Effect of order of stay of further proceedings.

VENKATARAMA AIYAR, J. :- C.M.A. No.210 of 1946 :- This is an appeal by the plaintiff against the judgment and order in I.A.No.18 of 1945 in O.S.No.91 of 1941 on the file of the Court of the Subordinate Judge of Devakottah, setting aside an award. O.S.No.91 of 1941 is a suit for partition instituted by the appellant against his brother defendant 1 and his sons, defendants 2 to 5. The parties belong to Nattukottai Chettiar community and the family is an affluent one having extensive money lending business in Burma. Chidambaram Chettiar the father of the plaintiff and defendant 1 died on 20-8-1926 and at that time the plaintiff was an infant aged about six years, ha having been born on 26-9-1920. The 1st defendant who was already associated with his father in the conduct of the business became the manager of the joint family and was in charge of its affairs. On 6-9-1941, the plaintiff sent a notice to defendant 1 calling upon him to effect a division and to render accounts. The demand not having been complied with, the plaintiff instituted the present suit for partition on 24-9-1941.

2. According to the plaint the assets of the family consisted of immovable properties in British India and Pudukottai being items 1 to 12 and item No.13 respectively in schedule A to the plaint; of jewels and moveables described in schedule B and two money lending firms at Minla and Sitkwin in Burma mentioned in schedules D and E. It was further alleged in the plaint that Chidambaram Chettiar the father of the plaintiff and defendant 1 had entered large amounts belonging to the joint family in the names of the members of the family male and female in what are called the Thanathu maral accounts, that these amounts were invested in various firms or with individuals and that those investments would come to about 15 lakhs. This was the subject of schedule C to the plaint, and the plaintiff claimed a half share therein. It may be noted that the assets mentioned in schedules C, D and E included also immoveable properties in Burma. The family had endowed various properties for performing charities and these are mentioned in schedule F. The plaintiff prayed that in the scheme of partition provision should be made for the management of the charities by all the parties according to their rights. The plaintiff also charged that defendant 1 had in the course of his management manipulated accounts and misappropriated large amounts and secreted them and it was prayed that he should be called upon to account for them.

3. The 1st defendant filed a written statement on 10-11-1941 on behalf of himself and as guardian of his minor sons, defendants 3 to 5. He admitted the relationship of the plaintiff and the share to which he was entitled and raised various contentions only with reference to the properties available for division. With reference to immoveable properties mentioned in schedule A he pleaded that items 10 and 11 were dedicated to charity and were, therefore, not divisible and that item No.3 was being used as a school. He also mentioned some more properties as available for partition in schedule 1-A to the written statement. As regards the jewels and moveables mentioned in schedule B the defendants contended that it contained several items not belonging to the family and not in existence and a list of the articles which were available for division was set out in schedule (2). There was a further plea that some of the jewels mentioned in the plaint belonged to the several defendants, to the wife of defendant 1 and to his daughters Nachammai and Sivakami as their own and that they were, therefore, not liable for partition. They are separately set out in schedule 2-B to the written statement. With reference to the Thanathu maral accounts, the defendants set out in some detail the history of the amounts and their investments, in para 6 of the written statement. In paras.8 and 9 it was admitted that these amounts belonged to the family in whosoevers name t