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Velusami and anr. Vs. Velusami Konar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberAppeal Nos. 272 and 425 of 1955 and Memorandum of Objections in App. 272 and 425 of 1955
Judge
Reported inAIR1962Mad153
ActsRegistration Act - Sections 17, 17(1) and 49; Transfer of Property Act; Evidence Act - Sections 91; Stamp Act - Sections 49
AppellantVelusami and anr.
RespondentVelusami Konar and ors.
Cases ReferredRadhakrishnayya v. Sakuntala
Excerpt:
property - partition - sections 17, 17 (1) and 49 of registration act, transfer of property act, section 91 of indian evidence act and section 49 of stamp act - appeal against order passed by subordinate judge regarding partition - partition true and valid - 1st respondent has no objection to appellants conducting adi festival and he is willing to take up management for rest of year - appeal liable to be dismissed. - - the further case of the first respondent is that the fourth respondent as well as his son, the first appellant, accepted the arrangement, and that they should not be allowed to go behind it. in addition, they have complained against the schemes of the management of the trust properties, contending that the appellants branch had been given 2/3rd share in the one half.....ramachandra iyer, j. 1. these appeals arise out of the decree and judgment in o. s. no. 85 of 1953 on the file of the sub court, madurai. plaintiffs and the 4th defendant are appellants in app. nos. 272 and 425 of 1955 respectively. the suit was one for partition of the plaintiff's share in the properties set out in schs. a to f to the plaint. the a schedule properties had been dedicated to a trust, and the parties are agreed that the trust was a private one; the only dispute between them is regarding a scheme for management for the performance of the trust. the b schedule relates to the lands, c schedule to a house, d and e schedules of the two outstanding and a business and f schedule to shares in sri meenakshi mills alleged to be owned by the family.(2) one chockalinga owned the.....
Judgment:

Ramachandra Iyer, J.

1. These appeals arise out of the decree and judgment in O. S. No. 85 of 1953 on the file of the Sub Court, Madurai. Plaintiffs and the 4th defendant are appellants in App. Nos. 272 and 425 of 1955 respectively. The suit was one for partition of the plaintiff's share in the properties set out in Schs. A to F to the plaint. The A schedule properties had been dedicated to a trust, and the parties are agreed that the trust was a private one; the only dispute between them is regarding a scheme for management for the performance of the trust. The B schedule relates to the lands, C schedule to a house, D and E schedules of the two outstanding and a business and F schedule to shares in Sri Meenakshi Mills alleged to be owned by the family.

(2) One Chockalinga owned the properties. He left behind him two sons, Verusami and Tirupathi who are respectively first and fourth respondents in A. S. No. 272 of 1955 and 4th respondent and appellant in A. S. No. 425 of 1955. It will be convenient to refer to the parties according to their rank in A. S. No. 272 of 1956. The appellants are the son and grandson of Tirupathi, the 4th respondent, while the 2nd and 3rd respondents are sons of the first respondent, Velusami. Respondents to the appeal are defendants 1 to 4 in the suit. Two others, namely, defendants 4 and 5 represented a collateral branch of the family in the suit, but they have not been made parties to the appeals. Their interest is only in regard to the management of A schedule properties.

(3) The case for the appellants was that respondents 1 to 4 formed members of a Hindu joint family which owned the properties set out in the various schedules to the plant, that there were some attempts for partition through mediation in the year 1950, and that although a tentative arrangement was made there was no final or effective partition. The appellants stated that they were entitled to their share in all the properties of the family and repudiated the claim to Jyeshtabagam on the part of the first respondent. The fourth respondent supported the claim of the appellants. Respondents 1 and 2 contested the claim. They pleaded that there was a completed partition of the family properties in the year 1950 during which the first respondent made a claim that he must be given increased share (jyeshta bhagam) as a reward for the services he rendered to the family by improving its prosperity, and the mediators who effected by the partition allotted to him, in addition to his share, about 5 acres of land and Rs. 5000 cash. The further case of the first respondent is that the fourth respondent as well as his son, the first appellant, accepted the arrangement, and that they should not be allowed to go behind it. The question whether there was a completed partition in the year 1950, was the substantial issue in the suit. There were also other subsidiary questions in regard to the extent of the properties that would be available for partition.

