ARUNAGIRI GOUNDAN Vs. VASANTHAROYAGOUNDAN AND ORS.

JUDGEMENT

(1.) THIS is an appeal by the first defendant in O.S. No. 39 of 1944 in the Court of the Subordinate Judge of Salem against a preliminary decree for partition passed therein. The suit was originally instituted by seventeen persons, but as the 13th plaintiff died pending suit, plaintiffs 18 to 21 were added as his legal representatives, and when the suit came up for hearing, there were twenty -one plaintiffs. There were six defendants. The suit for partition was based on the allegation that the plaintiffs and defendants were members of a joint Hindu family and the properties set out in the plaint schedule belonged to them as members of the family. The suit was contested only by defendants 1 and 3 who admitted the relationship set out in the pedigree filed along with the plaint so far as their relationship with plaintiffs 1 to 3 was concerned, but denied that plaintiffs 4 to 21 were related to them (defendants) in the manner set out in the pedigree. The contesting defendants further denied that even plaintiffs 1 to 3 were entitled to any relief because they were not members of a joint family along with the defendants. The learned Subordinate Judge found that plaintiffs 4 to 21 were related to the defendants as claimed by them (plaintiffs) and that the suit properties were the joint family properties of plaintiffs and defendants. He therefore passed a preliminary decree for partition in accordance with the shares to which the parties would be lawfully entitled accepting the pedigree attached to the plaint and marked as Ex. P -i in the case. As already mentioned, the 1st defendant is the only party who has chosen to appeal against this degree.

(2.) ACCORDING to the case set out in the plaint, Arunachala Goundan the grand -father of the 1st plaintiff had two brothers whose names were not known. Plain -tiffs 1 to 3 and defendants 1 to 6 were the descendants of Arunachala Goundan by his only son Karia Goundan alias Annamalai Goundan, while plaintiffs 4 to 21 were the descendants of the two brothers of Arunachala Goundan. The properties which form the subject -matter of the suit were acquired by the members of the family by their joint exertions. In accordance with the custom which prevailed in the family, the eldest son of the eldest line always occupied the position of the manager of the family. The members of the family were all living together and as their number increased, several dwelling houses were built for them from the common fund. The proximate cause for the institution of the suit was the action of the 1st defendant in instituting O.S. No. 62 of 1942 against defendants 2 to 6 and the deceased elder brother Chinna Arunachala for a partition of the suit properties completely disregarding the claims of the entire body of the plaintiffs.

(3.) THE learned Subordinate Judge came to the conclusions that the plaintiffs and defendants were members of a joint family and owned in common the properties set out in the plaint schedule after a consideration of the several circumstances which he gathered from the evidence. We have been taken through the evidence and we have come to the same conclusion as the Subordinate Judge came. The circumstances which have impressed us most are the following. The plaintiffs and the defendants with their families all reside in houses more or less adjacent but all of them in a compact compound, which is definitely fenced off from the rest of the village. They have common granaries and common places for storing fodder and agricultural implements. It is in evidence that some of the houses were built by Arunachala the father of the 1st defendant and some others, by Chinna Arunachala the elder brother of the 1st defendant. The 1st defendant's explanation for the position of the houses and for the fact that his brother and father had built them with money belonging to the family was that it was due to an assurance that they would all be permanent labourers on the lands belonging to the 1st defendant's branch. The learned Subordinate Judge did not accept this explanation and we think rightly. It is most unlikely that if the members of the branch of the 1st defendant were in the position of landlords and the others, in the position of mere labourers, the houses of the latter would have been built in such close proximity to The houses of the former.