MUTHYALA RAMACHANDRAPPA Vs. MUTHYALA NARAYANAPPA

JUDGEMENT

(1.) Appeal No. 189 of 1937. - This appeal arises out of a suit for partition between two brothers. The plaintiff is the second son of one Nagappa and defendant 1 is the elder son. Defendants 2 and 3 are the sons of defendant 1 and defendant 4 is the widow of Nagappa. Nagappa died in March 1921; and it is clear from the evidence that at his death, he left the family in very affluent circumstances. He was possessed of immovable properties of considerable value, of valuable jewels and of outstandings estimated at more than three lakhs of rupees, subject to payment of debts estimated at between Rs. 30,000 and Rs. 50,000. In the course of the evidence in this and the connected suits it has been suggested that out of the outstandings then due, considerable allowance must be made for bad debts ; but beyond the suggestion, there is little evidence to show what the extent of the bad debts might have been. The parties belong to the Vysia community; and for some generations at any rate the family has been carrying on trade. There has been some dispute as to the nature of the business carried on during Nagappa's lifetime, particularly as to whether it included anything speculative; the materials before us are not full or clear as to this matter.

(2.) Between Nagappa's death a October, 1926, the parties to the suit continued to remain joint. In the course of 1926, the relations between the two brothers became progressively less cordial. The plaintiff is said to have been sickly and weak minded and had no issue; it is nothing strange if in these circumstances the elder brother who had male children expected that in due course all the family property would pass to his branch by survivorship; a demand for partition on behalf of the plaintiff would not have been agreeable to him, especially if as has been suggested he thought that the plaintiff was being set up to make that claim by people behind the scenes. Whatever the motives of the parties and their advisers might have been, it is admitted that on 31 October 1926 the parties executed Ex. I, a muchilika in favour of three arbitrators asking them to divide the family properties. The proceedings before the arbitrators do not seem to have made smooth or rapid progress. The account books of the family were produced before them, soma lists were prepared by them and the immovable properties seem to have been to a certain extent divided. It was only more than a year after the reference that one of the arbitrators died. It cannot therefore be that it was the death of one of the arbitrators that delayed the course of the arbitration proceedings. It appears from the evidence that soon after the execution of the muchilika the plaintiff thought fit to leave Bellary and he spent a considerable time at Sholingur. Par from attributing this step to any desire to give up the claim for partition the Subordinate Judge who heard the suit in the first instance held that the plaintiff whom he found to be a weak minded man must have resorted to this course with a view to avoid pressure from the elder brother and his friends to give up his claim for partition or come to terms with defendant 1. Seeing that the arbitrators did not effect a partition the plaintiff instituted this suit on 22nd March 1929.

(3.) The present appeal by the plaintiff is against the final decree passed in the suit and relates to two heads of claim, namely (1) jewels which must be treated as part of divisible property and (2) the liability of the plaintiff for debts incurred by defendant 1 or defendant 2 in connexion with the business conducted by them between the date of Ex. I and the institution of the suit and even subsequent to the institution of the suit. But in dealing with the arguments bearing upon these questions, it is necessary to refer in some detail to the course of the prior proceedings. The suit was in the first instance tried by the Subordinate Judge of Bellary, Mr. Venkata-ramayya Pantulu. Out of the issues framed in the case, it is sufficient for the present purpose to refer to issues 6 and 7: Issue 6: what are the assets and liabilities of the family and from and up to what date is the account to be taken for effecting a division? and issue 7 : whether any of the suit properties are stridhanam.