ARUNAGIRI GOUNDAN Vs. VASANTHAROYA GOUNDAN

JUDGEMENT

(1.) This is an appeal by the first defendant in O.S. No. 39 of 1944 in the Court of the Subordinate Judge of Salem against a preliminary decree for partition passed therein. The suit was originally instituted by seventeen persons, but as the 13 plaintiff died pending suit, plaintiffs 18 to 21 were added as his legal representatives, and when the suit came up for hearing, there were twenty-one plaintiffs. There were six defendants. The suit for partition was based on the allegation that the plaintiffs and defendants were members of a joint Hindu family and the properties set out in the plaint schedule belonged to them as members of the family. The suit was contested only by defendants 1 and 3 who admitted the relationship set out in the pedigree filed along with the plaint so far as their relationship with plaintiffs 1 to 3 was concerned, but denied that plaintiffs 4 to 21 were related to them (defendants) in the manner set out in the pedigree. The contesting defendants further denied that even plaintiffs 1 to 3 were entitled to any relief because they were not members of a joint family along with the defendants. The learned Subordinate Judge found that plaintiffs 4 to 21 were related to the defendants as claimed by them (plaintiffs) and that the suit properties were the joint family properties of plaintiffs and defendants. He therefore passed a preliminary decree for partition in accordance with the shares to which the parties would be lawfully entitled accepting the pedigree attached to the plaint and marked as Ex. P-i in the case. As already mentioned, the 1 defendant is the only party who has chosen to appeal against this degree.

(2.) According to the case set out in the plaint, Arunachala Goundan the grand-father of the 1 plaintiff had two brothers whose names were not known. Plain-tiffs 1 to 3 and defendants 1 to 6 were the descendants of Arunachala Goundan by his only son Karia Goundan alias Annamalai Goundan, while plaintiffs 4 to 21 were the descendants of the two brothers of Arunachala Goundan. The properties which form the subject-matter of the suit were acquired by the members of the family by their joint exertions. In accordance with the custom which prevailed in the family, the eldest son of the eldest line always occupied the position of the manager of the family. The members of the family were all living together and as their number increased, several dwelling houses were built for them from the common fund. The proximate cause for the institution of the suit was the action of the 1 defendant in instituting O.S. No. 62 of 1942 against defendants 2 to 6 and the deceased elder brother Chinna Arunachala for a partition of the suit properties completely disregarding the claims of the entire body of the plaintiffs.

(3.) Having regard to the status and the habits of the persons whose claims are involved in this suit, it is difficult to expect any documentary evidence of the relation-ship between the parties going back to several generations. Oral evidence as to relationship of parties who must have died a considerable time before the living memory of the oldest member of the family, namely, the 1 plaintiff, is bound to be discrepant and easily susceptible to criticism. We are therefore thrown back on evidence of conduct and other circumstances which by a cumulative effect render one or other conclusion possible as to the truth of the case set up by the plaintiffs. It is true that the names of the alleged two brothers of Arunachala Goundan the ancestor of the branch of plaintiffs 1 to 3 and defendants 1 to 6 are not known. But there is evidence that Attukara Goundan and Mattukara Goundan were the sons of one of his brothers and Mondi Goundan and Nanja Goundan were the sons of the other brother. There is not much dispute as to the relationship to be traced from these four persons.