Judgment

GAJENDRAGADKAR, J. : This appeal has been brought to this Court with a certificate granted by the Madras High Court and it arises from a suit filed by the appellants Mallesappa and Chenna Basappa against their uncle Mallappa, respondent 1 and grand-uncle Honnappa, respondent 2, for partition. According to the plaint, the family of the appellants and respondent 1 was an undivided Hindu family until the date of the suit, and respondent 1 was its manager. The ancestor of the family was Desai Mallappa. He had three sons Kari Ramappa who dies in 1933, Virupakshappa who died long go and Honnappa respondent 2. Kari Ramappa had four sons Gurushantappa (died 1913), Bandappa (died 1931), Mallappa (respondent 1) and Verrabhadrappa (dies 1927). Gurushanrappa married Parvathamma; the two appellants are the sons of Bandappa, their mother being Neelamma. They were born in 1926 and 1929 respectively. Their case was that respondent 1 who has been the manager of the family for many years has been trying to deprive them of their legitimate share in the property and refused their request for partition, and so they had to file the present suit. According to them, in the property of the family they and respondent 1 were entitled to half share each. To the plaint were attached the schedules describing the several items of property. Schedule A consisted of items 1 to 163 which included houses and lands at Jonnagiri. Schedule B described the movables while Schedule C included items 1 to 35 all of which had been acquired by the family under a document Ex. B-32. It is in respect of all these properties that the appellants claimed their half share and asked for a partition in that behalf.

2. This claim was resisted by respondent 1 principally on the ground that in 1929 Ramappa, the father of respondent 1 and the grandfather of the appellants had effected a partition of the joint family properties between respondent 1 and his elder father. That is how, according to respondent 1, the appellants claim for partition was untenable. In this way he pleaded separate title to all the properties in suit.

3. On these pleadings the learned District Judge, who tried the suit, framed eight issues; two of these related to the question regarding the status of the family. He found that the plea of partition made by respondent 1 was no proved, and accordingly he declared that the appellants were entitled to half share in the properties of the family and passed a preliminary decree for partition. According to the learned Judge, the appellants were entitled to their half share in the items of property described in Schedule A excluding items 63, 64, 65, 86 and 151 and items in paragraph 14(d) of the written statement of respondent 1 as well as items of property described in Schedules B and C. This decree was passed on November 22, 1948.

4. The said decree was challenged by respondent 1 by his appeal before the Madras High Court. He urged that the trial Court s finding as to the status of the family was erroneous, and he pleaded that in any case the appellants were not entitled to any share in the properties at Jonnagiri, items 4 to 61, as well as the properties acquired under Ex. B-32. The first argument was rejected by the High Court, but the second was upheld. In the result the decree passed by the trial Court was confirmed except in regard to the said two categories of properties. It is this appellate decree which is challenged before us by the learned Attorney-General on behalf of the appellants.

5. In order to appreciate the contentions raised before us it would be necessary to recapitulate briefly the findings concurrently recorded by the courts below in respect of the plea of partition set up by respondent 1. These findings afford a background in the light of which the pleas raised before us would have to be considered. It appears that respondent 1 relied on several documents in support of his plea that there was a partition effected by Ramappa in 1929. The trial