Kumara Pillai, J. -
(1.) THIS appeal arises out of a suit by a Nair female for partition of Puthravakasam properties obtained by her and her brothers from their deceased father. Plaintiff is the Appellant. Defendants 1 and 2 are her brothers. They have another brother, Krishan Kutty Nair, who has already obtained his share of the Puthravakasam properties as per the decree in a suit for partition, O.S. No. 10 of 1108, filed by him in the District Court of Trichur. Plaintiff and her brothers had obtained properties from their father both in Cochin and in Malabar. The present suit as well as O.S. No. 10 of 1108 related only to the properties in Cochin.
(2.) IN the memorandum of appeal, objections were taken by the Plaintiff to the decree of the court below in regard to four matters, and she had also prayed therein for a remand. One of those four matters was the question of costs. That and the prayer for remand were not, however, referred to at all by the Appellant's counsel during the course of his arguments.
He pressed only the grounds relating to the three remaining matters, namely, (i) whether the properties plaint A schedule items 1 to 6 are outstanding on a lease with Defendant 2 and can be partitioned only subject to the rights he has under that lease; (ii) whether Defendant 1 is in possession of any jewels belonging to the Plaintiff and has to account to her for the value of the same and (iii) whether Defendant 1, who was managing the estate of the father after his death liable to pay interest the Plaintiff on her share of the collections made by him from the date of collection or whether he is liable to pay interest to her only from the date of suit. Defendant 1 also has filed a memorandum of objections. It relates to his liability in respect of the rent realised and other collections made by him from 1105 to 1117.
The plaint properties and other items were obtained by the Plaintiff and her brothers under a will, copy of which is Ex. A, executed by their father, Achuthan Nair, on 30 -10 -1100. Plaintiff's case in regard to "A schedule items 1 to 6 is that Defendant 2, who could not have any other work; was assisting their father during his life time to cultivate A schedule items 1 to 6 and that after the father's death in 1104 Defendant 2 has been in possession of and is cultivating those items for and on behalf of the thavazhi of Achu than Nair's children.
She therefore prayed for partition by metes j and bounds of those items and recovery of possession of her share in them. Plaintiff has also stated in the plaint that with a view to defeat and defraud her Defendants 1 and 2 colluded together and obtained from her during the pendency J of O.S. No. 10 of 1108 certain signed blank papers -3 and fraudulently made use of them for filing a written statement in that suit containing an mission from her that their father had leased A , schedule items 1 to 6 and B schedule item 1 to 4 Defendant 2 in 1099. This admission she repudiates as one not knowingly made by her and brought about by the fraud of Defendants 1 and 2 According to Defendant 2, he is in possession of plaint A schedule items 1 to 6 under a lease granted by Achuthan Nair even before the execution of the Will and those properties can be partitioned only subject to the rights he has under the said lease. If the lease is true, Defendant 2 has 1 subject to certain conditions a right of permanent occupancy in the properties under the provisions of the Verumpattadar's Act of 1118 and he cannot be dispossessed of the land except under the 1 provisions of the said Act.
In that case Plaintiff cannot get a decree in 1 this suit for recovery from Defendant 2 of the land in respect of her share in A schedule items 1 to 6 and will be entitled to get a decree, so far as these items are concerned, only for partition of her share in respect of the lessor's rights. That the case of a lease of A schedule items 1 to 6 by Chatham Nair himself to Defendant 2 before the execution of the Will is not a new case fabricated by Defendants 1 and 2 during the pendency of O.8. J No. 10 of 1108 in order to defeat and defraud Plaintiff is clear from Exs. LVI and LVII, the count books of Achuthan Nair.
There are many entries in them of rent received by Achuthan Nair from Defendant 2 for A 3 schedule items 1 to 6, There was a suggestion both M in the court below and here that these entries in 'Achuthan Nair's accounts might have been made to defeat the Income Tax authorities. There is U.O.J reliable evidence to support this suggestion. Sojne l of the entries relate to the year 1100, and Agricultural income was not then liable to income tax. In these circumstances it is difficult to believe that the admission about this lease contained in the written statement filed by the present Plaintiff and Defendants 1 and 2 in O.S. No. 10 of 1108 (Ex. C) was false and was the result of fraud and collusion on the part of Defendants 1 and 2.
At that time Plaintiff and Defendant 1 were on the best of terms and Defendant 1 was looking after her affairs. The admission was also as much against the interests of Defendant 1 as against the interest of the Plaintiff or of Krishnan Kutty Nair. It is therefore extremely unlikely that he would have colluded with Defendant 2 and brought into existence a false record which was as much binding on him as on the Plaintiff in order to off feat and defraud her. No independent evidence is "alL.0 forthcoming to prove that the written statement was filed in court without the knowledge and consent of her Plaintiff and making use of blank papers signed by her and entrusted with Defendant 1.
Nor was the original written statement itself caused to toe produced in this case so as to enable the court to ascertain whether there is any basis at all for the Plaintiff's suggestion. There is an express admission in that written statement that Defendant 2 was then in possession of plaint A schedule items 1 to 6 and B schedule item 1 under a lease granted by the deceased Achuthan Nair. There is also another circumstance tending to prove the genuineness of the lease. In 1112, long before the disputes with the Plaintiff arose, Defendant 1 had to file a suit against Defendant 2 for arrears of rent. D.W. 1, an advocate practising in the District Court of Trichur, swears that this suit was settled by a compromise brought about by the mediation of three arbitrators one of whom was himself.
