GURUSWAMI GOUNDAN Vs. MARAPPA GOUNDAN

JUDGEMENT

(1.) These are connected appeals and can be disposed of by a common judgment. S. A. No. 486 of 1946 arises out of O.S. No. 398 of 1943 on the file of the court of the District Munsiff of Gobichettipalayam in which the appellants, were defendants 1 to 5. The fifth appellant having died pending the second appeal, the sixth appellant was brought on record as his legal representative. The appellants in S. A. No. 487 of 1946 which arises out of O.S. No. 119 of 1943 on the file of the same District Munsiff's Court were the plaintiffs and defendants; 2 and 3 in that suit. The contesting respondent in both the second appeals is the same individual and he was the plaintiff in O.S. No. 398 of 1943, and the first defendant in O.S. No. 119 of 1943. In order to appreciate the contentions of the parties, it will be convenient to set out the relation between them as shown-in the plaint in O.S. No. 398 of 1943 and set out in the judgment of the learned: Subordinate Judge in paragraph 12 of his judgment. O. S. No. 398 of 1943 was filed by the contesting respondent for specific performance of an agreement for partition entered into between him and defendants 1 and 2 therein on the 14 July, 1941, and for possession of the plaint B-1 schedule properties. The contention of the defendants therein was that the agreement was invalid and not binding and that the grandfather of the plaintiff and defendants 1 and 2 (the sixth defendant) had not renounced his right in the joint family properties. The trial Court found that the sixth defendant did not relinquish his share in the joint family properties. It also found that the agreement of partition on which the plaintiff based his case, Ex. P-2 was invalid and inoperative for various reasons, one of them being the inequality in the division of the properties and therefore O.S. No. 398 of 1943 was dismissed. With regard to O.S. No. 119 of 1943, the learned District Munsiff held that it has to be decreed. The plaintiff in O.S. No, 398 of 1943 took up the matter in appeal and the learned Subordinate Judge finding that the relinquishment by the sixth defendant was true, and that as between defendants 1 and 2 on the one side and the plaintiff on the other, Exhibit P. 2 was an operative and valid document, decreed the suit in reversal of the decision of the District Munsif.

(2.) On the basis that the sixth defendant had not relinquished his share in the family- properties, he had sent a registered notice on 27 January, 1942, to his grandsons expressing his intention to divide; and thereafter on 6 February, 1942, he executed a settlement deed in favour of his great grandsons defendants 3 to 5 in O.S. No. 398 in respect of his one-third share in the plaint properties. On the basis of this settlement, defendants 3 to 5 in O.S. No. 398 filed O.S. No. 119 of 1943 for partition and recovery of possession of the one-third share of their great grandfather settled upon them under Ex. D-1 dated 6th February, 1942. The plaintiff in O.S. No. 398 was the contesting defendant there and he repudiated the alleged settlement on the ground that long prior to that, the settler, Ammavasai Goundan, had relinquished his share in the family properties. As the District Munsif had found that the alleged relinquishment did not take place, he gave effect to the settlement and passed a preliminary decree for partition in favour of the plaintiffs in O.S. No. 119 of 1943. As stated already the plaintiff in O.S. No. 398, who was the first defendant in O.S. No. 119 of 1943, aggrieved by this preliminary decree for partition, filed an appeal in which the same question had to be discussed. The appeals against O.S. Nos. 398 and 11g of 1943 were A.S. Nos. 78 and 86 of 1945, respectively. They were heard together by the learned Subordinate Judge who allowed both the appeals with the result that O.S. No. 398 was decreed in favour of the plaintiff and O.S. No. 119 was dismissed. Hence the two second appeals by the defendants 1 to 5 in O.S. No. 398 of 1945 who were the plaintiffs and defendants 2 and 3 in O.S. No. 119 of 1943.

