1. The Subordinate Judge has dealt with this case on the footing that the defendants Nos. 2, 3 and 4 and the 4th defendant and her husband obtained at the so-called partition, made shortly before Venkayya's death, shares of property in which, by virtue of some prior agreement of partnership, they had already acquired rights as co-owners. It is probably sufficient to say that this case was not set up in the pleadings by any of the defendants. The fact that the 1st issue is framed in wide terms gave the Subordinate Judge an opportunity for dealing with the evidence as he has done but it certainly was never the case of defendants Nos. 1, 3 and 4 or, I think, of 2nd defendant that their rights depended upon a partnership in the lands. Mr. Narayanamurthi did not suggest that the issue was widely framed in consequence of anything that was stated at the time of settlement of issues, and that being so, I do not think the Subordinate Judge should have gone outside the pleadings to make a case for the defendants as he has done.
2. I may say that the case has not been adhered to here by Mr. Narayanamurthi: when pressed as to the grounds of his clients' title, he was able finally to rely only on the partition made shortly before Venkayya's death. The difficulty as regards that is, of course, that Veerayya could not distribute his immovable property among his relations and connections without some registered instruments or instrument of transfer and here there are none. Mr. Narayanamurthi proposed to get over that difficulty by arguing that the so-called partition was really a compromise, a family settlement of disputed claims, requiring no deed to effect the transfers necessary to its completion, but this being another new case, nowhere hinted at, in any written statement, and not considered by the Subordinate Judge, we declined to allow Mr. Narayananamurthi to argue it.
3. The 2nd defendant's case was that his father, Narrayya, was taken as illatom son-in-law of Subbanna, Venkayya's father; the Subordinate Judge finds that case made out but the evidence in support of it is very weak. There is no doubt that Narayya lived for many years with his wife in the house of Subbanna and Venkayya, but that, though it is evidence to support a case of illatom affiliation, is here discounted by the fact that the other sons-in-law of Subbana also lived with their wives in their father-in-law's house and after his death with Venkayya. It was not contended (though the Subordinate Judge seems to have thought it was) that all these sons-in-law were the subjects of illatom affiliation.
4. There is no prima facie likelihood that Subbanna, a man with two capable sons alive, should have affiliated a son-in-law. The evidence is that his property was small in extent and it is not shown that he required the services of a son-in-law to help in his farm. The defendant's witnesses rather suggest that Subbanna was so fond of his daughter that he would not send her away to her husband and inasmuch as the husband had no property of his own, it is not improbable that he would consent to his wife remaining in her father's house, without any agreement by which he should obtain a share of the property. The evidence that any such agreement was made, is of the weakest. There is one defence witness No. 11, an old man, who says that sometime before the marriage of Narayya, he happened to hear a conversation in the course of which Narayya's brother agreed with Subbanna that an illatom affiliation should be made. As Subbanna died probably before 1879, it is difficult to accept this witness's memory as sufficient support for a finding in 2nd defendant's favour I am of opinion that 2nd defendant has failed to prove the case he set up or any agreement between himself or his father by which he was entitled to a share in Venkayya's family property. The case of the defendants Nos. 8 to 9 was that Ramachandrudu and Venkayya were divided in their life-time and that those defendants were entitled to share in the property as heirs of Ramachandrudu. The Subordinate Judge has found that this case is not made out and Mr. Narayanamurthi did not argue that he was wrong in so finding as when Ramachandrudu died in union with Venkiah, his daughters and their husbands and sons have no rights in the property and the case of these defendants must fail. The 13th defendant is a purchaser of some land from Gangamma, the daughter of Venkiah; he claims the right to retain the land after Gangamma's death on the ground that the sale was for necessity to pay a debt contracted by Venkiah. It is, however, shown that that debt was paid by Gangamma who borrowed money for the purpose on a mortgage (Exhibit VI) in 1899, and paid this debt off in November 1900 (Exhibit VId). The defendants' witness No. 6, therefore, who lent her in 1904 or thereabouts the money to re-pay which the land was sold to the 1st defendant by Exhibit III must have been misled by her, if he lent in the belief that the money was required to pay off the debt contracted under Exhibit VI, a debt which at that time has already been paid. The 13th defendant is not a witness and it is not proved that the sale was for necessity.
5. An extent of 4 acres was allotted, at the so-called partition, for the maintenance of the widows of Venkiah's two brothers. It is claimed that these were absolute gifts but the evidence on that point is very weak. One witness says the widow Venkamma was told she might give her land to her daughter; another, that she was empowered to give it to whomsoever should protect her. According to another, the allotments were for maintenance.
6. I am unable to hold on the evidence that these allotments conveyed an estate of inheritance to the donees and, therefore, even if Venkiah could have made them validly without the execution of the registered instruments, they must now go to the plaintiffs, the donees being dead.
7. The 11th defendant claimed 6 acres of land in suit as a gift by Venkiah at the time of partition; the Subordinate Judge has held that the gift is invalid without an instrument. In that I think he is right and the gift must fail; but it fails in its entirely and not only in part because Venkiah alone had, on the evidence, any interest in the property at the date of the partition.
8. I have thought it unnecessary to deal with the evidence of Venkiah's state of mind in the last two years of his life, for, though far from satisfied that he was capable of making any disposition of his property at the time of the partition, it is not necessary to arrive at any definite conclusion on the question.
9. The appeal must be allowed and plaintiff's suit decreed in fall with costs in both Courts against the contesting defendants.
Abdul Rahim, J.
10. I agree on all the points dealt with in the judgment of my learned colleague.