PERIASWAMI NAINAR Vs. KANDASAMI NAINAR

JUDGEMENT

(1.) Appeal by defendant 3 against the decree of the Court of the District Judge, South Arcot, in O. S. No. 25 of 1919. The suit was one of partition. One Samudraja Nainar left three sons, Chinnathambi Nainar, Muthu Nainar and Kandasami Nainar. Defendant 1 (deceased) is the son of Kandaswami and plaintiff is the son of defendant 1. Chinnathambi Nainar had two sons, Periaswami Nainar and Chinnayya Nainar. Defendant 2 is the son of Periaswami Nainar, defendant 3 is the son of Chinnayya Nainar. Defendant 5 is the widow of Chinnayya Nainar, and defendant 4 is the widow of a brother of defendant 1. The case set up by the plaintiff was that Chinnathambi Nainar and Kandasami Nainar were members of a joint and undivided Hindu family; that after their death their sons continued to be members of a joint and undivided Hindu family, that the family owned the moveable and immoveable properties detailed in the schedule attached to the plaint:that these properties were acquired by the joint exertions of the members of the family; that the purchases were made in the names of the father and defendant 2, father of defendant 3, as also in the name of defendant 3, as they were managing the family affairs; that misunderstandings arose between plaintiff and his cousins seven or eight months prior to the institution of the suit; and that, in spite of repeated demands, defendants 2 and 3 failed to effect a partition and deliver to plaintiff his share in the family properties. Defendants 4 and 5 were made parties, because they are entitled to maintenance. Defendant 1 died without filing a written statement, and defendants 2 and 3 contended that Kandsami, the grandfather of the plaintiff, separated himself from the family; that the properties sought to be partitioned, were not acquired by the joint exertions of plaintiff, his father, and grandfather; that there was no nucleus of ancestral property; that plaintiff and his father were living separately for many years; that as they were in destitute circumstances they were, out of compassion, allowed to live in their (defendants 2's and 3 s) family, and that plaintiff was not entitled to any share. They also contended that certain items were, in any event, their exclusive property.

(2.) The plaint was filed on the 23 April 1919, and on the 28 April 1919, defendant 1, and defendants 2 and 3 executed and got registered a document (Ex. 9) under which they appointed five arbitrators for effecting a partition in all the moveable and immovable properties belonging to us.

(3.) The document further recites that the parties to it agreed to execute the deed for the purpose of enabling the arbitrators to make the division and give them their shares. Two of the arbitrators mentioned in Ex. G declined to act, and on the 25 July 1919, Ex. J was brought into existence. Under this document three of the arbitrators mentioned in Ex. G, as also two others, were appointed arbitrators, and the document proceeds as follows: As our movable and immoveable properties have not been divided among us, we have nominated inated you as our arbitrators in order to effect a partition among us. We have selected you in order that you may make a proper inspection of the movable and immoveable properties which are in the possession of Periaswami Nainar. and Chinnathambi Nainar of us, and divide them among us as you think fit, and as described below and in accordance with law.