(4) When the trial of the suit commenced, the parties filed a joint Memo on 11-12-1954, under which they agreed, without prejudice to their contentions, to repartition the properties, subject to the determination by the court, the right of the first respondent to retain the five acres of land and the sum of Rs. 5000 which was given to him under the previous partition; the other questions left to be decided were whether respondents 1 and 4 were in possession of any and what jewels of the family in regard to the items of outstanding and accountability in regard to a business left in charge of the fourth respondent. For decision of the first of the above questions it becomes necessary to decide whether there was a partition in the year 1950 in which the parties agreed to give jeshta-bha-gam to the first respondent and did give 5 acres of land and Rs. 5000 cash.

(5) The learned Subordinate Judge held that the alleged partition in the year 1950 was true, and that the appellants were aware of it and assented to the same. As regards the jewels, he held that there was no evidence of the existence of any jewels, in respect of which either the first or fourth respondent would be liable to account. As regards the outstanding, he held that the parties would be entitled to divide those mentioned in Ex. B 52 except item 136 mentioned therein. Accounting was directed in regard to the outstanding of the javuli business run by the fourth respondent. As regards A schedule properties, the learned Subordinate Judge held that the trust was a private one, and that the parties would be entitled to manage the trust properties by turns. He framed a scheme for such management by taking a period of six years, and giving defendants 5 and 6, the members of the other branch, right to manage in every alternate year, and the remaining three alternate years were allotted to the first respondent, 4th respondent and the appellants. The effect of these findings was that the learned Subordinate Judge accepted first respondent's case, that the partition of the year 1950 was a valid one, which had the effect of validating the allotment to the first respondent of the five acres of land and a sum of Rs. 5000 given to him as Jyeshtabagam for the services rendered by him to the family.

The plaintiffs to the suit aggrieved by the judgment of the lower court, have filed the appeal, questioning the title of the first respondent to the jyeshtabhagam and the finding of the lower court in regard to the existence of the family jewels with the first respondent. The latter claim, that is, for jewels, was not, however, pressed before us. The fourth respondent has also filed an appeal, A. S. No. 425 of 1955, disputing the factum of allotment of properties by way of jyeshtabagam. Respondents 1 to 3, in their turn, have filed a memorandum of cross objections in A. S. No. 272 of 1955, objecting to the judgment of the lower court in so far as it rejected their claim for account in respect of the jewels alleged to have been retained by the fourth respondent. In addition, they have complained against the schemes of the management of the trust properties, contending that the appellants branch had been given 2/3rd share in the one half right that would properly belong to both while they were given only 1/3rd share in the half right and that they would in law, be entitled to one half.

(6) Three questions, therefore, fall to be decided; (1) whether the partition of the year 1950 is true and valid, under which the first respondent was allotted additional properties as and for his jyeshtabagam, (2) whether the fourth respondent is in possession of any jewels belonging to the family and whether he is accountable in respect of the same, and (3) what is the proper scheme for the management of the trust properties. On the first question, Mr. Natesan, the learned advocate for the respondents, did not contended that the first respondent would be entitled to jyeshtabagam by virtue of any custom or law. His contention was that the parties having agreed to make an allotment of additional properties to him the first respondent in consideration of his services to the family, the agreement should be held to be lawful and should not be allowed to be repudiated by merely calling the claim as one of the allotment by way of jyeshtabagam.

