PUZHAVAKATH MADATHIL GOPALA PATTAR S SON SUBRAMANYA IYER Vs. PUZHAVAKATH MADATHIL GOPALA PATTAR S SON LAKSHMANA AYYAR

JUDGEMENT

(1.) In order to understand the contentions of the several parties in these two second appeals the earlier history of these-litigations has to be set out in brief outline. The suit of which these two second appeals arise was instituted as early as 12 February, 1937, by the plaintiff, the youngest of five brothers, against his elder brothers for a partition of the family properties some of which are situated in India and spine in Cochin State. The family was of a humble origin but later on, through the exertions of some of the brothers, acquired considerable landed properties. There was also a lucrative Coffee Hotel business carried on at Trichinopoly by some of the brothers. Misunderstandings arose between the brothers which resulted in a demand for partition by one of them On 8 September, 1936. All the brothers then met together and after some deliberation settled their disputes in a way. On 15 September, 1936, they entered into an agreement evidenced by Exhibit XX to divide the properties in the manner set out therein. All of them signed the document presumably in token of their consent to its terms. Under Exhibit XX the present first defendant, the eldest brother, got for his share certain lands situated in Cochin State which was subject to an encumbrance of Rs. 3,000 and certain lands and a house situated in Ottapalam. To the share of the second brother, the present second defendant, was allotted the Coffee Hotel business in Trichinopoly known as " Bheema Central Lunch Home" with all its moveables and also certain lands and the family houses in Ottapalam. The next two brothers, defendants 3 and 4 were allotted another Coffee Hotel in Trichinopoli known as the " Central Cafe " with all its moveables but with the liability to redeem a pair of a diamond earrings which had been pledged for Rs. 2,500, apparently for the purposes of the business, and hand it back to the first defendant. The plaintiff, the last of the brothers, was allotted a building and the remaining lands in Cochin State together with a sum of Rs. 1,000 agreed to be paid to him for the value o f certain jewels. The plaintiff was saddled with a liability to pay off a mortgage for Rs. 2,500 outstanding, on the lands allotted to him in Cochin State. No provision was made in Exhibit XX for the division of the moveables mentioned in Schedule V of the plaint or the outstandings specified in Schedule C Exhibit XX was left unregistered. It was however followed up by Exhibit II, dated 19 September, 1936, signed by all the five brothers by which in accordance with the terms embodied in Exhibit XX, the Coffee Hotel known as " The Bheema Central Lunch Home" with all its moveables valued at Rs. 4,500 was transferred absolutely to the second defendant and the Coffee Hotel known as the " Central Cafe " with all its moveables valued at Rs. 10,000 was transferred to defendants 3 and 4 absolutely. With regard to the remaining properties which were agreed under Exhibit XX to be divided among the brothers, Exhibit II, recited that since the brothers were not in possession of the exact description, survey numbers and other details of the properties they would draw up a formal document later on. There was an unsuccessful attempt on the part of the first defendant to modify the stipulations in Exhibit XX and also some considerable delay in implementing the terms of Exhibit XX by delivery of the properties allotted to the plaintiff which led to his present suit for partition from which these appeals have arisen.

(2.) The suit was numbered as O.S. No. 8 of 1938, and decided by the Subordinate Judge of Ottapalam who held that Exhibit XX was not a final partition but only a tentative arrangement between the parties as regards partition; that it was inadmissible in evidence for want of registration; and allotments made under Exhibit XX were unequal in value. He therefore decreed a general partition holding, however, that effect must be given to Exhibits XX and II to this extent, namely, that the " Bheema Central Lunch Home " should be allotted to the share of the second defendant and the " Central Cafe " to the share of the defendants 3 and 4. He also passed a preliminary decree with reference to the moveable properties and silver vessels of the family, the value of the silver vessels being fixed at Rs. 600 in the decree. He also directed that the entire family should pay the first defendant a sum of Rs. 2,500 for the value of his diamond ear-rings and a sum of Rs. 1,000 to the plaintiff for ornaments. Against this decision of the Subordinate Judge, there was an appeal and a cross appeal to the District Judge of South Malabar who held that Exhibit XX was a valid and operative partition; that there was no satisfactory evidence to show that the partition was grossly unfair; that even if there was some inequality in the partition, the same had been accepted by all the brothers; and that the decree given by the Subordinate Judge for partition of the immoveable properties ignoring Exhibit XX should be set aside. He fixed the value of the silver vessels to be divided among the brothers at Rs. 1,200 and confirmed the decree of the Subordinate Judge with respect to other moveables and outstandings. The judgment of the District Judge was appealed against to the High Court in Second Appeal No. 1000 of 1943 at the instance of defendants 3 and 4 who felt that the value of the property allotted to them was far too low when compared with the value of the property allotted to the first and second defendants, a matter on which the Subordinate Judge had expressed himself in their favour. The plaintiff and the first defendant each filed a memorandum of cross-objections in the High Court.

(3.) I now turn to another litigation between the same parties in the Courts of the Cochin State. The youngest of the five brothers as plaintiff instituted O.S. No. 120 of 1112 (M.E.) for partition of the family properties situated in the Cochin State in the District Court of Trichur. A decree for partition of the Cochin properties was passed by the District Judge who held that Exhibit XX being unregistered was inadmissible in evidence to affect immoveable properties. There was an appeal A.S. No. 115 of 111 6 (M.E.) to the Chief Court of Cochin which finally decided that Exhibit XX was a valid and operative partition and a decree for partition of the Cochin properties on the basis of Exhibit XX was passed. One of the items of the Cochin property that had been allotted to the. plaintiff under Exhibit XX was subject to a prior encumbrance of Rs. 2,500 and it had been sold away in execution of a decree obtained by the encumbrancer during the pendency of the partition suit. The plaintiff claimed that he was entitled to be compensated for the loss of this item by his brothers, especially the first defendant due to whose manoeuvres, it was alleged, that the encumbrancer had brought the property to sale and the plaintiff had been deprived of all means of redeeming the property. The Chief Court of Cochin, however, held that the property had been lost to the family without any fault or negligence on the part of any body and there was therefore no ground for making the other brothers pay any compensation to the plaintiff la respect of the loss of the property by the Court sale. Thus ended the litigation regarding the partition of the Cochin properties.