the business and it was this defendant who started his own dalali business in the name and style of d. Raja ahmed sab and was continuing the same till to - day. He, however, stated in his deposition that haneef started dalali business under the name " darwar md. Hanif ", ran the business from 1908 to 1923 and than died and after his death his father continued the business. He further deposed that after his father's death he continued his business and under his name either during his father's life time as stated in his written statement or after his lifetime. Thus, we find that the parties have been shifting their case as the suit proceeded. We have to, therefore, scrutinise the evidence on record to find out what exactly was the truth.

(10) We will first examine the oral evidence. P. W. 1 is an old person of 75 years belonging to the same place and same religion as those of the parties. He claims to know the family of the party well. He says that he was a co - employee with ghouse saheb. He states that hanif saheb, the first son of ghouse saheb was doing dalali business, that ghouse saheb never had dalali business that hanif saheb died first, then ghouse saheb died and then alla baksh, and th. T after hanif saheb's death, alla baksh continued the business through the clerk jadeppa. In the cross - examination it was elicited from him that hanif carried on the business for 10 to 20 years and after him his business was continued by alla baksh and that allah baksh did not start any separate or independent business. He denied the suggestion that after the death of haneef, ghouse sab started a dalali business in the name of the dharwar haneef and brothers. He claims to have had dealings with that business. He also denied that the first defendant had a business of llis own before the death of alla baksh. He stated that after alla baksh the first defendant was continuing the business and that the plaintiff and the 6th defendant were staying with the first defendant. The testimony of this witness is not in any way shaken in his cross - examination. No motive on his part to speak to any falsehood is elicited, from him. He is an old man of 75 years and has know. The family of the parties during all these years and has had personal dealings with the business of allah baksh and the first defendant. His evidence impresses us as genuine and true: we have then the evidence of p. W. 2. He was aged 60 years on the date of deposition. He owns 100 acres of land. He was sending goods to the shop of alla baksh, son of ghouse sab, run under the name of dharwar md. Hanif and brothers. He produces a bill for the goods he supplied to the business when allah baksh was running it. Exhibit a - 1 dated 20th may, 1933, is a bill issued to p. W. 2 by dharwar mohammad haneef saheb brothers. He says that alla baksh was alive then. 18 or 20 years before his deposition alla baksh died. When allah baksh was alive he did not see d - 1 working in that shop and he says that after alla baksh, d - 1 and his clerk jadappa were running the shop. He continued his dealings with the shop and he produces another bill, exhibit a - 2. Exhibit a - 2 is another bill dated 15th june, 1942 issued to p. W. 2 by dharwar mohammad haneef brothers and he says that it was after alla baksh's death. Nothing which impairs the value of his evidence has been elicited from p. W. 2. He is a substantial man owning hundred acres of land. Ht belongs to a different village and he is not interested in any of these parties. There is no reason why he should perjure himself by falsely deposing in favour of the plaintiff. More than anything else why we are inclined to accept his evidence is that he had personal and direct dealings with the business and that fact is fully established by the two bills exhibit a - 1 of the year 1933 and a - 2 of the year 1942. We, therefore, accept his evidence. The plaintiff has examined herself as p. W. 3 and examined her sister's husband as p. W. 4. Neither of them has any personal knowledge about the nature of the business and, therefore, their evidence is of no use in this connection. Of the 7 defendant's witnesses, only d. Ws. 4, 5 and 7 speak about the buisness. D. W. 4 is an old man of 80 years belonging to adoni. He clearly states that allah. Baksh was doing dalali business. D. W. 6 is another old person of 70 years belonging to adoni. He says that haneef started the dalali business. After him ghouse sab took it up and ran it in the name of haneef sab. He did not know in whose name the business was run after haneef. He does not speak as to who ran the business after the death of ghouse sab. Evidently he does not know much about the affairs and the ownership of the business, because he admits that he cannot say what exactly the first defendant was doing in his shop and that after the death of haneef sab in whose name the business was run. It was suggested to him that the first defendant was his particular friend and that he has come to depose in order to help the first defendant. He denies this suggestion. In any event his evidence is not of much use because he does not know the material facts about the business. The only other oral evidence on this point is that of d. W. 7, the first defendant himself. As has been noticed earlier in his evidence he shifts from the position he has taken in the written statement. He deposes that -

"he (haneef) started dalali business under the name "darwar md. Haneef. " he ran the business from 1908 to 1923. Then he died. After haneef's death my father continued the business. "

