SEEYALI ACHARI Vs. KDORAISWAMI ACHARI

JUDGEMENT

(1.) This is an appeal against the judgment and decree of Kunhi Raman, J., dismissing C.S. No. 46 of 1945 in which the appellants sued the first respondent, their uncle and the second respondent, their father, for a partition of certain properties claimed to be family properties and for the separation of their three-eighths share therein. The grandfather of the plaintiffs, Seeyali Achari, died on 27 August, 1926, after having executed a will on the 12 May, 1926, whereby he distributed his property amongst his three sons (respondents 1 and 2 and one Arumugha) and four daughters. It is common ground that the property dealt with by Seeyali Achari's will was his self-acquired property. It is unnecessary to refer to the legacies given to the daughters. A house belonging to the testator j in Kallukaran Street, Mylapore, was bequeathed to Arumugha and his wife for their joint and several lives with remainder in favour of their issue, if any, natural or adopted. In the absence of such issue, the house was to pass to the issue of the other sons of Seeyali Achari, namely, respondents 1 and 2. Respondents 1 and 2 were given the house bearing door No. 26, Kapaleeswarar North Ward Street. They were directed to discharge the debt borrowed by the testator from the Mylapore Hindu Permanent Fund on the security of the said house and they were to divide the house in equal shares after the testator's death and " enjoy absolutely with rights to convey by gift, exchange and sale". There was a further direction that " the said house shall be mortgaged in common" for raising a loan up to Rs. 1,000 for the expenses of the marriage of the second respondent if such loan should become necessary, and that such debt should be discharged by both the respondents. Respondents 1 and 2 were also given some moveables worth about Rs. 300 which they were to divide equally. The second respondent was about 13 years old at the time of his father's death. It is admitted that the respondents continued to live together till 6 November, 1935, when they became divided and executed a deed of partition, whereby house No. 26, Kapaleeswarar North Ward Street, was allotted to the first respondent and house No. 30 in the same street which had been purchased in the name of the first respondent sometime in 1930 was allotted to the share of the second respondent. Each house was valued at Rs. 10,000, but whether that represented the actual market value or not, it has not been suggested that the houses were not of almost equal value.

(2.) The partition deed refers to a division which took place between the brothers of "gold and silverware, brass vessels and mavadai and maravadai samans which are being enjoyed by us by virtue of the will dated the 12 May, 1926, left by our father". The clause containing the division of the houses runs as follows: We hereby divide the undermentioned house, site, etc., of the value of about Rs. 20,000, which are being enjoyed by us by virtue of the aforesaid will, dated the 12 May, 1926, as our self-acquisition, and also as having been purchased in the name of K. Duraiswami Achari, out of us, this day as per the following particulars. This partition deed is attacked in the plaint as one fraudulently brought about by the first defendant " taking advantage of the want of sufficient worldly experience of the father of the plaintiffs who was a devoted brother willing to submit to any dispensation by the elder brother," and a declaration is sought that the said partition is null and void and not binding on the plaintiffs. The allegation which we read as one of undue influence was hardly attempted to be substantiated either before the learned trial Judge or before us. There is, a further allegation in the plaint that the partition did not include all the items of joint family property and that the first respondent must have secreted joint family funds to the detriment of his brother and nephews.

(3.) The third plaintiff was not born at the time of the partition. It is not clear whether the second plaintiff was born; but it is unnecessary to say anything further about it as the first plaintiff who was admittedly born before the partition can have it set aside provided he establishes grounds sufficient in law for the purpose and the existence or otherwise of the other plaintiffs would only be material in giving the necessary directions as to the partition or the further partition to be made in case the partition of 1935 is set aside or has to be supplemented.