KARUPPAN Vs. PONNARASU AMBALAM

JUDGEMENT

(1.) THE property in dispute was purchased in 1901 in the name of one senamuthan. It is not in dispute it was joint family property, Senamuthan had three other brothers and the defendant is the son of one such brothers. Senamuthan died in 1952. His widow, Nagal, sold the property to her son-in-law, one Udayan, who in his turn sold the property to the plaintiff under Ex. A. 1 dated 31-8-1953. Basing his claim on this title deed the plaintiff sought for a declaration and possession of the property form the defendant. It was alleged by the plaintiff that in 1920 there had been a partition amount the members of the family as a result of which this time of property had been allotted to Senamuthan. The defendant contended, on the other hand, that though there was a division in which the properties of the joint family were divided, this particular item of property alone had been left to be enjoyed in common. The further contention on behalf of the defendant was that Senamuthan left a grandson, one Palani, who would be entitled to a half share in the property along with Senamuthan's widow, Nagal, so that in any event, the title upon which the plaintiff relied was not valid except to the extent of half the property.

(2.) THE trial court declined to accept the theory of the partition in 1920. It equally refused to believed that this property was kept intact as was the case put forward by the defendant. The question whether Palani was the grandson of Senamuthan and was entitled to any share in the properties was found in favour of the contentions of the defendant. The trial court, however, dismissed the suit. On appeal, this decision was reversed. In effect the lower appellate court found that the defendant's version of this property having been kept out of the partition was not established and that on the other hand, the evidence was fully in conformity with the contention of the plaintiff that there was a valid partition covering this item of property also in 1920. The appellate court was thus of the view that the four brothers had become divided and Senamuthan as divided member was in possession of this suit properties, the properties having been allotted to him at that partition. Upon the question whether the grandson of Senamuthan, Palani, was entitled and, whether by reason of his absence as a party to the suit the plaintiff could not get a declaration and possession except as regards the share of nagal in the properties, the lower appellate court found in favour of the plaintiff. That is to say the suit was decreed as prayed for in respect of the entirety of the property. The defendant appeals.

(3.) MR. K. Chandramouli, the learned counsel for the appellant, argues that the appellate court has given conflicting decisions on the question of partition, and that there is in effect no decision by the lower appellate court on this important aspect of the case of the either party. Though a finding with regard to partition would undoubtedly be a question of fact binding upon this court in second appeal, the learned counsel seeks to show on a reading of the judgment of the lower appellate court that the lower appellate court has not given any specific finding as would constitute a finding binding in its nature. Issues 3 and 4 framed by the trial court were: "whether the arrangement and muri referred to in para 9 of the written statement are true and valid?" and "whether the partition pleaded is true?" on both of these issues the trial court found against the contention of either party. In para 5 of the appellate judgment it is observed. "the finding of the learned munsif on issues 3 and 4 stands unimpeached and is final". This sentence would of course appear to suggest that the appellate court concurred in the view taken by the trial court that the partition of the year 1920 set up by the plaintiff was not established as also the special arrangement pleaded by the defendant that this item of property was left undivided was equally found to be to established. But the lower appellate court did not stop there. It proceeded to discuss the entire evidence, particularly the evidence relating to the partition among the four brothers. It also dealt with the alleged arrangement by the defendant and found it to be untrue. In the case of the 1920 partition the lower appellate court took the view that the property had all along been in the possession of Senamuthan and since it has reached the position that there had been a partition, the exclusive possession of this item by Senamuthan must be related to a valid allotment made at that partition. It was accordingly concluded that Senamuthan was a divided member and he held the suit properly in his own right as one that fell to his share. Clearly then the lower appellate court found that the partition set up by the plaintiff court found that the partition set up by the plaintiff was true. The observation that the finding of issues 3 and 4 was accepted by the lower appellate court is certainly incorrect for we find a detailed discussion explaining exactly what parts of the finding of the trial court were accepted by the appellate court. It follows that he argument that there is no finding, which justifies the further canvassing of this question in second appeal, cannot be accepted.