(11) Having stated that, he proceeds to add that from 1925, his father altered the business under the name " md. Haneef brothers, adoni," that he or alla baksh had no interest in the business and that it was the own business of their father. He also says in the cross - examination that his father supplied funds for the business of haneef sab by supplying rs. 1,000 cash, which the father had with him. He, however, admits that after his father's death he continued the business and never started any separate business under his name either during his father's lifetime as stated in his written statement or after his father's lifetime. He further admits that they all lived in the same house and the expenses were met out of the income from the dalali business and that except this dalali business their family had no other source of income. He also admits that he has no accounts to show that the father, ghouse sab did the business in his own name. He tries to prev. Ricate by saying that he does not know who the partners were when the business was continued after hanif's death. He is also unable to explain how in the income - tax order, exhibit a - 12, it is mentioned that alla baksh produced some accounts before the income - tax authority and how it is stated in exhibits a - 11 and a - 11 that alla baksh also carried on business. It is thus seen from his evidence that the eldest brother haneef himself started the business and that the same business has been continued ever since then and that the first defendant has not started any business of his own.

(12) Taking the oral evidence as a whole, and accepting the evidence of p. Ws. 1 and 2, which is substance is admitted by d. W. 7, himself, it appears to us that haneef, the eldest brother, started the bus ness and on his death it was continued by alla baksh and the first defendant and after alla baksh's death by the first defendant himself. This conclusion is fully fortified by the documentary evidence on record. There are three sale deeds under which properties were acquired in the name of alla baksh between the years 1929 and 1933. The certified copies of the sale deeds are exhibit a - 3, dated 15th january, 1929, exhibit a - 4 dated 4th november, 1931, and exhibit a - 5, dated 5th july, 1933 for rs. 3,000, 4,ooo and rs. 1,750 respectively. It was under the originals of exhibits a - 4 and a - 5 that items 2 and 1 of 'c' schedule properties were acquired. Similarly some properties were acquired in the name of the first defendant under exhibit b - 9, dated 6th september, 1961, b - 20, dated 18th april, 1936, b - 21, dated 17th june, 1937, b - 24, dated 7th october, 1933, b - 28, dated 15th january, 1936 and b - 30, dated 29th march, 1934. There is only one sale in the name of father, ghouse sab under exhibit b - 23, dated 3rd april, 1928. All these acquisitions were made between the years 1927 and 1937, mostly and essentially in the names of alla baksh and the first defendant alone. D. W. 7 (d - 1) admitted in his evidence that - " except this dalali business, our family had no other source of income. " it is therefore, clear to our mind that there is no separate and other income. It, therefore, follows that these acquisitions between 1927 and 1937 were made only with the income or profits from the business. In our view, the fact that properties were mostly acquired in the names of the two brothers, alla baksh and the first defendant is very significant and telling. It clearly indicates that the business was treated as belonging to the two brothers alla baksh and the first defendant after the death of haneef sab.

(13) There is one other fact which is very material in this connection. After haneef's death his daughter zohara bi, laid a claim to a share in the business. Her claim was satisfied by paying her rs. 8,000. D. W. 7 states i his evidence that -

"it is true that i paid rs. 2,000 to zohara bi and compromised with her. My father ghouse saheb paid rs. 6,000 to her. We spent about rs. 400 for the obsequies of hanif saheb. Jadeppa was the clerk since the beginning of the business. All the above entries marked above are in my handwriting and not jadeppa."

The very fact that the claim of the heir of the deceased eldest brother was compromised and settled and the amounts that were paid in full settlement of the claim were entered in the accounts of the business would show that the business was intended and started as that of the three brothers and after the death of the eldest brother hanif sab, the claim in regard to his share was settled by paying rs. 8,000 with the result that the two brothers, alla baksh and the first defendant remained as the two owners of the business.

(14) The father, ghouse sab evidently was not interested in a share in the business. From exhibit b - 9 dated 6th september, 1961 which is an order under section 23 (2) of the income - tax officer, for the year 1924 - 25 it is clear that ghouse sab applied to the department to continue the assessment in the old name. Ghouse sab is not described as a partner or a member of the association therein. There are also exhibit b - 10 which is the copy of the order of the income - tax officer for the year 1925 - 26 and exhibits a - 1o to a - 23 which are the assessment orders from the years 1927 - 28 to the year 1940 - 41. The name of the business continued to be d. Mohammed hanif sab and brothers during all these years. There is no proof that ghouse sab continued the business or had any share in the business.

