THIMMAKKE Vs. PARAMESHRI

JUDGEMENT

(1.) This is an appeal by the plaintiffs--(and there is also a Memorandum of objections) against the decree in a suit by certain members of a family governed by the Aliyasantana law to recover on behalf of the family certain properties which the plaintiffs allege belonged to the family and were acquired out of family funds. The members of the family are to be found in the pedigree which is set out in the judgment of the learned Subordinate Judge. One Chennamma is the ancestress. She, I suppose, may be described as the founder of the family. She is found by the learned Subordinate Judge to have died in the year 1883. She left certain daughters who pre-deceased the parties to the suit. She left a daughter by name Timmakke who is the 1 plaintiff in the suit. Timmakke has several children who are the other plaintiffs to the suit. Chennamma also had a daughter called Akku, older than Timmakke. She is the 6th defendant in the suit. This Akku has a son who is the 7 defendant in the suit. The only male child of Chennamma was Devapparai. He died 1902. His widow is the 1 defendant. The 2nd, 3rd, 4 and 5 defendants are her children. Then there are two other defendants, the 6th and the 7 to whom I have already referred. They take the side of the defendants and they hare been made defendants in the suit.

(2.) Shortly before Devapparai's death, he executed a conveyance, which is Exhibit VIII in the case, by which he purported to convey the whole of the properties in dispute to his wife the 1 defendant and to his children, the defendants Nos. 2 to 5. The properties which came down from Chennamma and which are admitted to be family properties are described in paragraph 32 of the judgment of the learned Subordinate Judge. I need not repeat what he has said with regard to them. The mode in which the properties in dispute were acquired-- properties which the plaintiffs say Devapparai in fraud of his family conveyed just before his death to his wife and children, is described in paragraph 36 of the judgment. The first issue in the suit is "Whether the deceased Devapparai was the de, facto manager of the family of plaintiffs and defendants Nos. 6 and 7 ?" The finding as to that by the learned Judge is in the affirmative and I do not think that is contested. Even if it is contested, I think the finding is right. What the Judge actually finds is first in paragraph 25: "The conclusion that I come to is that both Devapparai"--the only male--"and the 6 defendant"--his elder sister--"managed". Then in dealing with the second issue he says: ?Devapparai has been found to have been one of the de facto managers of the family". So I think his finding comes to this : that Devapparai and the 6 defendant were both de facto managers and that the 6 defendant by virtue of her position as the eldest member of the family was the de jure manager.

(3.) Then the second issue is ?whether the plaint items Nos. 1 to 4 were acquired by the said Devapparai from his private funds and from the private funds of 1 defendant"--that is his wife--"or were they acquired from family funds as alleged by plaintiffs." The final conclusion at which the learned Subordinate Judge arrived with reference to this issue is in the nature of a compromise. He finds that the total value of the property is Rs. 7,000 and to the extent of Rs. 1,820 it was acquired out of family funds and out of the private funds of Devapparai to the extent of the balance. So it works out that the plaintiffs get a decree for the properties which they claim in the ratio of 91 to 350. Both sides are dissatisfied with this. The plaintiffs contend that they are entitled to a decree in the terms of their plaint. The defendants say that the suit ought to have been dismissed in its entirety.