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Venkateswara Pattar (insane) and ors. Vs. K. Mankayammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1935Mad775; 160Ind.Cas.624; (1935)69MLJ410
AppellantVenkateswara Pattar (insane) and ors.
RespondentK. Mankayammal and ors.
Cases ReferredPartap Singh v. Dalip Singh I.L.R.
Excerpt:
- - it suited his case to say, that the first plaintiff, by reason of his insanity, had ceased to be a co-parcener at least from 1920, and to rely on the fact that krishna josier himself distinctly asserted in ex. these allegations were denied by the defendants and this question formed the subject-matter of issues 10 and 11. 6. for some reason, the defendants thought fit at one stage to contend that the first plaintiff was congenitally disqualified, but in the course of the suit they were better advised and preferred to rest their case on the ground that though the first plaintiff was from early years defective in mental capacity, it was not such as to disqualify him in law till he became insane in 1920. the argument before us had proceeded on this basis. as the plaintiffs practically.....varadachariar, j.1. this is an appeal by the plaintiffs, who sued in the lower court for the recovery of certain properties or in the alternative, for partition. the first plaintiff has admittedly been a lunatic since 1920. the second plaintiff is his son, born in march, 1924. the third plaintiff is another son, born pending the suit. the first plaintiff's father (krishna josier) died on the 26th of september, 1923, leaving him surviving (besides the first plaintiff) two daughters who are defendants 1 and 2 in the case. the third and fourth defendants respectively are their husbands.2. in view of first plaintiff's unfortunate condition, krishna josier, who was possessed of a decent extent of property, was naturally anxious to make some satisfactory arrangement for the management of his.....
Judgment:

Varadachariar, J.

1. This is an appeal by the plaintiffs, who sued in the lower Court for the recovery of certain properties or in the alternative, for partition. The first plaintiff has admittedly been a lunatic since 1920. The second plaintiff is his son, born in March, 1924. The third plaintiff is another son, born pending the suit. The first plaintiff's father (Krishna Josier) died on the 26th of September, 1923, leaving him surviving (besides the first plaintiff) two daughters who are defendants 1 and 2 in the case. The third and fourth defendants respectively are their husbands.

2. In view of first plaintiff's unfortunate condition, Krishna Josier, who was possessed of a decent extent of property, was naturally anxious to make some satisfactory arrangement for the management of his property after his death. His first attempt in this direction was Ex. A a will dated 6th of July, 1920. The first plaintiff had then an infant son about a year old, and the scheme of Ex. A is based on that circumstance. That child died sometime later, and to add to the misfortune of the parties, relations between Krishna Josier and first plaintiff's father-in-law became strained, so much so that, early in 1922, Krishna Josier left his old house and thereafter lived in a new house of his own. The result of this step was that Krishna Josier's daughters were more with him than before, while the first plaintiff's wife and her father stayed in the old house. The wife had not even attained majority by that time, and as the first plaintiff required care and attention, he would appear to have been living generally with his father and sisters. These circumstances necessitated a change of the scheme of the original will (Ex. A) and Krishna Josier accordingly executed a new will, Ex. B on 31st December, 1922. The relations between Krishna Josier and the first plaintiff's father-in-law grew worse day by day, and at the time of the registration of Ex. B there seem to have been very unpleasant manifestations of protest on the part of the first plaintiff's wife. It is also not unlikely that Krishna Josier was made to feel, in an increasing degree, the reasonableness of making some provision for his daughters, and for the performance of his obsequies and shraddhas. There was also the continuing problem of making provision for the lunatic son and his wife, and also for the contingency of their having sons and daughters. The old man took legal advice and according to that advice, executed two documents Exs. I and II on the 9th of January, 1923, the first purporting to be a deed of partition, and the second a testamentary disposition of most of the properties which under Ex. I Krishna Josier reserved for his shares. The validity and effect of these documents is the principal question for determination in the appeal. On the same day Krishna Josier also executed Ex. VI, a deed of trust setting apart certain properties, out of his share, for certain charities. The validity of this document is also in question.

