NARAYANA SAH Vs. SANKARA SAH

JUDGEMENT

(1.) This is a suit by the plaintiff for a partition of joint family properties, and for the delivery of his share. One Munuswami Sah, Sankar Sah (1 defendant), Chinnaswami Sah and Ponnuswami Sah were four brothers. The Ist defendant is one of the above four who is alive. Munuswami Sah had three sons and a daughter. The eldest son Sudaf-sana Sah filed C.S. No. 63 of 1910, got his share and got himself divided from the family. The decree in that suit is marked as Ex. A. The second son Chender Sah is the 10 defendant. He has a son and two daughters who are respectively the nth, 20 and 21 defendants. The third son Narayana Sah is the plaintiff in this suit and the daughter Lakshmi Bai is the 17 defendant. Sankar Sah, the 1 defendant, has five sons and two daughters. Krishna Sah, the eldest son, is the 2nd defendant and he has a minor daughter who is the 18 defendant. The second son Kasi Sah is dead and the 6 defendant is his minor son. The third son Gaja-pathi Sah is the 3rd defendant and he has a son who is the 7 defendant and a daughter who is the 19th defendant. The fourth son Girdraj Sah is the 4 defendant. The fifth son Rajaram Sah is the 5 defendant. The two daughters are the 15 and 16 defendants. Chinnaswami ? Sah, a brother of the 1 defendant, is the 8 defendant and his son is the 9 defendant. Ponnuswami Sah, the last brother, died, leaving two sons Krishna Sah and Ramakrishna Sah who are the 12 and 13 defendants. Thus there were four branches of the family and the relationship is not disputed, nor is it disputed that there are joint family properties in respect of which a partition is necessary. The plaintiff alleges that he is entitled to one-eighth share in the properties whereas the contesting defendants in the suit, namely, the other two branches of the family and their descendants, state that the plaintiff is only entitled to one-twelfth share as Sudarsana Sah whom I have already referred to got his one-twelfth share and became divided from the family and that it should be taken into account in this partition.

(2.) One of the questions to be decided is what is the share of the plaintiff and incidentally also what is the share of the 10 defendant who supports the plaintiff. Another question raised in the suit is whether the contract business carried on by the 1 defendant with the Corporation of Madras is joint family business or the separate business of the 1 defendant. The case for the plaintiff and the 10 defendant is that it is the separate business of the 1 defendant while the case of the other defendants is that it is joint family business which the 1st defendant carried on as the head and managing mem-ber of the family. There are allegations made in the plaint of waste and mismanagement, but it is unnecessary to consider those allegations as no evidence was let in nor were any arguments addressed on the point as to how far the 1 defendant is liable for any waste or mismanagement. The next question is as regards the rights of the plaintiff and the 10 de-fendant to mesne profits. Notice was given in the year 1922 by the 10 defendant claiming a share and he would prlma facie be entitled to mesne profits from the date of notice, but he claims mesne profits two years earlier on the ground that he was making oral demands for partition which were not complied with.

(3.) Three questions arise for determination in this suit, viz.: (1) What is the share which the plaintiff is entitled to? (2) Whether the contract business carried on by the 1 defendant with the Corporation of Madras is joint family business or the separate business of the 1st defendant in which the plaintiff and the 10 defendant have no interest and are not liable for any loss? and. (3) Whether the 10 defendant is entitled to mesne profits for any period earlier than the date of his notice, viz., 7 November, 1922?