SUBBA REDDI Vs. ALAGAMMAL

JUDGEMENT

(1.) The only question of any difficulty in this case is whether Ex. VI is to be construed as effecting a division in status as well as a division of the specific properties with which it deals expressly. This appears to me to be mainly a question of the construction of the document. In Vaidyanatha Iyer v. Aiyaswami Aiyar (1908) I.L.R. 32 M. 191 : 19 M.L.J. 94, where a partial partition of property was held to raise a presumption of division in status, there was no deed of partition and I do not think that case is an authority for holding that wherever the co- parceners execute a document dividing a particular item of property that raises a presumption that they intended to become divided in status. If such a presumption is to be raised, there must in my opinion be something else in the document to raise it. This was a case of partition between the 1st defendant and his father, the 1st defendant being the son by the second of the father s three wives, and the partition was brought about by the father who was ill and anxious to make provisions for his first and third wives, as he did immediately afterwards in the will, Ex. VII, which he executed on 3rd September, the partition-deed, Ex. VI, having been executed on the 25th August, Whereas the partition deed appears to have included expressly all the joint family properties except the outstanding decrees and debts which were not mentioned and were considerable, the will bequeaths to the two wives not only the moveable and immoveable properties taken by the testator under the partition deed, Ex. VI, but also "all the moveable and immoveable properties, outstanding loans and properties belonging to me at present, but not included in this will and the moveable and immoveable properties, outstanding loans and properties which I may hereafter acquire." This shows if proof were necessary that at the time of Ex. VI all parties must have been perfectly well aware of the existence of other joint family properties which were not included in the partition-deed and the question, in my opinion, is whether from the terms of the deed we can gather that it was the intention of the parties to remain joint or become separate as to these items also. I do not think any strong presumption arises from the situation of the parties who were father and son. If the father was anxious to partition all the joint family properties with a view to leaving his share to his two wives, it, is strange he did not do so expressly and it has been argued that such was not his intention and that he probably thought that the Rs. 20,000 he took under the deed would be sufficient for these wives, and was willing that his son should take the rest by survivorship. As against this, there is the recital in the deed that there had been differences between the 1st defendant and his father as well as between the women of the family. On the whole I do not think it is safe to draw any inference as to the motives actuating the parties. The partition deed, however, after providing for the division of the scheduled properties, goes on : "As we have effected partition in this manner " and provides that the 1st defendant s mother who had been living in his family should be maintained by him and not by her husband. I have come to the conclusion, though not without hesitation, that these provisions are sufficient to enable us to raise a presumption that the parties intended to become divided in interest and that the decrees and outstanding debts were not divided then simply because they had not been collected and it was not possible to make a satisfactory division then as it could not be foretold what they would realize. The appeal will be dismissed with costs. A.S.No.243 of 1914.

(2.) This case follows my decision in Appeal No. 47 of 1913, and I dismiss the appeal with costs. A.S.No.47 of 1913. Seshagiri Aiyar, J.

(3.) I agree. Mr. Rangachariar frankly conceded that in the face of the overwhelming evidence there is regarding the consent of his client to the division, he is not prepared to argue that the partition was brought about by undue influence.