Sir John Wallis.-

This is an appeal from a decree of the High Court at Madras reversing a decree of Mr. R. W. Davies, I. C. S., Additional Subordinate Judge of Coimbatore, in a suit brought by the plaintiff in February 1919, to reopen a partition made by his grandfather and his four sons, one of whom, Karuppa, was the plaintiff's father, in the year 1905, at a time when the plaintiff, who was Karuppa's son by his first wife, was about four years old. At that time Karuppa had separated from the plaintiff's mother and had married a second wife, and the plaintiff's case is that this partition was effected by all the adult members of the family with the deliberate object of defrauding him of his share in the properties which ought to have fallen to his father and himself and the partition. Para. 7 of the plaint states :

"that the said Karuppa and his father and brothers with the intention of defrauding the plaintiff of his legitimate share in the family properties and benefiting themselves .... entered into a fraudulent and collusive partition."

The Subordinate Judge found that the plaintiff's case was proved and decreed the suit. On appeal the case came before the learned Chief Justice and Viswanatha Sastri, J., who delivered the judgment of the Court. The learned Judges were of opinion that the plaintiff had altogether failed to make out the alleged fraud and consequently allowed the appeal and varied the decree of the lower Court by decreeing a partition between the plaintiff and his brother, defendant 9, of their admittedly joint properties.

As observed by the learned Judge, a case of this kind must be established by very clear and satisfactory evidence.

At the root of the case is the question whether the share allotted to the plaintiff's father was really inferior in value to that which was allotted to his brothers, because if it was not the basis the plaintiff's whole case fails. As is observed in the appellate judgment, the Subordinate Judge has found this issue in favour of the plaintiff on very unsatisfactory and unsubstantial grounds. He has compared the acreage of the land allotted to the different shares and has decided that the partition must have been unequal because the acreage allotted to Karuppa is less than what was allotted to the other brothers. As is pointed out by the appellate Court, mere acreage is not a satisfactory test of value, as so much depends upon the productivity of the lands allotted to each share. The force of this observation is much strengthened by a statement compiled by Sir George Lowndes, who appeared for the respondents, of the assessments on each share as shown in the partition deed.

The assessment on the lands allotted to Sellappa, defendant 1, amounted to Rs. 106-6-6. The assessment on the lands allotted to Karuppa, the plaintiff's father; amounted to Rs. 89-10-10. The assessments on the two shares allotted to defendants 5 and 7, amounted to Rs. 172-3-2, making for each of them an assessment of Rs. 86-9-7, in addition to which they each received Rs. 1,500 in cash.

At the first sight, on these figures the share allotted to Karuppa seems smaller than that allotted to the other brothers, but the case assumes a very different aspect, when it is observed that of the Rs. 89-10-10, Rs. 23-10-6 is not the full assessment, but only a favourable quit-rent payable to Government on the inam lands in question. It does not appear what proportion exactly of the assessment the inamdar was required to pay over to Government by way of quit-rent and what proportion he was entitled to retain for himself; but in any case there can be little doubt that by adding the full assessment of this inam land to the assessment on the other lands which fell to Karuppa's share, it would have more than equalled in value the shares allotted to his brothers.

The Subordinate Judge next referred to the fact that, during the hearing of the case, defendant 1, Sellappa Goundan, the plaintiff's uncle, to whom one of the shares was allott