JONNAGADLA SEETHAMMA Vs. JONNAGADLA VEERANA CHETTY

JUDGEMENT

(1.) These two appeals arise out of the same suit O. S. No. 12 of 1945 originally instituted in the Court of the District Judge, Bellary, and thereafter transferred to the file of the Court of the Subordinate Judge, Bellary and numbered as O. S. No. 3 of 1947. A. S. No. 739 is by the plaintiffs and A.S. No. 758 by defendant 1. The suit was for partition of immovable and movable properties and connected reliefs. Plaintiff 1 is the widow of one Rao Bahadur Papayya Setty who died on 21st October 1937. She was his second wife. Plaintiff 2 is his son and defendants 2 and 3 are his daughters by plaintiff 1. He had also by her two other daughters, namely, one Saraswatamma (P. W. 3) married on the date of the institution of the suit and one Triveni who died before suit. By his first wife, Papayya Setty had two sons, namely the defendant 1 and one Seetharama Setty. After his death, the members of the family continued to be joint till the end of august 1940 when Seetharama Setty left the family taking a quarter share of the family properties. On 28th August 1940, Seetharama Setty executed what is styled a deed of relinquishment and a release by way of partition in favour of defendant 1 and the two plaintiffs (EX. P. 1.). Though styled as a deed of relinquishment, it is common ground that it was really in the nature of a family settlement. The terms of the settlement briefly were as follows: Seetharama Setty took towards his one-fourth share the properties described in Schedule A to the document and the properties described in Schedule B thereto were taken by the remaining three members of the family. These were left in the possession of defendant 1 who was the manager of the family. Seetharama Setty relinquished all his rights to the Schedule B properties as well as to the jewels which were on the person of his sister-inlaw, i. e., the wife of defendant 1, and, on the person of his step-mother plaintiff 1. He was declared to be not liable for the expenses of the marriages of his stepsisters, namely, the daughters of Papayya Setty by plaintiff 1 and it was agreed that plaintiff 1 should meet the expenses of their marriages. The only right which Seetharama Setty reserved to himself was the right which he may have after her life time in the share of the properties to which plaintiff 1 was entitled. The document was signed also by plaintiff 1 and defendant 1, for himself and as guardian of his brother plaintiff 2. As some of the contentions of either side are based upon the language of the clauses of this deed, they will be set out later on. Plaintiffs 1 and 2 continued to remain in the family house along with defendant 1 till September 1944, though the relations between plaintiff 1 and defendant 1 were not very cordial for some time prior thereto. It is common ground that on or about 19th September 1944, plaintiff 1 left the family house with plaintiff 2 and her unmarried daughters. Saraswatamma, her eldest daughter, who was married by the time and her husband continued to live in the family house for a few days thereafter but they too left the house subsequently. On 21st September 1944, plaintiff 1, through her advocate issued two notices to defendant 1 claiming partition of the family properties on her behalf and on behalf of her minor son. There was a reply by defendant 1's advocate on 30th September 1944. The suit was instituted on 24th February 1945.

(2.) The plaintiffs claimed a two-third share of the movable and immovable properties set out in Schedule A to C to the plaint and the family business carried on by defendant 1. Plaintiff 1 claimed a third share therein absolutely. The plaintiffs prayed that a decree may be passed dividing all the movables and immovable properties shown in Schedule A to G by metes and bounds into two parts and one part respectively, that an auditor may be appointed to take accounts of the profits of the joint family business carried on by defendant 1 from 1st September 1940 up to date on behalf of the family, that an account may be taken of the fraud and misappropriation committed by defendant 1, that a decree may be passed for the amount found due and that a Commissioner may be appointed for effecting a division of the properties. Schedule A comprised house properties, Schedule B agricultural lands, Schedule C gold and silver and precious stones, furniture and other articles and cash. B schedule related to outstandings due to the family of which the mortgages were separately set out in another Schedule. E. Schedule F comprised furniture. The machinery described in Schedule G must admittedly be treated as a part of the family house, being in the nature of fixtures. It is not necessary to traverse in detail the pleas raised by defendant 1 in his written statement as it will be more convenient to take up the items of dispute between the plaintiffs and defendant 1 seriatim and deal with the contentions of both the parties in respect of each dispute The learned Subordinate Judge passed a preliminary decree directing that the houses except item 5 of Schedule A, all the lands described in Schedule B all the items in Schedules C, F and G be partitioned into three equal shares, that accounts be taken as regards the outstandings, that the amounts realised from the debtors either by defendant 1 or by the Receiver be ascertained and defendant 1 be liable to account for the realisations made by him, that a Commissioner be appointed to go through the accounts and ascertain the family liabilities. In respect of one debt, however, namely, the debt due to one Virupakshappa, the liability of the plaintiffs for the same was kept open for decision in the suit; filed by the creditor to which plaintiffs and defendant 1 were parties. Defendant 1 was directed to render an account of his management from the date of Ex. P-1, 28th August 1940, and if it was found that defendant 1 was in possession of any moneys, the plaintiffs will be entitled to get two third share of the same. Defendants 2 and 3 were to be maintained by the estate till their marriages, and a charge was created to the extent of Rs. 20,000 against plaintiff 1's share for their marriage expenses. The debts due by the family were to be ascertained by a Commissioner after going through the accounts, and had to be borne in three shares by plaintiff 1, plaintiff a and defendant 1.

(3.) Mr. P. Somasundaram, the learned advocate for the plaintiffs, raised several contentions in their appeal. The first two depend upon the terms of Ex. P-1. According to him, that deed effected a severance in status inter se between plaintiff 1, plaintiff 2 and defendant 1 and plaintiff 1 became entitled to a third share of all the properties including the agricultural land. There-is very little in the language of the deed and still lees in the evidence on record to support the contention of the appellants that when Seetharama Setty left the family taking his fourth share, there was a severance between plaintiff 1, plaintiff 2 and defendant 1 inter se. The family properties were divided into two Schedules A and B, of which the properties in Schedule A were allotted to Seetharama Setty for his one fourth share and the properties in Schedule B were left for the remaining three members of the family. Clause 3 of the deed provided that these properties may be left in the possession of defendant 1 as the family manager. There was no division of the properties in Schedule B into three shares. It is now well established that when a member of a joint family separates himself from other members of a joint family and his share in the property is partitioned off for him, the remaining coparceners do not necessarily become separate in status and they may continue to be coparceners without any special agreement amongst themselves and to enjoy as members of a joint family what remained after such a partition of the family property. Whether the remaining members continued to be joint or not is a question of fact to be decided inter alia from the way in which they carried on their affairs after the departure of the previous coparcener, see Palani Animal v. Muthuvenkatachala, 48 Mad. 234 at pp. 257 and 258 : (A. I. R. (12) 1925 P. C. 49) and Balakrishna v. Ramakrishna 53 ALL. 300 at pp. 306 and 307 : (A. I. R. (18) 1931 P. C. 154). In this case there is clear evidence that the remaining members continued to be joint even after the execution of Ex. P-1. It is sufficient to refer to the allegation in the plaintiffs notices which preceded the suit, Exs. P-2 and P-2 (a), that after the separation of Seetharama Setty, the rest of the family continued to be joint as before. The entire plaint proceeds on the footing that both the plaintiffs and the defendants were members of a Hindu joint family in joint possession of the family properties. The business is described as the ancestral family business which defendant 1 was conducting on behalf of all the members. In para. 18 it is definitely stated that the "joint family" had absolutely no debts whatsoever. We have no hesitation in holding that there was no division in status between the plaintiffs and defendant 1 until the date of the issue of the notices by plaintiff 1 in September 1944.