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Madras High Court
Challa Ellamanda And Ors. vs Challa Peda Ellamanda And Anr. on 19 September, 1928
Equivalent citations: 114 Ind Cas 229
Author: Odgers
Bench: Odgers


Odgers, J.

1. This was a suit for the establishment of the plaintiffs’ right to certain property as reversionary heirs of one Virareddi. There were three brothers Somi, Vira and Venkatareddi and it is admitted that the last named separated from the other two and the point in the case is whether the other two remained separate or joint after the separation of Venkatareddi. Virareddi having died in 1879 leaving a widow Ramakka who died in July 1921 and after her death the suit is brought by Venkatareddi claiming to be the reversionary heir of his brother Virareddi, Somireddi having died in 1882. The appellants-defendants contended that the properties in question were obtained by Ramakka from Somireddiby Ex. 2. Item No. 3 of the plaint property is admittedly Virareddi’s self-acquisition and the question is as to the other items.

2. Both the lower Courts have found in favour of the plaintiff, but Mr. Ch. Raghava Rao for the appellants-defendants raises three points in second appeal, namely, first, that the issues are not properly framed, in that issue as to whether Virareddi died possessed of the suit properties was not framed in the District Munsif’s Court, it being necessary for a plaintiff in a reversionary suit to prove that the last male holder died possessed of the property claimed. It would have been much more satisfactory if, instead of trying to make out what the allegations of each party were from the judgments of the lower Courts the pleadings had been printed in order to see what really was the case raised on each side. The plaintiffs apparently alleged that the property belonged to the last male holder; the defendants deny all knowledge of the three brothers and were content to rest their title on Ramakka alone. They; however, added that the property does not belong to Virareddi; and that when he died he had no self-acquired or ancestral property. But as the learned District Munsif points out the real allegation in the written statement seems to be that though Virareddi had no property when he died, his wife Ramakka acquired property after his death, which would thus be her self-acquisition. The learned District Munsif, therefore, justifies the issue as framed by his predecessor. The learned District Judge points out that in the written statement there is no hint that there was either division between Venkatareddi, Somireddi and Virareddi or re-union of the latter two; on the other hand, the written statement pleaded total ignorance of the existence of the three brothers and states that Ramakka got the suit properties by self-acquisition. In other words the defendants do not seek to go further back than Ramakka and the learned District Judge on a consideration of the plaint and the written statement considered that the issues had been properly framed. I cannot say that he is wrong.

3. As to the second question which is that the finding of the learned Judge has been coloured by his finding that there is no presumption that the remaining brothers of the family, namely, Somireddi and Virareddi continued to be joint after Venkata’s separation, he refers to Jatti v. Banwari Lal 74 Ind. Cas. 462 : 45 M.L.J. 355 : 21 A.L.J. 582 : A.I.R. 1923 P.C. 136 : 18 L.W. 273 : (1923) M.W.N. 687 : 25 Bom. L.R. 1256 : 4 Lah. 350 : 28 C.W.N. 785 : 33 M.L.T. 283 : 50 I.A. 192 (P.C.). That is a case in the Privy Council following the case in Balabux Ladhuram v. Rukhmabai 80 C. 725 : 301. A. 130 : 7 C.W.N. 642 : 5 Bom, L.K. 469 : 8 Sar. P.C.J. 470 (P.C.). Lord Dune-din observes that there is no presumption, when one co-parcener separates from the others, that the latter remain united. “Their Lordships think that an agreement amongst the remaining members of a family to remain united or to re-unite must be proved like any other fact.” The latest decision of the Privy Council is Palani Ammal v. Muthuvenkataehala Moniagar 87 Ind. Cas. 333 : 48 M.L.J. 83 : A.I.R. 1925 P.C. 49 : 6 P.L.T. 133 : 21 L.W. 439 : (1925) M.W.N. 330 : 3 Pat. L.R. 126 : 27 Bom. L.R. 735 : 29 C.W.N. 846 : 23 A.L.J. 746 : L.R. 6 A. (P.C.) 143 : 48 M. 254 : 52 I.A. 83 (P.C.) which holds that a Mitakshara family is presumed in law to be joint until it is proved that the members have separated. After saying that a single member can separate himself from the other members of the joint family, their Lordships observe that the fact that the remaining members contained to be joint may, if disputed, be inferred from the way the family business was carried on after their previous co-parcener had separated from them. This latest decision of the Privy Council was not available to the learned District Judge when he heard the appeal. But it is not contended that it in any way overrules the previous decision of their Lordships in Jatti v. Banwari Lal 74 Ind. Cas. 462 : 45 M.L.J. 355 : 21 A.L.J. 582 : A.I.R. 1923 P.C. 136 : 18 L.W. 273 : (1923) M.W.N. 687 : 25 Bom. L.R. 1256 : 4 Lah. 350 : 28 C.W.N. 785 : 33 M.L.T. 283 : 50 I.A. 192 (P.C.). I take it that the joint effect of the two decisions is that there is no presumption either way and after a separation has occurred in the family the joint or separate status of the remaining members must be proved in the ordinary way. Even though the learned Judge was somewhat handicapped in his statement of the law by not having the latest decision before him, he goes on to notice the evidence at great length on one side and the other, and it is impossible to say that he has discussed it under any wrong idea of presumption of onus.

4. The third point is what has been called a kind of estoppel and the facts are fully set out in para. 10 of the District Munsif’s judgment. As pointed out by the learned District Judge, it is not relied on as a real estoppel in law, but it is said that the plaintiff had witnessed the mark of his daughter on a maintenance deed whereby 4 acres and odd of the plaint property were secured to her for maintenance and that this operates as evidence to show that he admitted the title of Ramakka’s alienees. Both the Courts have decided that it does not in any way estop or militate against the plaintiffs’ present position and it would seem that this is based on common-sense, for this deed was witnessed long before there was any idea of Venkatareddi becoming entitled as reversioners to this property and there can be nothing to prevent him as father of his daughter, when he did not know whether he would ever be a reversioner from taking all that he could get for the benefit of his minor girl, on the principle stated in Rangasami Gounden v. Nachiappa Gounden 50 Ind. Cas. 498 : 42 M. 523 : 36 M.L.J. 493 : 17 A.L.J. 536 : 29 C.L.J. 539 : 21 Bom. L.R. 640 : 23 C.W.N. 777 : (1919) M.W.N. 262 : 26 m.l.T. 5 : 10 L.W. 105 : 46 I.A. 72 : 1 U.P.L.R. (P.C.) 66 (P.C.). The proposition as. stated by the learned Judge as arising from that ease is possibly too strongly put if he meant to say that an estoppel cannot under any circumstances thus arise, but this conclusion in agreement with that of the Munsif is undoubtedly correct.

5. All the points raised for the appellants, therefore, fail and the second appeal must be dismissed with costs.

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