M. NAGENDRIAH Vs. M. RAMACHANDRAIAH

JUDGEMENT

(1.) The appellant M. Nagendriah instituted in September, 1949, a suit against his two brothers M. Ramachandraiah and M. Shamiya for a declaration that he was entitled to half share in the properties described in the schedule attached to the plaint and that the debts mentioned in the said schedule were binding on the plaintiff and Ramachandraiah possession of the half share by partition was also claimed. According to the plaintiff M. Shamaiya had separated himself from his two brothers in September 1927 and it was on this averment that no relief was claimed against him. The plaintiff and Ramachandraiah were, however, stated to have continued joint, constituting a Hindu co-parcenary. Both of them, according to the plaint, had been doing business in silk and in the manufacture of drugget to and carpets. Rainachandraiah started acting in a manner prejudicial to the plaintiffs interest some-time in May, 1949 and the plaintiff thereupon demanded accounts of the business. The defendant, however, asserted his own right to the plaintiffs exclusion. It was on these pleadings that this suit was instituted.

(2.) In October, 1949 M. Ramachandraiah, respondent aforesaid instituted against the appellant Nagendriah a suit for declaration that he was absolute owner of the property mentioned as item No. 6 in the schedule attached to the plaint in the appellants suit for partition and that the defendant should be directed to vacate the name. The claim was founded on the averments that Ramachandraiah was the absolute owner of the property in question and that Nagendriah had been permitted as a mere licensee to remain in possession thereof. Both these suits were tried together and the parties led one set of evidence and addressed common arguments in both the suits.

(3.) The trial court in a fairly detailed judgment came to the conclusion that Nagendriah and Ramachandraiah were not members of a joint Hindu family and that the properties mentioned in the schedule attached to the appellants plaint were therefore not joint family properties. The appellant had accordingly no share in them. As Ramachandraiah had disclaimed any interest in the 1/3rd share in item No. 2 and in the entire properties at item Nos. 9 and 10 in the schedule the appellant was held to be the owner thereof. The Court upheld the plea of partition amongst the three brothers in October 1927 and the joint family was thus found to have disrupted. The partition was held binding on the plaintiff-appellant. In this connection, it may be pointed out, that the appellants position in regard to the partities on 1927 was that though he was a major at that time, he was not made a party thereto and he was wrongly impleaded as a minor represented though the guardianship of his mother. This plea was negatived by the trial Court which came to the conclusion that the appellant was not born on July 2, 1909 as alleged by him and that he was a minor during the partition proceedings. The plaintiff was also held disentitled to any share in items of property at Nos. 4 and 5 of the schedule. The appellant was thus held entitled only to 1/3rd share in item No. 2 and to the entire properties shown at item Nos. 9 and 10 of the schedule. In other respects the appellants suit was dismissed.