# AMMATIIAYEE AMMAL & ANR v. KVMARESAN & OTHERS

- **Citation:** [1967] 1 S.C.R. 353
- **Court:** Supreme Court of India
- **Decided:** 1966-09-15
- **Bench:** K. N. Wanchoo, J.M. Shelat, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ammatiiayee-ammal-anr-v-kvmaresan-others-3832
- **Pages:** 9

## Headnote

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Hindu Law-ImmC1Vable property belonging ta joint /amily-HtUbawi
whether can (/ift such property to his wife-Doctrine of 'pious obliga1ion',
applicability.
Indian Evidence Act, 1812, s. 112-Presumption o(legitlm«y under.
R was a man of considerable property. He married four times. The
third wife bore him a son.
When R made a gift of some joint family
proper!}i to his second wife the third wife gave a notice that the gift was
not valid.
R, in his reply to the DOtice alleged, that she bad deserted
him and that the son born of her was not his. These allegations were
denied by the third wife. After the death of R a suit was instituted by
the said son claiming a half share of thi» property left by R.
The two
living step mothers, namely, the second and fourth wives of R contested
the suit. Tho questions were whether 1ho plaintift was tho son of R and
whether the gift deed was valid. The trial court held on both points in
favour of ·the plaintiff and the High Court also decided against the two
step-mothers who thereupon appealed to this Court. The appellants contended that (I) the courts below had wrongly held the plamtiff respondent to be the legitimate son of R (2) R's gift of ancestral immovable
property was valid becanse it was a gift for 'pious purposes'.
HEW : (i) Section 112 of the Evidence Act raises, inter a/ia, a conclusive presumption that a child born during the continuance of a valid
marriage between his mother and any man is the legitimate son of the
man, and this conclusive presumption can only be rebutted if it is shown
that the parties to the marriage had no access to each other at any time
when he could have been begotten. The appellants had completely failed
to prove the non-access of R to his third wife at any time when the plaintiff-respondent could have been begotten. In these circumstances
there
was no reason to interfere with the concurrent finding of the courts below
that the plaintiff-respondent was the legitimate son of R.
[357 E-F]
(ii) The contention of the don.ee appellant that the gift in her favour
by her husband of ancestral immovable prol'erty made out ot affection
should be upheld must fail because no .. uch gift is permitted under Hindu
Law insofar as immovable ancestral property is concerned. The scope of
the expression 'pious pwposes' cannot be extended to include such gifts.
[359 DJ
Kamala Devi v. Bachu Lal Gupta, [1957] S.C.R. 452 and Guramma
Bharattll' Chanbassappa Deshmukh v. Ma/appa, [1964] 4 S.C.R. 497, referred to.
(iii) Nor can the proposition be accepted that a father.in-law can
make a gift of ancestral immovable property in fav')ur of his daughterin-law at the time of her marriage.
The case of • daughter-in-law who
would become entitled to property in the fath~'~w's family in her
own right stands on a very different footing ft'Oll:k the case of daughter
who is being married and to whom a reasonable gift of ancestral ijnmovable property can be made.
[360 A-Bl
The rule of Hindu law that gifts made in token of love by a fatherin-law to his daughter-in-law are permitted and become the 11rldhan pro-
354
SUPREME COURT
REPORTS
(1967) l S.C.R.
perty must be taken to refer to gifts of movable properties and such imA
movable properties as are not joint family properties. (360 C-E]
R's gift of immovable ancestral
property to his second wife could
not therefore be considered to be valid even if it was In purported compliance with the wishes of his father at the time of her marriage. (360 0-HJ
CIVIL APPELLATE JURISDICTIOS: Civil Appeal No. 618 of
1964.
s
Appeal from the judgment and decree dated November 29,
1960 of the Madras High Court in Appeal Suit No. 207 of 1957.
Sarjoo Prasad and M. S. Narasimhan, for the appellants.
S. V. Gupte, S-0/icitor-General and A. G.
Ratnaparkhi,
for
respondents Nos. I and 2.
R. Ganapathy Iyer, for respondent No. 3.

