1. This second appeal arises out of a suit for partition. The common ancestor of the parties is one Narayana Iyer and a pedigree of the family appears at p. 4 of the pleadings paper at the end of the plaint. Narayana Iyer died early in 1867. His eldest son Appaswami alias Rama Iyer died in 1906. The second son Veeraswami Iyer died in 1904. The plaintiff's father Venkatasubba Iyer died in 1872 and plaintiff is said to be his posthumous son by his second wife. The plaintiff was, therefore, 45 at the time of the suit in 1917. Ranga Iyer died in 1885 or 1886. The eldest Appaswami had three sons; Srinivasa Iyer, defendant 1, Narayana Iyer, defendant 3, and Subramania Iyer, defendant 5. It is important to mention that Narayana Iyer and Subramania Iyer claim to be adopted respectively by Ranga Iyer and Veeraswami Iyer. The District Munsif found against these adoptions and the District Judge recorded no finding about them. The defendants pleaded a partition 50 years ago. It takes us to the end of 1867 or beginning of 1868. The Munsif found that there was no division and decreed the plaintiff's suit. On appeal the District Judge reversed the Munsif's judgment on the question of division and dismissed the plaintiff's suit. The plaintiff files the second appeal. Mr. N. Chandrasekhara Iyer, appearing for the plaintiff, while admitting that the question is one of fact, complains that the judgment of the District Judge is vitiated by several misstatements of fact and, therefore,--contends that there ought to be a fresh finding.
2. I think it must be admitted that there are several misstatements in the District Judge's judgment. In p. 9 he refers to Ex. I which is dated 1873, and not 1893 and Ex. IV sales to defendant's father, But the sentence, as it runs, suggests that they are sales by the widow of the plaintiff' s step-brother, whereas Ex. II is the only deed in favour of defendant 1's father by the' widow of the plaintiff's step-brother. The District Judge then says: 'This shows separate acquisition.' I do not agree with the District Judge when he says that these three sales necessarily show separate acquisitions. If he was the manager of the family they are consistent with purchase by a manager, but Ex. II being a purchase from the widow of one of the members of the family, suggests both a division and a separate acquisition. In para. 10 he refers to Ex. 23-A and order on a claim petition. A decree was obtained against defendant 5 in the Madras Small Cause Court and some property was attached by the decree-holder. Defendant 1's father and his daughter Seetha Ammal filed two claim petitions. Ex. 23-A is the order on one of them, namely, that by Seetha Ammal, but in the body it refers to both the petitioners. The claim petitions were allowed. The decree-holder filed two regular suits. Original Suits Nos. 212 and 213 of 1900, on the file of the Poonamalle District Munsif's Court. These were disposed of by a common judgment, viz., Ex. 23. To neither of these is the plaintiff a party.
3. The District Judge in para. 10 says:
Property belonging to all the brothers attached. The brothers objected.
4. So far the statements are incorrect. The property attached did not belong to all the brothers, nor did all the brothers object. It may be said that persons claiming through two brothers of Appaswami did object, but the rest of the paragraph says:
The divided status of the four brothers is proved. This was in 1899.
and it is correct. The last sentence 'There was no suit to set aside this order' is again wrong. The District Judge himself refers to the suits following the claim petitions in the next paragraph, para. 11. His statement there that all the brothers were parties is again erroneous. But the next statement that 'it says that plaintiff and his step-brother executed division as between themselves' is correct. The next sentence 'plaintiff was then represented by his, mother' refers to the division and is correct. The last sentence in para. 11 'she mortgaged her properties and the Court held it valid' is partly correct. It is erroneous only to the extent that instead of 'mortgaged' it ought to be 'sold.' That is the very sale referred to* by the District Judge earlier in para. 9. In para. 12 of his judgment the District says:
the decree-holder brought property of defendant 5 to sale and it was bought by defendant 1.
