OVULA KONDAMA NAICKEN AIYEN AVERGAL Vs. APARANJI AMMA

JUDGEMENT

(1.) We are not satisfied that the learned Subordinate Judge has sufficiently considered the bearing of all the material evidence in this case on the questions whether there was a bona fide dispute which was settled by the com-promise embodied in Exhibit A and the partition deed Exhibit C or a fair family settlement. He has not considered the effect of the evidence as to the property, which is the subject of the present suit and in the hands of the alienee, having been the separate property of Mailchamy and his branch, having come to them from their grandmother s father, the Zemindar of Ayakudi. He has also not considered with reference to the question of bona fides the evidence as to whether the two branches were divided or not. This evidence must be taken into account in order to arrive at a conclusion whether the compromise now in question was really a bona fide compromise of doubtful claims or a fair family settlement. Before disposing of the case, we must call for a fresh finding on these questions. We leave it to the discretion of the learned Subordinate Judge to decide whether fresh evidence should be taken. We direct the Subordinate Judge to return findings on the following issues: 1. Was the property in dispute the separate property of Mailchamy?

(2.) Were Mailchamy and Mandalathipathi undivided?.

(3.) Was there a bona fide dispute which was settled by Exhibits A and C or did they amount to a fair family arrangement? In considering this question the evidence as to the existence of a Will by Mailchamy leaving property to be divided into three shares, will also have to be considered. 2. Two months will be allowed for the submission of the finding and seven days for objections. 1. In compliance with the order contained in the above judgment the Temporary Subordinate Judge of Madura submitted the following FINDINGS.--The High Court having remanded the case for finding on the following issues, viz: (i) Whether the property in dispute is the separate property of Mailchamy and his branch, having come to them from their grandmother s father the Zemindar of Ayakudi? (ii) Were Mailchamy and Mandalathipathi undivided? (iii) Was there a bona fide dispute which was settled by Exhibits A and C or did they amount to any family arrangement? I submit the following findings: 1. issue 1.--The suit properties consist of 8 items. Of these, items Nos. 6 and 8 are house properties and the rest are lands. It is not clearly stated in the plaint how the suit properties are the separate properties of Mailchamy and his branch. Plaintiffs Vakil says that it is never the plaintiffs case that the properties are Manjakkani properties of Mailchamy s grandmother Madamma, but their case is that they are the self-acquisition of Mailchamy in his own lifetime, having been given to him by the Zamindar of Ayakudi on account of love and affection towards him. I shall, therefore, consider whether the properties were the self-acquisition of Mailchamy in his own lifetime. In support of their contention, plaintiffs examined Sivaswami Pillai (plaintiff witness No. 10), who was Karnam of Ayakudi. They also rely on the statement, Exhibit LL, filed by the 3rd defendant in the criminal proceedings and on the descriptions contained in the documents Exhibits CC, DD, G and E executed by Mailchamy. Sivaswami Pillai (plaintiff witness No. 10) says in his chief examination that items Nos. 1, 2 and 7 (which are situate in the block called Panchantbangi and irrigated by Papan channel) and also items Nos. 4 and 5 (which are Combai Punjai) were given to Mailohamy by the Zemindar. Third defendant also in her statement (Exhibit LL) stated that the suit properties were given to her father-in law Mailchamy by the Zemindar. But the statement of these two witnesses is worthless. Plaintiffs witness No. 10 admitted in his cross-examination that he had no personal knowledge of the alleged gift to Mailchamy by the Zamindar. Third defendant also bad no personal knowledge, and in the plaint, Exhibit M, which she subsequently filed, she ceased to mention that the suit properties were her father-in-law s self-acquisition. As regards items Nos. 2 to 6 and 8, Mailchamy himself nowhere described them as his self-acquisition. He was describing as his self-acquisition only items Nos. 1 and 7 (for the description of item No. 1, see Exhibits CC, DD, G and for description of item No. 7, see Exhibit C). To consider that at least these two items Nos. 1 and 7 were his self-acquisition, I do not think that the mere recitals in the above said documents are sufficient in the absence of any other corroborating evidence. ], therefore, hold that none of the suit properties are the self-acquisition of Mailchamy in his lifetime. They are not either Manjakkani properties (Streedhanam) of Mailchamy s grandmother according to the plaintiffs Vakil s own admission. 2. Issue 2.--Then with regard to the second question, there is no direct evidence, either oral or documentary, on the point of division set up by the plaintiffs. The matter is to be judged merely from circumstantial evidence. It is conceded on all hands that Mandalathipathi s father and grandfather lived at Balasamudram and remained in possession of the properties there, while Mailchamy and his father lived at Ayakudi and remained in possession of the properties situate in that village. It is also in evidence that the patta for Ayakudi lands stood in the name of Mailchamy (vide pattas T series) and that he alone was paying the taxes on those lands and also on the houses situate in that village (vide receipts Exhibits U, W, Y series), while the patta for Balasamudram lands stood in the name of Mandalathipathi s father (vide receipts Exhibit L) and after his death in the name of Mandalathipathi (vide patta Exhibit SS). Also each branch was alienating the properties in its separate possession as its own. To begin with the alienations of Balasamudram properties by Mandalathipathi s branch alone, Mandalathipathi s father executed in 1865 two mortgages of some ancestral lands at Balasamudram as if they belonged to him exclusively, and died in 1868 (vide recitals in Exhibit L). Afterwards Mandalathipathi s mother as guardian of Mandalathipathi discharged these two debts by selling away the mortgaged lands for Rs. 8,000 (vide sale-deed Exhibit L). Mandalathipathi s mother as his guardian sold away also one ancestral house in 1873 under sale-deed Exhibit H, as if it belonged to Mandalathipathi s branch alone. Mandalathipathi himself after he attained majority executed a mortgage of all the remaining ancestral lands at Balasamudram as if they were his own (vide mortgage-deed Exhibit M) and lent the money so raised on that mortgage to a certain Muhammadan, Kadir Lebbai (vide Exhibit AA), without the concern of Mailchamy. Similarly from 1881, Mailchamy alone commenced to make alienations of the ancestral properties at Ayakudi in his possession as if they were his own (vide mortgages and sale-deed--Exhibits Q, R, NN, OO, and CC). All these circumstances--the separate living of the two families from the time of Mandalathipathi s grandfather, separate possession and enjoyment of separate properties by each branch, separate pattas and separate payment of kists and separate dealings with the separate properties in their respective possessions as if they were their own properties--all these clearly indicate that the two branches must have become divided both in status and estate at least so far back as 1865. 3. It is argued by the defendants Vakil that the two branches might be joint and the alienations made by Mandalathipathi s father in his time and those made after his death by Mailchamy might be in their capacity as the then family managers. But the subsequent conduct of Mandalathipathi and his mother leaves no room for any such supposition. If the two families were undivided, Mailchamy as the senior member and manager would be the proper person to execute Exhibits L and H either singly or jointly with Mandalathipathi s mother. But instead of that we find Mandalathipathi s mother alone executing those deeds as guardian of Mandalathipathi and treating him as the absolute owner of Balasamudram properties. As above pointed out, Mandalathipatbi also after attaining majority considered himself to be the absolute owner of the properties situate at Balsamudram. He got the patta for Balasamudram lands issued in his name and he sold away some of those properties and mortgaged some, without reference to Mailchamy. Such cannot be the case if the two families were joint and Mailchamy was the manager after the death of Mandalathipathi s father.