(15) On the other hand, exhibits a - 9 to a - 23 which are the income - tax assessment orders for the years 1926 - 27 to the year 1940 - 41 would clearly show that it was only alla baksh and the first defendant that had shares and interest in the business. Exhibit a - 9, which is a copy of the proceedings of the income - tax officer, bellary for the assessment year 1926 - 27 dated i5th november, 1926, refers to the name of the assessee as " messrs. Mohammed haneef brothers " adoni. This name had been adopted at the instance of father ghouse sab himself retaining the name of the deceased hanif sab and also adding the brothers to the name of the assessee is significant. The position was made clear and, beyond any doubt, by exhibit a - 10, which is a copy of the assessment order for the year 1927 - 28 which was dated 11th august, 1927. The name of the assessee was given there as messrs. Haneef brothers, adoni. The status of the assessee was described as: - "association of individuals consisting of alla baksh sab and raja sahib (brothers). " the source of income was described as - " dalali business and house property. " it should be noted in this connection that by the year 1927 - 28, father, ghouse sab and the three sisters were all alive, on all accounts. Nevertheless, the association of individ rals which was the assessee and the owner of the property, was stated to have consisted only of the two surviving brothers, viz. , alla baksh saheb and the first defendant. It is, therefore, evident that after the death of hanif saheb alla baksh and d - 1 alone owned and continued the business acquired the properties and that neither the father nor the sisters had any interst in them. Exhibit a - 11, which is a copy of the order of assessment for the next year, viz. , for the assessment year, 1928 - 29, also stated that the status of the assessee was the association of individuals consisting of alla baksh saheb and raja sahib of adoni. It appears from exhibit a - 12, which is a copy of the assessment order for the year of assessment of 1929 - 30 stated that: - " alla baksh one of the brothers appeared with the accounts. " the assessment for the purpose of income - tax continued in the same style from year to year and the assessee was assessed as "the dharwar mohammed hanif sab and brothers, adoni " as an association of individuals lor its income from the house property and commission business, till the assessment year 1940 - 41 as evidenced by exhibits a - 13 to a - 22 which are the copies of assessment orders during that period.

(16) Exhibit a - 23, which is a copy of the assessment order for the assessment year 1940 - 41 shows that there was a change during that year. It stated that the name of the assessee was mr. Raja ahmad saheb (d - 1) adoni and the actual order observed that : -

"raja ahmad saheb is the sole surviving member of the r. Ssociation of persons which was carrying on business in commission in cotton, groundnuts and pulses. He will, therefore, be treated as the sole proprietor of this businesss."

The income from the property was shown as rs. 50 as in previous years. This assessment order for the year 1940 - 41 shows that the first defendant became the sole surviving member of the association of persons, obviously for the reason that alla baksh had died during that year. Even during the assssment year 1939 - 40 alla baksh, the other member of the association of individuals was definitely alive because exhibit a - 22, a copy of the assessment order for the year 1939 - 40 described the status of the assessee as an association of individuals and that " mr. Raja ahmed (d - 1) " one of the members of the association appeared and produced the accounts. While the first defendant was only one of the members of the association of persons in the assessment year 1939 - 40, he became the sole surviving member of the association by the assessment year 1940 - 41. There cannot, therefore, be any doubt that alla baksh died between the assessment year 1930 - 40 and the assessment year 1940 - 41, with the consequence that the first defendant came to be treated as the sole surviving member of the association of persons for the year 1940 - 41. When this circumstance is examined, in the light of the evidence of the first defendant himself that -

"after my father's death, i continued his business, i never started any separate business under my name either during my father's lifetime as stated in my written statement or after his lifetime. We all lived in the same house."

(17) It is obvious that he continued the business from the assessment year 1940 - 41 onwards as the sole surviving member of the association of persons on behalf of himself and all the heirs of late alla baksh, who was the other member of the association. It should also be noted in this connection that whatever might have been the actual ages of the plaintiff and the 5th defendant they were definitely minor girls, by 1940 - 41, on all accounts, and that the 5th defendant, the widow of alla baksh was a woman who could not be expected to run a business. Under the circumstances it was natural that the first defendant as the sole surviving member continued the business and he could have continued it only on behalf of himself and the heirs of late alla baksh. While it is definitely the case of the first defendant that the claim of zohara bi, the heir of the eldest brother, to a share and profits was settled by paying her rs. 8,000 there is no suggestion any where that a similar settlement was made with the heirs of alla baksh. Therefore, the only conclusion that is possible, is, that he should have continued the business from the assessment year 1940 - 41 on behalf of himself and on behalf of the heirs of alla baksh, he being the only major male member out of the persons interested in the business. It is also clear from the evidence that the sisters, defendants 2 to 4 had no interest in the business and also the properties acquired with the income there from. The fact that the business was called messrs. Mohammad haneef brothers probabilises that it was only the brothers that were interested in the business more important and clinching is the circumstance that the income - tax returns and the assessment orders, particularly exhibits a - 11 and a - 11, clearly stated that the association of individuals, which was the assessee, and the owner of the business and the properties, consisted of alla baksh saheb and the first defendant alone. Nowhere the sisters came into the picture as persons interested in the business and the properties. In fact they never came on the scene and made any claim. Even when the heir of the late hanif sab made a claim they kept quiet. It is also very material to note that in the present proceedings also they did not set up any claim for themselves. They merely adopted the written statement of the first defendant who set up exclusive right in himself and they did not prefer any appeal or cross - objections in this court. We have, therefore, no doubt in coming to the conclusion that the sisters, defendants 2 to 4 had no interest either in the business or in the properties acquired with the help of the business and that the business and the properties were owned by the two brothers, alla baksh and the first defendant.

