VENKATA NARASIMHA NAIDU Vs. BHASHYAKARLU NAIDU

JUDGEMENT

(1.) This is an appeal against a judgment of the High Court at Madras which affirmed with some modifications a decree of the District Court of Kistna in that Presidency. The suit was brought to obtain a partition of the zamindari of Vallur and the moveable and immoveable property held therewith. The principal plaintiff is the younger brother of the principal defendant, the other parties being minor sons of the plaintiff and defendant, respectively, who were made parties for conformity.

(2.) The property in question is of considerable amount, and the suit was hotly contested, many issues being raised to which it is unnecessary now to refer. The main contention in the District Court was that, whereas the principal plaintiff alleged that the parties were members of an undivided Hindu family, the principal defendant asserted that the zamindari was impartible by family custom, and that the junior members were only entitled to maintenance out of the family estate. But, after a certain amount of evidence had been recorded, this contention was abandoned by the defendant's vakils and the issue was decided in favour of the plaintiffs. It was one of the grounds of appeal to the High Court that the vakils exceeded their authority in giving up this issue, but the High Court held that a vikil's "general powers in the conduct of a suit include the abandonment of an issue which, in his discretion, he thinks it inadvisable to press;" and in this opinion their Lordships concur.

(3.) Before the issue of impartibility was decided, and before any evidence had been recorded, the defendants vakils applied to raise a. general issue that the suit was time-barred, and the District Judge's refusal to raise such an issue has been made a ground of appeal both in the High Court and before their Lordships. But no question of limitation is raised upon the pleadings, and the Judges of the High Court held that although the District Judge had a discretion to raise such an issue, even at the stage of the proceedings at which it was asked for, he was not bound to raise it, and rightly exercised his discretion in refusing to do so. The written statement merely contains a traverse of the allegation that the principal appellant had managed the properties on behalf of himself and the plaintiff. The facts stated in the pleadings as to the appellants possession were at least consistent with either hypothesis that the zamindari was impartible or that it was partible family property. The character of the possession was dependent on the determination of that issue. In their Lordships opinion no question of limitation was either raised by the pleadings or arose upon the evidence and it was not obligatory on the Judge to direct an issue.