Decided on August 26,1953



Satyanarayana Rao, J. - (1.) This appeal arises out of a suit for partition by the first plaintiff for Himself and on behalf of his two minor sons, plaintiffs 2 & 3 by the 3rd defendant. The first defendant is the widow of Alagu Chetti, son of the first plaintiff, by his first wife, Nachi Ammai. Alagu Chetti died on 15-4-1942. The second defendant is the minor son of Alagu Chetti by the first defendant. The first plaintiff, after the death of Nachi Animal, married Valliammai as his second wife. She however died leaving no issue early in 1934. On 14-7-1934, there was a marriage function between the first plaintiff and the third defendant according to what is described as the 'Suyamariyathai' cult or the self-respecter's cult under the auspices of the Purohit Maruppu Baugham or Anti Purohit Association. The third defendant was a widow of Reddi caste at that time, while the plaintiff is a Nattukottai Chettiar by caste. Soon after the marriage function, they lived for sometime in Kottaiyur in the family house. Thereafter, the first plaintiff and the third defendant went to Malacca, where the first plaintiff was carrying on business. The second plaintiff was born on 7-2-1936 at Malacca. They returned to India later and a female child was born to them on 15-4-1940. They again went back to Malacca in 1941 and they could not return to India till 1946 owing to Japanese war. But during their stay at Malacca on 15-2-1942, third plaintiff was born and another female child was also born on 1-11-1945.
(2.) The plaintiffs claimed in the plaint a partition by metes and bounds of the properties specified in Schedules A to D and D-l and for the allotment of 3/4th share to them. There is also a prayer to direct the first defendant to account for the Jewels and cash mentioned in C, D and D-l schedules, which, according to the plaintiffs' case, were in the possession of the first defendant. Items 1 to 12 of the D schedule were, according to the plaintiffs, left in the custody of the first defendant and her husband for family use and items 13 to 22 of the D schedule and all the Jewels mentioned in the C schedule were entrusted to them for safe custody when they left for Malacca. They were all kept in a safe by the first plaintiff in the presence of the first defendant and her husband with a list and the safe was locked with Aligarh lock with four keys, of which one was retained by the first plaintiff and the others were delivered to the first defendant and her husband. But when they returned from Malacca, after the death of the first defendant's husband, when the safe was broken open, they found the safe empty. When the first defendant was demanded to produce the jewels, she produced two boxes before mediators from her separate room containing some of the jewels mentioned in the C and D schedules, specified in para. 7 of the plaint. As regards the rest, she said that she did not come into possession. It is on tins basis that an account of the jewels and cash in schedules C, D and D1, though there is no specific allegation in the plaint regarding Dl schedule, was claimed. It was also prayed that Rs. 10,000 should be set apart to the two daughters of the first plaintiff by way of marriage provision from out of the joint family property and a Commissioner should be appointed for division of the immoveables. Schedule A to the plaint consists of two items of immoveable property. Schedule B of silver vessels and schedule C contains a list of jewels, which had fallen to the share of the first plaintiff at the partition effected between him and his brother on 14-111924 as per the partition lists. Schedule D contains particulars of the jewels made in the family by the first plaintiff after the said partition. Schedule Dl consists of two item--sovereigns 25 and cash Rs. 1000.
(3.) The suit was contested by defendants 1 and 2. The plea or the defendants was that there was no valid marriage between the first plaintiff and the third defendant and the issues o that union were not legitimate, that, therefore, the plaintiffs were not entitled to more than a half share in the family properties, and that there was no need for making provision for the marriage expenses of the illegitimate daughters of the first plaintiff. The defendants also denied the removal of the jewels alleged by the plaintiffs and claimed C and D schedule jewels to have belonged to the second defendant's grandmother Nachiammal. They, in their turn, alleged that the first plaintiff and the third defendant fraudulently removed and secreted many of the jewels and silver vessels of the joint family. Immediately after the filing of the suit, a Com missioner was appointed to take an inventory of the Jewels etc., in the possession of the first defendant and there were 44 items, 27 items as per list I and 17 items as per list II in the inventory prepared by the Commissioner. The inventory list is Ex. A. 103 and the report of the Commissioner is Ex. A. 109. The defendants also claimed that some more properties belonging to the joint family should be brought into the hotchpot, which were omitted by the first plaintiff in the schedules attached to the plaint. Schedule 1 appended to the written statement specifies the immoveable properties, Schedule 2 silver vessels, Schedule 3 jewels, schedule 4 moveable properties belonging to the joint family and Schedule 5 contains Jewels exclusively belonging to late Alagu Chettiar's mother Nachiammal, which should not be included in the partition as they belong exclusively to the second defendant. Schedule 6 contains a list of the Jewels of Alagu Chetti, which belong exclusively to defendants 1 and 2 and Schedule 7 relates to the jewels belonging exclusively to the second defendant. Besides these claims some other matters were also brought into the controversy in the suit by the written statement.;

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