(18) What emerges from the above discussion is that the business that was run under the name and style of messrs. Mohammad hanif brothers was originally started by the eldest brother mohammad hanif saheb and after his death it was continued and owned by the two surviving brothers, alla baksh saheb and the first defendant; that with the income from the business the two brothers acquired between the years 1927 and 1937 the properties described in 'gand f' schedule excepting those under exhibits 6 - 25 and b - 26 of the years 1888 and 1910 respectively that the claim of the heir of hanif saheb for a share was settled by paying her rs. 8,000 that alla baksh saheb died some time between the assessing yeras 1939 - 40 and 1940 - 41 that after his death the business was continued and the properties were managed by the first defendant on behalf of himself and the heirs of alla baksh and that neither the father, ghouse sab nor the sisters, defendants 2 to 4 had any interest or share either in the business or in the properties.

(19) Another question that has been argued before us is as between the father, ghouse saheb and the on, alla baksh who died first. The plaintiff has taken the position that ghouse saheb died in about the year 1934 while alla baksh died in the year 1939. On the other hand the first defendant's case was that alla baksh died in the year 1934 while ghouse saheb died in 1939. In order to substantiate the contention of his client. Sri n. M. Sastry, the learned counsel for the first defendant - appellant, has relied upon the alleged change of the name of the business in the accounts, from hanif saheb brothers to hanif saheb brother, using the singular word from the year 1935. He has therefore, contended that the singular word ' brother ' in the place of the plural word ' brothers ' was used from the year 1935 because alla baksh had died in the year 1934. He has further relied upon some entries in the accounts which purport to be certain withdrawals of small amounts by ghouse saheb father in the year 1935 and some time thereafter. The inference that has been sought to be drawn from this is that ghouse saheb should have been alive in the year 1935. We cannot accept this argument because the orders of the income - tax department relating to the assessment orders upto the years 1939 - 40 categorically assessed the association of persons as messrs. Darwar mohammad hanif saheb and brothers using the plural. Exhibit a - 23, the order of assessment for the year 1940 - 41 stated that the first defendant was the sole surviving member of the association which would clearly indicate, as has been stated earlier by us, that alla baksh should have died some time between the assessment years 1939 - 40 and 1940 - 41. The debit entries in the name of ghouse saheb in or after 1935 cannot be conclusive, in view of the suggestion made to d. W. 7 that there was a messenger employed by the business, by name ghouse saheb and the entries in question should have been made in respect of that messenger. Moreover, the amounts debited are so small and so few that it is difficult to believe that it was father ghouse saheb that withdrew the amounts. No doubt, d. Ws. 4 and 6 stated in their evidence that alla baksh died first and ghouse saheb died late. As we have observed earlier we cannot attach much value to their evidence as we are of the opinion that these two witnesses were not fully acquainted with the affairs of the family. On the other hand there is the categorical evidence of p. W. 1 whose evidence impresses us as true that alla baksh died two or three years after ghouse saheb. We therefore, find that alla baksh survived his father, ghouse saheb for some years and died only in the year 1939 or 1940.

(20) The next material question, is which are the properties that were acquired with the income from the business. We have already adverted to this question and found that the properties that were acquired between the years 1927 and 1937 in the names of alla baksh and the first defendant were acquired with the income from the business. They cover all the properties mentioned in plaint 'g and f' schedules excepting the items of properties that were acquired under exhibits b - 25 and b - 26. Both of them were acquired in the name of the father. B - 25 was of the date of 5th april, 1888 and b - 26 was of the date of 8th june, 1910. They were of the period much earlier than 1927 when the two brothers began to acquire properties. We are therefore, of the opinion that the properties acquired under exhibits b - 25 and b - 26 in the name of ghouse saheb were not acquired with the aid of income from the business and exclusively belonged to him. The other properties described in schedule 'c and f' were all acquired between the years 1927 and 1937 and they were all acquired with the income from the business.

(21) In regard to the 'e' schedule assets, sri k. Ramachandra rao, the learned counsel for the plaintiff - respondent has frankly stated that there is no evidence to sustain his client's claim n regard to them and that he did not propose to canvass the correctness of the findings of the lower court that 'e' schedule assets did no exist.

(22) The next important question that falls for consideration, and which has been argued at length before us, is as to the legal implications of these findings of fact and as to the rights of the respective parties in the business and the properties. 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.