3. The second plaintiff, was born in March, 1924, and was thus in the mother's womb at the date of Krishna Josier's death (September, 1923). This makes it possible for the second plaintiff to contend that if there had been no valid partition under Ex. I he would be a co-parcener, and that the will Ex. II would be invalid as also the trust deed. This suit was therefore instituted on his behalf, within a few months of his birth, to have it declared that Ex. I could not and did not effect a partition between Krishna Josier and the first plaintiff, that the second plaintiff is accordingly a co-parcener, and is as such entitled to all the properties of Krishna Josier. It suited his case to say, that the first plaintiff, by reason of his insanity, had ceased to be a co-parcener at least from 1920, and to rely on the fact that Krishna Josier himself distinctly asserted in Ex. I that the first plaintiff was not entitled to any share. The plaint also made a point of the fact that Ex. I, though purporting to be a deed of partition, is in substance a disposition by Krishna Josier, on the footing of his being absolute owner of all the properties, and no share is in fact allotted to the first plaintiff himself. Anticipating however, the possibility that Ex. I may be construed as an exercise of the father's power to effect a severance of status between himself and the son, the plaint also alleged that the division of properties into Schedules A and B in Ex. I was not fair and equal, and it contained an alternative prayer that all the family properties might be divided into two equal shares and one share might be given to the plaintiffs.

4. Krishna Josier's two daughters, their husbands and their children were impleaded as the main defendants, as they took benefits under Exs. I and II, and some of them had been appointed trustees under Ex. VI. They contended that Exs. I, II and VI were operative and that Ex. I, brought about a severance of status and also embodied a fair and equal division of the family properties, though, in view of first plaintiff's mental condition, the property set apart for his share was placed under competent management to be handed over to first plaintiff's sons, if any. The contentions thus raised formed the subject-matter of issues 6, 7,8 and 11.

5. The plaint also adopted another line of attack on Exs. I, II and VI, by suggesting that they were brought about by undue influence and that owing to age, illness and other causes, Krishna Josier was not, at the time, in a fit condition to conceive of such an arrangement and execute the documents of his own accord or with sufficient knowledge of their nature and effect. These allegations were denied by the defendants and this question formed the subject-matter of issues 10 and 11.

6. For some reason, the defendants thought fit at one stage to contend that the first plaintiff was congenitally disqualified, but in the course of the suit they were better advised and preferred to rest their case on the ground that though the first plaintiff was from early years defective in mental capacity, it was not such as to disqualify him in law till he became insane in 1920. The argument before us had proceeded on this basis.

7. The learned Subordinate Judge found against the plaintiffs on all material issues, and merely directed the defendants to surrender to the plaintiffs the properties which by the terms of Ex. I had been placed under the third defendant's management for the benefit of the first plaintiff and his children. He directed the third defendant to account to the plaintiffs for the income of these properties from the date of Krishna Josier's death. As the plaintiffs practically failed in their suit, he directed them to pay 1 and 2 defendants three-fourths of their costs. The argument in the appeal mainly related to the questions raised by issues 6, 7 and 8. The point of undue influence was also touched on, but in the face of the evidence, especially of D.W. 10 Mr. Venkatarama Sastriar (for the appellants) could only say that the changes in the dispositions and arrangements respectively made by Exs. A, B and I, sufficiently indicated that the old man must have come more and more under the influence of the daughters and their husbands. It is sufficient to say, in answer, that the changes in the scheme of the documents are legitimately explained by the changes in the circumstances of the family and in the relations between the various members, as already set out, and need not be attributed to any improper influence exercised over Krishna Josier. Even assuming that the daughters had pleaded with the old man for some benefits for themselves and he had yielded to their importunity, Mr. Sastriar conceded that that would not amount to undue influence. Whatever may be the legal effect of Ex. I, there is nothing in it that is so unnatural or unreasonable as, by itself, to suggest undue influence. We see no reason to differ from the lower Court's conclusion on this point. Incidentally, we would only correct a slight error in para. 9 of the lower Court's judgment. It is not to the daughter's house that Krishna Josier went in January 1922, but to a new house of his own, and there the second defendant seems to have come and lived with him.

