APPAVU ALIAS LAKSHMANAN PILLAI Vs. MANICKAM PILLAI

JUDGEMENT

(1.) This appeal arises out of a suit for partition instituted in the Court of the Subordinate Judge of South Malabar. It has been filed by the first and the second defendants. The point raised by them is a very simple one. The plaintiff has filed a memorandum of cross-objections which challenges the correctness of the interpretation of an agreement entered into between the members of the joint family on the 30 September, 1925. The question here is not quite so simple.

(2.) The joint family was composed of three brothers, Kasturi Pillai, Sevanthan Pillai and Appavu Pillai. Kasturi died on the 6 October, 1925, and Sevanthan on the 19 May, 1930. The plaintiff is the son of Kasturi. There were five defendants : Appavu, his three sons and the widow of Sevanthan. The plaintiff averred that he was entitled to a half share of the family estate as the family had throughout remained joint and there were only two surviving coparceners namely himself and his uncle Appavu. The defendants averred that the agreement of the 30 September, 1925, effected a division of status and a partition of the family estate. On this basis the plaintiff could only have a one-third interest in the estate. The first defendant alleged that Sevanthan had made an oral will by which he left his entire share to him. The learned Subordinate Judge held that Sevanthan had made no will, but he accepted the defendant's contention that the agreement of the 30 September, 1925, had in fact effected a division of status. The first defendant does not challenge the finding of the Subordinate Judge that Sevanthan died intestate. He merely complains that the Subordinate Judge erred in holding him liable for a sum of Rs. 2,039-12-4. The plaintiff makes no complaint of the Subordinate Judge's judgment, except in so far as it decided that the agreement of the 30th September, 1925, resulted in a division of status and a partition of the property.

(3.) The question with regard to the Rs. 2,039-12-4 arises in these circumstances. Kasturi was a subscriber to a Kuri, or chit fund, and as a subscriber he became entitled to receive from the stakeholder Rs. 6,639-12-4. He was very ill at the time and not. in a position to look after his affairs. Admittedly the stakeholder paid out the full sum of Rs. 6,639-12-4 and the plaintiff says that all the money was received by the first defendant, who is consequently liable to account to him for it. The first defendant admits that he received Rs. 4,600 of the Rs. 6,639- 12-4, but he denies that: he ever received the balance of Rs. 2,039-12-4.