SIVARAMAKRISHNAN Vs. KAVERI AMMAL

JUDGEMENT

(1.) These two appeals arise out of the decree or the Subordinate Judge of Mayuram in O. S. No. 52 of 1948. The plaintiff is the appellant in App. No. 217 of 1950 while the other appeal is by the contesting defendant in that suit.

(2.) O. S. No. 52 of 1948 is a suit for partition filed by the plaintiff who is the undivided son of the first defendant, the second defendant being his mother. Defendants 3 and 4 are the sister and sister's son respectively of the plaintiff in whose favour defendants 1 and 2 have executed a settlement deed whose validity is challenged by the plaintiff in the action. Defendants 5 to 7 are the lessees in possession of the suit properties but they might he left out of account. The plaint contains two schedules A and B claimed to belong to the family, schedule A comprising the immovable properties and schedule B comprising the movable properties. The learned Subordinate Judge has found that the movable properties had not existed and that they might therefore be left out of account. It is admitted that item 1 of schedule A is joint family property in which the plaintiff has a half share. But the question for consideration is whether the other immovable properties purchased in the name of the first and second defendants are joint family properties in which the plaintiff has any share. To appreciate the point raised it is necessary to set out briefly certain antecedent facts.

(3.) One Subramania Naicker had four sons Kandaswami, Marimuthu, Arumugha (1st defendant) and Vythilinga. Kandaswami Naicker died before 1005, leaving a son Krishnaswami Naicker. The five coparceners entered into a partition which is embodied in Ex. A-1, a deed dated 23-8-1903. The total properties of the family were valued at Rs. 4180. There were debts due by the family to the extent of Rs. 1580 leaving a balance of Rs. 2600. Each of them got property worth Rs. 500 and Kandaswami's widow was allotted Rs. 100. The property allotted to the share of Arumugha with whom alone we are concerned consisted of a filed house worth Rs. 450 in Shiyali and a punja thidal with trees worth Rs. 50 making a total of Rs. 500. The property thus allotted to Arumugha in this partition constitutes item 1 of the A schedule as regards which there is no dispute. There is a clause at the end of the partition deed stating "the respective persons shall share the profits and losses of their respective toddy shop kuthagai." It is stated that there were two toddy shops which were conducted by the family and that one was taken by Marimuthu and the other by Arumugha. But it is however significant that no value was attached to these shops as an asset of the family to be divided between the coparceners.