8. In dealing with the question of partition, Mr. Venkatarama Sastriar stated his argument as follows: (i) If Krishna Josier was anxious to obviate the possibility of any future sons of the first plaintiff asserting rights by survivorship, he could not successfully do so by the device of a partition, because there could be no partition as against future coparceners except through living co-parceners, (ii) At the date of Ex. I, the first plaintiff was not in any sense a co-parcener, and therefore there could be no partition between him and his father, (iii) Even if a partition between the first plaintiff and his father were legally possible Ex. I could not, in view of its terms, be construed as a partition or even as effecting a severance of status between them.

9. The first proposition is unexceptionable. As to the second, the learned Counsel admitted that the decision of a Bench of this Court reported in Muthusami Gurukkal v. Meenammal I.L.R. (1919) 43 Mad. 464 : 38 M.L.J. 291 is against him. But he contended that it rests upon a misapprehension of certain passages in the Mitakshara and therefore ought not to be followed. He also maintained that, taking Muthusami Gurukkal v. Meenammal I.L.R. (1919) 43 Mad. 464 : 38 M.L.J. 291 to lay down that there may be a 'co-parcener' who can take by survivorship but cannot demand partition, such a person cannot be held entitled to a share and there could be no partition with him.

10. The alternative interpretations of the relevant passages of the Mitakshara are set out in the judgment of Seshagiri Aiyar, J., in Muthusami Gurukkal v. Meenammal I.L.R. (1918) 43 Mad. 464 : 38 M.L.J. 291. As pointed out by the learned Judge himself, a great deal could be said in favour of either contention. Having heard the matter fully argued in view of its importance, we do not see sufficient reason to dissent from that decision. It is certainly more in consonance with the principle underlying the decision of the Full Bench in Krishna v. Sami (1885) 9 Mad. 64 and the well-established rule that an interest once vested ought not lightly to be held to be divested. We do not propose to cover the same ground over again.

11. Looking at the matter from another point of view, the following considerations seem to us to lead to the same conclusion. Both in Manu and in Yagnavalkya, the texts relating to exclusion from inheritance occur after the verses dealing with ' obstructed ' heritage in the Mitakshara sense. The original texts themselves do not provide for a case in which the disability may subsequently cease. It is therefore no wonder that they give us no guidance in determining the exact legal status of a man under disability, with reference to joint family property. Further, though a text of Yagnavalkya postulates equal rights of father and son in the paternal grandfather's estate, the development of this conception into the doctrine of right by birth, with the incidents of right to demand partition and the right to interdict alienation is found only in the Mitakshara; and even under the Mitakshara the right of survivorship is more a result than an expressed incident. Introducing the sloka of Yagnavalkya relating to exclusion, Vignaneswara (by way of Avatarika) premises that it is an exception to what was already been stated respecting the succession of (1) the son, (2) the widow and other heirs, (3) the reunited parcener. It is obvious that the principles of succession are different as amongst these three groups. In the first, it is by survivorship (even in respect of the father's self-acquired property, according to the scheme of the Mitakshara). In the second it is by inheritance pure and simple. In the third group it is an anomalous rule of successsion which has now been assimilated to the principle of survivorship. When in placitum 6, Vijnaneswara goes on to draw a distinction between disqualification prior to division and disqualification subsequent to division, he is developing something like the modern theory of vesting and divesting, which is only latent in the original texts. But the statement in placitum 7, as regards the right of a person whose disqualification subsequently disappears, is wholly the author's own; there is nothing corresponding to it even in the Dayabhaga system of Jimutavahana. The Mitakshara bases this rule on the analogy of the after-born son. Having introduced this conception, Vignaneswara does not pause to make it clear whether this doctrine of restoration is to be applied, even to cases of strict inheritance (Sapratibandha) by co-heirs or only to cases of partition among co-parceners. Consistently with other well-established theories in the law of inheritance there is no scope for applying this doctrine as between co-heirs, because the inheritance is once for all vested at the moment the succession opens. Cf. Narasimha Razu v. Veerabhadra Razu I.L.R. (1893) 17 Mad. 287 . A Similarly, the rule in placita 9 and 10 as to the right of the sons of disqualified persons, must be confined to cases of unobstructed heritage, for in the other case the doctrine of representation will not apply and the sons of the disqualified persons will be excluded by their uncles on the ground of remoteness. Among members of the joint family, placitum 7 of the Mitakshara does not in terms draw a distinction between cases of congenital disqualification and cases of supervening disqualification. But, here again, the logical application of the theory of right by birth, may justify a differentiation between the two cases, because the congenitally disqualified man would not have acquired a right by birth at all. The mere fact that the right of maintenance is equally available in both cases does not compel the view that the legal status must be taken to be the same in both cases.

