(LAGUDUVA) VASUDEVA AYYAR Vs. (LAGUDUVA) SUNDARARAJA AYYAR

JUDGEMENT

(1.) This is an appeal against the order of the Second Additional Subordinate Judge of Madura holding that a certain award is invalid. Defendant 1 had five sons, one by his first wife and four by his second. The father had begun life in a small way with family property apparently worth only Rs. 300 or 400 but he made a considerable fortune in Sunnadi dye. He had originally two sons by his first wife but his eldest son, Ramasami, died at the age of 18 and according to the plaintiff from about 1913 his family had been in comfortable circumstances and in 1922 there was an attempt at partition in the family. This partition did not get further than a partition of moveables. Consequently, on 16 September 1923 the family made a reference to five arbitrators to divide the family property, Ex. V. Three of the arbitrators were relations and two of them P.W. 1 and D.W. 2 were intimate friends of the family with a knowledge of all its circumstances. The reference is very short and runs as follows: As we have named you as arbitrators to effect a partition amongst us and executed this muchilika to you, we execute this muchilika agreeing to be bound by whatever award you may pass in respect of our partition after seeing our properties and hearing what we have to state (vakumulam).

(2.) The reference though dated 6 June 1923, was not signed till the 16 September 1923. It is signed by the father, defendant 1, for himself and on behalf of the two minor sons by the second wife, by the plaintiff who was then the only surviving son by the first wife and by the two major sons of the second wife. It may be noted that the last signatory, Ramayyan, had been given away in adoption to another family but was by agreement to obtain a share in his natural family. In September 1924 the award, Ex. G, was given and in December 1924 there was a petition by the plaintiff to pass a decree in terms of the award. The vakumulam took the form of written statements put in by the parties and Ex. 1 dated 25 September 1923 is the statement put in by the father signed by himself alone. In this document after agreeing to abide by any award the arbitrators may pass in accordance with the muchilika the father asks shortly: (1) that he and his wife should be allowed to live in the ancestral house for their lives and that it may be taken in shares by the sons after their deaths; (2) Rs. 7,000 for pilgrimage expenses; (3) Rs. 10,000 for charities and he adds: "I pray for orders to reserve the total sum of Rs. 17,000 for my doing charities and going on pilgrimages as I like;" (4) the income from Rs. 30,000 for his expenses and those of his daughters and 30 kalams of paddy, the Rs. 30,000 to be taken in equal shares by the sons after his and his wife's deaths; (5) Rs. 10,000 worth of land, jewels etc., as stridhanam to each of the daughters; (6) Rs. 5,000 worth of jewels for the wife to be taken in equal shares after her death by the sons and daughters; (7) all the remaining property to be taken in equal shares by the five sons. The statement filed by the plaintiff Ex. B dated 24 September 1923 points out that he assisted his father to attain success in his business after the death of his brother, Ramaswami and that the sons of the second wife never did any work. He therefore asks the panchayatdars to grant him half share in the properties he sets out and "an elder brother's (excess) share above them according to the partition effected amongst our ancestors." The statement filed by defendant 2 on 23rd September 1923, Ex. A asks that the five brothers should take the properties in five equal shares and adds: "I am not willing to give any (excess) as elder brother's share to my elder brother, Vasudeva Ayyar;" but he requests the panchayatdars to do him a favour which is in their discretion. In other words, he wants more than his one-fifth share. He also requests that all the immovables be divided into five shares. Ex. C is the statement of defendant 3, that is, the adopted son, dated 25 September 1923. He merely asks for an extra share to cover the expenses that he has to incur in performing the shradda etc., in his adopted family.

(3.) Now, the arbitrators had submitted to them a detailed list of properties owned by the family in Exs. D and E. Ex. P is the list of property owned by the family in Kodikulam with suggested shares for the five sons and the two daughters. So, Ex. D shows an agreed valuation of the houses and Ex. F an agreed valuation of lands. The arbitrators seem to have adopted the suggested division in every way except that they substituted the daughters for the father in respect of the Kodikulam property. Now, as stated, the arbitrators issued an award which was begun on 10 April but as a matter of fact not issued till September in which they allowed Rs. 18,000 for the residence and maintenance of the father, provision for the daughters which does not concern us and marriages, and Rs. 11,000 jeshtabhagam to Vasudeva Ayyar and they divided the property into five shares as requested. In the recitals they say they examined the parties, that they gave evidence and statements as to what should be done as to the Jeshtabhagam that Vasudeva should get and that the remaining property should be divided into five shares. The panchayatdars state that they received those statements and perused the accounts and lists etc., and found that the property amounted to a total valuation of Rs. 1,75,000.