Exs. IV and V evidence the settlement and both those documents are signed by the three arbitrators. A schedule items 1 to 6 consists of both garden and paddy lands. Since the rent for these items is only paddy the Appellant's counsel contended that it was unlikely that the garden lands would have been included in the lease. According to him, if the garden lands also were included in the lease, part of the rent would have been fixed in money. He therefore contended that even if there was a lease, since the whole rent was payable in paddy the lease could have comprised only the paddy lands and not the garden lands. This argument also cannot be accepted, for it was open to the parties to stipulate a paddy rent alone when the bulk of the properties consists of paddy lands.
The rent of garden lands could also be taken into account in fixing the amount of psukly payable as rent for both the garden and paddy lairds. The entry at page 1 of Ex. LVII extracted in line 50 of page 8 of the printed copy of the lower court's judgment shows that paddy lands and garden lands were comprised in the lease. On the evidence discussed above we are satisfied that the finding of the court below that Defendant 2 is in possession of plaint A schedule items 1 to 6 as a lessee and that he is entitled to all the benefits of the Verumpattadar's Act and it is only subject to this right of his that the said items are liable to be partitioned, is right, and has to be confirmed.
(3.) PLAINT D schedule consists of five items of jewels. The Plaintiff's case in regard to them is that they were jewels given by Achuthan Nair to her alone, that when she went to Malaya with her husband she entrusted them with Defendant 1 for safe keeping, and that she is entitled to recover them or their value from him. Defendant I's case in regard to them is that the Plaintiff had entrusted with him only items 1 and 4 in D schedule, and that he had sold those jewels and remitted the money to the Plaintiff's husband as requested by him and the Plaintiff. Ex. LIII is a letter written by the Plaintiff to Defendant 1.
It is not possible to ascertain from it in what year that letter was written, but the Plaintiff's advocate admitted in the court below that it must have been written by the Plaintiff in 1935 or 1936. In that letter the Plaintiff had given definite instructions to Defendant 1 to lend out on interest the money obtained by the sale of item 4 in D schedule. It is obvious from this letter that, it must have been with the consent and knowledge of the Plaintiff that Defendant 1 sold item 4. Exs. K and L are letters which appear to have been written by Defendant 1 to the Plaintiff after Ex. LIII.
In those letters he told her definitely that the only jewel of hers remaining with him was D, schedule, item 1. The Plaintiff has no independent evidence to prove the entrustment of the ether jewels to Defendant 1. According to Defendant 1, he sold item 1 also and sent the money to the Plaintiff's husband. From Exs. XLIV and XLV it is seen that Defendant 1 sent to the Plaintiff's husband two remittances amounting in all to Rs. 800 in 1940. The Plaintiff said when she was examined as P.W. 1 that she could not say definitely whether Defendant 1 had sent any amount to her husband.
In the court below, as well as here, it was contended that the amounts under Exs. XLIV and XLV might be amounts belonging to the Plaintiff's husband himself and that Defendant 1 who was managing his affairs might have sent the money to him. According to the evidence of Defendant 1, the remittances, Exs. XLIV and XLV, were made with the money obtained by the sale of the Plaintiff's jewels Pavanmala, and Elakkithali and Nagapatom (D schedule items 1 and 4 -and not with the money in his hands belonging to the Plaintiff's husband. From paragraph 14 of the lower court's judgment it is seen that the Plaintiff's husband himself was seen in court instructing the Plaintiff's advocate.
It is significant that in spite of his presence in court the Plaintiff's husband has not gone into the witness box to deny on oath the evidence of Defendant 1 and to state that the two remittances, Exs. XLIV XLV, were made with the money obtained by the sale of the Plaintiff's money belonging to him and not with the jewels. Ex. II letter written by the Plaintiff's husband to Defendant 1 in June 1939 shows that he was then hard up for money and in debt to Defendant 1. In that letter the Plaintiff's husband also told Defendant 1 that the Plaintiff and her children were pressing him to buy a motor -car and that the Plaintiff wanted him (Defendant 1) to send Rs. 1,000 at once for the purchase of the car.
It was also pointed out in that letter that Defendant 1 could send this amount as the money obtained by the sale of the jewels was with him and that the amount required for the purchase of the car could be made up with that amount and the interest thereon and the interest on interest. In these circumstances, there can be no doubt of the truth of the evidence of Defendant 1 that the remittances under Exs. XLIV and XLV were sent by him to the Plaintiff's husband at the request of the latter and the Plaintiff and with the money obtained by the sale of D schedule items 1 and 2. In the plaint the Plaintiff has valued D schedule item 1 at Rs. 1,190 and D schedule item 4 at Rs. 500. It was therefore contended that Defendant 1 has not accounted for the full price of these items by the two remittances mentioned above.
The plaint was filed on 9 -12 -1123 M. E. corresponding to. 24 -7 -1948 A.D. when the price of gold was very high. The jewels were sold in 1935 and 1936 when the price of gold was low and could not have come up to even fifty per cent of the price prevalent on 24 -7 -1948. Therefore we are unable to accept the contention that after the two remittances Defendant 1 has money with him obtained by the sale of the Plaintiff's jewels. We agree with the court below in holding that there is no reliable evidence of the entrustment of D schedule items 2, 3 and 5 to Defendant 1 and that the schedule items 1 and 4 which were entrusted with him have been sold by him and the money obtained by their sale sent to the Plaintiff's husband as desired by the latter and the Plaintiff. No interference from us is, therefore, called for on the second point also urged by the Appellant's counsel.;