Judgment

GOSWAMI, J. :- In this appeal we have to go back to a period close upon a passing century to divine what a Hindu Joint Family that had separated at that distant date, thought, contemplated, did and above all intended not only then but also for the future. It was the year 1882 and precisely on 13th May of that year an instrument of partition was executed and registered amongst five brothers, namely, Sivaramakrishna Pillai, Kailasam Pillai, Venkatachalam Pillai. Chidambaram Pillai and Navasivayam Pillai, sons of Subramania Pillai. The family appears to be religiously disposed and was keen to perpetuate the pious ancestral ideology. A genealogy given in the statement of case by the appellants gives the appropriate picture for the purpose of this appeal.

2. To start with the deed of partition, it appears, the properties of the family were ancestral and were partitioned amongst the five brothers reserving some to be enjoyed in common and allotting certain properties to charities to be administered by one of their brothers, Kailasam Pillai. Reading the entire document it appears that even after the partition Kailasam Pillai and Venkatachalam Pillai desired to enjoy their shares of the property jointly and were in great cordiality while the other three brothers lived and enjoyed their properties separately. It also appears that the second and the third brothers, Kailasam and Venkatachalam were given to piety or, at any rate, were perhaps considered as responsible and solvent persons, who could be entrusted to administer the charities indicated in the deed. There is also reference to family debts and other amicable adjustments amongst the brothers and also to voluntary relinquishment of a share by Sivaramakrishna Pillai. With this brief synopsis we may now extract some material provisions of the partition deed (Ex. A-1) which was written in Tamil and has been officially translated :

Clause 1 : "Out of the entire properties worth Rs. 28,000/- belonging to our family and mentioned in the schedules herein, excluding the properties situate in Rasavallipuram held in common as detailed in para 6 and mentioned in the sixth schedule here, excluding the charity properties as detailed in para 8 and mentioned in the eighth schedule excluding the other wet, dry (lands) gardens and all the properties situate in Kattampuliamanapadayur excluding the property, kept in common from October 1880 as detailed in para 7 and mentioned in the seventh schedule herein, situate in one crop cultivation village Gananthanparou, in the other properties, settled in favour of us in one month of September 1881, dry and wet lands, palmyra trees, etc. in Kilakadu situate in Alangulam Village attached to. Naranamalpuram Jamabandi area, whereas Sivaramakrishna Pillai has relinquished his share in favour of the other four persons as detailed in para 4 out of the aforesaid properties, excepting the properties held in common as detailed in para 11 and mentioned in the 10th schedule the other properties were divided among the other four persons with reference to good and bad by casting chits in the month of January 1882."

Clause 2 refers to family houses which need not be quoted.

Clause 3 : "As division was effected as detailed in paras 1 and 2, the first schedule properties fell to the share of Sivaramakrishna Pillai amongst us the second and third schedule properties to two persons Kailasam Pillai and Venkatachalam Pillai, the fourth schedule properties to Chidambaram Pillai and the fifth schedule properties to Namasivayam Pillai. Ever since the properties were allotted as aforesaid Kailasam Pillai and Venkatachalam Pillai were enjoying the two shares of their properties in common and the other three persons were enjoying all the other shares of properties separately. That is the second item of Kattampuli land mentioned in fourth schedule which fell to the share of Chidambaram Pillai and the second item of Kattampuli land mentioned in the fifth schedule which fell to th