1. The eighth issue raises the question whether the family of the parties possesses any interest in the lands comprised in schedule II-B. The plaintiff's contention is that, while the melvaram is admittedly part of the charity estate, the kudivaram in those lands belongs to the family. According to the memorandum made on the 26th May 1888, the property declared to have been purchased by the plaintiff for Rs. 7,750 was the choultry at Vachakarapatti. It is more particularly described in Exhibit D as 'the huk right of Vachakarapatti choultry, the lands the registry of which stands in the names of Alagappa Mudaliar and Shanmugasundara Mudaliar in No. 6, the decree razinamah, and all other daeds in respect of the said choultry, Rs. 747 being in possession of Sivaramasundara Mudaliar, and Rs. 70 from the tirvah of Sekanapuram and all the lands partaining to Vachakarapatti choultry together with all the rights and privileges thereof.'
2. The property now claimed as family property consists of the lands registered in the names of Alagappa Mudaliar and Shuumugasundara Mudaliar. The circumstance that they are specifically mentioned in Exhibit D is regarded by the Subordinate Judge as indicating that they were not chattram lands. In our opinion the language is equivocal, and, taking Exhibit D with Exhibit E, we do not think that any inference in the plaintiff's favour can be drawn from it; rather the contrary. Similarly with regard to the security bond (Exhibit R), the language of it is consistent with either view. Seeing that the writer styled himself hukdar, we think he might, with perfect honesty, describe the charity lands as his lands. The fact that he so designates them in such a document is no ground for the inference that he treated the lands as his own to the exclusion of the right of the charity. The fact is that the family treated the charity and its property as their own.
3. There is no documentary evidence distinctly showing that the family claimed the kudivaram of these lands. No patta or village accounts are produced. The Subordinate Judge refers to the evidence of certain witnesses. The third witness is the only witness who has no direct interest in these lands. His evidence is not specific as to the lands in question; the plaintiff's vakil was unable to show what the receipts mentioned by him proved. The other two witnesses are the parties themselves.
4. The defendant No. 1 says that the lands were previously entered in the name of the chattram and that he was no party to the transfer to the names of the plaintiff and defendant No. 2. The plaintiff on the other hand is unable to say in whose name the lands stood in his father's time, and he has no voucher to show that they stood in his father's name. He professes not to know how they came to be transferred to himself and the second defendant. It cannot therefore be according to him that the transfer was made by common consent as the plaintiff's vakil contends.
5. We cannot agree with the Subordinate Judge in thinking that the evidence as to enjoyment proves the alleged possession of the kudivaram by the family.
6. The result is that we must hold that so much of the agreement as relates to the auction sale in consideration of the Rs. 7,750 cannot be enforced.
7. As, however, this arrangement is clearly separate from the rest of the agreement, we see no reason why the plaintiff should not have partial relief. There is no dispute as to the findings on issues 1, 2, 3 and 6. It is unnecessary to decide the issues numbered 9, 10 and 11. The finding on the new issue is not challenged.
8. The decree of the lower Court must be reversed and the plaintiff must have a decree as prayed except so far as regards the property included in Schedules II-B and II-G attached to the plaint, as to which property the plaintiff must be declared to be jointly entitled to management with the defendants Nos. 1 and 2.
9. Under the circumstances we think each party should pay his own costs.