12. In understanding the analogy of the after born son, the distinction between two such cases must be kept in view. There is one provision for the ' after-born ' son in the sense of a son born after partition to a father who is alive and has taken a share at the partition between himself and his sons. In this case, there is no re-opening of the partition but the after born son lakes what belongs to the father. (For what happens when the father has not reserved a share for himself see Chengama Nayudu v. Munisami Nayudu I.L.R. (1896) 20 Mad. 75. There is another provision for the ' after-born ' son, in the sense of a posthumous son, of a father or brother who did not live to take a share at a partition between the other co-parceners but whose wife (pregnant at the time) gives birth to a son after the partition. It is only in this case that there is a re-opening of the partition (see the Vyavaharamayuka, Ch. IV, S. IV, pl. 33-37) see also Krishna v. Sami I.L.R. (1885) 9 Mad. 64 . In the present context, the Mitakshara must be referring to the latter case alone by way of analogy because it involves a reopening of the partition. If so, the analogy is not inconsistent with a dormant co-parcenership in the disqualified co-parcener just as in the case of the son in the mother's womb at the time of the partition. But it is after all only an analogy and ought not to be pushed to what may seem to be its logical results, especially when the placitum covers cases even of congenital disqualification. It is any how reasonable to assume that the passages in the Mitakshara do not by their terms decide the exact legal status of a co-parcener, who has come under a disqualification subsequent to his birth. If, then, the logical application of the theory of right by birth justifies a differentiation between a man, who is congenitally disqualified and one subject to a supervening disqualification, there is nothing in the Mitakshara which precludes the recognition of such a distinction. Such a course is warranted by the fact that similar, if not identical, distinctions have been developed by some of the commentators of the Mitakshara school; for instance, by the Sarasvati Vilasa, between disqualified persons who are fit for marriage and those who are not.

13. Before passing on to the next point we may perhaps observe that we have had some difficulty in following the comment of Seshagiri Aiyar, J., in Muthusami Gurukkal v. Meenammal I.L.R. (1918) 43 Mad. 464 : 38 M.L.J. 291 on the decision of the Allahabad High Court in Tirbeni Sahai v. Muhammad Umar I.L.R. (1905) 28 All. 247. We do not find any statement in that judgment where succession in a Mitakshara joint family is said to open on the death of the father. On the other hand, the learned Judges clearly lay down that the right by birth once vested cannot be divested by supervening disqualification. The real criticism against the decision in Tirbeni Sahai v. Muhammad Umar I.L.R. (1905) 28 All. 247 is that the High Court upheld the disqualified man's right to claim recovery of his share. To that extent it departs from the suggestion made by Ghose, J., in Abilakh Bhagat v. Bhekhi Mahto I.L.R. (1895) 22 Cal. 864 that the two decisions in Ram Sahye Bhukkut v. Lalla Laljee Sahye I.L.R. (1881) 8 Cal. 149 may be explained on the footing that the disqualified man remained owner of his share though he could not get a decree which would involve a partition with him.

