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4. Both the Courts held that the properties in suit were the ancestral joint family properties which could not be disposed of by Lachiah Settey by will. The Courts also held that there was no family arrangement, and, even if it were to be deemed to be a family arrangement, it was void, because, one of the sons, Dasratha Settey, who is supposed to have accepted that arrangement by signing below the will, was a minor at the time. The learned District Judge, who tried the suit, therefore held, that the plaintiff Nagappa Setty was entitled to only a 1/9th share in the family properties. The High Court disagree with the District Court on the question of Nagappa Setty's share. In its opinion, the severance of the joint status had taken place on 30th March, 1940 when the sons referred their disputes to the Arbitrators under an Arbitration Agreement. Under the Mysore Hindu Law Women's Rights Act (Misore Act No. X of 1933), the mother on a partition was entitled to 1/2 of the share of a son. Since Nagappa Setty had pre-deceased the mother, his heirs were not entitled to share along with their uncles, the present defendants 1-8, in the share of the mother, defendant No. 9, and hence, Nagappa's heirs could claim what Nagappa Setty could claim at the time of the suit, viz., only 2/19th share in the family properties. The High Court, therefore, held that the plaintiffs were entitled to have partition of 2/19th share and nor 1/9th share as held by the trial court. Some other minor modifications were also made in the decree of the trial Court.

Out of the ten sons, M.L. Vasudeva Muny, defendant No. 8, had just attained majority and the other son, M.L. Dasaratha Setly, was a minor of 16 years of age.

7. In the very first paragraph, Lachiah Setty says that he was eighty years old at the time and, on account of illness, he was growing weak. The reason given by him for making the will is that, owing to his old age and possible accidents of life, he was executing the Will, when, he was of sound mind and body, in order to express his desire regarding disposal of his vast properties and the manner in which the members of his family should conduct themselves after him This leaves no doubt that Lachiah Setty intended to make a testamentary disposition of his properties to take effect after his death. In para 2, he names the several numbers of his family and says that all of them, including their wives and sons were under his care and protection. He further says that all the sons had great regard and affection for him, for his eldest son Nagappa Setty, and their mother, Rukminiamma, defendant No. 9 and the relations between all of them were harmonious. Then, in para 3, he says that, in the family partition with the brother and brother's sons (referring to the partition of 1910), he had obtained only a few properties for his share. All the properties which he now possessed were his self acquired ptopeities, having been acquired by trade, money transactions and coffee cultivation. Then he says that it was possible for him to acquire such vast properties only after his eldest son, Nagappa Setty, on his attaining majority, took over the management of the entire business and "conducted the affairs of the family with the help of his intelligence, enterprise, skill, etc." Even so, he is particular to point out that, though some of the acquisitions stood in the name of Nagappa Setty or in the names of other sons, the acquisitions are his own and "he was fully entitled to dispose them of as he desired." He further observed that all his sons had unanimously consented to such disposal by him and had attested the Will in token of their consent. Then, in para 4, he says: "All my sons have conducted themselves with great affection and harmony with me, my eldest son Nagappa Setty and amongst themselves. It has been my extreme desire that even in future, they should in the same way continue to live harmoniously, united and without any differences. All have agreed to do so." Then follow in paras 5 to 15 several bequests in favour of charities and near relations. By para. 16, he says that, after payment of the bequests as aforesaid, all the remaining properties, movable and immovable, shall be disposed of as detailed hereunder. The family house will go to his wife, Rukminiamma, for her life and the sons shall pay to her a monthly allowance of Rs. 50/-. In case there was a partition amongst the children, his wife would be entitled to a share as mentioned later in para 19. In para 17, he directs that a sum of Rs. 1000/-should be paid to each one of his present and future daughters-in-law. Then follow paragraphs 18, 19 and 20 which, being important, are reproduced below :

There are no antecedents circumstances referred to in the will, except those to which reference has been already made. Those circumstances, far from furnishing an occasion for a family arrangement, go to show just the contrary. Nagappa's son Arya Murthy, P.W. 12, whose was the principal evidence on behalf of the plaintiffs, tried to suggest that his father Nagappa was thinking of separating himself and beginning his trade separately before the Will, that his brothers were jealous of him as he was a greater favorite of Lachiah Setty than the other sons, and that there were misunderstandings in the family because Nagappa's and defendant No. 1's daughters had been married at great expense to the family. It is obvious that this evidence is of really no value, not only because nothing about it is stated in the plaint, but also because it is against the whole tenor of the father's will. Mr. Vasudeva Murthys who was examined as a witness on behalf of the plaintiffs, on the other hand, says that, on the event of making the Will, Lachiah had told him that his son Nagappa wanted to take whatever property Lachiah gave him and separate from the family and start his own business and, therefore, he was intending to make an arrangement to keep Nagappa in the family, for, otherwise, the family as a whole would suffer if Nagappa had decided to sever his connection with it. This evidence also has not been accepted by both the Courts and we think there is good reason to think that the story now given at the time of the hearing is an after-thought. In short, there is nothing in the Will, the pleadings, or the evidence which goes to show that there was any occasion for agreeing to a family arrangement, or that the motivation, which is necessary or a family arrangement, was ever present to the minds of Lachiah and his sons when the will was executed.

