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Judgment
Yahya Ali, J.—The facts leading to this second appeal are these: Venkanna and Pattayya were two brothers who were at one time joint.
They seem to have settled down in different villages, Venkanna in Madicharlapalam and Pattayya in Mattapparru and they were each of them
enjoying in his village the potter service inam lands and rendering service pertaining to that office. Pattayya died about 1920 and Venkanna who
survived him died about 1934. In spite of Pattayya''s death and Venkanna becoming the head of the family, it would appear that there was no
disturbance of any kind in the occupation and enjoyment of the property belonging to Pattayya by his widow and son, at Mattapparru. The plaintiff
is Venkanna''s son and the defendant is Pattayya''s son. The present suit was filed by the plaintiff''s next friend on 29th November, 1941, alleging
that the family continues to remain joint and that both the Mattapparru and Madicharlapalam properties should be partitioned in equal shares
between the plaintiff and the defendant.
The defendant contested the suit averring that there had been a partition 40 years ago and that each branch had lived separately in different
villages enjoying their separate properties and performing potter''s service each in his own right, The learned District Munsiff accepted the
defendant''s contention and dismissed the plaintiff''s suit. The lower appellate Court however on appeal reversed that decree and holding that the
family still remained joint, granted a preliminary decree for partition. The defendant has appealed against that decree of the Subordinate-judge.
A considerable amount of documentary evidence was put in on behalf of the appellant. There is, to start with the fact that the defendant''s family
lived in Mattapparru even during Pattayya''s lifetime, that Pattayya died in Mattapparru and after his death the plaintiff''s father did not assert his
right as the Martha of the-family and assume management in respect of the Mattapparru property. Then there is the fact that taxes were paid
separately by each branch in respect of the properties in the respective villages. One did not pay taxes for the lands in the other''s village. There
was, further, separate cultivation of the property and separate enjoyment. Water applications were made by the defendant in his own name to the
authorities and orders were issued to him. Land encroachment notices were served upon the defendant in his own name. The defendant dealt with
the properties as belonging to him individually by mortgaging it on several occasions. Ex. D-3 was a mortgage of that kind dated 22nd September,
1935. Ex. D-4 is another mortgage, dated 3rd July, 1937, and Ex. D-6 is an usufructuary mortgage executed by the defendant. The learned
District Munsiff took into account all these factors and in a short, but neat, judgment discussed them and came to the conclusion that although there
was no deed of partition to evidence the actual partition between the parties, the evidence relating to separate enjoyment established beyond doubt
that there was partition between the plaintiff''s father and the defendant''s father and that the properties were subsequently enjoyed by the plaintiff
and the defendant separately in their own individual rights. The learned Subordinate Judge approached the question altogether from an erroneous
point of view. He took up each document separately and found with regard to each of them that it was not conclusive in nature. This scrutiny was
on the basis that each of those documents was genuine. In the end however he made a surprising statement to the effect that the defendant had
been cooking up the documents from 1934 thereby casting a doubt on the genuineness of the entire series of documents beginning from Exs. D-2
to D-II including most of the tax receipts comprised in Ex. D-1 series. This was nobody''s case. Even the plaintiff did not and could not possibly
have questioned the genuineness or authenticity of these documents which are all either public or registered documents in the nature of tax receipts,
notices under the Madras Survey and Boundaries Act, registered mortgage deeds and proceedings of the Executive Engineer. In dealing with the
oral evidence the learned Subordinate Judge while at one place completely discrediting the testimony of D.W. 2 who merely stated that he
cultivated some land under the defendant, ultimately agreed that it was quite possible that D.W. 2 had cultivated the land. Mr. Viyyanna, the
learned advocate for the appellant, has rightly stressed that the learned Subordinate Judge was wrong in not taking all the documentary evidence
and the several factors, established thereby in their combined effect into account and his way of dealing with the case by examining each document
or each circumstance separately and holding that it was not conclusive was not correct. I agree with that contention. As stated by the Privy Council
in Parbati v. Naunilal Singh ILR (1909) All. 412 the cumulative effect of all the documents should be taken into account in ascertaining whether in
such circumstances a partition had actually been effected. Their Lordships said:
It is unnecessary to examine all the other documents in the case. Few, if any, of them are inconsistent with the defendant''s case ; many of them are
quite inconsistent with that of the plaintiff. The High Court examined them in great detail. They dealt with them, however, in what, in their
Lordships'' opinion, was an erroneous method. They apparently only considered whether each document was by itself sufficient to rebut the prima
facie presumption that, as the plaintiff''s family were admittedly a joint Hindu family before 1861, it continued to be joint, and omitted to take into
account the cumulative effect of all these documents.
These remarks are quite apposite to the facts and circumstances of the present case. I have no doubt whatever that for failure of a correct
approach, the learned Subordinate Judge has arrived at a conclusion which is not warranted by the evidence and the circumstances established in
the case. If all the various facts adverted to above are taken into account in cumulo the only possible inference is that even during the lifetime of
Venkanna and Pattayya, there was a partition between them and that subsequently each branch settled down in different villages and attended to
the performance of potter''s service in their own right and enjoyed the property belonging to them separately. In these circumstances the learned
District Munsiff was right in drawing the inference that a partition had taken place and that the property in Mattapparru which was in the
possession of the defendant was his own separate property and was not in the nature of joint family property in which the plaintiff could claim a
share.
Learned advocate for the respondent contends that the finding of the learned Subordinate Judge is in the nature of a finding of fact and that in
second appeal the same should not be disturbed, and he relies on Secretary of State for India v. Rameswaram Devasthanam (1934) 66 M.L.J.
595 : L.R. 61 IndAp 163 : ILR 57 Mad. 652 (P.C.). All that that case laid down, relying on Wall Muhammad v. Muhammad Baksh (1929) 59
M.L.J. 53 : L.R. 57 IndAp 86 : ILR 11 Lah. 199 (P.C.) was that where the question to be decided is one of fact, it does not involve an issue of
law merely because documents which were not instruments of title or otherwise the direct foundations of rights, but were really historical materials
have to be construed for the purpose of deciding the question. There is no such instrument in this case which is in the nature of merely a historical
material or document upon which no title is founded. On the other hand there are clear dicta of the Privy Council in other cases holding that where
the inference is a legal inference arising from facts, the proper effect thereof is a question of law. In Dhanna Mal v. Moti Sagar (1927) 59 M.L.J.
663 : L.R. 54 IndAp 178 ; ILR 8 Lah. 573 (P.C.) their Lordships stated:
Now their Lordships would be the last to seek to abridge the effect of Sections 100 and 101 of the CPC or weaken the strict rule that on second
appeal the appellate Court is bound by the findings of fact of the Court below. They are well aware, moreover, that questions of law and of fact
are often difficult to disentangle. It is clear, however, that the proper effect of a proved fact is a question of law, and the question whether a
tenancy is permanent or precarious seems to them, in a case like the present, to be a legal inference from facts and not itself a question of fact.
It is well settled that when in the appraisement of facts and in the process of drawing an inference therefrom a legal principle has been or is to be
applied, there is a question of law involved. As stated by the Privy Council as early as the decision in Ramgopal v. Shamskhaton (1892) L.R. 19
IndAp 228 : ILR 20 Cal. 93 (P.C) the facts found need not be questioned but it is the so mdness of the conclusions from them that is in question
and that is a matter of law.
The appeal is therefore allowed with costs here and in the lower appellate Court and the judgment and decree of the lower appellate Court are
reversed and the judgment and decree of the District Munsiff of Razole are restored.
(Leave refused).