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Periaswami Nainar Vs. Kandasami Nainar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai
Decided On
Reported inAIR1927Mad1128
AppellantPeriaswami Nainar
RespondentKandasami Nainar and ors.
Cases ReferredSuraj Narain v. Iqbal Narain
Excerpt:
.....demands, defendants 2 and 3 failed to effect a partition and deliver to plaintiff his share in the family properties. and the document clearly recites that the arbirators were to effect a partition of all the moveable and immovable properties and to give to the executauts of the documents their share. if vythi took only a passive interest in the partition proceedings, and if he did not intend to separate himself from defendants 2 and 3, i fail to see why the arbitrators proceeded to divide the properties into two equal shares. 80 this case was relied upon by appellant's vakil, but the facts of the case, as appearing in the judgment, clearly indicate that the conduct of suraj narain was not such as to lead to the conclusion that there was a definite and unambiguous indication on his part..........demands, defendants 2 and 3 failed to effect a partition and deliver to plaintiff his share in the family properties. defendants 4 and 5 were made parties, because they are entitled to maintenance. defendant 1 died without filing a written statement, and defendants 2 and 3 contended that kandsami, the grandfather of the plaintiff, separated himself from the family; that the properties sought to be partitioned, were not acquired by the joint exertions of plaintiff, his father, and grandfather; that there was no nucleus of ancestral property; that plaintiff and his father were living separately for many years; that as they were in destitute circumstances they were, out of compassion, allowed to live in their (defendants 2's and 3's) family, and that plaintiff was not entitled to any share......
Judgment:

Viswanatha Sastri, J.

1. Appeal by defendant 3 against the decree of the Court of the District Judge, South Arcot, in O. S. No. 25 of 1919. The suit was one of partition. One Samudraja Nainar left three sons, Chinnathambi Nainar, Muthu Nainar and Kandasami Nainar. Defendant 1 (deceased) is the son of Kandaswami and plaintiff is the son of defendant 1. Chinnathambi Nainar had two sons, Periaswami Nainar and Chinnayya Nainar. Defendant 2 is the son of Periaswami Nainar, defendant 3 is the son of Chinnayya Nainar. Defendant 5 is the widow of Chinnayya Nainar, and defendant 4 is the widow of a brother of defendant 1. The case set up by the plaintiff was that Chinnathambi Nainar and Kandasami Nainar were members of a joint and undivided Hindu family; that after their death their sons continued to be members of a joint and undivided Hindu family, that the family owned the moveable and immoveable properties detailed in the schedule attached to the plaint:that these properties were acquired by the joint exertions of the members of the family; that the purchases were made in the names of the father and defendant 2, father of defendant 3, as also in the name of defendant 3, as they were managing the family affairs; that misunderstandings arose between plaintiff and his cousins seven or eight months prior to the institution of the suit; and that, in spite of repeated demands, defendants 2 and 3 failed to effect a partition and deliver to plaintiff his share in the family properties. Defendants 4 and 5 were made parties, because they are entitled to maintenance. Defendant 1 died without filing a written statement, and defendants 2 and 3 contended that Kandsami, the grandfather of the plaintiff, separated himself from the family; that the properties sought to be partitioned, were not acquired by the joint exertions of plaintiff, his father, and grandfather; that there was no nucleus of ancestral property; that plaintiff and his father were living separately for many years; that as they were in destitute circumstances they were, out of compassion, allowed to live in their (defendants 2's and 3's) family, and that plaintiff was not entitled to any share. They also contended that certain items were, in any event, their exclusive property.

2. The plaint was filed on the 23rd April 1919, and on the 28th April 1919, defendant 1, and defendants 2 and 3 executed and got registered a document (Ex. 9) under which they appointed five arbitrators

for effecting a partition in all the moveable and immovable properties belonging to us.

3. The document further recites that the parties to it agreed to execute the deed for the purpose of enabling the arbitrators to make the division and give them their shares. Two of the arbitrators mentioned in Ex. G declined to act, and on the 25th July 1919, Ex. J was brought into existence. Under this document three of the arbitrators mentioned in Ex. G, as also two others, were appointed arbitrators, and the document proceeds as follows:

As our movable and immoveable properties have not been divided among us, we have nominated inated you as our arbitrators in order to effect a partition among us. We have selected you in order that you may make a proper inspection of the movable and immoveable properties which are in the possession of Periaswami Nainar. and Chinnathambi Nainar of us, and divide them among us as you think fit, and as described below and in accordance with law.

4. The deed then proceeds to state the proportion in which the partition was to be made, viz., one-half share to Chinnathambi Nainar and Periaswami Nainar (defendants 2 and 3), and the remaining half-share to Vythi Nainar and Kandappa Nainar (defendant 1 and plaintiff). The evidence is that the arbitrators did divide the vessels, jewels and cash, as also a major portion of the items of immovable property and, that the remaining items were not divided, because the karnam was not available for the purpose of giving the survey numbers. Vythi Nainar (defendant 1) died on the 17th September 1919, and disputes arose between plaintiff and defendants 2 and 3 about the share the plaintiff was to get. Plaintiff claimed a half-share, but defendants 2 and 3 contended that he was only entitled to a 1/2th share, because the effect of the suit was to make him divided in status from the other members of the family who continued undivided, and that on the death of defendant 1 his 1/2th share passed by survivorship to them. The learned trial Judge held that defendant 1 had made the demands for partition prior to the date of the suit, that the effect of Exs. G and J was to effect a division in status between him and defendants 2 and 3, and that on his death his 1/2th share passed to plaintiff and not to defendants 2 and 3. This finding was attacked before us and the objection to it had to be considered. It may here be stated that, although defendants 2 and 3 contended that plaintiff's branch had separated itself from their branch many years ago, and that subsequent to the separation plaintiff and his father were out of compassion allowed to live in their family, only feeble evidence was let in to prove this contention; and the finding of the learned trial Judge was against this contention. The vakil for the appellant stated that, although he did not give up his contention on this point in this Court, he was not going to urge any arguments against the finding come to.

