SUBBIAH MUDALIAR Vs. GOPALA MUDALIAR

JUDGEMENT

(1.) This is an appeal by the plaintiff who sued to recover possession of certain properties as a reversioner to the estate of one Velu Mudaliar alias Doraisami Mudaliar who is said to have died in 1875, leaving a widow Sivagami Anni who died in 1918, Issues were raised in the case in respect of (1) the relationship of the plaintiff to Velu Mudaliar, (2) the title of Velu Mudaliar to the suit properties, and (3) the validity of alienations by Sivagami under which the defendants claim. On points 2 and 3 the learned Subordinate Judge recorded findings substantially against the defendants. But on point 1 he recorded a finding against the plaintiff and accordingly dismissed the suit. We have heard arguments from the learned Counsel for the appellant only on the question of relationship, and in the view that we take on that matter it is unnecessary to deal with the other questions.

(2.) The relationship alleged by the plaintiff is set out in the pedigree reproduced at p. 17 of the printed record, in para. 31 of the lower Court's judgment. His case in substance is that there were five brothers, Annamalai Mudaliar, Appukutti Mudaliar, "Suppa or Subbiah Mudaliar, Kolandaivelu Mudaliar and Chinna Appakutti Mudaliar, that the propositus Velu or Doraiswami Mudaliar was the great-. grandson of the first Appukutti Mudaliar and that the plaintiff himself is the grandson of Suppa or Subbiah. It is unnecessary for the purpose of this case to consider whether the propositus was not the great-grandson of Appukutti or whether the plaintiff is not the grandson of Suppa Mudaliar. The main point that the plaintiff has to make out is that Appukutti and Suppa Mudaliar were brothers. Apart from the oral evidence of four witnesses examined on the plaintiff's side, to which we shall presently refer, the plaintiff relied mainly upon three sets of documents: (1) the papers relating to a litigation of 1883, O.S. No. 81 of 1883, on the file of the Negapatam Sub-Court; (2) Exs. C, C-l and C-2 evidencing certain private transactions of Suppa Mudaliar, and (3) certain letters and postcards filed, as Ex. D series containing the correspondence that passed between the plaintiff's father lyyadorai Mudaliar and one Thandavaraya Mudaliar who was the plaintiff in O.S. 81 of 1883, shortly before and during the pendency of that suit. It will be convenient to take the documents in the above order.

(3.) The litigation of 1883 was started by one Thandavaraya Mudaliar claiming to be the grandson of Annamalai, the eldest of the five brothers. Ex. A, the plaint in that case, stated that Annamalai and the elder Appukutti were undivided and the. other three brothers had become divided and the plaintiff claimed immediate possession on the footing of survivorship, whereas if they too had become divided when the other three brothers were said, to have become divided, the plaintiff" could not have obtained anything more than a mere declaration. As will appear when we come to deal with Ex. D series Thandavaraya was negotiating from the very beginning for the help of Ayyadurai, the present plaintiff's father. According to the genealogy stated in both the litigations lyyadorai would have been the presumptive reversioner if the five branches had become divided. In his deposition, the present plaintiff states (as having been heard by him from his father) that lyyadorai was in the first instance asked to institute the suit of 1883 as plaintiff, but. for some reason he refused and therefore Thandavaraya filed the suit in his name. Apart from the findings arrived at by the Court in that suit, it is the present case, and is also the drift of the correspondence in Ex. D series, that the story of non-division between Annamalai and Appukutti was false and false to the knowledge of the parties, and the only explanation suggested is that they must have put it forward in that form in order to get immediate possession of the properties. This is an important fact to be borne in mind in dealing with the weight due to the story then given as to the relationship, even apart from the question of the admissibility of the statements contained in Ex. A. If we look at one of the letters in Ex. D series for a moment, and one of the documents in Ex. C series for a moment, there is a curious inconsistency in the position taken up by Iyyadorai. Ex. 0 is now sought to be relied on as containing a reference to Suppa Mudaliar (the father of Ayyadurai) having purchased the shares of Kolandaivelu and Appukutti in the ancestral house. This would prima facie suggest a division in interest between these three persons.