Judgement

Appeal (No. 67 of 1922) from a decree of the High Court (August 26, 1917) affirming a decree of the District Judge of Madura.

The appeal arose out of a suit brought in 1906 for partition of an estate known as the Vadimitta estate. The plaintiffs, respondents Nos.1 and 2, with their youngest brother (defendant-respondent No.36), who was born after the institution of the suit, were the sons of defendant No. 1 and represented the branch of the second son of the zamindar. The appellant was defendant No. 21; by her written statement she pleaded that the estate was the separate property of her deceased brother, and that the members of the family had separated many years before the suit.

The material facts appear from the judgment of the Judicial Committee.

The District Judge found that the family was joint and undivided. He made a decree for partition.

The decree was affirmed on appeal to the High Court.

1924. Oct. 27. Dube for the appellant contended that the family had separated; he referred to Balkishen Das v. Ram Narain Sahu (( 1903) L. R. 30 I. A. 139.); Kawal Nain v. Probhu Lal (( 1917)

L. R. 44 I. A. 159.); and Jatti v. Banwari Lal. (( 1923) L. R. 60 I. A. 192.)

Wallach for respondents Nos. 1, 2 and 3 was not called upon.

Nov. 20. The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal by Palani Ammal, a Hindu lady, who is one of several defendants, from a decree, dated August 29, 1917, of the High Court at Madras, which affirmed a decree for partition of the Vadimitta estate, dated April 23, 1909, of the District Judge of Madura.

The estate in question, which appears to be a large zamindari, was purchased by Peraiyar Muthukumaraswami, who died in 1834. He was a Hindu Sudra, who and his descendants were governed by the law of the Mitakshara. His descendants, unless they separated, constituted a Mitakshara joint family the property of which was in law joint property unless the contrary was proved. For the sake of brevity he will hereafter be referred to as the propositus. The propositus had two wives; by the senior wife he had six sons, most of who married and left male issue, by his junior wife he had one son, who left male issue. It is stated in the judgment of Sastri J. in this case, and doubtless correctly, that "the property admittedly continued to be in the possession and enjoyment of the descendants of the first son of the propositus." As the family was not an ancient family, the property, which was acquired in quite modern times, was in the possession of the senior son and his descendants as managers of the joint family and not as the senior male member of a joint family.

There are two questions in this suit and in this appeal upon which there are concurrent findings of the District Judge and the High Court. Those questions are whether the principal parties to the suit are bound by an award which was made by some arbitrators, who have been made defendants to the suit, and if they are not bound by the award, then the question arises whether the joint family which descended from the propositus ever separated.

The question relating to the award may be disposed of at once. The District Judge and the High Court found, for reasons which their Lordships consider to have fully justified their findings that the award was not binding upon any of the parties. No argument has been addressed to their Lordships in this appeal in support of the award, and they accept the concurrent findings that it is not binding as correct. The sole appellant, Palani Ammal, claimed that some of the estate sought to be partitioned had vested under the award in her. Her claim under the award fails, but as she appears, when suit for partition was brought, to have been in possession of part of the estate, the right of the plaintiffs to a decree for partition must be established, and it is necessary to consider whether the joint family had ever separated.

It is beyond question that the estate which the propositus had p