TMI Blog1947 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ly properties. The dispute in the appeal relates to the existence and the divisibility of certain assets and the provisions to be made for the maintenance and marriage expenses of the two unmarried daughters of the first defendant, one of whom was born during the pendency of the suit. 2. The main contention of the appellants relates to the claim put forward by the first defendant to the exclusive ownership of certain lands, about 12 acres in extent which are now worth a substantial amount. This item was allotted along with other items of family properties to the first defendant's share at a partition between himself and his younger brother Ramasami which was completed in 1935. The partition was effected by means of an award (Ex. D-3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a donee from Ramasami and it was not, therefore a divisible asset of the family. The argument was put thus : The agreement by the first defendant and Ramasami to appoint arbitrators to partition their family properties effected a severance of the joint status of the family, according to the decisions of the Privy Council in Syed Kasam v. Jorawar Singh (1922) 43 M.L.J. 676 : L.R. 49 IndAp 358 : I.L.R. 50 Cal. 84 (P.C.) and Harikishan Singh v. Partap Singh (1938) 2 M.L.J. 234 and each brother thus became entitled to a separated half share in all the family properties. When the properties were subsequently divided by metes and bounds under the award of arbitrators, the allotment of the entire item now in question, in which Ramasami had one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his undivided share in several properties. On this view of the transaction which, in our opinion is the true view, the allotment at a partition of a Jyeshtabhagam to the eldest brother means, as the term implies, no more than giving him a larger share than would strictly be due to him and involves no gift by the younger brother or brothers. Indeed, the terms of the award, Ex. D-3, extracted above do not admit of the transaction being interpreted as a gift by Ramasami of his share of the property allotted to the first defendant. It was the arbitrators who settled the allotment and directed the same to be given . There are no words of conveyance by Ramasami who has signed the instrument only as a witness . 5. In such circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the mother in consenting to give an extra share to the managing member is not binding on the plaintiffs. The old idea of Jyeshtabhagam has now become obsolete and conse-quently the consent of the mother to Ramasami Reddi taking an extra share could not prejudicially affect the plaintiff. 8. The theory of implied gift was brought in to repel an argument that the extra share was thrown by the eldest brother into the hotch-pot so as to entitle the junior branch, with whom he was living in commensality, to a share therein. Such a transaction, it was observed, could only be regarded as a gift of half of the extra share to the junior branch and must be in writing and registered. Thus neither Subba Rao v. Subbarao (1936)71MLJ419 nor Venkat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or maintenance was made or allowed. We consider it unnecessary to go into the question as we are of opinion that the first defendant should not be allowed to revive the claim at this stage, not having pressed the same in the Court below, as we do not have the advantage of a finding by that Court on the point. It would no doubt be open to the daughters who are not parties to these proceedings to put forward their claim in a separate suit of their own if they are so advised. 10. In the memorandum of cross-objections the plaintiffs have raised an objection to the marriage allowance awarded for the younger daughter. Mr. Balapara meswari Rao contends that, inasmuch as the plaintiffs who are minors suing by their maternal uncle as their next f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re infer that the right of the daughter for marriage expenses and for maintenance is a right over the joint-family property of the father and the brothers, and, though during the father's lifetime she cannot enforce such right in the form of a partition because of placitum 14 of the Mitakshara, still if the father is willing to exercise his discretion in favour of the daughter by giving something towards her marriage expenses, the joint-family property is liable towards such expenses. H.D.C. Reilly, J. 11. Concurred in that view, while Jackson, J., dissenting held that at a partition between the father and the son, the daughter had no claim on the sons' share for her maintenance and marriage expenses. But even according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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