SWAMINATHA ODAYAR Vs. SGOPALASWAMI ODAYAR

JUDGEMENT

(1.) An objection which ought to have been taken in limine, has been raised at the closing stage of a long argument, to the effect that the appeal, is incompetent on account of certain parties not having been added as respdndents. We do not at present propose to set out the history of this long-drawn litigation, for, it is sufficient to state just a few facts in order to deal with the contention raised. This was a partition suit commenced nearly two decades ago and the members of the family to which the action relates, owned considerable properties when it started, but they have since been reduced, with the exception of the sixth defendant, to such straits, that some are represented by the assignees in insolvency, and the others, by the trustees under a composition deed. The only solvent member now of the family is the sixth defendant and he is the appellant before us. There are several memoranda of objections in the nature of cross-appeals which have been filed. The principal contesting respondent is the third defendant represented by the Receiver in insolvency and the preliminary objection referred to above has been raised by his counsel, Mr. Venkatarama Sastri. In the action originally the family was divided into three branches: the first consisting of the plaintiff, the second of defendants 1 and 2, and the third of defendants 3 to 8. The preliminary decree of the trial Court passed in 1924 separately allotted to the sixth defendant of the third branch a distinct share, the integrity of this branch not having been otherwise disturbed. We must observe that defendants 3, 4, 5, 7 and 8 form two sub-families: (1) defendant 3 and his sons defendants 5 and 7, and (2) defendant 4 and his son defendant 8. An appeal from the preliminary decree was filed here and during its pendency the third defendant was adjudicated insolvent in 1925 and the fourth defendant in 1927. With only one aspect of the appellate decree passed by the High Court we are now concerned, namely, that it effected a further sub-division of shares as between the third and the fourth defendants. The ultimate position as settled by the High Court's decree, so far as the shares were concerned, was thus:

(2.) The case went back to the trial Court which in due course passed a final decree, which the sixth defendant as the appellant now attacks.

(3.) The preliminary decree, which was confirmed by the High Court, has held defendants 3 to 8 jointly accountable to the other branches of the family in respect of certain matters, that is to say, the question as between defendants 3 to 8 on the one hand and the plaintiff and defendants 1 and 3 on the other, is concluded by the judgment already pronounced by the High Court; but the point yet remained to the decided, namely, as among themselves (that is, defendants 3 to 8) how much of this common burden was each of the sub-groups to bear ?--in other words, how much was to be borne by the third defendant's sub-group consisting of himself and his sons defendants 5 and 7, how much by the fourth defendant's sub-group consisting of himself and his son defendant 8 and how much by the sixth defendant? The learned Subordinate Judge, after dealing under various heads with sums of money amounting to several lakhs, passed a final decree, containing in the result inter alia the following directions: (1) The sixth defendant shall pay Rs. 2,177-9-0 to the plaintiff's branch, Us. 10,515-7-6 to defendants 1 and 2 and Rs. 18,385-1-6 to the fourth defendant's branch; (2) The third defendant's branch shall pay the fourth defendant's branch Rs. 10,932-2-3.