C VENKATACHARIAR Vs. BONTHAM PACHAYAPPA CHETTI

JUDGEMENT

(1.) This was a suit for partition and delivery with mesne profits of one-third of the permanent leasehold village of Paoharahalli. The suit was decreed by the District Munsif. On appeal to the learned District Judge of Salem it, was held that the plaintiff was not entitled to one-third of the village but only to one-third of the income. On the hearing of the second appeal, Mr. K.V. Krishnaswamy Aiyar appeared for the plaintiff-appellant, and Mr. Somayya for the Respondents 1 to 4 intimated that his clients had no interest and took no part in the argument. I have accordingly heard the appeal as an ex-parte matter. The plaint agreement of the 4 September 1845 has apparently disappeared1 and we are thrown back for its terms on to a recital in the judgment in O.S. No. 569 of 1887 in the District Munsif's Court of Tiruppattur. The District Munsif there says: Its contents are to the effect that in consideration of the advances made in kind and in money to the tenants of the villages by Sesha Ayyangar, Krishna Ayyangar agreed to divide the income in cash and waram of the said villages with Sesha Ayyangar in the proportion of two to one, to give the latter accounts as to produce, waram, etc., of the two villages and in the result to conduct the affairs of the villages in consultation with Sesha Ayyangar. The document closes with a final clause to the effect that the contracting parties should divide between them any loss relating to these villages in the proportion mentioned.

(2.) Krishna Ayyangar's interest is now vested in the defendants and Sesha Ayyangar was the appellant's father. In Second Appeal No. 1307 of 1890, Ex. A, (2), Wilkinson and Handley, JJ., held with regard to this agreement: We see no reason to doubt that the grantor who was the uncle of the grantee, intended to alienate and did alienate in perpetuity to his nephew, a one-third share of the village which he held on permanent lease in consideration of services rendered and, in all probability, out of natural affection.

(3.) In Ex. L. Varadachari, the son of Krishna Ayyangar, the grantor, refers to the present plaintiff as our coparceners Venkatachari and others." That is a deed of collateral security, dated 1896. In a plaint Ex. D in O.S. No. 663 of 1901, on the file of the District Munsif's Court of Tiruppattur, the present plaintiff and others brought a suit claiming one-third share in the villages and in Ex-D (1) the written statement of the 1 defendant Varadachari, in the same suit he pleaded: In any case, the plaintiffs are entitled only to one-third share in the said villages.