RAMAKRISHNA AYYAR Vs. PARAMESWARA AYYAR

JUDGEMENT

(1.) This appeal arises out of an action brought by the plaintiff Parameswara Ayyar for partition of the property belonging to a Hindu coparcenary consisting of himself and his father and brothers. The main defence to the claim was that the plaintiff had parted with his share in the estate by a deed executed by him on 31 August 1916, and ceased to have any interest in the property sought to be partitioned. This plea has been overruled by the Court in India, with the result that the plaintiff has been granted a preliminary decree for partition of the joint estate. On this appeal preferred by one of the brothers of the plaintiff (the father having died during the pendency of the suit in the trial Court), it is again urged that the deed referred to above operates as a bar to the action. The circumstances which led to the execution of the document, may be briefly stated. The plaintiff who was an improvident young man of loose character, had embarked upon a career of extravagance and reckless borrowing. Both his father and father-in-law, were therefore anxious to prevent his creditors from seizing his share in the estate in satisfaction of the debts due to them. They accordingly induced him to assign his share in favour of his father in-law for a nominal consideration of Rs. 1,000. But the High Court in concurrence with the trial Judge have decided that the transfer was intended, not to deprive him of his property, but to save it from his creditors, and that it did not extinguish his interest in the estate. The concurrent findings of the Courts below, proceeding, as they do, upon an appreciation of the evidence adduced by the parties, cannot be disturbed; and it is clear that the plaintiff, having successfully removed the obstacle in his way, must be held to be a coparcener in the joint property.

(2.) In order to determine the property which was available for partition, the Courts had to adjudicate upon certain alienations of the coparcenary, property which were made by the plaintiff's father after 31 August 1916. There are only two transactions which now require consideration. One of them is a gift made by the father in October 1916. Now the deed evidencing the gift contains an express clause to the effect that in the event of the donee dying without leaving any male issue, the gifted property would revert to the donor. It is beyond dispute that the donee has died and left no male issue. The clause in question therefore comes into operation; and without impeaching the deed of gift the plaintiff is entitled to claim the property as part of the estate which should be partitioned.

(3.) The other transfer was made by the father on 12 November 1916, by an instrument which purported to sell to his sister for a sum of Rs. 7,000 the property specified therein. There is however no evidence that she ever paid the money which was the ostensible consideration for the transfer. Indeed as stated by the High Court, she does not lay any claim to the property, and has in fact re-conveyed it to the appellant who represents the joint family. The learned Judges of the High Court were therefore justified in treating it as part of the joint estate.