Sir Lawrence Jenkins. -

This is an appeal from a decree of the Madras High Court, dated the 17th January 1917, reversing a decree passed on the 24th July 1913, by the Temporary Subordinate Judge of Rajahmundry.

The Defendants Nos. 2 to 49 are members of a Hindu family known as the Nalam family. Their common ancestor was Nalam Bhimanna, who died in or about 1848, leaving seven sons and three daughters. The sons were Virayya, Venkanna, Ramanna, Vallabbaravudu, Pattabhiramanna, Subbayya, and Chalamayya. The daughters were Kamamma, Venkamma and Jaggamma.

The fifth of the sons, Pattabhiramanna, separated from his brothers in 1870. The Defendants Nos. 2 to 49 are the descendants of the six brothers who continued joint, and they are the Appellants in this appeal.

Kamamma married Mandavilli Butchi Kamanna, and the only child of that marriage was Peda Pattabhiramanna. He died in 1881, leaving an adopted son Chinna Pattabhiramayya, who died in 1895 without issue but survived by his widow, Mandavilli Seetharam. She is Defendant No. 1.

The original Plaintiff was Mandavilli Narayanamoorthy, a son of Mandavilli Butchi Kamanna by second marriage, and so a half-brother of Peda Pattabhiramanna. On his death his sons, Mandavilli Venkata Gopala Row, and Mandavilli Satyanarayanamurty, were substituted as parties in his place. They are the Respondents in this appeal.

In 1896 the members of the Nalam joint family, as then constituted, separated, but the partition was not completed until 1900. Though there were only six branches, the family property was divided into seven shares. One share was allotted to each branch, and the remaining seventh share was allotted as : three-eighths to Defendant No. 1 as the representative of Kamamma, four-eighths to the issue of the second daughter, Venkamma, and one-eighth to charity at Rajahmundry.

The purpose of this suit is to impugn this partition and establish the Plaintiffs' claim as heir in reversion to one-seventh of the Nalam properties.

In the plaint it is alleged that Nalam Bhimanna arranged that Pattabhiramanna should do business with his sons and be given an equal share along with his sons, and that this was agreed to by the sons; that the partition of 1896 was made only with the evil intention of disinheriting the reversioners and there was no legal necessity for it; and that the cause of action arose from November 1900.

By the plaint it is prayed that a decree may be passed "declaring that the division effected among the members of the families of Defendants Nos. 2 to 49 concerning the joint property wherein the first Defendant was entitled to one-seventh share, is invalid after the first Defendant's lifetime, so far as it relates to the 1st Defendant's share of the property, and cannot affect the reversioners."

It will thus be seen that the Plaintiffs' claim is based on an alleged right in Peda Pattabhiramanna to a share in the Nalam joint family property. It was rejected by the first Court, but on appeal the claim was affirmed by the High Court and a decree passed in the Plaintiff's favour. The right asserted could not have been an inherent one, and so an arrangement under which it is alleged to have accrued is set up.

This arrangement is pleaded and the following issue was settled :-

"1. Whether Nalam Bhimanna agreed, as alleged in para 5 of the plaint, to give a share in his family properties to Pattabhiramanna along with his sons, and whether the sons of Bhimanna assented to that arrangement?"

The burden of establishing this agreement and the sons' assent to it is on the Plaintiff, and it is necessary to see whether this burden has been discharged.

First the Plaintiff seeks to rely on a statement in the Will of Peda Pattabhiramanna, dated the 11th July 1881, in these terms :-

"After my father, Butchi Kamanna Garu married Kamamma, the eldest daughter of Nalam Bhimanna Garu residing at Mandapeta, I was born to her. But as she died 10 days after I was born, my mother's father, the said Bhimanna Garu, his wife Pap