Manickam Chetty vs Kamalam alias Kamalathammal

Venkatasubba Rao, J.—The suit has been brought on the allegation that the plaintiff''s deceased husband and the first-defendant became

divided and that the plaintiff is therefore entitled to her husband''s share. It is also alleged that subsequent to the division the two brothers carried on

business in partnership and the plaintiff on that footing claims an account of the partnership business. These mainly are the reliefs that the plaintiff

has prayed for and the learned Subordinate Judge has found on these two points that the plaintiff''s claim has been made out.

The facts may be briefly stated. There were three brothers: Annamalai, Arunachala, the plaintiff''s husband and Manicka, the first defendant.

They entered into a partition arrangement embodied in Ex. A, which covers 40 pages in print : That is a very elaborate document and the items

allotted to each of the three individuals have been set out in great detail. Hence lands, outstandings, jewels, and all descriptions of property have

been partitioned and adjustments have been made to equalise shares. The point, however, that has given rise to some controversy is that so far as

certain outstandings amounting to Rs. 80,000 odd were concerned, they were jointly allotted to Arunachala and Manicka : as regards the other

assets of the family, there has been in the main a separate allotment made to each of the three individual sharers. Subsequent to the partition,

Arunachala and Manicka, carried on a joint trade (to use a neutral expression) treating the outstandings jointly allotted to them as pertaining to it. It

may be mentioned that the partition to which we have adverted commenced on the 13th January, 1926, and was completed on the 25th February,

1928. Nevertheless the main items having been partitioned in the early part of 1926, the parties regarded themselves thenceforward as having

become severed. The joint trade carried on by Arunachala and Manicka after the partition continued till the death of the former on the 16th

February, 1929. The present action was commenced on the 5th April, 1929, i.e., within a few weeks after his death.

In the lower Court it was contended that the intention was merely to separate Annamalai from the family and that with a view to effect his

separation, the shares of the three brothers were defined and elaborate calculations were made. This contention is opposed to the very clear and

unambiguous recitals of Ex. A and does not require serious notice.

The argument pressed upon us here is, that although as between Arunachala and Manicka there was a separation in respect of the other assets

of the family, they must he treated as having retained their joint status in regard to the outstandings jointly allotted to them., That such a result can

be brought about, there can be no question : but the point to decide is, is that the effect of the document? In Ramalinga v. Narayana (1921) 43

M.L.J. 428 : L.R. 49 IndAp 168 : ILR 45 Mad. 489 , their Lordships of the Judicial Committee, after referring to, Appovier v. Ramasubba Aiyan

(1866) 11 M.I.A. 75, point out that the character of undivided property may be taken away from some part of the estate, whilst as regards the

rest the members may retain their joint status see the case as reported in Ramalinga v. Narayana AIR 1922 P.C. 201 . The question is therefore

essentially one of construction of Ex. A. Does it lend any support to the contention that the outstandings allotted to Arunachala and Manicka

jointly, were intended to retain the character of undivided property? As already stated, in other respects the division was complete and thorough.

In regard to the houses, lands, jewellery, and other movables, there was a separate allotment to each of the three individual sharers. Some

outstandings were allotted separately to Annamalai. Then as regards the outstandings jointly allotted to Arunachala and Manicka, there is a clear

recital that they were to be divided an equal shares between them. This recital is very important and shows that the contention put forward cannot

prevail. It will be convenient to set out here the result of a certain arrangement made between the parties. So far as the items-exclusive of the

outstandings Were concerned, those allotted to the share of Annamialai were of the value of about Rs. 44,000; similarly, the total value of those

allotted separately to the other two brothers was about Rs. 26,000, the difference between the two figures being about Rs. 18,000. To equalise

the shares, Annamalai was directed to pay Rs. 10,920 odd to Arunachala and Rs. 7,200 odd to Manicka, these two sums aggregating to the Rs.

18,000 odd mentioned above. Pausing here for a moment, what does this, arrangement show? The sums to be paid were unequal and were

determined with reference to the other allotment made. This, far from showing that Arunachala and Manicka intended to remain joint, shows quite

the opposite. Then follows the recital already adverted to which clinches the matter. Referring to the Rs. 80,000 odd outstandings, the document

goes on to say (as mentioned above) that they shall be collected and divided between the two brothers. In the face of this it is difficult to follow the

contention, that the outstandings jointly allotted, were to remain in joint enjoyment and retain the character of undivided property. Moreover, the

unambiguous declaration at the end of the document that the three brothers divided the entire estate including the outstandings, is inconsistent with

the theory put forward. It is unnecessary to pursue the matter further, as the learned Subordinate Judge has dealt with the question very fully and

with his conclusion we are in entire agreement.

Mr. S. Srinivasa Ayyangar for the appellant contends that Ex. A is ambiguous and should be construed in the light of the acts of Arunachala and

Manicka, both contemporaneous and subsequent. But, in our opinion, the instrument is plain and unequivocal and it is well settled that where there

is no ambiguity, extrinsic evidence cannot be received. We may in this connection refer to Babu alias Govinddoss, minor by next friend M.

