MADANAGOPAL Vs. P K A RAMACHANDRA MUDALIAR

JUDGEMENT

(1.) These appeals by special leave arise from the common judgment of the division bench of the High court of Madras in Appeals Nos. 626 of 1970 and 616 of 1973, dated 10/1/1978. The appellant is the son of Jayarama Mudaliar. Arunachala Mudaliar is the common ancestor, namely, his grandfather. Ramachandra Mudaliar, the appellant's father Jayarama and his uncle Shanmuga Mudaliar are sons of Arunachala Mudaliar. No doubt they are members of a trading family. But as early as 1947, Shanmuga Mudaliar, one of the brothers filed a suit (OS No. 118 of 1947 for partition of a share in the joint family properties against Ramachandra Mudaliar and Jayarama Mudaliar. Therein, Ramachandra Mudaliar and Jayarama Mudaliar the latter being the father of the appellant, filed written statement pleading that they are not members of the joint family and that the properties mentioned in that suit do not belong to joint family. However, after a compromise between them, Shanmuga Mudaliar had received a sum of Rs. 1,350. 00 and walked out.

(2.) In 1953 the mother of the appellant Radha Ammal and Jayarama Mudaliar fell out and the appellant and his sister started living with their mother. In 1965, the appellant filed a suit (OS No. 106 of 1965 for partition of theproperties and allotment of 1/4 share on the plea that the properties mentioned in the plaint are of the joint family properties and he is entitled to 1/4 share therein. His uncle Ramachandra Mudaliar filed another suit (OS No. 96 of 1964 for injunction. The trial court decreed the suit of the appellant and dismissed the suit of Ramachandra Mudaliar. Dissatisfied therewith, Ramachandra Mudaliar, the first respondent, carried the matter in appeal to the division bench, which reversed the decree of the trial court, dismissed the suit of the appellant and decreed the suit of the respondent. Thus these appeals, by special leave.

(3.) The principal contention raised by Shri K. K. Mani, learned counsel for the appellant, is that since the trial court has found that the properties belonged to the joint family and Jayarama Mudaliar and Ramachandra Mudaliar being the members of the trading family, all the properties must be deemed to have been acquired from the joint family nucleus. As a consequence, the appellant, being the son of Jayarama Mudaliar, is entitled to 1/4 share in the joint family properties. The High court has negatived this contention on the solitary fact that as early as 1947, i. e. , even before the birth of the appellant, his father had taken a stand along with his brother Ramachandra Mudaliar that they are not members of the joint family and each of them were doing business independently and that, therefore, it is too idle to go into the question whether the appellant is a member of the joint family.