1. We are not satisfied that the learned Subordinate Judge has sufficiently considered the bearing of all the material 'evidence in this case on the questions whether there was a bona fide dispute which was settled by the com-promise embodied in Exhibit A and the partition deed Exhibit C or a fair family settlement. He has not considered the effect of the evidence as to the property, which is the subject of the present suit and in the hands of the alienee, having been the separate property of Mailchamy and his branch, having come to them from their grandmother's father, the Zemindar of Ayakudi. He has also not considered with reference to the question of bona fides the evidence as to whether the two branches were divided or not. This evidence must be taken into account in order to arrive at a conclusion whether the compromise now in question was really a bona fide compromise of doubtful claims or a fair family settlement. Before disposing of the case, we must call for a fresh finding on these questions. We leave it to the discretion of the learned Subordinate Judge to decide whether fresh evidence should be taken. We direct the Subordinate Judge to return findings on the following issues:
1. Was the property in dispute the separate property of Mailchamy?
2. Were Mailchamy and Mandalathipathi undivided?.
3. Was there a bona fide dispute which was settled by Exhibits A and C or did they amount to a fair family arrangement? In considering this question the evidence as to the existence of a Will by Mailchamy leaving property to be divided into three shares, will also have to be considered.
2. Two months will be allowed for the submission of the finding and seven days for objections.
1. In compliance with the order contained in the above judgment the Temporary Subordinate Judge of Madura submitted the following
FINDINGS.--The High Court having remanded the case for finding on the following issues, viz:
(i) Whether the property in dispute is the separate property of Mailchamy and his branch, having come to them from their grandmother's father the Zemindar of Ayakudi?
(ii) Were Mailchamy and Mandalathipathi undivided?
(iii) Was there a bona fide dispute which was settled by Exhibits A and C or did they amount to any family arrangement?
I submit the following findings:
1. issue 1.--The suit properties consist of 8 items. Of these, items Nos. 6 and 8 are house properties and the rest are lands. It is not clearly stated in the plaint how the suit properties are the separate properties of Mailchamy and his branch. Plaintiffs' Vakil says that it is never the plaintiffs' case that the properties are Manjakkani properties of Mailchamy's grandmother Madamma, but their case is that they are the self-acquisition of Mailchamy in his own lifetime, having been given to him by the Zamindar of Ayakudi on account of love and affection towards him. I shall, therefore, consider whether the properties were the self-acquisition of Mailchamy in his own lifetime. In support of their contention, plaintiffs examined Sivaswami Pillai (plaintiff witness No. 10), who was Karnam of Ayakudi. They also rely on the statement, Exhibit LL, filed by the 3rd defendant in the criminal proceedings and on the descriptions contained in the documents Exhibits CC, DD, G and E executed by Mailchamy. Sivaswami Pillai (plaintiff witness No. 10) says in his chief 'examination that items Nos. 1, 2 and 7 (which are situate in the block called Panchantbangi and irrigated by Papan channel) and also items Nos. 4 and 5 (which are Combai Punjai) were given to Mailohamy by the Zemindar. Third defendant also in her statement (Exhibit LL) stated that the suit properties were given to her father-in law Mailchamy by the Zemindar. But the statement of these two witnesses is worthless. Plaintiffs' witness No. 10 admitted in his cross-examination that he had no personal knowledge of the alleged gift to Mailchamy by the Zamindar. Third defendant also bad no personal knowledge, and in the plaint, Exhibit M, which she subsequently filed, she ceased to mention that the suit properties were her father-in-law's self-acquisition. As regards items Nos. 2 to 6 and 8, Mailchamy himself nowhere described them as his self-acquisition. He was describing as his self-acquisition only items Nos. 1 and 7 (for the description of item No. 1, see Exhibits CC, DD, G and for description of item No. 7, see Exhibit C). To consider that at least these two items Nos. 1 and 7 were his self-acquisition, I do not think that the mere recitals in the above said documents are sufficient in the absence of any other corroborating evidence. ], therefore, hold that none of the suit properties are the self-acquisition of Mailchamy in his lifetime. They are not either Manjakkani properties (Streedhanam) of Mailchamy's grandmother according to the plaintiffs' Vakil's own admission.