(23) A number of decisions have been cited by sri k. Ramachandra rao, the learned counsel for the plaintiff - respondent, in support of the above preposition. The first of them is saudagar muhammad abdul rahim baig saheb v. Saudagar muhammad abdul hakim baig saheb and others, a. I. R. 1931 mad. 533. It is a case where a mohammedan, dealer in cloth, died leaving behind him a major son, a widow, and some minor sons and daughters. The major son continued the trade after the death of the father as a family trade and made profits thereby. The widow and the minor sons filed the suit for account of the profits and various other sums against the major son. The division bench of the madras high court has held that there is nothing contrary to law in mohomedan adult members of a family carrying on a family trade for the benefit of all the members of the family, including the minors and the females, and that the major son by his conduct, after his father's death put himself in a fiduciary relationship to the widow and the minors and it did not matter whether his position was called that of trustee de son tort or executor de son tort. The eldest son held the assets not as co - owner but because of his fiduciary relationship, sections 23 (f) and 88 of the trusts act, was applicable to the case and that the major son was bound to hold for the other members of the family any advantages he had gained by availing himself of his fiduciary character and by utilising the share of the other members in the father's assets for his own pecuniary advantage. In that view, their lordships directed that the share of each plaintiff should be calculated as per the directions contained therein and a decree on that basis was granted.

(24) The next decision is shukrulla and others v. Mt. Zuhra bibi and others, a. I. R. 1932 all. 512. In the course of an elaborate consideration of the law on the point the division bench of the allahabad high court held at page 516:

"the fact that all the decendants of hingan had joint residence, mess, property and business for several generations and made acquisitions from time to time with joint funds is not conclusive as regards the right of every heir to every propositus however high in the properties subsequently acquired by the surviving male members with the aid of the profits of the property left by the ancestor. There may be circumstances which entitle an heir to no more than his share of the property as it was at the time of his ancestor's death. On the other hand the surviving members may so intermeddle with the estate of their deceased partner or co - owner as to make themselves liable to such heir for not only his share of the property as it existed at the time of his ancestor's death but also profits accruing therefrom or to acquisitions made therewith.

Again at page 517 their lordships observed thus :

"where male members of a family live in union so as to have jointness in mess business, and property, there can be little difficulty in tracing their relations inter se to an implied agreement which clothe each with a respresentative capacity in reference to his co - sharers. Each must be deemed to be acting not only for himself, but for all in his dealings with regard to joint property and business. Accordingly any acquisitions made by any one member should be considered to have been made by all through the one who actually made it. In such a case, as among partners, each is the manager or agent of the other. The position is not so simple as regards the heirs whose rights are not recognised by any overt act of the surviving male members. The case of females and minor heirs and those not living on the spot, all of whom belong to this category, rests on a somewhat different footing. Their right to share subsequent additions can arise only if the circumstances are such that the male members can be considered to have continued the business and held the joint property on their behalf or in some way made themselves trustees for them in making fresh acquisitions so as to be liable to hold for them part of the resultant benefit."

(25) In the decision in kothoom bi v. Abdul wahab sahib and others, 1939 2 m. L. J. 208 a division bench of the madras high court was dealing with a case where a mohammedan businessman died leaving behind him an only daughter. His brothers carried on the business. The daughter filed the suit claiming half the estate with all its accretions and his father's brothers and others resisted her claim setting up various objections. Their lordships held that sections 88 and 90 of the indian trusts act would apply to a case like the one they were considering and that the relationship of the relations and the other members of the family who continued the business of the father was essentially a fiduciary one in relation to the daughter and that having taken the estate at a time when the daughter was a minor they placed themselves in a position of trustees and were liable to account to her.

(26) A division bench of the high court of andhra pradesh had an occasion to review the law on the point and the relevant case law in darga abdul rawoof sahib and another v. Queresha bi saheba, 1959 2 an. W. R. 557. The facts of the case were, one hussain saheb died leaving behind him his wife, two sons and a daughter. He had also two brothers. On the death of hussain saheb his elder son abdul sattar continued his business. He, however, died later, leaving behind him, his widow and the brother, mother and sister. On the death of abdul sattar, his brother i. E. , the other son of hussain saheb assumed management of the properties and the business. Later, the widow of hussain saheb also died. Thereupon, the daughter of hussain saheb filed the suit for a share in the family properties and for account of the management of the family business to be rendered by defendants 1 and 2, the first defendant being the other son of hussain saheb who managed the business and the properties after the death of the elder son abdul sattar. The defence was that when her father, hussain saheb died, the plaintiff and her mother waived all their rights to inheritance and that the properties in ' c ' schedule were the absolute self - acquisitions of abdul sattar and himself. After considering the case law on the point seshachalapathi, j. , speaking for the division bench consisting of satyanarayana raju, j. , and himself held at page 561 that :

"the position emerging from the authorities cited above is this : (i) the hindu concept of a coparcenery will not apply to a muslim family, except in cases where by custom the hindu law has been made applicable; (n) 1n the case of trade carried on by a muslim and continued by his heirs, the question whether it was continued as a family trade for the benefit of all the co - owners must be decided with reference to the general law of partnership and the law of trusts and (hi) whether in a particular case one of the heirs of the deceased muslim businessman carried on the business for the benefit of the other co - owners is essentially a question of fact to be decided from all circumstances of the case disclosed in the evidence. It is also contended by the learned counsel that the inference of one co - owner holding the property for the benefit of another will arise only in the case where the other co - owner is minor. We do not think that that again is absolute rule fnr as pointed out by the learned judges of the allahabad high court (in shukrulla and others v. Mt. Zuhra bibi and others, a. I. R. 1932 all. 512. In the case of female owners also the rule is applicable."

