GAJENDRAGADKAR - (1.) , J.: These five appeals arise from a partition suit (O. S. No. 91 of 1941) filed by the respondent Subramaniam Chettiar against his brother Ct. A. Ct. Nachiyappa Chettiar and his four sons, appellants 1 to 5 respectively. in the court of the Subordinate Judge of Devakottai, and they have been brought to this Court with a certificate granted by the High Court of Madras under Art. 133 of the Constitution. The principal appeal in this group is Civil Appeal No. 112 of 1955 and the questions which it raises for our decision relate to the validity of the award made by the arbitrators to whom the matters in dispute between the parties were referred pending the present litigation. It would, however, be convenient at the outset to state broadly the material facts leading to the suit and indicate the genesis and nature of the five respective appeals.
(2.) THE appellants and the respondent belong to the Nattukottai Chettiar community and their family which is affluent had extensive money-lending business in Burma. Chidambaram Chettiar, the father of appellant 1 and the respondent, died on 20/08/1926. At the time to his death the respondent was an infant 6 years of age. Appellant 1 had already been associated with his father in the management of the business and on his father's death he became the manager of the family and took charge of its affairs and business. On 6/09/1941, the respondent gave notice to appellant 1 calling upon him to effect a partition and to render accounts of his management and the properties of the family. This demand was not complied with and so the respondent instituted the present suit on 24/09/1941. According to the plaint the assets of the family consisted of immoveable properties in India which was then described as British India and in Pudukottai, an Indian State. These consisted of Items Nos. 1 to 12 and Item No. 13 respectively in Sch. 'A'. The jewels and moveables belonging to the family were set out in Sch. 'B'. whereas two money-lending firms which the family owned and conducted at Minhla and Sitkwin in Burma were set out in Schs. 'D' and 'E' respectively. The plaint further alleged that Chidambaram Chettiar had entered large amounts belonging to the family in the names of the members of the family in what are called. Thanathu maral accounts and these amounts were invested in various firms or lent to several individuals. The total of these investments came to about Rs. 15,00,000 described in Sch. 'C'. The assets thus described in Schs. 'C', 'D and 'E' included immovable properties in Burma and the respondent claimed a half-share in all of them. It appears that the family had endowed several properties in favour of charities and they were described in favour of charities and they were described in Sch. 'F'. The respondent claimed that in effecting partition between the parties a scheme should be framed for the management of the said respective charities. According to the respondent appellant 1 had in the course of his management manipulated accounts and had in fact misappropriated large amounts, and so he claimed an account from appellant 1. That in brief is the nature of the claim made by the respondent in his plaint. At the date of the suit appellants 3 to 5 were minors and they were represented by appellant 1. It appears that a witten statement was filed by appellant 1 for himself and as guardian of his minor sons in which the relationship of the respondent and his half-share to the family properties were admitted. Several contentions were, however, raised with reference to the properties available for partition. It was alleged that Items Nos. 10 and 11 in Sch. 'A' were dedicated to charity and as such not divisible and that Item No. 3 was being used as a school. The written statement referred to some more properties which had not been included in the plaint though they were liable to partition. In regard to the jewels and moveables it was contended that several items not belonging to the family, and some not even in existence, had been shown in the said schedule. It was also alleged that some of the jewels shown in the 'said schedule belonged to the several appellants as their separate property. Then as regards the Thanathu maral accounts the appellants gave a detailed history of the amounts and their investments. It was admitted that the said amounts belonged to the family though the investments had been made in the names of the different members of the family. It was, however, urged that the total value of the assets enumerated in Sch .'C would be only Rs. 9,00,000 and not Rs. 15,00,000 as alleged by the respondent. The respondent's case that appellant I had manipulated accounts & misappropriated family funds was denied, and it was urged that for the purpose of partition the assets of the family as they stood on the date of the partition should be taken into account. The appellants also pleaded that the court had no jurisdiction to divide the immoveable properties situated in Burma. According to them there was a special practice obtaining among the families of the Nattukottai Chettiar community according to which appellant 1 was entitled to a decent remuneration for the management of the joint family business and properties. According to another custom pleaded by the appellants it was alleged that provision had to be made for future Seermurais for the unmarried daughters of the family. Broadly stated these were the pleas raised by appellants 1 and 3 to 5. Appellant 2 who was a major filed a separate written statement generally adopting the written statement filed by appellant 1; nevertheless he put the respondent to the strict proof of the allegations made by him in the plaint in support of his claim.
(3.) IN reply to the contentions thus raised by the appellants the respondent filed a reply. IN this statement he pleaded inter alia that there was a custom amongst the community for a member of the joint family to set up a separate family after marriage and that monies drawn by him thereafter would be entered in a separate account called Pathuvazhi and that at the time of the partition the amounts appearing in the said account would be debited to the said member. The respondent claimed that account should be made in accordance with this custom in effecting the partition of the family. On these pleadings the learned trial judge framed fifteen issues. It appears that an attempt was made by the parties to have their disputes referred to arbitration, and in fact a reference was made on 6/04/1943, but this attempt proved abortive and the suit was set down for hearing before the court, and the hearing actually commenced on 11/12/1943. Meanwhile, on 6/12/1943, appellant 2 filed an application under O. 8, R. 9 of the Code of Civil Procedure for permission to file an additional written statement. This application was numbered as I. A No. 988 of 1943. It would be relevant to refer to the plea which appellant 2 sought to raise by this application. He alleged that the deceased Chidambaram Chettiar had set apart on 25/03/1925, two sums of money of Rs. 2,10,251-4-0 each separately in the name of the respondent and appellant 1 so as to vest the same in them forthwith, and he urged that these amounts and their accretions were not the properties of the family liable to partition in the suit. This application was opposed by the respondent. On 14/12/1943, the trial judge dismissed the said application on the ground that it sought to raise a new and inconsistent plea and that had been really inspired by appellant 1.;