K P GANAPATHY IYER Vs. KPSUBRAMANIA IYER

JUDGEMENT

(1.) The appellant is the judgment-debtor in this case and the matter arises in the execution of a compromise decree. Plaintiff 1 and defendant 1 are brothers and in a suit for partition a decree was drawn up in accordance with the compromise between them. The suit turns upon the construction of para. 3 of this compromise decree relating to the properties in Kottekkad. The paragraph has been translated as follows: It has been settled that out of the abovementioned properties the house at Kumarapuram gramom should be taken for the share No. 1 out of us, that the properties in Kollengode and Mangalam areas should be partitioned by both the persons equally, and that the revenue and michavaroms in respect of the said properties should be borne equally; and since the obsequies of our grandmother deceased Subbammal Ammal were conducted by No. 2, No. 1 has of his own free will, agreed and settled that in respect of the Sradhams (death anniversaries), etc., of the said grandmother and of grandfather deceased Venkatasubba Ayyar, 100 paras of paddy should be credited to No. 2 from the share of 285 paras of paddy belonging to No. 1 out of 570 paras of paddy that is left as balance after deducting 130 paras of paddy for ushappooja and nivedia vazhipad, at the Venkatachapathi temple at Kumarapuram gramom, from the pattom (rent) of about 700 paras of paddy which the properties in Kottekkad amsom now fetch; and so, the abovesaid 100 paras of paddy has been set apart for the share of No. 2 from the share of 285 paras of paddy belonging to No. 1. It has also been settled that the properties at Kottekkad should be partitioned in the said proportion.

(2.) The question at issue is whether the properties at Kottekkad are to be divided into two equal portions out of which the defendant-appellant is to pay 100 paras of paddy per annum to the plaintiff for performing the Sradha of their maternal grandfather and grandmother or whether the properties are to be divided in the ratio of 385 to 185 which represents the final numbers of paras of paddy which each side will have for its own use when another 130 paras of paddy have been deducted for the temple which is to be paid by each party in equal shares of 65 paras a piece. The learned District Munsif held that the properties should be divided equally and that defendant 1 is liable under the Razi to pay 100 paras of paddy every year to plaintiff 1 for performing the Sradhas till his death after which the Sradhas would cease to be performed. The learned District Judge took the other view that the Kottekkad land was to be divided in the proportion of 385 to 185, and against his decision this second, appeal has been filed.

(3.) It is unnecessary to deal with the question, which has been raised whether the compromise was a preliminary or a final decree because both the parties have treated it as a final decree. In a consent decree no preliminary decree is obligatory in a partition suit, and the parties having by means of an execution petition treated it as a final decree, it is not open to either of them now to object that it is only a preliminary decree: Vishnu Sakharam V/s. Krishna Rao Malhar (1887) 11 Bom. 153 followed in Gurudeo Singh V/s. Chandrikah Singh (1909) 36 Cal 193 (at p. 207). I therefore come to the main point as to which, view of the compromise is right. And in this matter I wish to say at once that I understand Malayalam is the mother tongue of the learned District Munsif whereas the learned District Judge was a European. I would also put in the forefront of this discussion the fact that in the crucial phrase: It has been settled that the properties at Kottekkad should be partitioned in the said proportion, the use of the word "proportion" in the translation is unfortunate and really begs the question. The Malayalam word is "veedham" and that word has not the exclusive mathematical connotation which "proportion" or "ratio" has in English. The word "veedham" is certainly not confined to the sense of "ratio" or "proportion." Bailey's Malayalam and English Dictionary gives its meaning as "portion or share, rate, rule." Zacharias English-Malayalam Dictionary gives "veedham" as translation both for "rate" and "ratio." Therefore "rate" would appear to me to be a better word to use than "proportion." The best course would be simply to consider the Malayalam word "veedham." I observe that the learned District Munsif, whose mother tongue is Malayalam notes that the argument on behalf of the petitioner-respondent is that the properties are to be divided in this proportion and that emphasis is laid on phrase in this proportion to show that the intention of the parties was that after setting apart 130 paras for the temple expenses, the balance 570 paras of yielding properties are to be divided in the proportion of 385 to 185. Inspite of this argument addressed to him the learned District Munsif has held that the meaning is that the properties are to be divided equally. The learned District Judge has put this word "proportion" in the forefront of his argument. He says in para. 4: The agreement is certainly not easy to interpret.... In my opinion, it is only by taking this view that effect can be given to the last sentence of the paragraph it has been settled to divide and take the Kottekkad properties in this proportion. What else can this mean but that the Kottekkad properties are to be divided in the proportion of 385 to 185. This comes out very clearly if the Malayalam is read.