(27) Then after considering the evidence, their lordships held that -

"the conduct of abdul sattar and the first defendant in agreeing to conduct the family business, as it was done during their father's time, to our mind constitutes a clear undertaking by abdul sattar and the first defendant to carry the business not only for themselves, but on behalf of and for the benefit of hayat bi (widow of hussain saheb) and the plaintiff and that it was actually so done."

(28) In that view, the plaintiff was granted a decree to her share in the c schedule properties. We have found in the instant case that the business was started by the eldest brother haneef saheb, that after his death it was continued by alla baksh and after him by the first defendant and also that the business was intended for the benefit of the three brothers. When alla baksh died and the first defendant continued and carried on the business and the management of the properties acquired between the years 1927 and 1937 he placed himself in a fiduciary relationship in regard to the heirs of the other co - owners, viz. , haneef saheb and allah baksh, who were all of them females. Then the heir of haneef saheb laid a claim to her share, it was rightly satisfied by paying her rs. 8,000. With that settlement, the heirs of hanif saheb went out of the picture and they had no more rights either in the business or in the properties. Thereafter, the first defendant and the heirs of alla baksh (i. E.) the plaintiff and defendants 5 and 6 alone continued to be the co - owners of the 'business and the properties. The first defendant continued his fiduciary relationship with the heirs of allah baksh, who were all females. sections 23 (/) and 88 and 90 of the trusts act apply to a case like this and the first defendant is liable to account to the plaintiff and other heirs of alla baksh, who are females, in respect of the business described in d schedule and in respect of the properties described in c schedule and f schedule, other than those acquired under exhibits b - 25 and b - 26.

(29) Nevertheless, sri n. M. Sastry, the learned counsel for the first defendant has contended, relying on a bench decision of this court in peeran saheb and anothtr v. Pedda jamaluddin sahib and others, a. I. R. 1958 a. P. 48 that even if alla baksh was a co - owner in the business and the properties, his relationship with that ( f the first defendant could only, be under the circumstances, one of partnership. Therefore, when alla baksh die , by virtue of the provisions of section 42 (c) of the partnership act, the partnership became dissolved in the year 1939, or 194. The article of limitation that applies to the case is article 106 of the limitation act of 1908 and therefore, the suit should lave been filed within three ye irs from the date of dissolution of the partnership. I. E. , 1939 r 1940 or within three years from the attainment of her majority by the plaintiff whichever is later. He has sought to demonstrate that the plaintiff was nearly 25 years old when she filed the suit. He has theref re, contended that the suit was barred by limitation. The entire argument of the learned counsel for the first defendant in this regard has been built up on the basis that the relationship between alla baksh and the first defendant as one of partnership. We do not agree with this contention. There was certainly no written agreement of partnership between the two brothers can we come to the conclusion that here was an implied agreement for such a partnership. That the existence of such an agreement of partnership must be inferred under the circumsta ces is a contention which is without a legal basis. It should be noted that alla baksh and the first defendant were assessed by the income - tax department so long as their association continued only as an association of persons. What is required to constitute an association of persons is only a combination of individuals who are engaged together in some joint enterprise for the purpose of producing income or profits or gains. Such an association of partnership need not be a partnership within the meaning of the partnership act. We are fortified in this view by a decision of the supreme court in mohammed noorulla v. Commissioner of income - tax, 1961 1 an. W. R. (s. C.) 179 : 1961 1 m. Lj. (s. C.) 179 : 1961 1 s. C. J. 607 : a. I. R. 1961 s. C. 1043. Examining the different tests as to what constitute an association of persons their lordships of the supreme court held that -

"to constitute an association of persons there must be a combination of individuals who are engaged together in some joint enterprise, banded together as if they were co - adventurers, but not constituting a partnership."

Their lordships also were considering the case of a business inherited by the heirs of a mohammedan trader. In this state of law and in the absence of any agreement of partnership between the two brothers we cannot, hold that the relationship between alla baksh and the first defendant was one of partnership. The decision in peran saheb and another v. Pedda jamaluddin saheb and others, a. I. R. 1958 a. P. 48 which was clearly a case of partnership, evide ced by a registered agreement of partnership does not, therefore, help the contention of the lerned counsel for the first defendant. When the instant case is not one of partnership the question of bar of limitation raised by the learned counsel for the first defendant basing his contention on article 106 of the limitation act does not arise. We, therefore, reject this contention of the learned counsel for the first defendant and hold that the lower court was wrong in holding that the claim of the plaintiff was barred by article 106 of the limitation act.

