1. The defendant sets up the title of Kandasami Pillai to half of the shop let to him. He is not prevented from doing so by the fact that Ramalingam's name alone appears in the lease. See Kuppu Konan v. Thirugnana Sammandam Pillai 31 M. 461. The District Munsif should have framed an issue dealing with this question. I must now do so and ask him to find whether the plaintiff's vendor Ramalingam Pillai was entitled to the whole shop of which the rent is claimed and as such entitled to collect all the rent.
2. Fresh evidence may be adduced. The findings should be submitted within six weeks from this date and seven days will be allowed for filing objections.
3. In compliance with the above Order, the District Munsif submitted the following FINDINGS.
1. The point for decision is 'whether the plaintiff's vendor Ramalingam Pillai was entitled to the whole shop of which the rent is claimed and, as such, entitled to collect all the rent?'
2. The defendant contends that plaintiff's vendor's brother, Kandasami Pillai, was also entitled to a moiety. The plaintiff recalled and examined his first witness, Ramalingam Pillai, his vendor, and three other witnesses in this enquiry. The plaintiff's first witness Ramalingam Pillai stated that defendant took lease of plaint shop as per Exhibit I, that he was enjoying it exclusively for 30 years, that he had been paying also the kist and Municipal tax and that his father and brother had no sort of right to this property. He admitted in cross-examination that plaintiff herein sued this defendant, Meeya Rowther (his brother's vendee of a moiety of this very shop) in O.S. No. 62 of 1909 on the file of this Court, that plaintiff herein compromised it with his own consent and got a decree only for a moiety of plaint shop as per original of Exhibit V, while Meeya Rowther, the purchaser from his brother, the other moiety. He also admitted that his father let on lease plaint shop as per original of Exhibit IV in 1899 and that this shop did not find a place in the list of properties assigned to him in Exhibit III, the deed of partition between him and his brother. The plaintiff's third witness Govindasami Pillai proved his attestation in Exhibit I. The plaintiff's fourth witness Kuppusami Naick stated that Ramalingam Pillai plaintiff's vendor was paying Municipal tax and collecting rent for plaint shop and that his brother Kandasami Pillai had no enjoyment in it. He, however, admitted in cross-examination that the father of Ramalingam Pillai was collecting rent for plaint shop before 1903, that Ramalingam Pillai and Kandasami Pillai had no enjoyment in it during their father's life-time and that their father died 7 or 8 years back. The plaintiff's fifth witness Krishnasami Pillai stated that Veera Pillai, father of Ramalingam Pillai and Kandasami Pillai, was enjoying plaint shop till he died and that Ramalingam Pillai began to enjoy it only subsequently. The defendant did not examine any witness. It is clear from the evidence of plaintiff's witnesses that plaint shop belonged to Veera Pillai, father of Ramalingam Pillai and Kandasami Pillai, that he was enjoying it till date of death, i.e. 7 or 8 years back and that plaintiff's vendor began to enjoy it only subsequently. The omission of plaint property in the list of properties allotted to plaintiff's vendor and the provisions for division of the father's property in Exhibit III show clearly that plaintiff's vendor and his brother should have succeeded to this property only after their father's death. The conduct of plaintiff's vendor as seen from Exhibit V also shows that he was entitled to a moiety and his brother, Kandasami Pillai, to the remaining moiety in plaint shop. I find that plaintiff's vendor Ramalingam Pillai was entitled to a moiety of the plaint shop and his brother to the other moiety under this issue.
3. This petition coming on for final hearing after the return of the finding called for by the order of this Court dated 15th February 1910, the Court delivered the following
4. Accepting the finding,I must modify the decree by substituting Rs. 17-3-0 for Rs. 34-6-0 decreed by the lower Court.
5. Parties will bear their own costs throughout.