NARAYANASWAMI MUDALIAR Vs. RATNASABAPATBY MUDALI

JUDGEMENT

(1.) This appeal arises out of a suit for partition of the estate of one Subbaraya Mudaliar, who died in December, 1927. The minor plaintiffs are the sons of Subbaraya's third wife. The first defendant is the son of his first wife and defendants 2 and 3 are the sons of his second wife Subbaraya executed a will (Ex. I) on 17 October, 1927, whereby he disposed of all the properties, movable and immovable which he then had, partly in favour of the plaintiffs and partly in favour of the defendants. It is sufficient to say that he allotted to the plaintiffs a house and Rs. 6,000 in cash. The plaintiffs advisers apparently felt that there was an unequal division of the estate and thought fit to institute this suit for partition on the footing that all the properties in Subbaraya's possession were joint family properties and that the will was accordingly invalid. The learned Subordinate Judge has upheld the contention of the plaintiffs and decreed a general partition. Hence this appeal by the defendants.

(2.) A point was taken before the lower Court that Ex. I was not duly executed by Subbaraya. This formed the subject of the 2nd issue; the learned Subordinate Judge has found that the will was duly executed by Subbaraya in a sound disposing state of mind. The only question therefore that was argued before us is that raised by the first issue, namely: Whether any of the plaint properties are the self-acquisition of the deceased Subbaraya Mudaliar.

(3.) On behalf of the appellants, Mr. Krishnaswami Aiyar made a point that the lower Court had really proceeded on a theory of blending or throwing into the common stock which was not the case made in the plaint. Mr. Sitarama Rao pointed out in reply that no such objection had been raised in the grounds of appeal nor any surprise pleaded. Apart from this, however, we are not quite sure that the learned Subordinate Judge has proceeded on a theory of throwing into common stock. His observation in paragraph 17 of the judgment rather suggests that it was his view that Subbaraya's purchases and investments were never his self- acquisitions, because he never kept his earnings separate from the income derived from the joint family properties. As we have, however, heard the. case fully on the merits, it does not seem to us necessary to; consider whether really there has been any departure from the case made on the pleadings.