1. This Second Appeal and the Memorandum of Objections arise out of the decree and judgment of the learned District Judge of Tiruchirapalli in A.S. No. 246 of 1955, reversing the decree and judgment of the learned Subordinate Judge of Tiruchirapalli, in O.S. No. 275 of 1952.
2. The suit, out of which this Second Appeal arises, was filed by the plaintiff for partition and separate possession of his one-sixth share in the suit properties.
3. Defendants 1 to 3 were members of an undivided Hindu family. The plaintiff is the son of the first defendant. On 11th October, 1939, there was a partition between the first defendant on the one hand and defendants 2 and 3 on the other hand. In that partition the total extent of properties to be divided were acres 29-70 cents of wet land and acres 9-18 cents of dry land and two houses. The properties given to the first defendant under the partition deed were acres 4-61 cents of wet land, 0-66 cents of dry land and a tiled house worth Rs. 600. The pre-partition debts payable by this family were Rs. 5,000. In regard to the wet lands allotted to the first defendant, out of acres 4-61, acres 3-12 cents stood in the name of Pappammal, the widowed sister of these defendants. The sale deeds standing in the name of Pappammal for these properties are Exhibits A-1, dated 19th August, 1918, A-8, dated 8th September, 1919 and A-9, dated 15th November, 1935. There is no dispute that subsequent to this partition two things happened. The first defendant on the one hand and defendants 2 and 3 on the other hand continued to enjoy the properties as allotted to them under the partition. The father of the plaintiff the first defendant Ratna Padayachi, acquired after partition the following properties:
Exhibit. Date. S.No. Details. Extent.
B-4 23-4-1940 174/3 Sale deed by Lakshmana
Padayachi to the first
defendant. .. 1 60
179/1 ' ' .. 1 02
B-9 29-6-1942 9/4 Sale deed by Natesa Paday-
achi to the first defe-
ndant. .. 0 62
10/5 ' ' .. 0 49
B-10 26-3-1945 208/10 Sale deed by Thangavel
Padayachi to the first
defendant .. 0 67
B-11 4-5-1942 227/4 Sale deed by Gurusami
Chettiar to the first
defendant .. 1 02
227/5 ' ' .. 0 09
Total .. 5 51
4. The second defendant Arumugha Padayachi acquired after the partition of 1939 the following properties:
Item No. in the plaint in O.S. No. Survey No. Extent.
275 of 1952 A. Schedule. Ac. Cs.
27 174/3 1 60
28 179/1 1 02
29 164/4 0 25
30 164/6 0 12
31 184/3 0 66
32 164/5 0 42
33 188/3 0 08
34 155/6 0 33
46 3/1 0 24
47 3/2 1 27
48 3/5 1 01
49 3/6 0 09
50 3/7 0 58
51 7/1 1 01
52 7/2 0 46
61 .. ..
Tiled house built by second
defendant after partition,
dated 11th October, 1939,
at his expense. ____________
Total 9 14
5. We do not know the properties acquired by the third defendant. I have just now mentioned that acres 3-12 cents standing in the name of Pappammal were allotted to the first defendant. This Pappammal had a sister. The plaintiff has married the daughter of that sister, viz., the deceased fifth defendant Rajammal. On her death apparently without issue, her husband, the plaintiff Thangavelu Padayachi, has become her heir.
6. In 1942, under Exhibit B-3, dated 14th November, 1942, defendants 2 and 3, who remained joint in the partition of 1939, got divided inter se. It is in these circumstances that the plaintiff has come forward with his suit for partition on the ground, among other extravagant claims which were all negatived and which are not pursued here, that excluding the properties of Pappammal allotted to his father and making provision for proportionate share in the joint family debts by deduction, the partition was grossly unfair in so far as the plaintiff's father (first defendant) was concerned and it is not binding on him (plaintiff's share) and that therefore that partition should be reopened and a fresh allotment made so far as plaintiff is concerned.
7. The contention of the second defendant, with whom the third defendant sailed up to the last moment, was that the partition of 1939 was not grossly unequal, justifying its reopening and secondly that the plaintiff is estopped from disputing the 1939 partition. The third defendant who was sailing with the second defendant practically up to the last moment, apparently finding a fair wind blowing in the way of the plaintiff, set up the pretension that the 1942 partition as between himself and the second defendant was grossly unfair and that it should also be reopened.
8. The learned Subordinate Judge gave the following decree:
In the view I am taking of the partition deeds of the years 1939 and 1942, I am satisfied that these partition deeds have been brought about by fraud and undue influence of the second defendant and therefore, there is no question of awarding compensatory cost to the second defendant.
In the result, plaintiff will be entitled to an 1/6th share in the properties mentioned in Exhibit B-1 minus the properties belonging to fifth defendant which is covered by Exhibit B-34. The second and third defendants in addition to their 1/3rd share in such of the properties covered by Exhibit B-1 which belongs to the family jointly, will each be entitled to half of the properties covered by Exhibits B-8, B-13 to B-15. First defendant will get an equal extent like plaintiff. Plaintiff and first defendant will each pay the second defendant 1/6th share each of the mortgage amount due under Exhibit B-2. Cost of suit will come out of the estate and will be borne by the parties proportionate to their share....
