AHOBILACHARIAR Vs. THULASI AMMAL

JUDGEMENT

(1.) The facts of the second appeal may be stated first. Defendant 1 Ahobilachariar, defendant 2 Vedavyasachari, and the plaintiff's husband Padmanabhachariar were brothers. They had certain ancestral properties. Their maternal grandfather Magarappachariar executed a will dated 27 December 1878, dividing his property into two parts and giving one share to his elder daughter Thulasi Ammal and her sons, i. e. the above said Ahobilachariar and brothers and the other share to his younger daughter, and her sons. We are now concerned with the first share. Plaintiffs case is that the two defendants and her husband took that share in 1910. They divided the whole property consisting of the ancestral property and the property derived from their maternal grandfather, and in such division the suit items fell to the share of Padmanabhachariar who enjoyed from 1910 to 26 October 1918, when he died, and that they were trespassed upon by the defendants. She, therefore, sues to recover their possession. The defendants admit that there was an attempt at partition, but deny that there was a completed partition. Thay say that they refused to give a share in the maternal grandfather's property and this was why the partition fell through and that there was no division of the property. Two issues were framed: (1) Whether the plaintiff's husband and defendants 1 and 2 became divided as alleged by the plaintiff. (2) Whether the plaint properties are the ancestral properties of the plaintiff and defendants 1 and 2, and did the plaintiff's husband get the A schedule properties for his share.

(2.) Both the Courts below gave a decree to the plaintiff and the defendants have filed this second appeal.

(3.) The learned vakil for the appellants, Mr. Subramania Aiyar, argued that there is a change in the plaintiff's case. He contended that the allegation in the plaint was the properties specified in schedules A, B and C were to be divided by the late Padmanabhachariar and defendants 11 and 2 through their maternal grandfather; that this allegation being obviously erroneous the suit ought to be dismissed; that Padmanabhachariar not having been born in 1879, when the maternal grandfather died, he got no share under the will with reference to the rule of Hindu Law laid down in the Tagore case as to unborn demises, that Padmanabhachariar, therefore, got nothing from his maternal grandfather's property by reason of its being thrown into the common stock by defendants 1 and 2; that this was really the case considered by the Courts below and it ought not to have been allowed. A perusal of the District Munsif's judgment and the evidence adduced in the case shows that the parties went to trial on the point, whether the properties now in suit were treated as part of the family properties and were included in the partition and allotted to the plaintiff's husband's share in 1910. The second issue was wide enough to cover it and it is obvious that the parties understood it in that sense. The Subordinate Judge observes in para. 8 In spite of the defects in the pleadings the parties appear to have gone to trial after correctly understanding the situation.