B GOVINDA AYYAR Vs. BSRINIVASA IYER

JUDGEMENT

(1.) This second appeal arises out of a suit for partition. The common ancestor of the parties is one Narayana Iyer and a pedigree of the family appears at p. 4 of the pleadings paper at the end of the plaint. Narayana Iyer died early in 1867. His eldest son Appaswami alias Rama Iyer died in 1906. The second son Veeraswami Iyer died in 1904. The plaintiff's father Venkatasubba Iyer died in 1872 and plaintiff is said to be his posthumous son by his second wife. The plaintiff was, therefore, 45 at the time of the suit in 1917. Ranga Iyer died in 1885 or 1886. The eldest Appaswami had three sons; Srinivasa Iyer, defendant 1, Narayana Iyer, defendant 3, and Subramania Iyer, defendant 5. It is important to mention that Narayana Iyer and Subramania Iyer claim to be adopted respectively by Ranga Iyer and Veeraswami Iyer. The District Munsif found against these adoptions and the District Judge recorded no finding about them. The defendants pleaded a partition 50 years ago. It takes us to the end of 1867 or beginning of 1868. The Munsif found that there was no division and decreed the plaintiff's suit. On appeal the District Judge reversed the Munsif's judgment on the question of division and dismissed the plaintiff's suit. The plaintiff files the second appeal. Mr. N. Chandrasekhara Iyer, appearing for the plaintiff, while admitting that the question is one of fact, complains that the judgment of the District Judge is vitiated by several misstatements of fact and, therefore,- -contends that there ought to be a fresh finding.

(2.) I think it must be admitted that there are several misstatements in the District Judge's judgment. In p. 9 he refers to Ex. I which is dated 1873, and not 1893 and Ex. IV sales to defendant's father, But the sentence, as it runs, suggests that they are sales by the widow of the plaintiff's step-brother, whereas Ex. II is the only deed in favour of defendant 1's father by the widow of the plaintiff's step-brother. The District Judge then says: "This shows separate acquisition." I do not agree with the District Judge when he says that these three sales necessarily show separate acquisitions. If he was the manager of the family they are consistent with purchase by a manager, but Ex. II being a purchase from the widow of one of the members of the family, suggests both a division and a separate acquisition. In para. 10 he refers to Ex. 23-A and order on a claim petition. A decree was obtained against defendant 5 in the Madras Small Cause Court and some property was attached by the decree-holder. Defendant 1's father and his daughter Seetha Ammal filed two claim petitions. Ex. 23-A is the order on one of them, namely, that by Seetha Ammal, but in the body it refers to both the petitioners. The claim petitions were allowed. The decree-holder filed two regular suits. Original Suits Nos. 212 and 213 of 1900, on the file of the Poonamalle District Munsif's Court. These were disposed of by a common judgment, viz., Ex. 23. To neither of these is the plaintiff a party.

(3.) The District Judge in para. 10 says: Property belonging to all the brothers attached. The brothers objected.