5. The parties to the suit were admittedly living together on the date of the suit; owing to the conduct of the plaintiff, in locking up a portion of the family house, magisterial proceedings were instituted by defendants 2 and 3. On 22nd March 1919, the Sub-Magistrate of Vanur recorded statements from plaintiff and his father, and these statements are Exs. B and AA. In the statement made by plaintiff he has stated that he and his father claimed their share, and that in spite of demands Periaswami Nainar did not give a share. Defendant 1, in the statement made by him, refers to the de mand made by his son, and he also states that he asked Periaswami for his share. On the 8th April 1919, the plaintiff and his father executed a promissory-note, Ex. Z, under which they borrowed a sum of Rs. 600. The purpose of the loan is stated to be 'filing a suit for partition of our family.' It will thus be apparent that defendant 1 made a demand for partition in March 1919, and that soon afterwards he borrowed money for the purpose of filing a partition suit. The suit was filed on 23rd April 1919 by the plaintiff, and it was said that defendant 1 did not join as plaintiff; and that consequently, it must be taken that there was no 'unambiguous' and unequivocal' demand on his part for partition; that defendant 1 was determined on having a partition effected and his share given to him, will be clear from Exs. G and J . . . . . Ex. G is a registered document; defendant 1, plaintiff and defendants 2 and 3, all, executed it; and the document clearly recites that the arbirators were to effect a partition of all the moveable and immovable properties and to give to the executauts of the documents their share. From the terms of Ex. J it will be clear that the arbitrators were required to divide all the family properties into two halves, one half going to the plaintiff and his father, and the other half to defendants 2 and 3. The language of Exs. G and J is very explicit, and they contained words to show an 'unequivocal and unambiguous ' determination on the part of the plaintiff and his father to separate themselves from defendants 2 and 3. Notwithstanding the recitals in these documents the vakil for the appellant contended that defendant 1 played only a passive part and that there was never any 'unequivocal and unambiguous ' determination on his part to get himself divided in status from defendants 2 and 3. It was said that some days before the date of Ex. J an amin had been deputed by the District Court to take an inventory of all the moveables in the family house, that defendant 3 was labouring under a superstition that a family house which was entered into by an amin would not prosper, that defendant 1 was also under the same impression, that Ex. J came into existence to prevent the amin from entering the family house. It was also said that the amin was present in the village when Ex. J came into existence and that the events that followed subsequent to its date were also due to the presence of the amin. The burden of proving that, notwithstanding Exs. G and J defendant 1 played only a passive part and was never a willing agent to have a partition effected lies on defendants 2 and 3. (After examining the evidence the judgment proceeded).It will thus be clear that nothing has been elicited from the arbitrators mentioned in Exs. G and J, as also from the persons then present, to the effect that Vythi took only a passive part in the bringing into existence of these documents, and that he never made any demand for his share.

6. What followed the execution of Ex. j is also of importance in this connexion. The arbitrators and the amin stated that jewels, vessels, cash and a major portion of the items of immovable property, were actually divided as required in Ex. J. The evidence is that Vythi was present at the division, and with respect to a sum of Rs. 1,200 said to have been found in the family house, the evidence is that Rs. 800 was handed over to Vythi as and for his share and his son's share Rs. 200 representing the amount spent by him for the expenses to the suit. If Vythi took only a passive interest in the partition proceedings, and if he did not intend to separate himself from defendants 2 and 3, I fail to see why the arbitrators proceeded to divide the properties into two equal shares. They ought to have separated only a fourth share from the bulk of the properties and handed it over to the plaintiff, leaving the remaining three shares intact, for the enjoyment of defendants 1, 2 and 3.

7. In Syed Kasam v. Jorawar Singh A. I. R. 1922 P. C. 353 the Privy Council held that where a member of a joint Hindu family governed by the Mitakshara claimed his share of the family property, and the members of the family agreed to appoint an arbitrator to partition the property among them, the claim and the agreement effected a sever ance of the joint status of the family. What may amount to a separation, or what conduct on the part of some of the members may lead to disruption of the joint undivided family and convert a joint tenancy into a tenancy-in-common, must depend on the facts of each case: vide Suraj Narain v. Iqbal Narain [1913] 35 All. 80 This case was relied upon by appellant's vakil, but the facts of the case, as appearing in the judgment, clearly indicate that the conduct of Suraj Narain was not such as to lead to the conclusion that there was a definite and unambiguous indication on his part to separate.

8. The facts above stated make it clear to my mind that Vythi (defendant 1), equally with the plaintiff, wanted a partition to be effected, and that Exs. G and J were brought into existence for this purpose. There has, in my opinion, been an 'unequivocal and unambiguous' demand on the part of Vythi for a division in status between him and defendants 2 and 3 and he never went back on his first decision. On these findings, therefore, the plaintiff would be entitled to half a share. ( The rest of the judgment is not material for this report).

Spencer, Offg. C. J.

9. I agree on all points.


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