(7) The case for the appellants is that there was no completed partition in the year 1950, that any arrangement that was entered into then could only be a tentative one, and that the allotment in such a partition for jyeshtabagam would be invalid. It was their further case, that, even if there was a partition between the first and fourth respondents, such a partition would not be binding on them, as it could not be said to be fair or equitable. It is admitted that partition proceedings commenced towards the end of 1949 and according to the first respondent, it was concluded in February 1950 and was a final partition agreed to by the parties. In support of his case, the first respondent filed Ex. B. 52 and Ex. B. 55 and B. 53. Ex. B. 52 an ainthugai or balance sheet of the outstandings due to the family prepared on 20-5-1950. That sets out all the outstandingss due to the family, and towards the end of the document we find a recital to the following effect:

'In the ainthukai (balance-sheet) deducting the credit of Rs. 2133-1-5 in the name of Sami (God) and matam from the cash balance and of the outstanding of Rs. 19-6-0 due from Murugesan Pillai, and Rs. 103-8-0 due from Ayya Konar and Rs. 5178-12-0 due from B. Rajambal in all of the total outstanding of Rs. 5301-12-0 M. S. V. (First respondent) shall collect and take as and for his jyestabagam Rs. 5000 (five thousand) and Pechimuthu shall collect and take Rs. 301-12-0 and balance of outstandings and balance at hand shall be divided equally by casting lots.'

(8) This document is signed by the first and fourth respondents. Four panchayatdars have also attested along with the writer.

(9) Ex. B. 55 is a list of properties. The heading of the document is as follows:

'Particulars of property got by P. M. S. Velchami Konar (first respondent) as his share in the thiruvilla chetu (Casting of lot).'

The details of the properties allotted to the first respondent are then set out. That was followed by recital (which has been separately marked as Ex. B. 59) to this effect:

'Nanja land in Kathakkurar land S. No. 1-5 comprised...... have been given exclusively to S. P. Veluchami Konar (first respondent) as jyestabhagam as his own from and out of the said patta No. 50.'

The document is signed by the first and fourth respondents and attested by the panchayatdars and the writer.

(10) Ex. B. 53 is a list of outstandings allotted to the fourth respondent. That is subscribed to by respondents 1 and 4 and attested by the same persons.

(11) The arbitrators have been examined as P. Ws. 2 to 5. They speak to the partition and allotment of jyeshtabagam. They also speak to the fact that the partition proceedings started as early as November 1949 when it was agreed that the first respondent should be given jyestabagam, that they decided that he should be given five acres of land and Rs. 5000 in addition to his legitimate share and that those properties were set apart and the remaining properties were divided between the two brothers.

(12) The learned Subordinate Judge, acting on the evidence afforded by these documents and arbitrators (whose respectability was not disputed) came to the conclusion that there was a partition as alleged by the first respondent.

(13) The learned advocate for the appellants contended that Ex. B. 52, B. 55 and particularly the portion marked as Ex. B. 59 and B. 63 would not be admissible in evidence, and that if the evidence offered by those documents were excluded, there would be no evidence in this case to prove as to what properties fell to the share of the first and fourth respondents.

(14) In such a case it was contended that the properties should be divided afresh, and as, under the law the first respondent would not be entitled to anything extra, the properties should be equally divided. Ex. B. 52 purports to assign a debt due from B. Rajambal valued at Rs. 5000 towards the jyestabagam claimed by the first respondent. It is contended that the debt due from Rajambal was secured by a mortgage, and the transfer being one of immoveable property, the document would be inadmissible in evidence in the absence of a registered instrument. On the terms of the document, it is not clear whether the assignment of the outstanding was by virtue of Ex. B. 52 or that document was only a record of previous oral release by the other sharer in favour of his co-sharer as a part of the partition arrangement. The words used are: 'jyeshta Baagattirkkaga eduttukkolla vendiyathupoga.' Those words are quite consistent with the case of the first respondent that the release had been made already. The utmost that could be said in favour of the appellants is that the expressions used are ambiguous import. In that case other evidence has to be looked into for deciding whether the words used intended to convey title in respect of the mortgage. It is however unnecessary to consider that aspect of the matter, as we are satisfied that the document could, even if it were held to be a deed of assignment, validly operate to transfer the debt covered by the security.

