SUBHADRA AMMA Vs. VISWANATHA BOSE ASAN

JUDGEMENT

(1.) This is a Second Appeal by defendants 43 and 44 in the suit. That was a suit for partition, after setting aside udambady executed by defendants 1, 43 and 44. The first defendant is dead and defendants 43 and 44 are his legal representatives, being his wife and son. According to the plaintiff, he and defendants 1 to 42 form an undivided Ezhava tarwad of which first defendant is the karanavan. Plaint A. schedule properties were Makkathayam properties obtained by the tarwad by Ex. P-2, plaint B schedule properties were obtained in the partition in the common tarwad in 1104 and C schedule were properties acquired by first defendant in his name with funds of the tarwad. So partition was claimed in respect of these properties. First defendant set up a case of an oral partition in regard to A and B schedule properties and sought to justify the conveyance of properties by him in favour of defendants 43 and 44 under an udambady, on the strength of the oral partition. There were also several claims raised by certain other parties to the suit, but for the purpose of this appeal I am concerned only with one such. That relates to the claim by defendants 43 and 44, under the first defendant to the building in B schedule item 1, said to have been put up by the first defendant with his own funds.

(2.) The Trial Court found that the oral partition pleaded by the 1st defendant was not true. It found that the tarward did not have nucleus, which could be said to be ample to form a source of acquisition of C schedule items. Therefore it was found that C schedule properties were acquired by the first defendant with his own funds. The building in the B schedule item 1 was found to belong to the first defendant as having been put up by him. On these findings, plaintiff was given a decree for partition in regard to plaint A and B schedules with an equitable direction that B schedule item 1, 20 cents in extent, will be allotted to the first defendant, adjustment being made for that purpose in the final decree. The matter was taken up in/appeal by the plaintiff who challenged the finding in regard to C. schedule properties and also the finding that the building in B schedule item 1 belonged to the first defendant. Defendants 43 and 44 also filed an appeal and that was one challenging the finding of the court negativing the case of oral partition of A and B schedule properties. The appellate court also found that the oral partition alleged by the first defendant was not true and therefore the appeal by defendants 43 and 44 was dismissed. In the appeal by the plaintiff the appellate court concurred with the finding of the Trial Court that the C schedule was the self acquisition of the first defendant. But in regard to the building in item, 1, B schedule, it was found that it must have been put up with the materials of an old building situate in an item of property allotted to the branch of the parties and therefore first defendant was not entitled to any preference in regard to that building or to have that building treated as his. The appeal was therefore allowed to that extent. In this second appeal by defendants 43 and 44 two points are raised. One of these, is that the court below ought to have found the oral partition alleged by first defendant and also defendants 43 and 44 to be true and the other is that the court below was not right in finding that B schedule item 1 building did not belong to the first defendant.

(3.) The first of these contentions urged, namely that there was an oral partition in regard to plaint A and B schedules, does not require any answer because the finding on this question is concurrent and there is no justification for interference in second appeal.