9. On appeal the learned District Judge came to the conclusion that the partition of 1939 was not by itself grossly unfair and that plaintiff is estopped by his subsequent conduct from asking for such reopening and that no case has also been made out for re-opening the partition of 1942 and dismissed the suit. Hence this appeal by the defeated plaintiff.
10. In this second appeal, I am of the same opinion as the learned Subordinate Judge in regard to the 1939 partition and that in regard to the second partition of 1942, I am of the same opinion as the learned District Judge. Here are my reasons.
11. I shall first deal with the 1942 partition. In that partition there can be no dispute that besides what was given to the first defendant, the rest of the properties were divided between defendants 2 and 3. Both of them, as I shall show later, have colluded to over-reach the first defendant and divided the loot. The third defendant had never challenged this partition of 1942 at any earlier stage. In fact he backed the second defendant practically to the last moment. It is only after he found that a fair wind was blowing in the way of the plaintiff, he has also started setting up his pretensions for which there is no warrant. The second and third defendants have been acting upon the 1942 partition and I have set out above the list of properties acquired by the second defendant. There can be no doubt in these circumstances that there are no grounds whatever to reopen the 1942 partition as between the second and the third defendants and which cannot be the subject-matter of this suit except to the extent that the second and the third defendants will have to make good the deficiency in the allotment to the first defendant in the 1939 partition. Therefore, the memorandum of cross-objections by the third defendant is dismissed.
12. The law relating to the reopening of a partition is really well settled and is set out in P.V. Kane's History of Dharmasastra, Volume III, page 634 ; Mayne's Hindu Law and Usage, Eleventh Edition, page 567; Mulla's Principles of Hindu Law, Eleventh Edition, page 444 : N.R. Raghavachariar's Hindu Law, Third Edition, page 423 and S.V. Gupte's Hindu Law, Second Edition, page 285 (Article 64).
13. Manu (IX-47) emphatically states:
Once is a partition made, once is a maiden given in marriage, once does a man say ' I shall make a gift of this or that' ; these three are done only once by the good.
This means that a partition once made is final and cannot ordinarily be reopened. But there are exception to this rule. One exception is that where some property of the joint family had been fraudulently concealed by one member and was discovered afterwards or where some property was left out from partition either through mistake or accident, such property should be divided according to their shares among the persons who made the first partition. In this case there is no reopening of the partition once made, but there is another partition. Manu IX-218; Yaj. II, 126 Kaut. III-5 and Kat. 885-86 lay down this. Kat. says:
If (joint) wealth was concealed, but is afterwards discovered, the sons should divide it equally With their brothers in the absence of the father, (i.e., even after his death). Whatever is concealed from each other (by the co-sharers) or what Was divided in an unjust manner and whatever was recovered (such as debts) after (partition) should be partitioned in equal shares.
This is the view of Bhrug. The Smritichandrika, XIV-7-8; Dayabhaga XIII 1-33-5; Viramitrodaya II, 1-14 page 326; contain similar injunctions.
14. To sum up, a partition once effected is final and can be reopened only in cases of fraud or mistake or subsequent recovery of family property. A partition which is shown to be prejudicial to the minor coparcener will be set aside so far as he is concerned.
15. But at the same time where at a partition intended to be final, some part of the property has been overlooked or fraudulently concealed, but is afterwards discovered, it will be subject of a like distribution among the persons who were parties to the original partition or their representatives. But the former distribution will not be opened up again: Manu, IX-218 ; Mit., I-IX, 1-3; Dayabhagha XIII-1-3-6 (what has already been divided is not to be divided again). Conversely, where through a mistake as to, or ignorance of, the title, property has been handed over to one member for his share, which turns out to belong to a stranger, or is to be charged for his benefit, the person who has received such property will be entitled to compensation out of the shares of the others. It is only where the whole scheme of distribution is fraudulent, whether as regards a minor or otherwise, it will be set aside absolutely, unless the person injured has acquiesced in it after full knowledge that it was made in violation of his rights. (Brih., II-486; Manu, IX-47 ; Dayabhaga, XIII-5).