Lauldoss Vs. Gokuldoss Govardhandoss and Others, , where the question has been fully considered. See also Babu v. Official Assignee, Madras

(1934) 67 M.L.J. 167 : L.R. 61 IndAp 257 : ILR 57 Mad. 931 , where this case has been approved.)

We have just mentioned that the learned Subordinate Judge has found that subsequent to the partition the two brothers transacted business in

co-partnership. But the first defendant contends that it was in their character as members of a Hindu coparcenary that they carried on the dealings.

The outstandings having been jointly allotted to them, they were brought into the common business. The rents from the immovable properties, to

whomsoever they had been allotted, were indifferently credited in the common accounts, that is to say, the credits were not made individually in the

name of Arunachala or Manicka; it was the tenants that were credited with the amounts paid. From these, we are asked to infer that the partition

evidenced by Ex. A was not given effect to so far as these two brothers were concerned. But, there is other evidence which shows, that each

brother was treated as having his own individual dealings. Arunachala purchased a property and the sale-deed was taken in his name; the amounts

paid as the sale price were debited against him separately. As regards the household expenses, the matter stands thus: Arunachala was at

Kumbakonam and the expenses incurred there were carried to a separate page; similarly, the expenses incurred by Manicka at Aduthurai where

he was living, were separately entered. Within a few days of the death of Arunachala, Manicka had to file some suits for the recovery of certain

amounts due to the joint business and in the plaints (Exhibits R and S) he averred most distinctly that he and his deceased brother were partners

and the amounts became due to the partnership. The crediting of the rents in the account books without indicating to which of the two brothers

they belonged, does not possess much significance. No one could tell what adjustments might have been made, had the partition accounts been

settled, but the partnership was of a short duration as it came to an end by Arunachala''s death. The learned Judge has rightly held that from this

and similar conduct no adverse inference can be drawn. There is a heavy burden which Manicka had to discharge as his attempt was to show that

the partition so complete in its details was not intended to be acted upon. In such a case what is the rule of evidence to be applied? Supposing the

facts proved are consistent either with a state of division, or non-division, no Court ought to lightly infer from equivocal facts that the parties

intended to revoke, as it were, the partition which had been solemnly entered into; in other words the intention to divide being manifest, even if the

subsequent conduct is susceptible of two interpretations, no Court ought to hesitate to prefer that, which accords with that intention. The alternative

theory put forward that the divided brothers should be regarded as having become re-united, is equally untenable. Re-union, being of ""very rare

occurrence"", requires, when alleged, strict proof Palani Ammal v. Muthuvenkatachala Moniagar (1924) 48 M.L.J. 83 : L.R. 52 IndAp 83 : ILR 48

Mad. 254 , and from what has been said, it will be apparent, that there is not a shred of evidence in support of the alleged re-union.

It has been suggested that Exhibit A requires registration as the immovable properties have been divided by metes and bounds. That would

depend upon the nature and effect of Ex. A, i.e., was it intended to be the operative deed by which the partition was brought about or to serve

merely as a record of an already completed partition? It is unnecessary to go into this matter, for, in any event the document, as has been

conceded can be received in evidence to prove that there was a division in status and the question is of no importance, as the appellant, as his

earned Counsel has stated, has no desire to impugn the mode of division adopted at the partition that has been entered into.

Then we pass on to the pledge business, regarding which there has been a good deal of argument. The first question that arises is, was it a joint

family concern before the partition. There is no doubt that the business had been carried on with the aid of joint family funds, and that circumstance

would prima facie make it a joint family concern. When coparcenary funds are employed there may be one of two intentions, either that the

concern belongs to an individual member, his share being debited with the sums employed or what is more natural-that the concern was carried on

for the joint benefit. However as stated above, in the absence of evidence to the contrary, the business will be presumed to belong to the entire

coparcenary; but here the facts furnish positive evidence which shows that the pledge dealings were not treated as a joint family business. The

brothers divided at the partition not the business itself but the sums left outstanding in it. It is difficult to say that there was one business or two

businesses, but that is immaterial; the point to note is, that there was a distinct recognition at the partition by the brothers that the business in

question was not a coparcenary concern and that it was on that footing they excluded it from the division. If this is borne in mind, the evidence

adduced in the case presents no difficulty. There are two sums at page 222 of the printed book Rs. 5,100 odd standing against the name of

Arunachala and Rs. 2,300 odd against the name of Manicka. These are significant entries and coupled with the admission of Manicka at page 495,

they lead to the inference that the pledge business at Kumbakonam belongs to Arunachala and that at Aduthurai to Manicka. This matter has been

fully gone into by the Subordinate Judge and no reason has been shown why we should dissent from his conclusion. So far as the oral evidence of

the first defendant is concerned no Court will be disposed to treat it as worthy of belief, as his conduct has been utterly dishonest as shown by the

learned Judge in paragraphs 35 and 40 of his judgment.