THOGARCHEDU KAKAMMA Vs. THOGARCHEDU CHANDRASEKHARA SOMAYAJULU

JUDGEMENT

(1.) This appeal is preferred by the defendant against the order of the District Judge of Kurnool remanding O.S. No. 486 of 1924 to the District Munsif for disposal on the merits. The respondents, viz., the plaintiffs have taken the preliminary objection that under Order 43, Rule 1 Clause (u) read with Order 41, Rule 23, no appeal lies against the order of the District Judge on the ground that the case was disposed of by the District Munsif on the merits and not on a "preliminary point." The plaintiffs suit was for the recovery of the amount of a policy in the Oriental Life Assurance Company, Bombay, held by the deceased husband of the defendant, who was their brother. They alleged that their brother was educated up to the Intermediate class at the family expense and that his earnings as a teacher Which he was able to make result of this education and which he had invested in the Life Assurance Company became property that was partible against the members of this family. The defendant contended amongst other things that assuming that her husband was educated at the expense of the family he was given only "a general education," by the family and consequently his earnings became his self-acquisition and should not be regarded as partible. On these contentions the District Munsif framed issues: 1. Whether the defendant's husband was not educated at the family expense?

(2.) Is the plaintiff entitled to the declaration sought for?

(3.) What relief? 2. On the first issue, as no evidence was adduced by either side at the trial, he found that the defendant's husband was educated at the family expense. 3. As regards the second issue he pointed out that the parties went to trial on the footing that the defendant's husband was given a general education at the expense of the joint fumily and he also remarked in the course of the judgment that in this case there is no question of specialised education and that it is admitted by both sides that the defendant's husband was given a general education at the family expense.