CHELASAMI ATCHAMMA Vs. CHELASAMI VENKATASUBBAYYA

JUDGEMENT

(1.) Plaintiff's husband in this case and defendants Nos. 1 to 3 re the sons of one Chelasami Ramaswamy by his second wife. He had also two sons by his first wife and in 1892, a partition of the family property was affected. The reason for effecting the partition was that the first wife had died and there were disputes between the first wife's two sons and their step- mother.

(2.) The question for decision in the appeal is whether, in that partition, all the members of the family became divided including not only the sons by the first wife but also the minor sons by the second wife or whether the father and the minor sons by the second wife remained a joint undivided family. It is the plaintiff's case that not only did the two sons by the first wife become divided but that all the members of the family effected a partition. There 13 no doubt a presumption that when there is a partition in a family there is a total partition and not merely a partial partition but this is a presumption which can be rebutted, and the circumstances in each case will show how much importance is to be attached to the presumption and what amount of evidence would be necessary to rebut it. In the present case the partition was effected by the father from his sons and for a special reason, namely, that the sons by the first wife were not getting on well with the second wife. There was, therefore, good reason for separating himself from his two sons but that reason does not apply to a separation between himself and the minor sons of his second wife who is still alive and, as a matter of fact, subsequently bore another son. The presumption in this case, therefore, is not so strong as it might be in other circumstances.

(3.) As regards the evidence of this partition, we have two of the partition lists prepared at the time, Exhibits C and XIV. (Exhibit C is the list of property that fell to the share of Narasimhulu, the elder son of Ramaswami. He is called co-sharer No. 2 and the younger brother co-sharer No. 3; and apparently the father was co-sharer No. 1, although it is not specifically stated, but it is theonly other sharer that is definitely mentioned in the document. Similarly, Exhibit XIV is a list of property that fell to the share of Ramaswami and his three minor sons, and there again we have the reference to Narasimhulu No. 2 share-holder and Venkataratnam No. 3 share-holder. It would appear from these facts that there was a division into three shares, that one share was allotted to each of the two major sons and the remaining share to the father and the three minor sons jointly. Mention is made of six shares in several places and in order to ascertain the shares of Narasimhulu and Venkataratnam it was necessary to find out what was the one-sixth share to which each of them was entitled and consequently to divide the property into six shares. The mere recital that there were six shares does not in any way show that there was actual division by metes and bounds into six shares, and that theory is negatived by the fact that the four share which fell to the father and his minor sons are not divided but are treated as one single share. From these documents it appears quite clear that there was no partition between the father and his minor sons by his second wife.