V LAKSHMINARAYANAN CHETTIAR Vs. ARANGAYYA CHETTIAR

JUDGEMENT

(1.) This is an appeal from the decree of the Subordinate Judge of Dindigul dated 12 July 1932 reversing on appeal the decree of the District Munsif of Dindigul dated 30 June 1931 in O.S. No. 166 of 1930, a suit for partition and recovery of possession of a fourth share in the plaint site. The entire extent of the site in question is only 22 ft x 32 ft and though the site is said to be situated in Dindigul town, the tenacity with which this litigation has been fought is out of all proportion to the intrinsic value of its subject matter. The plaintiff claimed his one- fourth share on the ground that the entire site originally belonged to one Muthukrishna Achari and that after his death Muthukrishna Achari's surviving four brothers became entitled to the site and that one of such brothers, viz. Subbayya Achari sold his share to him in September 1925 (Ex. A). The defendant contended that the site was purchased by Muthukrishna Achari with joint family funds of himself and his brothers and that after his death one of his brothers, Ponnuswami Achari, as manager of the joint family, sold the entire site to one Subramania Chetti in 1920 (Ex. 1), and that Subramania Chetti sold the same to the defendant in 1922 under Ex. 2. The defendant's main contention thus was that the plaintiff's vendor Subbayya Achari had no right at all to the property which he purported to sell to the plaintiff under Ex. A.

(2.) The trial Court found that the plaint site was not the joint family property of Muthukrishna Achari and his brothers and that the plaintiff's vendor had title to convey his share in the plaint site. A preliminary decree for partition was therefore passed in favour of the plaintiff. On appeal however the Subordinate Judge differed from the District Munsif on the question as to whether the plaint site was joint family property or not, mainly relying on a certain document (Ex. 17) which was admitted in appeal. The trial Court's finding was that Muthukrishna Achari was the sole owner of the site. The Subordinate Judge held that it was joint family property and he further held--disagreeing with the trial Court--that by virtue of the two release deeds Exs. 7 and 8, executed by Subbayya Achari in 1920, he had ceased to have any interest in the joint family properties. As a result of these findings the lower appellate Court allowed the appeal and dismissed the suit with costs. The present second appeal is by the plaintiff.

(3.) Some complaint was made about the admission of Ex. 17 by the lower appellate Court, but I do not think there is much substance in this complaint. Ex. 17 had been tendered in the trial Court itself but was rejected on the ground that it had been produced late and was also inadmissible for want of registration. Both these objections were overruled by the Subordinate Judge in appeal and I am unable to say that he was wrong in admitting the document as evidence in appeal. Though it would appear that the learned Subordinate Judge relied almost entirely on the recitals found in Ex. 1 about family necessity or benefit, I am unable to say that there is no evidence sufficient to support his finding that the property was joint family property. It is a question of fact and there is no sufficient reason to interfere with the finding on that question in second appeal.