Gadian Chettiar v. Gadian Chettiar

Miller, J.—The first question to be decided is whether the plaintiff is a member of the joint family of which the 1st defendant and some of the other defendants are also members. The facts stand like this: admittedly a good many years ago—the date is not fixed—one of three brothers, Subban Chetty, Vythialingam Chetty and Sundaram Chetty became divided from the family; Vythialingam was the father of the 1st defendant and one Subramaniarn who is now dead and Sundaram Chetty was the father of the plaintiff. According to the defendants the family became divided when Subban Chetty left it and lived separately and according to the plaintiff Sundaram and Vythialingam remained members of a joint family. She ancestral lands of the family, items 1-97, were not divided by metes and bounds, and there were after Subban Chetty's departure some joint dealings—money lending transactions—in which the plaintiff and his uncle operated together. The Subordinate Judge found that there was a division on the date when Subban Chetty separated himself from the family and, on the whole, I think he is right. In paragraph 29 of his Judgment he states the law, it seems to me, a little too strongly when he says: “This separation must in law be deemed to have been complete as amongst the three brothers.” But the effect of the case in the Privy Council Balabux v. Rukhmabai on which he relied, is to my mind, where one brother out of three has separated from the others, there must be something to indicate an agreement among the others to remain members of a joint family or some evidence of subsequent reunion; in other words there would be a presumption that the partition was complete, that is, it Would no longer lie on the party alleging separation to prove it affirmatively in the first instance. Here we have the fact that Subban Chetty went away; we have no details as to any agreement between the other brothers at that time and on the other hand we have other circumstances which strongly suggest that after that time the members of the family were separate. They were living separately in the same house, with separate preparation of meals. This is not adequately explained on the plaintiff's side. There is a still stronger circumstance: the separate payment of kist in equal halves on lands which at one time belonged to the joint family. There were also separate dealings during the lifetime of the plaintiff's uncle Vythilingam. There were also separate acquisitions of property by the plaintiff and Vythilingam. All these things certainly point to a separation in interest between the members of the family.

We have, besides that, what is undoubtedly a strong circumstance. We do not find management of the family income by one member of the family but the division of the produce into shares. That is only explained on behalf of the plaintiff as being a convenient mode of enjoyment; but undoubtedly that mode of enjoyment gives rise to the inference that the parties were separate in interest.

I need net discuss all the documents in the case. There are some— and Exhibit S is one—in which there are recitals of non-division and Subramaniam Chetty seems to have subscribed to a recital of that sort. In others are found statements' made by the plaintiff himself and the season for making them may be that he was only seeking to establish a claim for the properties which were acquired by Vythilingam, It seems to me that the recitals in these documents are not strong enough to warrant the decision that the family remained undivided after the departure of Subban Chetty from it.

There are other documents which point distinctly the other way, for instance, Exs. U. and U1. These show that money was borrowed from the plaintiff himself to pay off the debt due to another member of the family Subramanian Chetty. I do not think it is necessary to refer to the other documents produced on both sides. We have considered them all, as well as the oral evidence and on the whole I am unable to differ from the Subordinate Judge in his decision that the family is a divided family. The result of that is that the plaintiff is not entitled to a share as a coparcener. But in respect of the 97 items of property admittedly ancestral, he is entitled to a partition as a tenant-in-common. The Subordinate Judge has refused a decree on the ground thet the plaintiff must bring a separate suit; and that decision has been to some extent supported on behalf of the respondents on the ground that there may be other parties interested in the division of those lands and the melvaram of which formed the family property I am unable to see any reason why the plaintiff should not in this suit be held entitled to have his partition. To my mind there is no difficulty in arriving at a correct preliminary decree for partition even though there may be some persons who are not parties to the suit but who may be interested in another portion of the melvaram.

As regards the other items some of them were purchased by the plaintiff and in these the defendants claim no relief and the remainder, it is asserted, was purchased by Vythialingam and as regards those I am satisfied that the plaintiff's right to claim a share in them was denied by Vythilingam's sons, Subramaniyam and the 1st defendant, more than 12 years before the suit. I agree with the Subordinate Judge on the evidence that the plaintiff must have been early in 1895, to his knowledge, denied a right to share in these lands and in the produce thereof and that he has not been in possession of any of them or received anything therefrom since that date. In these circumstances I do not see how to avoid the conclusion in respect of these items that the plaintiff's claim to a partition is barred by limitation.

The result will be that the decree of the Subordinate Judge will be modified by directing a partition of the plaintiffs 1/10th share in items 1 to 97 and confirmed as to the rest.

The decree which I propose to make is that a preliminary decree be passed for the partition of the plaintiff's 1/10th share in items 1 to 97 and that the suit as regards the other items be dismissed. The order of the Court below in respect of costs will stand and in this court proportionate costs are to be paid and received as between the plaintiff and Mr. Ramachandra Aiyar's clients and the other defendants will bear their own costs.

Tyabji, J.—I agree I only wish to point out that in the Privy Councils decision in Balabux v. Rukmabai the arguments seem to have been that the general presumption that property belonging to a Hindu family is joint unless the contrary is proved continues to prevail even after it is shown that there has been a partition and as the result of the partition one of the coparceners has taken eway his share and severed his interest from the coparcenery. See reports of arguments for the appellants in Balabux v. Rukhmabai at page 731. It was in respect of that contention apparently that their Lordships say at page 736. “It appears to their Lordships that there is no presumption when one coparcener separates from the others, that the latter remain united.

I have nothing to add to what my learned brother has said with reference to the rest of the case.

Decree modified.