In Elumalai Chetti v. Balakrishna Mudaliar, ILR 44 Mad 965: AIR 1922 Mad 344, it was held that the law did allow the mortgage to transfer the debt as an unsecured or simple debt without a registered instrument if he thought fit to do so, for the security was for his benefit, and he could give it up if he liked and the transferee would then get the right to the debt but not the security. In imperial Bank of India v. Bengal National Bank Ltd. the Privy Council upheld the possibility of the transfer of the security on the ground that separation between debt and security was so well established that a creditor would be entitled to take the debt without having recourse to security. In our opinion even if Ex. B. 52 were to be construed as transfer of a mortgage debt the document could validly operate to transfer the debt covered by the mortgage, apart from the security, and would be admissible in evidence for that purpose. That document shows towards jyestabagam. This is corroborated by the other evidence in the case, which shows that it was a part of the partition arrangement entered into between the parties in the year 1950.

(15) The admissibility of Ex. B. 55 has then to be considered. The title of the document would appear to indicate that the partition had concluded and that it merely purported to record the arrangement. It is contended that the portion of that document, relating to the allotment of properties in lieu of jyestabagam, Ex. B. 59 would render the document liable for registration under S. 17 of the Registration Act, Ex. B. 59 is to the effect that five acres and three cents of land have been exclusively given to the first respondent for jyestabagam. That however is not a conveyance. A right to jyestabagam arises only on partition and it is not the case of any of the parties that jyesthabagam could be or was given independent of any partition arrangement. It is a part of partition and cannot amount to a conveyance. A partition is not one of those transfers necessarily to be effected by writing or by a registered instrument.

The Transfer of Property Act, which requires a registered instrument in the case of transfer of immoveable properties, does not require that a release, surrender, or partition of immoveable properties should be effected by a registered instrument, or even by a writing although in one sense each of them involves a transfer of property. A partition between coparceners or co-owners partakes the character of a release and conveyance, and it cannot be said to be either a sale or an exchange. No writing would, therefore, be necessary for a partition. If however the parties to a release, surrender or partition embody the transaction in writing, the question of registerability would arise under the provisions of Sec. 17 of the Registration Act. The Registration Act provides for registration of documents. S. 17(1) of the Registration Act, so far as is relevant for his case states,

'The following documents shall be registered

(a)...............

(b) other non-testamentary instruments which purports or operate to create, declare, assign, or extinguish, whether in present or in future, any right title or interest, whether vested or contingent, of the value of one hundred rupees and upwards to or in the immoveable property.....'

It is clear from the provisions of the section that a document, for which registration is compulsory, should by its own force, operate or purport to operate, to create or declare some right or interest in immoveable property.

(16) In Sakharam Krishnaji v. Madan Krishnaji, ILR 5 Bom, 232, West J., dealing with S. 17 of the Registration Act, observed:

'There 'declare' is placed along with 'create' 'assign' 'limit' or 'extinguish' a 'right, title or interest' and these words imply a definite change or legal relation to the property by an expression of will embodied in the document referred to. I think this is equally the case with the word 'declare'. It implies a declaration of will, not a mere statement of fact, and thus a deed of partition, which causes a change of legal relation to the property divided amongst all the parties to it, is a declaration in the intended sense; but a letter containing an admission, direct or inferential, that a partition once took place, does not 'declare a right within the meaning of the section.'

A mere recital of what had already taken place or the mere fact not by itself creating, or purporting to create a title, could not be held to declare any right and there would be no necessity to register the document.

(17) In Bagheshwari Charan v. Jagarnath Kuari the Privy Council accepted the view of the West J., in ILR 5 Bom. 232. They emphasised the distinction between a mere recital of fact and something which by itself created a title.

(18) The question whether a document requires registration has to be decided on terms of the document itself. When a document is clear resort cannot be had to other evidence to show that it is other than what it is or purports to be.

