PANYAM THIRUMALAPPA Vs. ALASYAM RAMAPPA

JUDGEMENT

(1.) This second appeal arises out of a suit for the recovery of the plaintiff's one-third share in certain items of immovable property and for incidental reliefs. It is the plaintiff's case that his deceased brother Yerikalappa, the second defendant and Nettekalappa the father of the first defendant were partners in an Abkari business from 1892 to 1904, that out of the funds of that business they purchased the suit properties, that in 1904, there was a dissolution and settlement of accounts between them evidenced by Ex. A, that under that arrangement provision was made for the discharge of debts and for division of the outstandings and that as regards the immovable properties which had been purchased with the funds of the partnership, the three partners agreed that they should be entitled to the same in equal shares. The plaint adds that for many years after the date of Ex. A, Yerikalappa and after his death the plaintiff as his surviving brother were receiving his one-third share of the income of the suit properties. The plaint prayed for division of the immovable properties thus held in common. The first defendant, who is the principal contesting defendant, pleaded ignorance of the alleged partnership and of all that is said to have happened in 1904, though in the written statement some kind of reference is made to a dissolution 25 years ago. The positive case put forward on behalf of the first defendant was that the items now claimed by the plaintiff to be the common properties of the partners were the self-acquisitions or separate properties of the first defendant's father and the first defendant also raised pleas of limitation and adverse possession.

(2.) A number of issues were framed in the case and they were substantially decided in the plaintiff's favour by the first Court which gave him a decree for partition. On appeal, the learned District Judge reversed the trial Court's decree and dismissed the suit partly on certain grounds of law and partly on what may best be described as a mixed finding. Hence this second appeal by the plaintiff. So far as the lower appellate Court's judgment can be described as embodying a finding of fact, such finding is based on such an obviously erroneous approach to the case that I am unable to accept it as a finding binding on me.

(3.) The learned District Judge accepts the existence of the partnership alleged in the plaint and its dissolution in 1904, and also seems to agree with the trial Court's view that the items of immovable property now claimed were purchased with the funds of that partnership. Though with reference to Ex. A he makes some observations suggesting a feeling of distrust in his mind, I do not read them as throwing any doubt on the genuineness of Ex. A because the first defendant himself accepts its genuineness. What seems to have oppressed the learned Judge is that in spite of Ex. A the first defendant's father was allowed to have the properties registered in his own name during all the time that he lived, that is, up to 1918, and that he was allowed to enjoy the properties exclusively. The strongest disproof of the exclusive enjoyment or exclusive title of the first defendant's family is the admitted partition deed Ex. D in that family which proceeds on the footing that family had only a third share in these items; and without any conceivable reason or explanation, the learned Judge brushes it aside with the remark that the recital in Ex. D that the first defendant's family was entitled only to a third share in those properties might be due to the ignorance of the first defendant as to the exact properties to which he and his father are entitled. The first defendant never pleaded ignorance and till he came into the witness-box he had never suggested that there has been any mistake, in this respect in Ex. D. Even when he was put questions about Ex. D he nonchalantly pretended ignorance that there was any such statement in Ex. D. It passes my comprehension how the learned Judge when asked to consider the weight of an admission of that kind by a party could ignore it on some guess of his own without any plea or explanation by the party making the admission.