SADASIVAN PILLAI Vs. SHANMUGAM PILLAI

JUDGEMENT

(1.) The plaintiff's suit is for partition and incidental reliefs. The Subordinate Judge granted a decree for partition in respect of properties set out in B and C schedules but dismissed the plaintiff's suit as regards the properties mentioned in A schedule. The plaintiff appealed to the District Court of West Tanjore and the District Judge granted a decree for partition in respect of A schedule properties. The first defendant has preferred this second appeal against the District Judge's decree.

(2.) The case of the plaintiff is that the properties mentioned in schedule A are ancestral and that he is entitled to a half share in them. The defence is that by a Will dated 10 September 1912, the father arranged that the plaintiff should get only 2 1/2 acres of the ancestral properties and the rest should go to the first defendant the elder brother. The Subordinate Judge found that Ex. A was inoperative as a Will but it evidenced a family arrangement to which the plaintiff was a party and under that arrangement the family properties were divided between the two brothers and that the plaintiff was not entitled to set aside that arrangement. The learned District Judge in para. 7 finds that Ex. A being invalid and inoperative as a Will, the plaintiff gave his consent to it being under the impression that his father had a right to make an unequal division of ancestral lands. The plaintiff's case as disclosed in the plaint is that fraud was practised upon him by the father and the elder brother and that he consented to the arrangement believing what they said. In his evidence he wanted to make out some sort of coercion on the part of the father. The learned District Judge finds that the plaintiff agreed to the arrangement under Ex. A owing to a mistake of law. If Ex. A evidences a family arrangement, the plaintiff cannot go behind it, unless he could prove that he was either deceived or coerced into agreeing to the arrangement or that he acted under a mistake of fact or under undue influence.

(3.) Exhibit A is the Will of the father of the plaintiff and the first defendant, and it was executed on the 10 September 1912. In that he says: I have made the following arrangement in view of the same, in order that my heirs may afret my death...and inasmuch: as my two sons Sadasivam and Shanmugam are regarded equally by me in respect of the same and inasmuch as I am actuated by the thought of effecting equal division in the matter of the enjoyment of the properties and I have for that purpose executed and left this Will, inasmuch as I have effected division of my properties under this according to their shares and and have left the properties to the said Shangam and have executed and left this will.