(19) A partition, although effected orally, it subsequently reduced into a form of document, and that document purports by itself to effect a division and embodies all the terms of bargain would require registration. The reason is not that the transaction required a registered instrument, but that the document purported to declare, or create or affect an interest in immoveable property. In such a case if the document be not registered, S. 49 of the Registration Act would prevent its being admitted in evidence. Secondary evidence of the factum of partition would not be admissible by reason of S. 91 of the Indian Evidence Act. Vide Ramayya v. Achamma : AIR1944Mad550 . But even in such a case if all the terms of the bargain between the parties have not been reduced in the document, the document embodying only a few of the terms of the bargain, the mere fact that the document was inadmissible could not prevent the reception of secondary evidence of the agreement, as it could not be held that the document was tacitly considered by the parties as the complete or the only repository, and the appropriate evidence of their bargain.

(20) In a case where the terms of a document are clear, and they do not purport to(?) create, or purport to create interest in immoveable property extrinsic evidence cannot be let in to show that it was intended to have that effect. That is based on the principle that where a document is clear, the intention has got to be gathered from the terms of the document and not by resort to other evidence.

(21) Where however the document is not clear, or where the expressions used therein are ambiguous, it would be open to the court to consider the evidence of surrounding circumstances to ascertain whether the parties intended that document to be part of the bargain or whether it was a mere record of a completed transaction. To ascertain the precise intention of the parties certain tests are generally applied. These are, however, merely tests, and no one of them could be held to be decisive of the question of registrability which depends on what document professes to be or purports to do.

In a reference under Stamp Act, S. 49, ILT 7 Mad 385 a document was signed by the members of a Hindu family and attested by witnesses. It purported to be an account or list of the share of one member of the family in the family property. It was recited therein that the parents of that member were to enjoy certain lands and that the outstanding debts should be divided. A question arose whether the document had to be stamped as instrument of partition. The learned Judges held that the document was nothing more than a note that a certain property had, on partition, been allotted to the maintenance of parents, and memorandum of the particulars of property, and memorandum of the particulars of property which had on partition, fallen to the share of the brothers, and that it did not of itself operate to release the joint interests of the other parties to the partition and create a sole interest in the person in whose share it recorded. In that case the heading of that document was 'descriptive account of Rasappa Mudali's share.' That circumstance was held not sufficient for liability to stamp duty.

(22) In Gnanamuthu Nadan v. Velukanda Nadathi, 19 MLW 494: AIR 1924 Mad 542, the partition lists containing a list of the properties which fell to the share of a sharer in a partition, though they were signed by the co-sharers and duly attested, were held not to require registration when they contained no words which could be construed as creating partition of status. In that case the heading of that document gave the name of the particular sharer and set out various items as his share. The list was signed and attested, and it bore a date. It was found in evidence that the lists were drawn by lots in the names of individuals, to whose share the items fell. The learned Judges held that the written deed could be treated only as minutes of agreement and not a completed partition and that, though unregistered, could be admitted in evidence. In Bapayya v. Ramakrishnayya : AIR1938Mad568 , it was held that where unregistered partition list were sought to be put in evidence for the purpose of providing a partition between the parties, the question to be decided was whether the documents constituted the bargain between the parties, or they were merely the record of an already completed transaction, the question being whether there was a sufficient dissociation of the transaction.

The learned Judges also held that the matter would not depend on the interval of time between the transaction and the document, though in a case where interval was long the dissociation might be more readily inferred. We sent for the records in that case and examined the contents of the partition list which was held to be admissible. The list in that case was formal than Ex. B. 55 in the present case. In addition to the list of the properties that fell to the particular sharer certain covenants had been embodied. Notwithstanding that circumstances, the learned judges had no difficulty in holding that the partition had become a fait accompli before the list were prepared, and the latter did not form essential part of the division of the property and it was, therefore, admissible in evidence though unregistered. To a similar effect is the decision of a Bench of this court in Panchapagesa v. Kalyanasundara Ayyar, : AIR1957Mad472 .

