KANDASWAMI GOUNDAN (DECEASED) Vs. VENKATARAMA GOUNDAN

JUDGEMENT

(1.) The facts out of which this appeal arises may be briefly stated. Defendants 1, 2 and 3 are brothers. Defendants 4 to 7 are the sons of one or other of these three brothers and their rights follow that of their fathers, and it is unnecessary to make any further reference to them. The father of defendants 1 to 3 died in May, 1912. It is the 1 defendant's case that, soon after, the brothers entered into an agreement to refer the disputes relating to their family properties to certain arbitrators. The arbitrators passed an award dated the 30 November, 1912, Ex. 1. Defendants 2 and 3 would not recognise the validity of this award or submit to it on the ground that two of the arbitrators did not act. The 1 defendant thereupon filed an award in Court seeking to make it a rule of Court. This petition was filed as O.S. No. 112 of 1913 on the file of the Court of the District Munsif of Tirupattur. The plaint is Ex. O. The District Munsif dismissed the plaintiff's suit or, in other words, refused to make the award a rule of Court. Vide Ex. O. (1), dated the 29 January, 1914. Thereupon defendants 2 and 3 executed a sale deed of their two-thirds share of the family lands in Alasandapuram to the present plaintiff under Ex. A, dated the 27 November, 1915. In this sale deed they alleged that certain specific shares of the lands fell to their share, namely, the southern and western two-thirds, conceding the remaining one-third to the 1 defendant. The consideration for this sale deed is that the plaintiff should discharge the whole of the debt due on a mortgage deed executed by the father of defendants 1 to 3. Thereupon the plaintiff offered the mortgage amount to the mortgagee but the mortgagee refused to take it and he filed a suit on the mortgage deed to recover the mortgage amount by sale of the property.

(2.) That suit was O.S. No. 579 of 1915 on the file of the District Munsif's Court of Tirupattur. Ex. B, dated the 8 December, 1915, is the plaint. The present plaintiff by reason of his purchase under Ex. A was made the 8 defendant in that case, defendants 1 to 7 in that case being the same as defendants 1 to 7 in this suit. Ultimately the 8 defendant in that suit, the present plaintiff, paid off the mortgage amount. The present suit was filed by the plaintiff to recover the specific 2/3rds share of the Alasandapuram lands sold to him under Ex. A but in the plaint he also prayed that in case the Court should find that there is no partition allotting the specific 2/3rds to defendants 2 and 3, a general partition may be effected and 2/3rds share of the suit lands be allotted to him. Meanwhile on the 11th December, 1916, the 1 defendant sold the whole of the family lands in Alasandapuram to the 8 defendant by a sale deed, Ex. VI, on the footing that all the lands belonged to him. By reason of this sale deed the purchaser under Ex. VI is made the 8 defendant in this case.

(3.) It is now necessary to notice the pleas of the various defendants. The 1st defendant pleaded that though the award was not filed by the Court it was "acted upon" by the parties. He adds, "This defendant continued to enjoy the Alasandapuram properties in pursuance of the award and defendants 2 and 3 have been in possession of the properties attached to them in the award. That on account of misunderstandings 2 and 3 defendants raised objections to the award but they never disturbed this defendant's possession." This plea really amounts to this: It is true that defendants 2 and 3 originally objected to the award and did not recognise its validity but they afterwards accepted it. Or if this interpretation is not possible it can only mean this, that as a matter of fact defendants 2 and 3 never disturbed the 1 defendant's possession of the Alasandapuram lands. There is no plea in paragraph 3 of the written statement that apart from the refusal of the Court to file it, the award as a matter of fact is binding upon the parties and remains valid. Defendants 2 and 3 pleaded in paragraph 2 that the plaint sale deed was executed in order to compel the 1 defendant their brother to consent to give a share to these defendants in Alasandapuram village. They raised a similar plea in their written statement in O.S. No. 579 of 1915 showing that throughout they never accepted the right of the 1 defendant wholly to the Alasandapuram lands. The 8 defendant also pleaded in paragraph 10 of his written statement that the award was "acted upon" by the parties and defendants 1 to 3 continued to be in possession of the properties as per terms of the award. The first issue in the case is whether a subsisting title was created in any and if so in what portion of the suit items by the conveyance, dated 27 November, 1915, and whether the purchase money for the aforesaid sale moved from plaintiff. We do not see the particular significance of the word "subsisting" in this issue. The Subordinate Judge has not found that there was any fresh arrangement between the parties by which they agreed to accept the allotments made under the award in spite of the refusal of the Court to file it. There is a good deal of evidence on record to show that there could not be any such thing. Up to January, 1915, we see that the 2nd and 3 defendants were resisting it. Afterwards they executed the sale deed Ex. A in November, 1915 and they make no secret of their purpose in executing the sale deed both in the written statement in O.S. No. 579 of 1915 and here. All this shows that there is no consensus between the brothers and the statement "acted upon" is merely an idle statement. It may be that the 1st defendant managed to continue in possession of the whole of the Alasandapuram lands and was paying kist. But this is an irrelevant circumstance. The plaintiff was as a matter of fact suing some of the tenants of the lands and getting decrees for his share of rent. That circumstance would not help him if as a matter of fact there was an arrangement prior to the plaintiff's sale deed by which the suit lands were wholly allotted to the 1 defendant. However there is no such evidence. The Subordinate Judge dismissed the suit on a reasoning which strikes us as very curious and which the learned advocate for the respondents expressly stated before us that he is unable to support. He says that it is the common case between the parties that they were divided in status; the dispute is only as to the details of the division. This is true. He also found that the specific division pleaded by the plaintiff is not true and his finding is not questioned before us by the learned advocate for the appellants. Then he says at the end of paragraph 15 "If it is not that they are divided on the lines of the award it may be asked what else there is to show in what manner the division has taken place". In our opinion this, sentence shows entirely a fallacious, reasoning. It may be that the particular division set up by the plaintiff was found to be false by the Subordinate Judge. And it is also true that the plaintiff-appellant does not argue in favour of that case before us. But it does not, follow that that the arrangement in the terms.of the award is the only possible arrangement. It may be that there was really no arrangement between the parties, in which case the plaintiff is entitled to a partition and allotment of the 2/3rds share of the suit lands and the 1 defendant is entitled to If3 share. The Subordinate Judge's question "what else there is to show in what manner the division has taken place" is beside the point. What is necessary for the defendants to show before they can get the plaintiff's suit dismissed is that there was a division in some other manner. If any such division is not forthcoming, the only conclusion is that there is no binding division between the parties. The Subordinate Judge is unable to see the possibility of this third alternative. We can only express our surprise that he is not able to see this alternative. In paragraph 18 he says: My finding accordingly on the first issue is there was no title created in plaintiff by the execution of Ex. A for the reason that in all probability the property did not belong to the defendants 2 and 3 on its date.