T S RAMABHADRA ODAYAR Vs. TSGOPALASWAMI ODAYAR

JUDGEMENT

(1.) These are three linked appeals, namely, Appeal No. 411 of 1925, Appeal No. 439 of 1925 and Appeal No. 6 of 1926. Of these, Appeal No. 439 of 1925 was argued first as in that the main and the most important contentions between the parties had be considered. I propose in my judgment to deal with all the three appeals together.

(2.) All these appeals arise out of O.S. No. 67 of 1919 Subsequently renumbered as O.S. No. 22 of 1924 in the Court of the Subordinate Judge of Kumbakonam. That was a suit for partition. The parties to the suit were all members of an undivided Hindu family related to one another in the manner set out in Schedule A to the plaint. This Hindu family was possessed of considerable immoveable property and in the partition suit the plaintiff claimed a half share in the whole property. The plaintiff stands by himself representing one branch of the family. The genealogical table (Schedule A) shows that all the parties to the suit trace their descent back to one Sepperumal Odayar; and in the judgment of my learned brother Curgenven, J., the genealogical table Set out ante at p. 784 has been described in detail and therefore it is unnecessary for me to explain any further how the parties stand in relationship to one another.

(3.) In the Court below a preliminary decree was passed by means of which the plaintiff was given one-fifth share, defendants 3, 4, 5, 7 and 8 one-fifth share, the 6 defendant one-fifth share, the 9 defendant one-fifth share, and defendants 1 and 2 one-fifth share. The learned Subordinate Judge gave a decree for an account and also directed that the accounting was to be upon the basis of an undivided family although he found that the family had become divided in status by reason of a document, Exhibit A. This document has been the cause of all the trouble in the suit. Various constructions have been placed upon it by the contending parties both here and in the Court below and these appeals depend entirely upon what view we take of that document. In order that it can be better understood we have to go back to the year 1895. Exhibit A is dated the 25th November of that year and is described as a deed of partition. On that date there were alive Muthu Odayar who died in 1903, Balasubramania Odayar who died since the suit was filed, Singaravelu Odayar who died in 1917, Somasundara Odayar, his son, who subsequently died leaving a widow the 10 defendant, Sivaswami Odayar, who died in 1909 leaving a widow the 9 defendant, Gopalaswami Odayar and Sivavadivelu Odayar, the grandson of Sinnu Odayar and the adopted son of Sendalangara Odayar who was himself the son of Sinnu Odayar, the son of Sepperumal Odayar, the common ancestor. By this deed Balasubramania Odayar separated himself from the rest of the family and under Clause 1 of the deed it was agreed that he should take one-fifth share of the whole property, the remaining four-fifths share being agreed to be allotted in five equal shares to (1) Singaravelu Odayar and Somasundara Odayar (2) Sivaswami Odayar (3) Gopalaswami Odayar and Vijiaraghunathan (4) Balaguruswami and Balakrishnaswami, and (5) Srvavadivciu, father of the plaintiff. In Exhibit A his adoption by Sendalangaram is recognised and the learned Judge in the Court below has found that adoption proved. The consideration for this document is set out in the preamble to it and is stated to be the fact that disputes might arise in the family in connection with the partition and heavy loss might be sustained thereby, that Samu Odayar and his father Ramu Odayar (Nos. 4 and 11 in the genealogical table) had acquired properties by hard work and brought the family to a very prosperous condition and the natural affection towards his heirs, namely, Singaravelu Odayar, Sivaswami Odayar, Gopalaswami Odayar, Balaguruswami and Balakrishnaswami and also towards Balasubramania. Under Clause 6 of the document Muthu Odayar gave away his share in the family properties as he had no heirs and was advanced in age; but there is a reservation that during his life- time he should be at liberty to utilise a sum of Rs. 4,000 per annum out of the income from the four-fifths share of the properties (ascertained in Clause 1). Another clause of importance is Clause 3 which provides that the sharers are to take the immoveable properties specified in List A and the outstandings in List C and that Balasubramania the outgoing member is to take the immoveable properties specified in List B. Clause 6 must again be referred to here as it is there provided that the sharers (as ascertained in Clause 1) are during the life-time of Muthu Odayar to live as members of one family and that after him partition of the property is to be effected according to the shares given in Clause 1. Then comes Clause 8 which reads as follows: So long as the sharers other than Balasubramania Odayar of us remain joint without effecting a division according to the shares mentioned in paragraph 1 hereof, the family shall be treated as an ordinary undivided Hindu family subject to the law of survivorship.