14. Founding himself on an observation of Lord Lindley in Venkayyamma Garu v. Venkataramanayyamma Mr. Sastriar contended that where there is no right to partition there can be no right to take by survivorship. It is sufficient answer to this to say that these general remarks are not without exceptions and recent decisions of the Judicial Committee as to succession by survivorship in the case of impartible Zamindaris furnish an instance of such exceptions. See particularly the observations in Shibaprasad Singh v. Prayagkumari Debee I.L.R. (1931) 59 Cal. 1399 and The Collector of Gorakhpur v. Ram Sundar Mal (1934) 67 M.L.J. 274 An argument was also founded on the observations of their Lordships at the bottom of page 784 in Rama Rao v. Raja of Pittapur where, referring to the case of excluded persons, by way of illustration, it was said 'such persons are debarred from the rights of coparcenary but are given maintenance in lieu'. Besides being obiter, the statement is much too cryptic to be of any use in the present connection. It may be explained away as negativing full rights of coparcenary in such cases-and such a construction would seem to be justified by the succeeding sentences which contrast 'birth status' with 'full status' and speak of the disqualification as only 'preventing enjoyment'. Mr. Sastriar drew our attention to certain passages in Pudiava Nadar v. Pavanasa Nadar I.L.R. (1922) 45 Mad. 949 : 43 M.L.J. 596 but there is nothing in that case that throws light on the question now before us. Apart from the fact that the Full Bench was only concerned with the question whether the rules as to exclusion were to be held obsolete or not, the disability of the excluded person in that case was congenital and there was no occasion for discussing the status of a person suffering from a supervening disability.

15. Once the conclusion is reached that a disqualified person may be a 'co-parcener' enough to take by survivorship, there is no reason why we should deny the possibility of such a severance of the joint status as would put an end to the right of succession by survivorship. Here again, the law relating to impartible estates furnishes some analogy, though there may be a difference as to the methods by which the severance of the joint status may be brought about. Relying on some observations in Lala Muddun Gopal Lal v. Mt. Khikhinda Koer (1890) L.R. IndAp 9 : I.L.R. 18 Cal. 341 Mr.. Srinivasa Aiyangar suggested that the other co-parceners may waive their right to insist on the disqualification and allot a share to the disqualified member. Whether an allotment if so made, will amount to a partition is not free from doubt. In one portion of their judgment, the Privy Council speak of it as a 'gift'. But it is unnecessary to examine this possibility here, because Ex. I in the present case far from waiving the disqualification, insists on it and no property is allotted to the first plaintiff himself. This brings us to the consideration of the nature and effect of Ex. I.

16. On behalf of the appellants, much stress was laid on such statements in Ex. I as assert the absolute right of the father to the whole property and the absence of any right in the son to a share. On the other hand, respondent's learned Counsel emphasized the description of the document as a deed of partition the reference to the existence of an undivided family and the clear assertion of an intention to become divided in status, with a view to avoid possible litigation in the future. There are, no doubt, apparent incongruities in the document but it seems to us that there can equally be no doubt as to its general intention and effect. In understanding it, we must remember that it was drafted under legal advice, which presumably was given with reference to the law as laid down in Muthusami Gurkkal v. Meenammal I.L.R. (1918) 43 Mad. 464 : 38 M.L.J. 291. This explains the assumption of a right of survivorship and the necessity for effecting a severance of the joint status, even while emphatically denying a right to a share to the first plaintiff. In view however of the fact that no property has been allotted under Ex. I to the first plaintiff, that he gets nothing more than maintenance and that in default of sons surviving the first plaintiff, the B schedule properties are directed to go over to the daughters and their sons, we are unable to uphold Ex. I as a 'partition' in the sense of an allotment of properties to the first plaintiff. But we see no reason why it should not be held effective to bring about a severance of status between the first plaintiff and his father. There is a clear and definite statement in it by the father that the undivided nature of the family should be cut off and a divided state brought about and he goes on to say 'I have settled that I (No. 1) am in a partitioned and divided state from No. 2 (the son)'. At one stage we felt a doubt whether on this footing alone, the title of the defendants under the will Ex. II could be sustained, because it is a gift of specific properties and not of an undivided share see Natesa Aiyar v. Subramania Aiyar (1918) M.W.N. 703 but as there are also general words of devise in Ex. II Mr. Sastriar did not think fit to press that kind of objection.

