Ramachandra Iyer, J.-

These Appeals arise out of the decree and judgment in O.S. No. 35 of 1953 on the file of the Sub-Court, Madurai. Plaintiffs and 4th defendant are appellants in Appeals Nos. 272 and 425 of 1955 respectively. The suit was one for partition of the plaintiff’s share in the properties set out in schedules A to F to the plaint. The A schedule properties had been dedicated to a trust and the parties are agreed that the trust was a private one; the only dispute between them is regarding a scheme for management of the performance of the trust. The B schedule relates to the lands, C schedule to a house, D and E schedules to the two outstandings and a business, and F schedule to shares in Sri Meenakshi Mills alleged to be owned by the family.

One Chokalinga owned the properties. He left behind him two sons, Velusami and Tirupathi who are respectively 1st and 4th respondents in A.S. No. 272 of 1955 and the 4th respondent and appellant in A.S. No. 425 of 1955. It will be convenient to refer to the parties according to their rank in A.S. No. 272 of 1955. The appellants are the son and grandson of Tirupathi, the 4th respondent, while the 2nd and 3rd respondents are the sons of the 1st respondent Velusami. Respondents to the appeal are defendants 1 to 4 in the suit. Two others, namely, defendants 4 and 5 represented a collateral branch of the family in the suit, but they have not been made parties to the appeals. Their interest is only in regard to the management of A schedule properties.

The case for the appellants was that respondents 1 to 4 formed members of a Hindu joint family which owned the properties set out in the various schedules to the plaint, that there were some attempts for partition through mediation in the year 1950 and that although a tentative arrangement was made there was no final or effective partition. The appellants stated that they were entitled to their share in all the properties of the family and repudiated the claim to jyeshtabagham on the part of the first respondent. The 4th respondent supported the claim of the appellants. Respondents 1 and 2 contested the claim. They pleaded that there was a completed partition of the family properties in the year 1950 during which the first respondent made a claim that he must be given increased share (jyeshtabagham) as a reward for the services he rendered to the family by improving its prosperity, and the mediators who effected the partition allotted to him, in addition to his share, about 5 acres of land and Rs. 5,000 cash. The further case of the 1st respondent is that the 4th respondent as well as his son, the 1st appellant, accepted the arrangement and that they should not be allowed to go behind it. The question, whether there was a completed partition in the year 1950, was the substantial issue in the suit. There were also other subsidiary questions in regard to the extent of the properties that would be available for partition.

When the trial of the suit commenced, the parties filed a joint memo on nth December, 1954, under which they agreed, without prejudice to their contentions, to re-partition the properties, subject to the determination by the Court, the right of the 1st respendent to retain the 5 acres of land and the sum of Rs. 5,000 which was given to him under the previous partition. The other questions left to be decided were whether respondents 1 and 4 were in possession of any and what jewels of the family in regard to two items of outstanding and accountability in regard to a business left in charge of the 4th respondent. For decision of the first of the above questions it became necessary to decide whether there was a partition in the year 1950 in which the parties agreed to give jyestabagham to the 1st respondent and did give 5 acres of land and Rs. 5,000 cash.

The learned Subordinate Judge he!d that the alleged partition in the year 1950 was true, and that the appellants were aware of it and assented to the same. As regards the jewels

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