GURUSWAMI GOUNDAN Vs. MARAPPA GOUNDAN

JUDGEMENT

(1.) THESE are connected appeals and can be disposed of by a common judgment. S. A. No. 486 of 1946 arises out of O. S. No. 398 of 1943 on the file of the Court of the District Munsif of Gobichettipalayam in which the appellants were defendants 1 to 5. Appellant 5 having died pending the second appeal, appellant 6 was brought on record as his legal representative, The appellants in S. A. No. 487 of 1946 which arises out of O. S. No. 119 of 1943 -on the file of the same District Munsif's Court were plaintiffs and defendants 2 and 3 in that suit. The contesting respondent in both the second appeals is the same individual and he was the plaintiff in O. S. No. 398 of 1943 and defendant 1 in O. S. No. 119 of 1943. In order to -appreciate the contentions of the parties, it win, be convenient to set out the relation between them as shown in the plaint in 0. S. No. 898 of 1943 and set out in the judgment of the learned Sudbordinate Judge in para. 12 of his judgment

(2.) ON the basis that defendant 6 had not relinquished his share in the family properties, he had sent a registered notice on 27th January 1942 to his grandsons expressing his intention to divide; and thereafter on 6th February 1942 he executed a settlement deed in favour of his great grandsons defendants 3 to 5 in O. S. No. 398 in respect of his one -third share in the plaint properties. On the basis of this settlement, defendants 3 to 5 in O. S. No. 398 filed O. S. No. 119 of 1943 for partition and recovery of possession of the one -third share of their great grandfather settled upon them under Ex. D -l dated 6th February 1942. The plaintiff in O. S. No. 398 was the contesting defendant there and he repudiated the alleged settlement on the ground that long prior to that, the settlor, Ammavasai Goundan, had relinquished his share in the family properties. As the District Munsif had found that the alleged relinquishment did not take place, he gave effect to the settlement and passed a preliminary decree for partition in favour of the plaintiffs in O. S. No. 119 of 1943, As stated already, the plaintiff in O. S. No. 398, who wag defendant l in O. S. No. 119 of 1943, aggrieved by this preliminary decree for partition, filed an appeal in which the same question had to be discussed. The appeals against 0. S. Nos. 398 and 119 of 1943 were A. S. Nos. 78 and 86 of 1945 respectively. They were heard together by the learned Subordinate Judge who allowed both the appeals with the result that O. S. No. 398 was decreed in favour of the plaintiff and O. S. No. 119 was dismissed. Hence the two second appeals by defendants 1 to 5 in O. S. No. 398 of 1945 who were the plaintiffs and defendants 2 and 3 in O. S. No. 119 of 1943.

(3.) IT is difficult to say that the finding of the learned Judge is not based on evidence. The lower appellate Court has not omitted to consider any portion of the evidence on which the trial Court relied. Mr. T.M. Krishnaswami Aiyar invited my attention to various portions of the evidence of P. W. l and the so -called admissions made by him therein. He also drew the attention of the Court to the evidence of the defendant 6 examined as D. W. 2. Having carefully considered all these materials placed before me, I find it difficult to say that the finding of the learned Subordinate Judge is not based on legal evidence. It may be that he should not have believed the evidence of P. Ws. 1 and 2. It is just possible that another appellate Court might come to a different conclusion and might agree with the trial Court. But that is no reason to say that the finding is vitiated by any error of law which would justify my interference in second appeal. I would, therefore, hold that the learned Subordinate Judge's view regarding renunciation should be accepted.