2. Issue 2.--Then with regard to the second question, there is no direct evidence, either oral or documentary, on the point of division set up by the plaintiffs. The matter is to be judged merely from circumstantial evidence. It is conceded on all hands that Mandalathipathi's father and grandfather lived at Balasamudram and remained in possession of the properties there, while Mailchamy and his father lived at Ayakudi and remained in possession of the properties situate in that village. It is also in evidence that the patta for Ayakudi lands stood in the name of Mailchamy (vide pattas T series) and that he alone was paying the taxes on those lands and also on the houses situate in that village (vide receipts Exhibits U, W, Y series), while the patta for Balasamudram lands stood in the name of Mandalathipathi's father (vide receipts Exhibit L) and after his death in the name of Mandalathipathi (vide patta Exhibit SS). Also each branch was alienating the properties in its separate possession as its own. To begin with the alienations of Balasamudram properties by Mandalathipathi's branch alone, Mandalathipathi's father executed in 1865 two mortgages of some ancestral lands at Balasamudram as if they belonged to him exclusively, and died in 1868 (vide recitals in Exhibit L). Afterwards Mandalathipathi's mother as guardian of Mandalathipathi discharged these two debts by selling away the mortgaged lands for Rs. 8,000 (vide sale-deed Exhibit L). Mandalathipathi's mother as his guardian sold away also one ancestral house in 1873 under sale-deed Exhibit H, as if it belonged to Mandalathipathi's branch alone. Mandalathipathi himself after he attained majority executed a mortgage of all the remaining ancestral lands at Balasamudram as if they were his own (vide mortgage-deed Exhibit M) and lent the money so raised on that mortgage to a certain Muhammadan, Kadir Lebbai (vide Exhibit AA), without the concern of Mailchamy. Similarly from 1881, Mailchamy alone commenced to make alienations of the ancestral properties at Ayakudi in his possession as if they were his own (vide mortgages and sale-deed--Exhibits Q, R, NN, OO, and CC). All these circumstances--the separate living of the two families from the time of Mandalathipathi's grandfather, separate possession and enjoyment of separate properties by each branch, separate pattas and separate payment of kists and separate dealings with the separate properties in their respective possessions as if they were their own properties--all these clearly indicate that the two branches must have become divided both in status and estate at least so far back as 1865.
3. It is argued by the defendants' Vakil that the two branches might be joint and the alienations made by Mandalathipathi's father in his time and those made after his death by Mailchamy might be in their capacity as the then family managers. But the subsequent conduct of Mandalathipathi and his mother leaves no room for any such supposition. If the two families were undivided, Mailchamy as the senior member and manager would be the proper person to execute Exhibits L and H either singly or jointly with Mandalathipathi's mother. But instead of that we find Mandalathipathi's mother alone executing those deeds as guardian of Mandalathipathi and treating him as the absolute owner of Balasamudram properties. As above pointed out, Mandalathipatbi also after attaining majority considered himself to be the absolute owner of the properties' situate at Balsamudram. He got the patta for Balasamudram lands issued in his name and he sold away some of those properties and mortgaged some, without reference to Mailchamy. Such cannot be the case if the two families were joint and Mailchamy was the manager after the death of Mandalathipathi's father.
4. Defendants' Vakil next argues that the properties described as ancestral and dealt; with under Exhibits H, L, K and M might have been the self acquisition of either Mandalathipathi's grandfather or father, and not derived from the common ancestor, and that Mandalathipathi and his parents, therefore, rightly dealt with those properties without reference to Mailchamy. But there is no proof that the properties so dealt with were the self-acquisition of Mandalathipathi's grandfather or father.
5. Then with regard to the evidence on the defence side, defendants have absolutely no evidence whatever to show that the income from the lands of the two villages was ever mixed together and used by both families for common purposes during the lifetime of Mandalathipathi's father and grandfather. To prove jointness defendants rely mainly on the fact that during his minority Mandalathipathi lived with Mailohamy and that the latter then managed the properties in the two villages. Mandalathipathi lost his father in 1869 and mother in 1876. At the time of the death of his mother he was about 71/2 years old. Defence witnesses Viswanatha Monigar (defence witness No. 1), Suppiah Chetti (defence witness No. 3), Sankaralingam Pillai (defence witness No. 4), Venkatagiri Nainavaru 'defence witness No. 6) and also 3rd defendant (defence witness No. 7) say that since his mother's death and until 1895 Mandalathipathi lived at Ayakudi with Mailchamy. Defence witnesses Nos. 1 and 2 further say that Mailchamy then managed also the lands at Balasamudram and received the paddy from those lands. That Mandalathipathi lived with Mailchamy for sometime after his mother's death is admitted also by plaintiffs' eleventh witness (Chithanaha Vadhiar) and by Mailchamy himself in his written statement Exhibit KK-1. But I do not attach any special importance to this circumstance. It may be that Mailchamy took Mandalathipathi into his protection and looked also after his lands, seeing that he lost both his parents and there was no other to take care of him. This was what Mailchamy stated in Exhibit KK 1. There is not a single document to show that Mailchany treated Balasamudram properties as his own even during that period.