15. The learned Trial Judge thought that the plaintiffs' share in the family property was 1/9th, but the High Court, for reasons which are not challenged before us in the arguments has come to the conclusion that the plaintiffs' correct share would be 2/19th. We agree with that finding.

16. One more point was touched upon the course of the arguments. It will be recalled that father Lachiah died in Jan., 1936, and the youngest son Dasartha Setty died in November, 1938. On 30th March, 1940, the mother and the remaining nine sons including Nagappa made a reference to three arbitrators for a division of the family properties. It is common ground that the family no longer remained undivided as from that date. The three Arbitrators entered upon their work on 1st April, 1940; but the course of the arbitration proceedings was not at all smooth. Differences arose with regard to the management of the family properties and business, and Nagappa was disinclined to remain in the same family house along with the other brothers, At the instance of the Arbitrators, Nagappa was provided with a separate house belonging to the family and it appears that Nagappa with the members of his own family left the family house on 5th April, 1940 to live in the family bungalow names 'Sunder Vilas'. The other brothers and the mother lived together and were in possession of the coffee estates and other immovable properties of the joint family, On 11th July, 1940, the Arbitrate n made a special provision in agreement with the parties, with regard to the business. For that purpose, lists were prepared with a view to see how much stock-in trade and securities were in the custody of the brothers. Securities of the value of Rs. 1,49,833/-were found in the hands of Nagappa Setty and securities of the value of Rs. 1,45,616/21/-were found in the hands of his other brothers. The stock-in-trade was valued at Rs. 1. 32,495/-, Since it was impossible for the business being carried on jointly, a clear arrangement was made by the Arbitrators in writing to which the parties consented. There was no partition as such of the securities and stock-in-trade referred to above, but, on an ad hoc basis, the Arbitrators directed that Nagappa Setty should retain with him securities of the value of Rs. 55,397/-and hand over the rest the defendants. The defendants, on the other hand, who were in possession of the stock-in-trade, were directed to make over to Nagappa Setty stock-in-trade, worth Rs. 24, 840/-. The parties, however, failed to carry out these directions although, in the first instance, they had agreed to the arrangement. The course of arbitration was begged down by the quarrels between the sons. In the meantime, one of the Arbitrators died. The other co-Arbitrators were requested to continue with the arbitration, but they too could not make much progress Thereafter, allegations were made about partiality against one of the other of the Arbitrators and the matter went to Court and, since the arbitration was not completed by a certain date, all attempts at arbitration aborted. However, after 11th July, 1940, the plaintiff, on the one hand, and the defendants, on the other, continued to do business; and it is the plaintiffs case that the defendants had continued the family business with the help of family assets and, hence, that business with the help of family assets and, hence that business and the assets of that business must be all made available for partition. Both the Courts have held that the plaintiff was not entitled to get any share in the business, or in the properties acquired from the profits of that business. They have also held that on 11th July, 1940, the old family business in the name of Lachiah Setty & Sons and Giri Coffee Works had come to an end and that the plaintiff, on the one hand, and the defendants, on the other, had started their own new business and one had no concern with the other. It is true that although the defendants did new business, that new business continued to have the old names. The books of account were freshly opened for the same and we feel no difficulty in agreeing with the concurrent findings of both the Courts the business carried on by the defendants from 11-7-1940 in the name of Lachiah Setty & sons and Giri Coffee works was a new business having no connection with the old family business which had come to an end The directions given by the Arbitrators on 11-7-1940. to which the parties had agreed, were to the effect that, from 11-7-1940 onwards, the defendants shall be entitled to the profits made in the business and will be also liable for the losses in that business. In other words, the business was defendants' own after 11 7-1940 and the plaintiff would have no concern with it. The High Court has held that the Arbitrators had intended to close the family business and divide the stock-in-trade leaving to the parties to carry on business, if they so chose, on their own exclusive responsibility.