(23) In Subbarao v. Mahalakshmamma, ILR 54 Mad. 27: AIR 1930 Mad 883, certain partition lists were sought to be let in evidence of a partition. They were written in duplicate, signed by each of the co-sharer and attested. The documents were construed as intended to be evidence of a partition and in the absence of registration the lists were held not admissible in evidence to prove partition. Beasley C. J., stated that the question whether a document was a deed of partition or a mere memorandum of partition was one of fact to be decided on a perusal of actual document. With respect to that learned Chief Justice, we cannot accept that statement of the position as correct. The question of construction of a document is always one of law. We have pointed out already that the question whether a document is registrable under the provisions of S. 17 of the Registration Act would depend only on its terms. In case, however, the terms are not clear, other evidence could be looked into to find out whether the document formed part of the transaction which, if reduced to a document, would require registration. The learned Chief Justice appears to have rested his conclusion in that case on the circumstance that the document before him, being signed, should be held to be intended to itself effect the partition.

We cannot agree with the learned Judge when he laid down that a signature of a party to a document would be decisive of the question as to whether the document was intended to effect partition. As we have already pointed out, the formality of a document would be one of the several tests which should be applied in a case where the terms of document are themselves, obscure or ambiguous. The mere fact that certain formalities were observed in a document would not by itself show that the document was intended to operate to create interest in the property, Curgenven J., however did not base his conclusion on that reasoning. At page 48 (of ILR Mad): (at p. 891 of AIR) the learned Judge observed.

'We have to consider whether, in the terms of S. 17 of the Registration Act, Ex. VIII purports or operates to create, declare, assign, limit or extinguish, whether in the present or in future any right, title or interest in immoveable property and the first test to apply is whether the document formed an essential part of the process of dividing the property or whether there is ground to suppose that the partition had already taken place, perhaps by oral arrangement, and was complete when the document was executed.'

We respectfully agree with the statement of law made by the learned Judge. In Ramanathan Chettiar v. Ramanathan Chettiar : (1949)2MLJ751 , the document though it recited the prior drawing of lots, embodied the terms of the partition arrangement, including the allotment of different portions of the house to the two sharers and the convenants entered into between them regarding the upkeep of the house and the sharing of the common expenditure. The learned Judge construed that document as embodying a division by metes and bounds and not merely recitals of a completed partition. In Mohammed Ghouse Sahib v. Jamila Bi. : AIR1950Mad433 , a partition koor chit embodied all the term of partition, which had a preamble, and the operative portion therein mentioned what were the properties to be allotted to various sharers. Provision was made for the discharge of debts by selling specified properties and by dividing the balance, and it finally recited that there was no other property to be divided. The document was signed by all the parties and attested by a number of witnesses. Although the document contained a further clause providing for the extension of proper partition deed between themselves, it was held that the words of the document did operate to create a partition and therefore required registration.

To a similar effect is the decision in Radhakrishnayya v. Sakuntala : (1950)2MLJ239 . The three cases cited above are instances where the court on a consideration of the recitals in a document held that it did or purported to affect immoveable properties and therefore required registration. They do not support the broad contention sought to be advanced, that wherever the parties signed the partition lists they should be construed as affecting immoveable property and they were therefore inadmissible without being registered.

(24) In our opinion the terms of Ex. B-59 and B-52 are clear and they only record the completed transaction of partition. Even if it were to be held that the words were of ambiguous import, we are satisfied on the other evidence in this case that the partition was completed before the lists were prepared, and that the lists were intended merely as record or minutes of the previous partition. We have already referred to the fact that Ex. B-52 was executed two days earlier than Ex. B-55 which embodied division of immoveable properties. In Ex. B-52 itself there is indication that partition had been completed already. That apart, the evidence of the arbitrators makes it clear that the partition which commenced in November 1949 was completed before the lists were prepared. Under the circumstances we are of opinion that the partition lists were mere records of a previously completed partition between the parties, and they being records would be admissible in evidence. It is not disputed that if Exs. B-52 and B-55 were received in evidence the partition should be held to have been proved.