(3.) Mr. T. M. Krishnaswami Aiyar appearing for the appellants raised three important points, all of which will be considered seriatim. His first argument was that the finding of the learned Subordinate Judge regarding the renunciation by Ammavasai Goundan is unsound and is opposed to law. It is further alleged that there is no legal evidence to support the finding. The plaintiff in O.S. No. 398-of 1943 stated in paragraph 5 of his plaint that in or about the year 1932, the sixth defendant (Ammavasai Goundan) agreed to receive a maintenance allowance of four putties of paddy every year for himself and his wife and relinquished all his interest in the family property. It was alleged that since that time the plaintiff in O.S. No. 398 as well as defendants 1 and 2 therein and their children alone constituted the joint family of which the plaintiff's deceased father Karuppa Goundan was the manager. In their written statement, both defendants 1 and 2 as well as the sixth defendant denied the alleged oral relinquishment, the sixth defendant pleading that he did not renounce his right in the family properties and that it was false to say that he was receiving maintenance. His case was that since he was old, and since Karuppa Goundan, his eldest son, was looking after the family affairs, he was living with his daughter in another place, managing her properties. The question therefore was definitely put in issue and considered in great detail by the trial Court under issue No. 1. The learned District Munsiff held that since there was no documentary evidence to prove the oral renunciation and the payment of four putties of paddy a year as maintenance, none of the plaintiff s; witnesses had any knowledge of the alleged agreement. He considered the evidence of P.W. 1, the plaintiff himself, that prior to twelve years of the date of his giving evidence, the sixth defendant was not given maintenance but was messing in his daughter's house. The sixth defendant's wife, the grandmother of the plaintiff was living in the family house. In view of the plaintiff's evidence that no maintenance was given to the sixth defendant prior to 12 years and since the sixth defendant was living in Nallikoundanur, it was incredible that any maintenance was ever given and therefore the sixth defendant would not have relinquished his right. The learned District Munsiff also considered the absence of any mention about the alleged relinquishment in the reply notice Ex. P-6 sent by the plaintiff to the sixth defendant's notice Ex. P-5. Then he considered the evidentiary value of the registration copy of the partition deed Ex. P-1 dated 9 June, 1937 as well as the unregistered deed of agreement of partition Ex. P-2 dated 14 July, 1941. The non-inclusion of Ammavasai Goundan in Ex. P-1 along with the circumstance that he was an attesting witness in Ex. P-2 was considered. The trial Court was of opinion that the sixth defendant did not take part in the execution of Ex. P-2, nor was he present at the time of its execution. The learned Munsiff believed the evidence of the sixth defendant that when he attested Ex. P-2 it was not read out to him and when the plaintiff brought it to Nellikoundanur for taking his signature, it was affixed without knowing the contents of the document though the plaintiff stated that the agreement recited two shares which the sixth defendant did not agree to. The learned District Munsiff considered the age of the sixth defendant at that time, about 85 or 90. The first defendant's evidence as D. W. 1 was also considered. From these and other documents, the learned District Munsiff concluded that there should have been no renunciation as claimed in the plaint but that the sixth defendant was only living with his daughter to manage her estate and he had no intention, nor did he, by any overt act, agree to renounce his share. The learned Subordinate Judge also considered the same evidence in sufficient particularity of detail. In paragraph 13 of his judgment, he considers the evidentiary value of Exs. P-1 and P-1 (a) and in paragraph 14 he discusses the effect of the attestation in Ex. P-2 by the sixth defendant. Discussing Exs. P-3 and P-4 along with the notices Exs. P-5 and P-6, the learned Judge had to consider the credibility of the sixth defendant's evidence as D. W. 2. He came to the conclusion that the sixth defendant was not without advice or help, that he could not be easily fooled by the plaintiff to attest a document the contents of which he did not know or he did not care to enquire. The lower appellate Court later on proceeds to consider the oral evidence of P.W. 1, the plaintiff, as well as the other witness P.W. 2. The writer of Ex. P-2 was examined as P.W. 6. In the succeeding paragraphs, the learned Judge discusses the evidence of the first defendant as D. W. 1 and also once more considered the evidence of the sixth defendant as D. W. 2. After setting out the salient portions of the evidence of the witnesses in the previous paragraphs, in paragraph 19 of the judgment he considered the entire effect of the oral and documentary evidence regarding renunciation. He then found that it is quite likely that the plaintiff and defendants 1 and 2 agreed to pay maintenance to the sixth defendant. In the opinion of the learned Judge the sixth defendant was more concerned with his daughter's family in another village and therefore it is not improbable that he would have allowed his sons to divide as between themselves all the joint family properties relinquishing his share in them. The effect of the sixth defendant's wife residing in the joint family was also considered and the conclusion was that that fact does not detract from the case of relinquishment of his rights by the sixth defendant in the joint family properties. The learned Judge specifically stated that he saw no reason whatever to disbelieve the evidence of the plaintiff's witnesses. He emphatically stated that he refused to believe that the sixth defendant blindly signed Ex. P-2 without knowing the contents thereof and finally the learned Judge concluded that the renunciation as alleged by the plaintiff is true, though there was no documentary evidence to substantiate it.