17. Mr. Sastriar's main contention with reference to this view of Ex. I was that no division of status could be brought about by such a declaration of intention, except on intimation of the same to the other co-parcener or his natural guardian, see Kamepalli Ayilamma v. Mannem Venkalaswami : (1917)33MLJ746 that in a transaction with himself, the father could not be guardian for his disqualified son Rangasayi v. Nagarathnamma : AIR1933Mad890 and that in this case there has been no communication to any other guardian. In dealing with this contention we have to remember that the only other person to whom there could have been any communication was the first plaintiff's wife, who could not in any sense be called the husband's 'natural' guardian. She was not even his 'de facto' guardian because he was living with the father, who was also in possession of all the properties of the family. Further, the first plaintiff's wife had not even attained majority at the date of Ex. I. When these considerations were pressed against him, Mr. Sastriar could only say that in such circumstances the other co-parcener could not avail himself of the privilege of becoming divided by a declaration of his intention. But is this not recognised as a right of every co-parcener? Why should he suffer because there is no lawful guardian to receive notice on behalf of the co-parcener under disability. In Kandasami v. Doraisami Aiyar I.L.R. (1880) 2 Mad. 317 the learned Judges refer to authorities which show that a partition may validly be made even without anybody representing a minor or absent co-parcener (subject of course to the question of its fairness being open to examination). Why should that principle be confined to cases in which there is a plurality of co-parceners besides the disqualified or absent co-parcener? Mr. Srinivasa Aiyangar maintained that once it is established that severance of status is a matter of right and of individual volition, there is no significance in the requirement as to notice, because the other co-parceners have no voice in the matter. If, however, all that is necessary is that the other co-parcener or somebody on his behalf should become aware of such declaration of intention Mr. Srinivasa Aiyangar relied on the evidence of D. W. 13 to show that first plaintiff's wife and her father were aware of Ex. I. Reference was made in this connection to Jamna Ram v. Munsah Rai A.I.R. 1922 Lah. 473, Lakshmamma v. Sreeramalu : AIR1927Mad1066 , Lakshmi Achi v. Narayanasami Naicker I.L.R. (1929) 53 Mad. 188 and Rama Aiyar v. Meenakshi : AIR1931Mad278 and to a recent judgment of Madhavan Nair. and Jackson, JJ., in Ademma v. Seshayya 1935 M.W.N. 191. It is unnecessary for the purposes of this case to express any definite opinion as to the principle on which notice to the other co-parceners should be insisted on or as to the manner or circumstances in which the declaration of intention should or could be brought to their knowledge. Nor need we decide what should be done if the co-parcener under disability should happen to have no natural guardian. The conclusion in favour of a division of status in the present case could be rested on the ground that when a father brings about a division between himself and his sons as recognised in Kandasami v. Dorasami Aiyar 1935 M.W.N. 191 such an act is done in the exercise of a special power which he has under the texts and is independent of the doctrine of severance of status among co-parceners generally by a declaration of intention to become divided.

