(1.) These are appeals against a decree permitting the plaintiffs to redeem a half share of a village, Sirijam, in Vizagapatam District, on payment to the 1st defendant of Rs. 12,500. In Appeal Suit No. 233 of 1909, the 1st defendant contends that the suit should have been dismissed, because he not only holds the mortgage, but has also acquired the equity of redemption of the whole village by purchase from its real owner, the members of another branch of the plaintiff s family. In Appeal No. 193 of 1909, the 3rd defendant in the alternative attacks the plaintiffs title, as having originated in a sale effected in fraud of creditors, and relies on his own purchase of the equity of redemption at a Court-sale, as entitling him not the plaintiffs to redeem.
(2.) We can deal with Appeal No. 233 of 1909 shortly, because we concur in the lower Court s treatment of the evidence relating to this part of the case. It is argued that the village belonged originally to two brothers, Venkatakristna Raju and Venkatapathi Raju, as their joint family property. After the death of Venkatakristna, Venkatapathi in his personal capacity and as representing the sons of Venkatakristna, with two other members of the family, who died later without issue, executed the suit mortgage of the whole village to the 1st defendant s father in 1877. Afterwards, it is argued, that there was a partition between the two branches of the family. The plaintiffs allege a purchase by the 1st plaintiff from the sons of Venkatpati and the latter s title to half the village in virtue of a partition made shortly after Venkatapathi s death by a panchayet at the instance of his and Venkatakrishna s widows as guardians of their minor sons. The 1st defendant, who has purchased from the sons of Venkatakristna, relies on evidence of a partition by Venkatapathi on his death bed, at which the whole village was included, in the share of his vendors. The plaintiffs also contend that it is unnecessary for them to establish this case on facts, since the divided status of the family at the date of their purchase being admitted, it follows that from the data of the division they acquired, in the absence of proof of a partition of the family property by metes and bounds, the status of tenants in common with the other co-parceners in respect of it and are, therefore, entitled to redeem their unascertained share of the suit village and to ascertainment and possession thereof.
(3.) This view of the plaintiff s rights is in accordance with Appovier v. Rama Subba Aiyan 11 M.I.A. 75; 8 W.B. 1 (P.C.) and we accept it. It is, therefore, necessary to decide only whether the 1st defendant s evidence supports the partition, including the apportionment of the whole village to the sons of Venkatakristna which he alleges. The witnesses are not of such credit as justifies any affirmative conclusion from their statement on a matter of this nature in the absence of independent corroboration by documents or otherwise. Adopting the major part of the lower Court s treatment of this part of the case, we accept its finding on issues Nos. 1, 2 and 3, in the plaintiff s favour and dismiss the Appeal No. 233 of 1909.