16. Bearing these principles in mind, if we examine the facts of this case, we find that the partition of 1939, so far as this plaintiff is concerned, is liable to be reopened. The share allotted to the first defendant and in which the plaintiff will get a half share consisted of acres 4-68 cents of wet lands, including acres 3-12 cents belonging to the fourth defendant, the house-site of 7 cents and dry lands of 66 cents. The share allotted to defendants a and 3 consisted of acres 26-13 cents of wet lands, which included 32 cents belonging to the fourth defendant, house-site of 11 cents, dry lands acres 6-91 cents and outstandings Rs. 465. On that date the family liabilities were, as found by the learned Subordinate Judge, the Exhibit B-2, dated 12th June, 1937, mortgage executed by defendants 1 to 3 and discharged on 19th, May, 1945 and promissory note debts evidenced by Exhibits B-39 to B-47 except B-42 all executed by the second defendant, in all amounting to Rs. 1,300. These liabilities have been estimated by the learned Subordinate Judge who has also found that one acre of wet land would be worth Rs. 750 and that two acres could legitimately be considered to repay the share of liability to be allotted to the first defendant. It has been finally found, and I entirely agree with the conclusion of the learned Subordinate Judge and which has not in any way been effectively repelled by the learned District Judge, that acres 3-12 cents belonging to Pappammal and allotted to the first defendant is not joint family property. It is unnecessary for me to canvass once again the sound and adequate reasons on which this conclusion was arrived at by the learned Subordinate Judge. In fact no attempt was made before me to show that the appreciation of the evidence by the learned Subordinate Judge is either inadequate or incorrect. The learned Subordinate Judge after examining in paragraph 10 of his judgment the question whether these properties formed part of the joint family properties or that the properties really belonged to Pappammal in whose name the sale deeds stood, writes in paragraph 11 of his judgment as follows:
The other overwhelming evidence on the side of the plaintiff definitely goes to show that the B Schedule properties were exclusive properties of the fourth defendant, and probably was in the management of the three brothers, and simply taking advantage of the fact that they were in management, they choose to divide the properties as if they belong to the joint family. It was also stated that the 4th defendant has no issues, and that might have impelled defendants 1 to 3 to think that after the death of the fourth defendant the property will go to them, and that accounts for treating her property also as belonging to the joint family, and available for partition. I, therefore, find that the properties which did not belong to the joint family have, as a matter of fact been treated as available to the joint family for division and such properties have been included in Exhibit B-1 in 1939.
17. Therefore, the net result of this analysis is that the plaintiff got for his half share out of the properties got by the first defendant in the joint family properties, 33 cents of dry land, 3 1/2 cents of house-site and 74 1/2 cents of wet land instead of getting acres 4-55 cents of wet land, 3 cents of house-site and acres 1-26 cents of dry land. Out of this, one acre of wet land will have to be deducted as for his share of the joint family liability. Thus, he will get aeres 3-55 cents of wet land, 3 cents of house-sites and acre 1-26 cents of dry land.
18. In regard to houses, the first defendant has been given a tiled house worth Rs. 600 and the second defendant has built a tiled house at his own expense after the 1939 partition. Therefore, so far as houses are concerned, there is no inequality in the partition. The partition has got to be reopened, so far as the plaintiff is concerned, only as regards the lands. It cannot be reopened so far as the first defendant is concerned, because the first defendant has remained ex parte and what is more, though a coparcener cannot give up the share of his son, (father, son and son's son all get by birth a vested right to share in the joint family property), it was open to the first defendant to limit his share to a figure much lower than what he would be entitled to. This unequal partition could be rectified by making the second and third defendants to make good the deficiency due to the plaintiff, viz., what he should have got as his half-share in 1939 partition minus half of what he got in that partition as his share.
19. The second defendant seeks to non-suit the plaintiff on another ground, viz., the execution of Exhibits B-5 and B-26 by him. Exhibit B-5 is a mortgage executed by the plaintiff and his father, the first defendant, in favour of Natesa Chettiar. It appears from the recital in Exhibit B-5 that on that date the first defendant has purchased some of the properties covered by the mortgage. Under Exhibit B-5 the father and son hypothecate not only the properties purchased by the father on that date, but also the properties which fell to the first defendant's share in the parition under Exhibit B-1. The partition of 1939 is thus said to have been confirmed by the plaintiff. Exhibit B-26 is a registration copy of a bogyam-deed executed by the first defendant and the plaintiff in favour of Kumaraswami Chetty for Rs. 1,000. There also it is recited that the properties covered thereby have been got under a partition, it is therefore urged that the partition deed of 1939 has been given effect to and accepted and acted upon by the first defendant and the plaintiff and that the plaintiff is estopped from putting forward the present claim. That this would not operate as estoppel is the finding of both the Courts below. The learned Subordinate Judge has rightly pointed out that if the rule of estoppel is to operate, some detriment must have been to the second defendant by such a declaration on the part of the plaintiff. How the second defendant has been placed at a disadvantage by such a representation being made by the plaintiff to the third parties, has not been explained and from the mere circumstance that the plaintiff has joined in the execution of Exhibits B-5 and B-26 it could not be said that the plaintiff has given up his right to the joint family proper ties. Therefore, the point taken regarding estoppel fails and there is no legal bar to the present claim of the plaintiff.
20. In the result, the decree and judgment of the learned District Judge so far as the plaintiff is concerned, are set aside and the decree and judgment of the learned Subordinate Judge are modified as follows : The second and the third defendants in moieties will make good to the plaintiff acres 2-80 1/2 cents of wet land, and 93 cents of dry land from out of the totality of their share of wet and dry lands. The decree and judgment of the learned Subordinate Judge in regard to the direction for the ascertainment of mesne profits of the plaintiff's share from date of suit is affirmed. A preliminary partition decree on the term will issue. Final decree to be passed by the learned Subordinate Judge.
21. As regards costs, taking into consideration the prior circumstances leading up to this litigation and the fact that the plaintiff and defendants have failed and succeeded in part, the parties will bear their own costs throughout. Costs, if collected, will not be refunded. No leave.