18. Against this last mentioned ground, Mr. Venkatarama Sastriar raised two points (i) that in executing Ex. I Krishna Josier did not purport to act in the exercise of the power that he had as a father, and it is not permissible to attribute it to that capacity when he has acted in assertion of an inconsistent right of exclusive ownership Balwant Singh v. R. Clancy (1912) L.R. 36 IndAp 109 : I.L.R. 34 All. 296 : 23 M.L.J. 18 and (ii) that the power recognised in Kandasami v. Dorasami Aiyar I.L.R. (1880) 2 Mad. 317 relates to an actual allotment of shares by a fair and equal division and not to a mere division of status. In answer to the first contention Mr. Srinivasa Aiyangar tried to invoke the principle recognised in another group of cases, e.g., Bijraj Nopani v. Pura Sundary Dasee Audimula Mudali v. Alamelammal (1916) 2 M.W.N. 115 Sadayappa Asari v. Raghava Asari (1919) 62 I.C. 220 and Seetharamamurthi v. Rangayya : AIR1928Mad293 of effectuating a transfer by attributing it to the capacity most favourable to a bona fide purchaser; but there being no question of purchaser here, it is doubtful if that class of cases can properly be pressed into service. But the argument may be met in another way, viz., that for the reasons already explained, the assertion of full ownership is not in the circumstances of this case incompatible with the recognition of the first plaintiff as a kind of coparcener and in Ex. I Krishna Josier expressly purports to act also as family manager. The decisions in Aiyavier v. Subramania Aiyar : AIR1918Mad395 and Natesa Aiyar v. Subramania Aiyar (1918) M.W.N. 703 are certainly clear authorities in favour of the Respondents.

19. As to the second contention, we would point out that though the case in Kandasami v. Dorasami Aiyar I.L.R. (1880) 2 Mad. 317 was one of actual allotment, there is no reason why the same principle should not, at the present day, be applied to a division of status as well. The father's power comprises two things (a) division between himself and his sons (b) division between the sons inter se. Whether, in the latter case, there may be a mere division of status at the father's choice, we need not now decide, but we see no objection to the recognition of the possibility of a severance of status in the former case, for (apart from the facts of this case) it is well-established that the father need not take a share for himself. The language of placitum ii of Ch. I, Section ii of the Mitakshara is quite general, to the effect 'when a father wishes to make a partition, he may at his pleasure separate his children from himself. The fact that the actual allotment made by him turns out to be invalid need not take away the division of status intended to be brought about cf. Partap Singh v. Dalip Singh I.L.R. (1930) 52 All. 596.

20. We accordingly hold that the first plaintiff became divided from Krishna Josier by reason of Ex. I and as the transaction cannot be upheld as a partition, the plaintiffs are entitled to a division of the properties, except item 126 of the plaint schedule, which the lower Court has found to be family properties, into two equal shares and delivery of one share to themselves. In this view, it is unnecessary to decide issue No. 12. We have left it to the parties to consider whether it is necessary to go through the trouble and expense of a division by a Commissioner; but if they cannot agree upon some arrangement, the lower Court will take the necessary steps for effecting a division and pass a final decree. In making the division, the two items of assets specified in Ex. VIII (a) will also be taken into account. Ex. VI was executed by Krishna Josier only as a divided member. It cannot therefore bind the plaintiffs.

21. On the footing that the first plaintiff and his father became divided in status as from the date of Ex. I the plaintiffs are entitled to mesne profits, in respect of their share, between that date and the date of Krishna Josier's death, subject of course to legitimate deductions, as for instance, in respect of disbursements made for the maintenance of the first plaintiff or his wife or for expenses binding upon the plaintiff's share of the family property. A direction for payment of mesne profits for the said period out of the assets of Krishna Josier will be added in para. 2 of the lower Court's decree. It is not necessary to disturb the direction in that decree as regards mesne profits subsequent to the date of Krishna Josier's death.

22. As regards costs, we cannot help thinking that the plaintiffs were in some degree justified in coming to Court, in view of the lines on which Ex. I has been framed. But after the matter has been fully discussed and decided before the first Court, the plaintiffs could only be taken to have come up on appeal at their own risk. We therefore direct that the parties shall bear their respective costs in the Court below but the appellants must pay the Respondent's costs in the appeal.


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