L.P. LAKSHMANAN CHETTIAR AND ORS. Vs. THANGAM ALIAS PALANICHAMI CHETTI AND ORS.

JUDGEMENT

(1.) THIS petition was filed by defendants 1 and 3 to 9 for leave to appeal to His Majesty in Council against the judgment and decree of this Court in Appeal No. 410 of 1944. It is opposed principally by the first and second respondents who were the plaintiff and the second defendant respectively. The first objection is that the case does not fulfil the requirements of Section 110 of the Code of Civil Procedure as regards the amount or value of the subject -matter in dispute in the appeal. The second ground is that the decree is one of affirmance and the appeal does not involve a question of law and consequently is not a fit case for appeal to the Privy Council. The petitioners contend that the value is above the statutory minimum and that the decree is one of variance and not of affirmance.

(2.) THE first and second defendants are brothers and the plaintiff is the son of the second defendant. Third and fourth defendants are the sons of the first defendant, and defendants 5 to 9 are the sons of the third defendant. Thus defendants 1 and 3 to 9 represent one branch of the family while the second defendant and the plaintiff represent the other branch. They constituted a joint Hindu family; on the 9th February, 1932, an attempt was made at a partition and a muchilika Ex. P -1 was executed in favour of mediators; but for some reason, which is not material to these proceedings, the panchayat fell through. The case of defendants 1 and 3 to 9 was that in spite of this, the family reunited and continued to be joint until June 1935 and on 7th June, 1935, there was a final and complete partition which was fully acted upon. Ex. D -1 is the document which was executed on that date containing the details of the partition alleged to have been effected. The second defendant and the plaintiff attacked the genuineness of Ex. D -1 and averred that nothing in fact took place then. The trial Court found that there was a division in June 1935 as alleged by the first defendant. It also found that Ex. D -i, prepared in connection with the partition, is not a fabricated document but is in the nature of a partition list and is as such inadmissible in evidence for want of registration and since the document itself is not admissible, the details of the partiticn could not be proved by other evidence.

(3.) IN appeal, the general contention was raised that Ex. D -1 was admissible as evidence of the partition and that it was merely a minute or memorandum of what had already been settled or completed. It was also argued that there was part performance of the partition embodied in Ex. D -1. But the main purpose for which the admissibility of Ex. D -1 was urged was to establish the exclusive right of the first defendant and his line to the right of management of the properties, mentioned in Schedules C and C -1. Under Ex. D -1 that right was given to the senior line represented by petitioners (the first defendant and his stcck). It was; in the alternative contended that apart from the right conferred under Ex. D -1 there was a family custom under which the right of management was indivisible and it went to the senior branch of the family. There was no contention whatever before us with regard to any of the properties mentioned in Schedules A and B. In fact, so far as B Schedule properties are concerned, the trial Court had found that barring a bureau, the first defendant was not in possession of any of the other articles mentioned in that schedule and this finding was not questioned before us.