YEECHURI RAMAMURTHY Vs. YEECHURI RAMAMMA

JUDGEMENT

(1.) My learned brother will give judgment in this case. I concur in his judgment and adopt it, and it will stand as the judgment of the Court. Srinivasa Aiyangar, J.

(2.) The plaintiff, his father Narasayya, Gurumurthi, his eldest brother, and Venkataratnam, the 4th defendant, were members of a joint Hindu family. On the 29th of January 1904, while the plaintiff was a minor of the age of 15 or thereabouts, the father and the sons (the plaintiff being represented by the father) divided the family properties which consisted of about 6 acres of land and some house sites. There was a deed of partition, Exhibit XVIII in the case. In that partition 3 1/2 acres were allotted to the plaintiff while his brother Gurumurthi and Venkataratnam got a little over 1 acre each. The father retained no portion of the ancestral property except two mango trees. A larger share was allotted to the plaintiff on the ground that he was a minor whose upanayanam and marriage had not been performed. Besides the properties so divided it is stated in the deed that the properties which had been acquired before and any which might be acquired thereafter by the members of the family should belong to them individually. It appears that about 5 acres of land and some house sites were in the possession of the father, which he claimed as his self-acquisition, and about 15 acres of land in the possession of Gurumurthi, who likewise claimed them as his self-acquisition. They are described in schedules D and E to the plaint. Narasayya, the father, died in April 1905 having before his death made a Will bequeathing his properties to his wife, the plaintiff s mother who is the 5th defendant in the suit. Gurumurthi, the eldest brother, died in April 1910, and the 1st defendant is his widow and defendants Nos. 2 and 3 are his daughters. Plaintiff brought the suit to set aside the partition on the ground that it was fraudulent, his father having been induced to enter into the arrangement by the fraud and undue influence of the 1st defendant s husband Gurumurthi. He also states that the partition was unfair, inasmuch as the properties claimed to be the self-acquisitions of the father and the eldest brother were family properties in which the plaintiff was entitled to a share and that they should not have been excluded from the division. The 4th defendant, who was over 50 years of age at the time of the partition, supports the plaintiff and challenges the partition as being vitiated by fraud.

(3.) The mother of the 5th defendant, as 1 read her statement, though claiming the properties left to her under the Will of her husband (which I may mention she has given to the plaintiff himself reserving a life-estate to herself), does not traverse the allegations of the plaint as regards the character of the partition. Besides the properties described in schedules D and E, the plaintiff also claimed certain outstandings, moveables and immoveables described in schedules F, G and H, as part of the family properties in the possession of the 1st defend-ant they having been acquired, it is said, by the 1st defendant s husband either from or with the aid of the family properties before and after the partition. The Trial Judge held that the properties in schedules Dand E have not been proved to be the self acquisitions of Narasayya and Gurumurthi respectively, that the partition was therefore, unfair and was not binding on the plaintiff; he gave the plaintiff a 1/4th share in the properties in D and E schedules on the footing that though they were omitted from the division, there has been a division in status amongst the members of the family and the plaintiff was, therefore, entitled to a 1/4th share only as a tenant-in-common. He dismissed the plaintiff s suit in respect of his claim to the properties in F, G and H schedules on the ground that the plaintiff had not proved that they were family properties; on the same ground he also dismissed the suit in respect of J schedule properties, they being some vessels and utensils in the possession of the 5th defendant, the mother. The plaintiff has appealed claiming the whole or at least a half share in the properties in schedules D to J. The 1st defendant has filed a memorandum of cross-objections disputing the findings of the Trial Judge that the partition was unfair and, therefore, not binding on the plaintiff. Inasmuch as the cross-appeal of the 1st defendant goes to the root of the case we have heard it first, and the question for determination is whether the plaintiff is entitled to set aside the partition on the ground that it was unfair or prejudicial to his interests. At the outset, the question of the burden of proof in this case has to be decided; for if the burden was on the plaintiff to show that the partition arrangement was unfair or fraudulent, the plaintiff has wholly failed to establish the same. Both on principle and on authority I think the burden in these cases is on the plaintiff. This is not a case of a guardian entering into a transaction with his ward; nor even the case of a stranger entering into a transaction with the guardian of a minor in respect of the minor s property. Every adult member in a joint Hindu family is entitled to demand partition and can insist on having his share separated and given him and the minor members cannot resist the demand; all that their guardian can do is to protect their interests in the partition; so long then as the minors are represented by their natural guardian, the partition is as binding on them as on the adult members, unless any negligence or fraud on the part of the guardian is proved. It is true that a guardian of a minor could not insist on a partition on behalf of a minor unless, of course, it were proved that that partition or separation was for the benefit of the minor; but that is not this case. Partition amongst the members of the family is a family arrangement and is generally resorted to in order to keep peace in the family or preserve the family properties; and the principles application to family settlements are applicable to partitions among the members of a family. There must, of course, be equal knowledge on the part of the members and there must not be any overreaching or fraud. Even material mistakes do not matter, provided that all members have the same knowledge. As observed by Lord Eldon in Gordon v. Gordon 3 Swans. 400 at p. 463 : 36 E.R. 910 : 19R.R.230, "where family agreements have been fairly entered into, without concealment or imposition upon either side, with no suppression of what is true, or suggestion of what is false, then, although the parties may have greatly misunderstood their situation, and mistaken their rights, a Court of Equity will not disturb the quiet, which is the consequence of that agreement." It is for those who seek to set aside a family arrangement to establish the grounds on which they impeach it, [See Satya Kumar Banerjee v. Satya Kirpal Banerjee 3 Incl. Cas. 247 : 10 C.L.J. 503 at p. 510. In Nallappa Reddi v. Balammal 2 M.H.C.R. 182 where also a minor on attaining majority sued to set aside a partition in which he was represented by his mother as guardian, the learned Judges observed as follows: "In this case the plaintiff and his brothers appear to have been represented in good, faith by their mother and natural guardian, and there is nothing to indicate fraud, or that any undue advantage was taken of the plaintiff s minority, or of the sex of the mother." It appears that the plaintiff s branch in that case obtained only 1 mootta as its share while 4 moottas were allotted to the other branch, and it was contended that the division was unequal on the face of it. Dealing with this contention the learned Judges say, "there is no evidence of the relative value of these 5 moottas" and in concluding this portion of the judgment, say "that no such gross irregularity has been shown as will justify us in setting aside the division." It is obvious that in the view of the learned Judges the burden of proof was on the plaintiff. In Balkishen Das v. Ram Narain Sahu 30 I.A. 139 : 30 C. 738 : 7 C.W.N. 578 : 5 Bom. L.R. 461 the Judicial Committee seem to take the same view. They say: "If the partition was unfair or prejudicial to the minor s interests, he might on attaining majority by proper proceedings set it aside so far as regards himself." See also Parbati v. Naunihal Singh 3 Ind. Cas. 195 : 31 A. 412 at p. 422 6 A.L.J. 597 : 5 M.L.T. 427 : 13 C.W.N. 983 : 10 C.L.J. 121 : 11 Bom. L.R. 878 : 36 I.A. 71 : 19 M L.J. 517 (P.C). In Ghanvirapa v. Danava 19 B. 593 Bailey, C.J., seems to take the same view (see page 603) though Fulton, J., is of the contrary opinion (see page 604); but the authorities which he cites for that position do not seem to support him, and the passage cited from Mayne which is to be found in page 662 of the 8th Edition shows that that learned author was also of the opinion that the burden was on the plaintiff.