(30) Even so, a further contention relating to the bar of limitation to the suit claim has been raised by sri n. M. Sastry. His contention has been placed on the basis of an alleged ouster of the heirs of alla baksh from the enjoyment of the income from the business and the properties. He has contended that even supposing that alla baksh died in the years 1939 - 40, the heirs of alla baksh must be deemed to have been ousted from their rights in the business and the properties as they did not exercise any acts of ownership or enjoyment of profits ever since 1940. This contention is not tenable in our view. After the claim of the heir of hanif saheb was settled, alla baksh and the first defendant were co - owners of the business and the properties. It is well settled and not disputed, that the heirs of a deceased co - owner also become co - owners.

(31) If any authority is needed for this rule, we find it from the decision of a division bench of the madras high court in godavari lakshmi narasamma v. Godavari rama brahmam and others, 1950 1 mlj 350 : ilr 1950 mad 1084 air 1950 mad 680.

(32) Therefore, on the death of alla baksh, the plaintiff and defendes 5 and 6, who are the heirs of alla baksh became co - owners with the first defendant. It is also well settled that to constitute ouster by a co - owner, there must be an open and unequivocal denial of the title of the other co - owners to the knowledge of the latter. Uninterrupted sole cocupation of common property, without more, must be referred to the lawful title possessed by the joint holder to use the joint estate and cannot be regarded as an assertion of right to hold it as separate. A co - owner as such is entitled to be in possession of the property and his possession is the possession of all the co - owners. It will not be adverse to the other co - owners who are out of possession in the abse. Ce of ouster. And an ouster is an open and unequiv cal repudiation of the title to their knowledge.

(33) Sri n. M. Sastry has contended that there is no evidence on record that the plaintiff and other heirs of alla baksh have participated in the profits of the business and the properties since 1940 and therefore, they must be deemed to have been ousted in 1940 itself. Apart from the facts of the present case, which we shall presently deal with, the leg. 1 position is contrary to what sri sastry has contended for. Mere non - participation in profits of the property by one co - owner and the exclusive possession by the other will not lead to an inference of ouster. On the other hand, there must be some act on the part of the co - owner in possession, to the knowledge of the co owner out of possession, which amounts to a denial of the latter's right. It has been so laid down by a division bench of this court in jadho nagu bai and another v. Jadho gangu bai, air 1958 ap 19. In that decision their lordships have followed a single judge's decision of this court in abdul kareem v. Gowlivada s. Silar, air 1957 ap 40. And the decision of a division bench of the madras high court in godavari lakshmi narasamma v. Godavari rama brahmam and others, 1950 1 mlj 350 : ilr 1950 mad1084: air. 1950 mad. 680. Which has been referred to above. The same position obtains even in respect of mohammedan co - owners. Vivian bose, j. , held in mohammad aminuddin qayamuddin musalman v. Mohammad abdur rahman azimuddin and another, air. 1941 nag 343 at 345. That -

"there cannot be ouster in these circumstances without a demand and refusal, or without a clear declaration brought home to the knowledge of the co - sharers that lesser profits were being paid because the others were being ousted from the remainder of the share. He stated that the reason he did not give his sisters their shares in the fields was because they did not demand it. The cases to which i have referred to show that that makes very little difference in the case of these mohamedan families and that even in other cases a mere omission to pay profits does not in itself constitute ouster and still less so when something, though not the whole is paid."

(34) A division bench of the madras high court also took the same view in muhammad kaliba rowther v. Muhammad abdullah rowther, ilr 1963 mad 101 : 1963 1 mlj 41 : air 1963 mad 84. Dealing with a case relating to a mohammadan family their lordships held -

"mere non - participation in the receipts from immovable property or mere inaction in respect of it for any length of time on the part of one or more of the co - sharers is not regarded as amounting to ouster or as investing the possession in the hands of the co - sharers with an adverse character."

