DHANAPALA CHETTIAR Vs. MINOR KRISHNA CHETTIAR

JUDGEMENT

(1.) This is an appeal against the final decree in a partition suit. The second defendant is the appellant himself and the first defendant are the sons by the first wife of one Muthu Chetti, the plaintiff being the only son of Muthu Chetti by his second wife, who is the third defendant. Defendants 4 and 5 are the daughters of the third defendant and sisters of the plaintiff. Defendants 6 and 7 are the daughters by the first wife Muthu Chetti was doing business in cloth and in money lending and also owned a rice mill. When Muthu Chetti died on 22nd June 1933 the first defendant as the only major member of the family being the eldest took possession of the estate and managed the same. The suit for partition was necessitated by reason of the extravagant and wasteful life led by the first defendant, who has been found to have neglected the business and lived a fast life keeping concubines and spending recklessly. The preliminary decree for partition was passed on 10th January 1942 and the third defendant was declared entitled to maintenance during her lifetime and defendants 4 and 5 to suitable marriage provision and for maintenance till their respective marriages. The third defendant died after the preliminary decree on 17th July 1945, The preliminary decree further provided that the plaintiff was entitled to an account of the income of the family from the first defendant from the date of the death of his father till January 1934, since the plaintiff was found to have been excluded from participation in the income of the properties. The properties were divided and allotted by the Commissioner.

(2.) On a taking of accounts it was found that the value of the Joint family properties at the time of the death of Muthu Chetti in 1933 was Rs. 1,38,685-3-0; but the value of the properties that were available on the date of the suit was Rs. 99,677-13-3. The first defendant was therefore held liable to account for the difference of Rs. 38987-5-9 and he was directed to make good to the plaintiff and the second defendant one third of it, namely, Rs. 12,662-7-3. The value of each sharer was worked out at Rs. 18425-10-8 and the plaintiff and the second defendant were in addition found entitled to get Rs. 12662-7-3 each from the first defendant. It was also found that the non-agricultural income from January 1934 upto the date of the suit, namely, March 1940, was Rs. 43,166-10-8 and the agricultural income for the same period was Rs. 5635 making a total of Rs. 48,801-10-8. In view of the finding in the preliminary judgment that the plaintiff had been excluded from participation of the family income he was held entitled to recover an one-third share of the income, viz., Rs. 16,267-3-10 from the first defendant. The first defendant therefore as a result of the final decree was liable to pay Rs. 12,662-7-3 each to the plaintiff and the second defendant and Rs. 16267-3-10 to the plaintiff. All these payments were charged on the properties allotted to the first defendant. The maintenance for defendants 3 to 5 was fixed at the rate of Rs. 40 per month per head. The third defendant was found entitled to the arrears of maintenance from January 1934 to 17th July 1945 and the amount payable to her was found to be Rupees 5542-10-8 and the maintenance amount payable to the fourth and fifth defendants till the date of the order in the final decree proceedings, namely, 6th February 1948, was fixed at Rs. 5110 and Rs. 6768 respectively. It may be mentioned that both the fourth and fifth defendants have since been married and therefore there is no question of providing for their maintenance for the future. These three sums were charged on the shares of the plaintiff, first and second defendants in the family properties. The third defendant having died, fourth and fifth defendants were brought on record as her legal representatives and they claimed to be entitled to the sum of Rs. 5542-10-8, the arrears of maintenance accrued due to her mother. It was contended before the learned Subordinate Judge that since the third defendant had died before ascertainment of the maintenance amount due to her, defendants 4 and 5 could not inherit it as heirs. But the contention was overruled and a decree was passed in favour of the fourth and fifth defendants for the said amount.

(3.) The main objections raised by the appellant relate to the reasonableness of the amount of maintenance fixed for defendants 3, 4 and 5 as also the right of the fourth and fifth defendants to the arrears of maintenance found payable to their mother. As regards the first of the objections, the learned Subordinate Judge fixed the annual income of the family at Rs. 7800 relying on the Commissioner's report and also on an order of his predecessor dated 12th March 1946 on the basis of which a sum of Rs. 40 for month per head was fixed as the maintenance. The Commissioner found that the cloth trade of the father was only carried on for some time after his death by the first defendant, and while finding that the value of the goods left by the father in the cloth trade was Rs. 7800, which was taken into account in ascertaining the value of the assets of the joint family, did not, however, attempt to fix the total income, if any, received by the first defendant from the cloth trade. In arriving at the total income of the family properties and businesses for the period from the date of the death of the father till the date of the suit the income from the cloth trade was not included, as, in spite of certain ledgers relating to the cloth trade having been filed; it was not possible to arrive at the exact income, probably for the reason that the cloth trade was not conducted effectively or for any length of time after Muthu Chetti's death. The other businesses consisted of shroff and money-lending business as also the rice mill business. The Commissioner found that the shroff trade and the moneylending business yielded Rs. 11584-4-1 for the entire period, which works out at Rs. 1650 per annum. The Income from the rice mill was fixed at Rs. 425 per year and the income from the nanja and punja lands at Rs. 850 per year. The Commissioner relying on certain receipts for payments made towards Income-tax calculated the income of the Joint family businesses computing the income on the basis of tax at 6 1/2 pies per rupee and arrived at Rs. 49940 as the probable income for the period of seven years, working out at Rs. 7000 per annum.