RAMA BAI Vs. SARASWATHI

JUDGEMENT

(1.) THE plaint schedule properties belong to the family of one Hari Vadyar. He died in mithunam 1119 leaving a son, Rang Vadyar and two daughters, who are the first plaintiff and the first defendant. This Ranga Vadyar was alleged to have died on 15. 6. 1121 without leaving any wife or children. THE first plaintiff and the first defendant had, therefore, inherited the rights of Ranga Vadyar over the plaint properties. THE plaintiffs stated that, before the death of Hari Vadyar, he had executed some documents relating to the plaint properties. THEse documents were invalid, as he was not competent to dispose of the original family properties by such documents. Under these documents, the first defendant's husband, the 7th defendant, was constituted manager of the family. He had been directed to hand over the properties and money, if any collected, to Ranga Vadyar if he returned within one year after the death of Hari Vadyar. THE 7th defendant was also the Mukthiyar-holder of the first defendant. He had filed suits O. S. 240,138 and 225 of 1120 and O. S. 355 of 1119 for arrears of rent as regards certain portions of the buildings in the plaint property occupied by the first and fourth plaintiffs. Decree were obtained thereon. THE first plaintiff would state that she was in possession of a portion of the building in her own right with the consent of Hari Vadyar and that she was not liable to pay any rent. THEre was also a prayer in the plaint for an injunction to restrain the 7th defendant from executing the decrees and also from proceeding with the petitions filed by him before the Rent Controller for eviction. THE plaint B schedule items are said to be moveables in the possession of the first defendant. THE first plaintiff claimed also a half share in these properties. Plaintiffs 2 to 4 were impleaded on the ground that they were reversioners. Defendants 1 to 6, by one written statement and the 7th defendant, by another, resisted the suit. According to defendants 1 to 6, Hari vadyar got the paramba in plaint A schedule in partition in the family. It was a verumpattom land obtained from the Thirumala Devaswom; and Hari Vadyar had executed a pattom-chit in 1094. He had made improvements in the property with his own funds. He occupied a portion of the building and let out the remaining portion. THE only son of Hari Vadyar was Rang Vadyar, and he had left this place long before Hari Vadyar's death, surrendering all his rights in the properties. He was not heard of for a very long time; and so his father and all his relatives were treating him as dead. Hari Vadyar had nobody to look after him in his old age except the first defendant and so he have away the plaint A schedule properties to the first defendant and her children, out of his own free will. Neither the plaintiffs nor any other person had any right over these properties. THE allegations in para 3 of the plaint that the properties of Hari vadyar devolved upon his son Rang Vadyar and that the plaintiff became entitled to a half share in the properties on the death of Ranga Vadyar were denied. THE plaintiffs were put to proof of these allegations. THE documents referred to in the plaint were executed by Hari Vadyar of his own free will. THEy are Exts I to III. He was also competent to do so as the sole surviving co-parcerner of a joint Hindi Mithakshara family. THE plaintiffs were entitled to bring a suit for partition. THEre was also an alternative prayer that as Ranga Vadyar had pre-deceased Hari Vadyar it had to be taken that he lost all rights to the properties by abandonment, relinquishment and waiver. THE decrees obtained by the 7th defendant against the plaintiffs were all valid and binding on them. THEy were passed after a keen contest. THEy, therefore, opposed the plaintiff's suit. THE 7th defendant supported defendants 1 to 6. THEre was, however, a statement in para 2 of his written statement that all the allegations in para 2 of the plaint, except that the plaint A and B schedule properties belonged to the family, were admitted. It is in para 2 of the plaint that the plaintiffs allege that Hari Vadyar died in Mithunam 1119 and that he had a son by name ranga Vadyar at the time of his death. He had, however, in para 8 of the written statement stated that Ranga Vadyar had left this place for North India in 1098 after surrendering all his properties to his father, that he had sent letters till 1924 and that there was no information about him thereafter. THE court below held that there was no positive proof whether Ranga Vadyar died and, if so, when. It had stated that from the evidence on record, both oral and documentary, it was not possible to hold that Ranga Vadyar pre-deceased Hari vadyar. THE plaint schedule properties were, however, held to belong to the family. THE defence contention, that Rang Vadyar surrendered all his rights to hari Vadyar, was also found against. THE decrees obtained by the 7th defendant for rent were allowed to stand. THE suit was, however, dismissed without costs. THE appeal is against this decree. THE respondents have filed a cross appeal questioning the order relating to costs. Objection was also taken to the findings against their contentions.

(2.) HARI Vadyar got the plaint A schedule property under a partition deed, Ext. VIII, between himself and other members of his family. It was by this document that he got the paramba in the plaint A schedule. There was no building in the portion allotted to him and, so, the other members gave him Rs. 200/- for putting up a building. This was in 1081. Though HARI vadyar might have spent more money than that obtained by him from the family for putting up the building in the family paramba, he could not claim any special right over the buildings thus put up. The defence contention, therefore, that the buildings belonged exclusively to HARI Vadyar could not be accepted. There is also no evidence to show that Rang Vadyar had surrendered all his rights in the family property to his father. On the other hand, the directions in Exts. I to III would show that the father was anxious to see that his son, Ranga vadyar, did not lose his rights over the properties. The 7th defendant had been directed to manage the affairs of the family and to hand over the properties and income to Ranga Vadyar if he returned within one year of his death. So this case of the defendants is also not made out.