(35) We are, therefore, unable to accept the contention of sri n. M. Sastry, that the non - participation by the plaintiff and others in the profits does by itself constitute an ouster. On the other hand, there is no evidence that the first defendant has ever denied the right of the plaintiff and the other heirs of alla baksh. It was only in the year 1954, if at all, there was some act on the part of the first defendant which indicated that he was dealing with the properties by himself, without reference ta the heirs of alla baksh. That was by virtue of the sale deeds which he executed in favour of the alienee. Defendants 7 to 9 under the originals of exhibits a - 27 and a - a8. It is not clearly possible to infer an assertion of his separate right by the first defendant even from the recitals made in the originals of exhibits a - 27 and a - 28. It was clearly stated in those sale deeds that the properties were acquired by alla baksh and passed on to the alienees. However, even supposing that they were tantamount to an assertion of an exclusive right by the first defendant in those properties, the sales were of the date of 14th june, 1954, while the suit was filed on 24th of april, 1957, within three years from those sales. In fact, it was only when the plaintiff came to know of these sales, it is asserted, that she filed the suit. Moreover, excepting the ipsi dexit of the first defendant, there is no evidence on record that the plaintiff, her mother and sister were living with the maternal grant - father all these years. On the other hand, we find from exhibits b - 34 and b - 35 that it was the first defendant that sent out the invitations for the marriage of the plaintiff's sister (defendant). The circumstance that the invitation card contained the compliments of the maternal grand - father also, does not detract from the fact that it was under the of the. Us first defendant that the marriage of the 6th defendant had taken place. In any event, as has been observed above, the evidence does not warrant any supposition that there was any overt act, either express or implicit from the conduct of the first defendant denying the title of the plaintiff, until he executed the sale deeds, the original of exhibits a - 27 and a - 28. We, therefore, hold that there is no bar to the plaintiff's claim on this ground.

(36) In the view we have taken the controversy relating to the plaintiff's age on the date of the filing of the suit, whether it was 25 years as it was contended by the first defendant, or only 20 years as pleaded by the plaintiff, is immaterial. Even if she was 25 years old at the time of the institution of the suit her claim could not be barred by limitation because she was only a co - owner and in the absence of ouster her claim to a share was not barred by limitation.

(37) Even then sri n. M. Sastry, the learned counsel for the appellant - first defendant has reiterated before us, the contention that found acceptance with the lower court, viz. , that the plaintiff's claim could not be decreed for the reason that she came to the court with a larger claim than what is warranted by the evidence. It is, in other words, that the plaintiff came to the court with a larger claim that her father was exclusively entitled to the business and to the properties and if on the evidence it is found that he was in fact only entitled to a share in them, the plaintiff's claim to a share cannot be granted in the absence of an amendment which the plaintiff in fact has not sought. It was further the view of the lower court that even if an application for such an amendment was made it could not be granted because it would alter the very nature of the suit. We are satisfied that this view of the lower court and the contention of the learned counsel for the appellant reiterating the same are not tenable. It is to be noted that the suit is one for partition claiming 1/3rd share in the c, d, e and f schedules to the plaint and for an account. Even if alla baksh was not the exclusive owner of these properties and was only a co - owner thereof and for that reason the plaintiff would not be entitled to 1/3rd share but is entitled to something less it would not alter the nature of the suit. It still continues to be a suit for partitio , and for an account. The court will be perfectly entitled to grant a lesser share or a bigger share if on examination of the entire evidence on record, it is found to be necessary to do so, in that suit, on the same pleadings, even without an amenment. We are supported in this view by a decision of the division bench of this court in pendyala narasimham v. Pendyala venkata narasimha rao, 1962 1 an. W. R. 282. That appeal arose out of a suit for possession of certain properties by plaintiff claiming sole and exclusive rights therein. Nevertheless, their lordships held that, even without an amendment, a decree for partition could be granted, notwithstanding the absence of an alternative prayer provided such a relief would not result in prejudice of injustice to the other sid. Any prejudice or injustice that has been caused to the first defendant by granting a lesser share to the plaintiff has not been brought to our notic. In fact, we cannot envisage any such prejudice to the first defendant. We, therefore, hold that the court can pass a decree in this suit either for a larger or a smaller share than what was actually prayed for without an amendment.

(38) No other question has been argued before us. The net result of the above discussion and findings is that the plaintiff will be entitled to a decree to a share in the business described in schedule d and the properties described in schedule c and f, other than those acquired under exhibits b - 25 and 26, on the basis that they belonged to alla baksh and the first defendant as co - owners in equal shares and that on the death of alla baksh the first defendant ( rother of allah baksh) and defendants 2 to 4 (sisters) , became heirs to the share of alla baksh along with the plaintiff, d - 6 and d - 5 (daughters and widow of alla baksh). Since the father, ghouse saheb died before allah baksh he did not become a heir to the share of alla baksh. We have already stated that, since filing the suit, one of the sisters viz. , the third defendant died leaving behind her, her daugh er, d - 10 her brother d - 1 and sisters, defendants 2 and 4 as her heirs. Therefore the shares of these parties, in the share of the deceased alla baksh, would accordingly be increased. The learned counsel for both sides have calculated the shares of the respective parties on the aforesaid basis and have placed before us the following table representing the shares of the parties which on examination we find to be correct.

(39) 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

(40) 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. Appeal and cross objections allowed. In part; decree modified.