(25) It was next contended that the partition, even if true, would not bind the appellants. The learned Subordinate Judge held that the first appellant was fully aware of the partition proceedings of the year 1950 and that he was present at the time of division of the properties and consented to the jeshtabagam being given to the first respondent at the division of the properties. Mr. T.R. Srinivasan, the learned advocate for the appellants, contested the correctness of this finding and referred us to Ex. B-24 a notice sent in reply to Ex. B-23. He contended that in that notice there was no mention of the appellants having been present at the time of the allotment of jasthhabagam, and that, therefore, the present case of the first respondent, that the first appellant was a party to the arrangement, should have been an afterthought Ex. B. 24 is a notice sent by the first respondent in the fourth respondent's advocate and not to the appellants. There was no necessity, or even an occasion to mention in that notice about the presence or the acceptance of the appellants of the partition arrangement. We cannot believe P.W. 2 the first appellant, when he says that he was not aware of the partition proceedings in the year 1950. The partition was a long drawn out affair which commenced sometime in November 1949, and lasted till February 1950. We agree with the conclusion arrived at by the learned Subordinate Judge that the first plaintiff was an assenting party to that arrangement. It follows that the appellants would be bound by the arrangement of 1950 which allotted a jeshtabagam to the appellants.

(26) The F schedule to the plaint sets out certain shares in Sri Meenakshi Mills held by the family. It was not disputed in the lower court that the plaintiffs would be entitled to a share therein. The appellants would be entitled to their share in the F schedule.

(27) A memorandum of cross objections has been filed by respondents 1 to 3. It is contended by them that the fourth respondent would be liable to account in respect of certain jewels of the family. This question has been considered in paragraph 23 of the judgment of the learned Subordinate Judge. It has not been shown to us the learned Judge is wrong. We accept his finding that it has not been shown that the 4th respondent has any jewels of the family in his hands, or that he is in any way liable to account for the same.

(28) The next question is in regard to the scheme to be adopted for the management of the trust properties and the performance of the madangabadi under Ex B-1. It has not been disputed before us that the trust is a private one, and that defendants 5 and 6, representing one branch, would be entitled to a half right and respondents 1 and 4 between themselves would be entitled to the other half. When a partition is effected between the first and fourth respondents the fourth respondent, representing his family would be entitled to only 1/4th of the whole right, and the first respondent, to the other 1/4th. If a partition is to be effected between the 4th respondent and the appellants, it follows that 1/4th right of the former should be divided between themselves and the appellants, it follows that 1/4th right of the former should be divided between themselves, and the appellants would be entitled to half of that, namely, 1/8th. Therefore, for any proper scheme of management, a period of 8 years has got to be taken and the parties will have their turn of management during that period. But the learned Subordinate Judge has taken only a period of six years and gave the 5th and 6th defendants a turn in the management of trust properties in alternate years, commencing from fasli 1364. He gave in the intervening years one turn each for the first and 4th respondents and the appellants. That would mean that the appellants and 4th respondent would, between themselves, be able to take 2/3rd share of the 1/2 right vesting in that branch. To this they are not entitled.

We consider that the scheme should be for a period of 8 years. Unfortunately, defendants 5 and 6 have not been made parties to the appeal. But as the arrangement which we propose to make will not in any way prejudice or affect them, we consider that the scheme formulated by the lower court could be modified in their absence. In modification of the decree of the lower court we direct that the parties will have their respective turns of management of the trust thus:

1st year defendants 5 and 6 1958-592nd year defendant 1 1959-603rd year defendants 5 and 6 1960-614th year defendant 4 1961-625th year defendants 5 and 6 1962-636th year defendant 1 1963-647th year defendants 5 and 6 1964-658th year plaintiffs. 1965-66

and this turn will be repeated thereafter in the succeeding years. During the pendency of the appeals, we passed an interim order enabling the appellants to perform the Adi festival. That year 1959-60 would properly be the first respondent's turn. The first respondent has no objection to the appellants conducting Adi festival and he is willing to take up the management for the rest of the year. We, accordingly, direct that the rest of the period in 1959-60 will be the first respondent's turn of the management, and the turns thereafter will be according to the scheme mentioned above. With these modifications, the appeals are dismissed with costs of the contesting respondents in A. S. No. 272 of 1955. The memorandum of cross-objections is also dismissed, but without costs.

29. Appeals and Memo of cross-objections dismissed.


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