V. E. S. Subramanian Chetty vs Kasi Chetty

The parties seem to admit that there was a partition in 1895. Apart from the admission, it is doubtful if Ex. A amounts to a complete partition

between the father and the sons. But, assuming there was a partition between all the three, the question arises: What is the position of the house

after 1895? There are three alternatives: (1) It continued to be ancestral property in the hands of the father; (2) it was allotted exclusively to the

father and thereafter was like his self-acquired property; (3) all the three owned undivided third shares in the property. A fourth alternative that

from the beginning it was self-acquired property need not be discussed, for its effect is like the second alternative and appellant''s evidence is rather

against it. The respondent contends for the third alternative and argues that his father and himself owned one-third share of the house since 1895.

The fact that the sons of Vairavan occupied separate rooms cannot help us in the decision of the case as this is merely for convenience in

pursuance of the custom of Nagarathars. Then we have Exs. B series and C series. These support the contention of the appellant that from 1895 it

was in the exclusive ownership of the father. We cannot be satisfied with the explanation given by the respondent''s vakil of these documents,

accepted by the Court below. We think, the house, for some reason, became the exclusive property of Vairavan and after his death descended to

the appellant and respondent in two half-shares. The appellant''s half-share is Vairavan''s assets in his hands.

The respondent contends that under Order 21, Rule 16 the appellant cannot execute the decree. The rule does not apply as there is no transfer

of the decree. In Mohmed Abdul Kadir Sahib v. Abdul Kadir A. I. R. 1926 Mad. 1141 there was a transfer of the decree to one of the heirs of

defen- dant 1 and that case does not help the respondent.

The only matter that remains is whether plaintiff should be allowed to execute the whole decree against the respondent seeing he got the other

half-share of the house as Vairavan''s assets. The appellant concedes that he is not so entitled. He is willing to proceed against the whole house for

the whole debt.

The appeal is allowed and plaintiff will be allowed to execute his decree for the decree amount as against the whole of the suit house. The

appellant will have half of his costs in appeal. Half of the costs in Court below will be provided for in the order of execution.