V G MANICKA MUDALIAR Vs. ANDALAMMAL

JUDGEMENT

(1.) This appeal arises out of a suit filed by the respondent on the Original Side of this Court for a declaration that a piece of land conveyed to the appellant under a deed dated the 30 October, 1925, is her property and that she is also entitled to the house built thereon. The respondent's case is that she acquired the site and built the house out of the proceeds of a milk business belonging to her. The appellant claimed that the milk business belonged to him and that the property was his. The suit was tried by Venkataramana Rao, J., who held that the property belonged to both of them in equal shares. Consequently, the learned Judge granted a decree for partition and the delivery to the respondent of her half share with mesne profits. The respondent has not appealed, and the main question which the Court is called upon to consider is whether the appellant is entitled to the share allotted to the respondent; in other words whether he is absolute owner of the site and the house. The procedure which was adopted in this case was not in accordance with that contemplated by the Civil P. C., and it is necessary also to consider the effect of this. It will be convenient to deal first with the question relating to the procedure adopted.

(2.) The plaint was filed on the 18 November, 1930. The hearing was interrupted after a portion of the plaintiff's evidence had been recorded by Lakshmana Rao, J., and on the 1 October, 1935, the following order was passed by the learned Judge with the consent of the parties: 1. That this suit be and is hereby referred to the Official Referee of this Court for the determination of the following issues, namely: (i) Did the plaintiff carry on milk business or any other business of her own and was the defendant entrusted with the management of all or any of the said business as her agent? If so, is the defendant liable to render an account? (ii) Was the said house No. 14, Pallappan Street, Triplicane, Madras, purchased and constructed out of funds belonging to the plaintiff in the name of the defendant benami for the plaintiff? If so, is the defendant liable to account to the plaintiff for the mesne profits? (iii) Is the defendant in possession of all the movable properties mentioned in the Schedule B to the plaint and do any of them belong to the plaintiff? 2. That the said Official Referee do give his findings on the said issues and submit his report and proceedings thereon to this Court expeditiously.

(3.) That the evidence recorded herein so far, shall be treated as evidence before the said Official Referee and the said Official Referee do continue the enquiry from the stage at which it was stopped.