6. During the time Mandalathipathi lived with Mailchamy, Mailchamy attested two sale-deeds (Exhibits J and K) executed by Mandalathipathi in respect of the ancestral houses at Balasamudram. Similarly Mandalathipathi attested usufructuary mortgage (Exhibit BB) and a sale deed (Exhibit Z) of Ayakudi lands executed by Mailchamy. Further Mandalathipathi having owed some rent to the mortgagee under Exhibit BB, Mailchamy undertook to pay it on Mailchamy's behalf (vide Exhibit XV). Defendants' contend that these acts indicate that Mailchamy and Mandalathipathi had joint interest in all the properties situate in both the villages. But mere attestations alone of each other's documents do not signify any such thing. At no time they executed or took any document in their joint names. Then about Mailchamy's undertaking to pay the rent due by Mandalathipathi, it is not known under what circumstances he had be undertaken. The above circumstances are, therefore, not sufficient to warrant an inference of jointness.
7. Defendants rely also on the written statement Exhibit KK-1 put in by Mailchamy in answer to Mandalathipathi's plaint Exhibit KK. But I do not think that statement helps them in any way. No doubt Mailchamy has not expressly stated in Exhibit KK-1 that there was any regular partition between the two families. But he openly denied that the two families were joint and alleged that the sole and independent enjoyment by each branch of the properties in their respective possession from several years operated as a virtual or de facto division. That' appears to be his plea by reading together paragraphs 4 and 5 of that statement.
8. Such is the evidence on both sides. In my opinion, the whole evidence and inferences from facts proved are consistent only with the hypothesis of separation of the two branches in estate also long before the death of Mandalathipathi's father. My finding then is that Mailchamy and Mandalathipathi were not joint.
9. Coming now to the question whether the Will set up by the 3rd defendant is true, Viswanatha Monigar (defence witness No. 1), Suppiah Chetti (defence witness No. 2), Sankaralingam Pillai (defence witness No. 4) and the 3rd defendant (defence witness No. 7) say that Mailchamy died on 14th May 1901, that four days before his death, i.e., on 10th May he executed a Will by which he bequeathed all his properties equally to his daughter (the 1st defendant), daughter-in-law (the 3rd defendant) and nephew (Mandalathipathi) and that the said Will was written by one Perumalswami Naicken and attested by defendants witnesses Nos. 1, 2 and 4 and 15 others. Venkatagiri Nainavaru (defendant witness No. 6) says that he came to Ayakudi on the next day after the execution of the Will, that Mailchamy then mentioned the Will to him and that it was also read over to the witness. But the evidence of these witnesses is interested and conflicting. Defendant witnesses Nos. 1 and 2 hold decrees against the 2nd defendant and it is, therefore, their interest to see that the 2nd defendant is not deprived of the plaint properties. Defendant witness No. 4 is indebted to the 4th defendant. Defendant witness No. 6 is a near relation of the 3rd defendant, and it was he who conducted all the criminal proceedings on behalf of the 3rd defendant and also the suit of 1902. Defendant witness No. 4 says that Mailchamy divided his properties among the three legatees and that three lists showing the properties given to each legatee were prepared along with the Will. But defendant witness No. 1 does not say that any such division was made and lists were prepared. In her plaint, Exhibit MM, 3rd defendant set up that her father-in-law made another Will previously on the 7th May 1901, by which he bequeathed all his properties equally to her and her daughter alone. But that prior Will is now denied. The first mention of the Will now in question was made by the 3rd defendant only in her plaint (Exhibit MM) filed in February 1902 after along interval of nine months. It was never put forward before. The reason given by the defendant's witnesses for its non registration is that at the instigation of Mandilathipathi, Perumalswami Naicken duped the defendants Nos. 1 and 3 by saying that the Registrar would come. But it is not a satisfactory reason, Mailchamy would not have allowed Perumalswami Naicken to make any delay.
10. On the plaintiffs' side plaintiff witness No. 1 (1st defendant) denies that any Will was executed by her father. Also plaintiff and plaintiff witness No. 11 (Palace Tutor) Say that Mailchamy did not execute any Will before his death. For the above reasons I find that the alleged Will is not true.
11. Issue 3,--I have found that the two branches were divided. Neither the 1st defendant nor Mandalathipathi could have been in ignorance or in doubt as to that fact. After he had attained majority, Mandalathipathi got the patta for Balasamudram lands issued in his name and mortgaged those lands as if they were his own. He thus considered himself to be a divided member. Third defendant also cannot be said to have any honest and bona fide belief in the claim she was making. I, therefore, hold that the compromise (Exhibit A) and the subsequent partition deed (Exhibit C) was not bona fide, nor can they be properly called a family settlement.
This appeal came on for final bearing after the return of the finding of the lower Court on the 28th April 1919.