PUZHAVAKKATH MADATHIL GOPALA PATTARS SONS SUBRAMANYA Vs. PUZHAVAKKATH MADATHIL GOPAL PATTARS SONS LAKSHMANA

JUDGEMENT

(1.) In order to understand the contentions of the several parties in these two second appeals the earlier history of this litigation has to be set out in brief outline. The suit out of which these second appeals arise was instituted as early as 12-2-1937 by the pltf. the youngest of 5 brothers, against his elder brothers for a partition of the family properties some of which are situated in India & some in Cochin State. The family was of a humble origin but later on, through the exertions of some of the brothers, acquired considerable landed properties. There was also a lucrative coffee hotel business carried on at Trichinopoly by some of the brothers. Misunderstandings arose between the brothers which resulted in a demand for partition by one of them on 8-9-1936. All the brothers then met together & after some deliberation settled their disputes in a way. On 15-9-1936 they entered into an agreement evidenced by Ex. XX to divide the properties in the manner set out therein. All of them signed the document presumably in token of their consent to its terms. Under Ex. XX the present deft 1, the eldest brother, got for his share certain lands situated in Cochin State which was subject to an encumorance of Rs. 3000 & certain lands & a house situated in Ottapalam. To the share of the second brother, the present deft 2, was allotted the coffee hotel business in Trichinopoly known as "Bheema Central Lunch Home" with all its moveables & also certain lands & the family house in Ottapalam. The next two brothers defts 3 & 4, were allotted another coffee hotel in Trichinopoly known as "Central Cafe" with all its moveables but with the liability to redeem a pair of diamond ear-rings which had been pledged for Rs. 2500 apparently for the purposes of the business, & hand it back to deft 1. The pltf. the last of the brothers, was allotted a building & the remaining lands in Cochin State together with a sum of Rs. 1000 agreed to be paid to him for the value of certain jewels. The pltf was saddled with a liability to pay off a mtge for Rs. 2500 outstanding on the lands allotted to him in Cochin State. No provision was made in Ex. XX for the division of the moveables mentioned in Schedule B of the plaint or the outstandings specified in Schedule C. Ex. XX was left unregistered. It was however followed up by Ex. II dated 19-9-1936 signed by all the five brothers by which in accordance with the terms embodied in Ex. XX the coffee hotel known as The "Bheema Central Lunch Home" with all its moveables valued at Rs. 4500 was transferred absolutely to the deft 2 & the coffee hotel known as the "Central Cafe" with all its moveables valued at Rs. 10,000 was transferred to defts 3 & 4 absolutely. With regard to the remaining properties which were agreed under Ex. XX to be divided among the brothers, Ex. II recited that since the brothers were not in possession of the exact description, survey numbers & other details of the properties, they would draw up a formal document later on. There was an unsuccessful attempt on the part of deft 1 to modify the stipulations in Ex. XX & also some considerable delay in implementing the terms of Ex, XX by delivery of the properties allotted to the pltf which led to his present suit for partition from which these appeals have arisen.

(2.) The suit was numbered as O. S. No. 8 of 1938 & decided by the Subordinate Judge of Ottapalam who held that Ex. XX was not a final partition but only a tentative arrangement between the parties as regards partition; that it was inadmissible in evidence for want of registration; & allotments made under Ex. XX were unequal in value. He therefore decreed a general partition holding, however, that effect must be given to Ex. XX & Ex. II to this extent, namely, that the "Bheema Central Lunch Home" should be allotted to the share of deft 2 & the "Central Cafe" to the share of the defts 3 & 4. He also passed a preliminary decree with reference to the moveable properties & silver vessels of the family, the value of the silver vessels being fixed at Rs. 600 in the decree. He also directed that the entire family should pay deft 1 a sum of Rs. 2500 for the value of his diamond ear-rings & a sum of Rs. 1000 to the pltf for ornaments. Against this decision of the Subordinate Judge, there was an appeal & a cross-appeal to the Dist J. of South Malabar who held that Ex. XX was a valid & operative partition; that there was no satisfactory evidence to show that the partition was grossly unfair; that even if there was some inequality in the partition, the same had been accepted by all the brothers; & that the decree given by the Subordinate Judge for partition of the immoveable properties ignoring Ex. XX should be set aside. He fixed the value of the silver vessels to be divided among the brothers at Rs. 1200 & confirmed the decree of the Subordinate Judge with respect to other moveables & outstanding. The judgment of the Dist J. was appealed against to the H. C. in s. A. No. 1000 of 1943 at the instance of defts 3 & 4 who felt that the value of the property allotted to them was far too low when compared with the value of the property allotted to defts 1 & 2, a matter on which the Subordinate Judge had expressed himself in their favour. The pltf & deft 1 each filed a memorandum of cross- objections in the H. C.

(3.) I now turn to another litigation between the same parties in the Cts of the Cochin State. "The youngest of the five brothers as pltf instituted O. S. No. 120 of 1112 (M. E.) for partition of the family properties situated in the Cochin State in the Dist Ct of Trichur. A decree for partition of the Cochin properties was passed by the Dist J. who held that Ex. XX being unregistered was inadmissible in evidence to affect immoveable properties. There was an appeal A. S. No. 115 of 1116 (M. E.) to the Chief Ct of Cochin which finally decided that Ex. XX was a valid & operative partition & a decree for partition of the Cochin properties on the basis of Ex. XX was passed. One of the items of the Cochin property that had been allotted to the pltf under Ex. XX was subject to a prior encumbrance of Rs. 2500 & it had been sold away in execution of a decree obtained by the encumbrancer during the pendency of the partition suit. The pltf claimed that he was entitled to be compensated for the loss of this item by his brothers, especially deft 1 due to whose manoeuvres, it was alleged, that the encumbrancer had brought the property to sale & the pltf had been deprived of all means of redeeming the property. The Chief Ct of Cochin, however, held that the property had been lost to the family without any fault or negligence on the part of anybody & there was therefore no ground for making the other brothers pay any compensation to the pltf in respect of the loss of the property by the Ct sale. Thus ended the litigation regarding the partition of the Cochin properties.