5. This sentence suggests that defendant 2 purchased in the auction-sale. What happened was, the decree-holder herself purchased in the auction-sale. Afterwards she gave back the property to defendant 1 under Ex. 7 and got her money. But, in spite of these misstatements in paras. 10, 11 and 12, the main point of the District Judge remains. It is true that Exs. 23 and 23-A are not binding on the plaintiff in the sense that he was a party to them. They are at least evidence that in 1899 and 1900 a division between all the brothers was set up; also a subordinate division between the plaintiff and his elder brother was set up and were found by the Courts in 1899 and 1900. They were also evidence of the fact that Rama Iyer set up a mortgage from the plaintiff and it was upheld by the Courts. I recognize the fact that the findings do not bind the plaintiff. But the possession of Rama Iyer of the properties in respect of which he filed a claim petition must be taken to be adverse to the plaintiff from 1899. But, apart from the findings in 23 and 23-A, a sale-deed like Ex. 2 from plaintiff's brother's widow to Rama Iyer is strong evidence of a state of division between plaintiff's branch and Rama Iyer's branch. I do not at present wish to say anything about the adoptions, but if in 1899 and 1900 the present defendant 5 claimed to be the son of Viraswami and disclaimed any share in Appaswami's further acquisitions, that is a circumstance which may be considered as to the status of the parties. Ex. 23-A also refers to Narayana Iyer, the present defendant, as Rama Iyer's brother's son, thereby suggesting that he was the adopted son of Ranga Iyer. Again I am not expressing an opinion about the adoptions. All that I am saying is that in the claim petitions and in the regular suits it does appear that the present defendant 5 put forward a claim on the footing that he is the son of Viraswami Iyer, and the present defendant 3 was referred to as the son of Ranga Iyer, and Appaswami Iyer claimed as purchaser from the plaintiff's brother's widow.
6. So that, in spite of the misstatements of the District Judge, I think the main point for which he referred these transactions, referred in para. 8, separate, kachayats in the names of the brothers Rangayya and Viraswami in 1883, Exs. 12 and 12-A. These documents show that on the same date, 5th August 1883, Ranga Iyer and Viraswami Iyer made payments to the village karnam for different lands though the patta for them stood in the name of Rama Iyer. That there is something' significant in these and that they suggest a separation cannot be gainsaid though such indication can always be explained. It was for the District Judge to-give such weight he likes to the indications or the explanations.
7. In para. 19 of his judgment he refers to the fact of separate pattas in the name of the brothers and there is a patta in favour of the plaintiff also. That is a circumstance to which the District Judge is entitled to give weight in spite of the fact that it is not easy to unravel the dealings with the lands and the pattas and to explain how lands which fall to some of the sharers, according to the plea in the written statement, happen to stand in the names of other persons according to the pattas. The District Munsif spent considerable pains in pointing out these variations between the pattas and the plea as to the original division. But these variations are not necessarily inconsistent with the plea of division. They are always explainable. It is true that the District Judge made no such attempt at explanation, and to go into the explanation may not perhaps always be possible. But, all the same, the fact that separate pattas in favour of the brothers or the representatives of the brothers is a matter which a Court considering the question of division or no division is entitled to consider and cannot be easily got rid of. In para. 25 the District Judge refers to the fact that paimash 658 is now in plaintiff's name, but it was at one time in the pattas of Ranga Iyer and his widow. He then considers the explanation given by the plaintiff, and the custody of the pattas, and apparently was not satisfied with the plaintiff's arguments resting on them. This he is entitled to do. The result is that, in spite of certain misstatements of the District Judge, which were relied on by the learned vakil for the appellant, I think the main point he makes out by his reference to the various documents remains and cannot be got rid of and it maybe said that those points are not strictly affected by the misconceptions! and misstatements he made about them. I, therefore, accept the finding of the District Judge and do not think it necessary to call for a fresh finding and dismiss the second appeal with costs of the respondents represented by Mr. Venkatarama Ayyar.
8. Appellant 2 will be liable for the portion of the costs proportionate to the value of the items he has purchased, and the estate of appellant, in the hands of his representatives, whoever they are, will be liable for the rest of the costs., Appellant 2 could presecute and did prosecute his appeal only for the items he has purchased and he was liable to pay stamp duty only to that extent. The excess stamp duty will be refunded to him.