Lingamallu Varadha Raghaviah and Others vs Lingamallu Venkataramanayya (Dead) and Lingamallu Ragavendra Rao by Mother and Gaurdian Kanta Ratnamma, the Legal representative of the Deceased

John Wallis, C.J.—This is an appeal from the judgment of the Temporary Subordinate Judge of Guntur in a partition suit and raises

questions of some importanae which have been elaborately argued before us.

Part of the joint family assets consisted of a joint family trade and the Subordinate Judge seems to have been under the impression that this made

a difference as to the form of account which should be ordered. It must really now be taken to be well-settled in this Presidency that, an account in

a partition suit is an account of the assets and liabilities of the joint family as they existed on the date of the plaint. This is down in Balakrishna Aiyar

v. Muthusawmy Aiyar 3 Ind. Cas. 878 . It is there said that this is so in the absence of fraud or misappropriation. What appears to be meant is

that, what has to be ascertained is, what are really the assets of the joint family and that, if any of the no parceners has attempted to misappropriate

any of the joint family property by putting it in the name of the third parties or otherwise it may still be followed and made available for division. But

it is not the case, as apparently the learned Judge seems to think, that disproportionate expenditure by any co-parcener in the past is a matter

which can be taken into account, when a partition is being effected, The doctrine which has prevailed in this Court, as Mr. Rangachariar pointed

out to us, is based upon very ancient authority indeed, namely, a passage in Katyayana, which is quoted in Colebrook''s Digest, Volume II, page

303 and in West and Buhler, page 763: ""Effects which a kinsman has embezzled, let not a no-heir use violence to make him restore nor let a heir

be obliged to make good what he has expended before partition."" The Subordinate Judge, therefore, proceeded altogether on a wrong basis in this

case when ha ordered an account to be taken from the death of the father in 1896 and the decree will have to be modified by directing an account

to be taken of the assets as they existed on the date of the plaint in this suit.

The next question which arises is as to a certain agreement, which is alleged to have been come to, that as from 1911, separate accounts should

be opened in the name of each of the co-parceners in whish the separate expenditure of each co-parcener should be entered, and it is said to have

been agreed that, on partition, each co-parcener should be debited with the amounts shown in those accounts. It is not admitted on the other side,

that such an agreement would be perfectly legal but it is denied that there was any such agreement in this case. It does not necessarily follow from

the fast that it was arranged to keep accounts in this fashion that it was also agreed that the amounts should be debited in partition, because it might

well be that it was thought advisable to keep the accounts in this way just to show whether the enjoyment during the state of non-division was fair

between the parties. But, however this may be, the existence of any agreement that these sums were to be debited against the several co-parceners

in the partition was not made the subject of any issue, and I am not prepared upon the evidence to hold that any such agreement is proved. We

must accordingly direst that the account to be taken should be simply an account of what the joint family property was at the date of the Sling of

the plaint.

As regards item No. 65, Schedule E, we are not prepared to interfere with the finding of the learned Judge.

Then we some to the question of the jewels worn by the wives of the co-parceners. The argument at first was, as I understood it, that these

jewels remained joint family property. If they remained joint family property, of course, they would be partible, but if they were given to the wives

and became their property, then they would not be the subject of partition. This was eventually admitted for the respondents, but it was said that a

custom was proved that among the Vaisya community, even though the jewels became the property of the wives, the cost of those jewels should

be debited against the various husbands when a partition was made. The general rule even among these members of the raityat community would

appear to be, as laid down by Sankaran Nair, J., in Alamelumangathayarammah v. Namberumal Chetty 23 Ind. Cas. 824 that jewels given to

ladies which thus are allowed to retain in their possession for their own use are presumably given to them and the evidence certainly in thin case

leads to the inference that the jewels now in question wore given to these ladies for their use and that no general control over them was retained on

the part of the family, We may point out that Sankaran Nair, J., in this judgment refers to several unreported rulings on appeal from the Original

Side to the same effect and Mr. Rangachariar has referred us to several passages in Went and Buhler at pages 208, 734 and 735 where the same

rule is stated. What, therefore, we have really to consider is whether the plaintiff in this case has proved a special custom that if jewels are given to

and become the property of the wives of the co-parceners, the cost of those jewels is to be taken into account at partition. In my opinion he has

failed to prove any custom of the kind. There are two witnesses who speak to it on the plaintiff''s side, and one on the defendants'' side,"" but they

only speak to what they know was done in their own family, but there are several other witnesses on the defendant''s side, who deny it. I really do

not think that there is sufficient evidence to make it safe to say that any custom has been established.

The result is, that the preliminary decree must be modified in accordance with what I have said. The appellants will have their costs in the appeal

from the plaintiff.

As regards the memorandum of objections of the plaintiff, that deals with certain ear rings valued at Rs. 2,000 which are said to have belonged

to the father of the co-parceners and to be in the possession of the second defendant. The mother who was called as one of the witnesses proved

that the father had a jewel of the kind and gave it to the second defendant and that the latter never returned it. The second defendant, as the first

witness for the defence, admitted that he had the jewel hat said that ha bad given it to his by judicial, the first defendant, kin did not, however,

venture to put the suggestion to the first defendant when he came into the bex that the father''s earrings had never been given to him nor did he

support the suggestion by any other evidence. The result in, that for this we have only his own uncorroborated statement and I think that the

Subordinate Judge was wrong in accepting it. He has dealt with this item very summarily and we think that he was wrong in his conclusion and that

the memorandum of objections must be allowed with costs to that extent.

It is not necessary to pass any separate order on the memorandum of objections of the second defendant in so far as it covers the same ground

as Mr. Rangachariar''s appeal. Otherwise, it is not pressed and there will be no order as to costs.

The order of the lower Court as to costs is reversed, and those costs will abide and be provided for in the final decree.

Hughes, J.

I agree.