## Text

A
AMMATIIAYEE AMMAL & ANR.
v.
KVMARESAN & OTHERS
'
September 15, 1966
B
[K. N. WANCHOO, J.M. SHELAT AND G. K. MITTER, JJ.j
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H
Hindu Law-ImmC1Vable property belonging ta joint /amily-HtUbawi
whether can (/ift such property to his wife-Doctrine of 'pious obliga1ion',
applicability.
Indian Evidence Act, 1812, s. 112-Presumption o(legitlm«y under.
R was a man of considerable property. He married four times. The
third wife bore him a son.
When R made a gift of some joint family
proper!}i to his second wife the third wife gave a notice that the gift was
not valid.
R, in his reply to the DOtice alleged, that she bad deserted
him and that the son born of her was not his. These allegations were
denied by the third wife. After the death of R a suit was instituted by
the said son claiming a half share of thi» property left by R.
The two
living step mothers, namely, the second and fourth wives of R contested
the suit. Tho questions were whether 1ho plaintift was tho son of R and
whether the gift deed was valid. The trial court held on both points in
favour of ·the plaintiff and the High Court also decided against the two
step-mothers who thereupon appealed to this Court. The appellants contended that (I) the courts below had wrongly held the plamtiff respondent to be the legitimate son of R (2) R's gift of ancestral immovable
property was valid becanse it was a gift for 'pious purposes'.
HEW : (i) Section 112 of the Evidence Act raises, inter a/ia, a conclusive presumption that a child born during the continuance of a valid
marriage between his mother and any man is the legitimate son of the
man, and this conclusive presumption can only be rebutted if it is shown
that the parties to the marriage had no access to each other at any time
when he could have been begotten. The appellants had completely failed
to prove the non-access of R to his third wife at any time when the plaintiff-respondent could have been begotten. In these circumstances
there
was no reason to interfere with the concurrent finding of the courts below
that the plaintiff-respondent was the legitimate son of R.
[357 E-F]
(ii) The contention of the don.ee appellant that the gift in her favour
by her husband of ancestral immovable prol'erty made out ot affection
should be upheld must fail because no .. uch gift is permitted under Hindu
Law insofar as immovable ancestral property is concerned. The scope of
the expression 'pious pwposes' cannot be extended to include such gifts.
[359 DJ
Kamala Devi v. Bachu Lal Gupta, [1957] S.C.R. 452 and Guramma
Bharattll' Chanbassappa Deshmukh v. Ma/appa, [1964] 4 S.C.R. 497, referred to.
(iii) Nor can the proposition be accepted that a father.in-law can
make a gift of ancestral immovable property in fav')ur of his daughterin-law at the time of her marriage.
The case of • daughter-in-law who
would become entitled to property in the fath~'~w's family in her
own right stands on a very different footing ft'Oll:k the case of daughter
who is being married and to whom a reasonable gift of ancestral ijnmovable property can be made.
[360 A-Bl
The rule of Hindu law that gifts made in token of love by a fatherin-law to his daughter-in-law are permitted and become the 11rldhan pro-
354
SUPREME COURT
REPORTS
(1967) l S.C.R.
perty must be taken to refer to gifts of movable properties and such imA
movable properties as are not joint family properties. (360 C-E]
R's gift of immovable ancestral
property to his second wife could
not therefore be considered to be valid even if it was In purported compliance with the wishes of his father at the time of her marriage. (360 0-HJ
CIVIL APPELLATE JURISDICTIOS: Civil Appeal No. 618 of
1964.
s
Appeal from the judgment and decree dated November 29,
1960 of the Madras High Court in Appeal Suit No. 207 of 1957.
Sarjoo Prasad and M. S. Narasimhan, for the appellants.
S. V. Gupte, S-0/icitor-General and A. G.
Ratnaparkhi,
for
respondents Nos. I and 2.
R. Ganapathy Iyer, for respondent No. 3.
The Judgment of the Court was delivered by
Wanchoo, J, This is an appeal on a certificate granted by the
Madras High Court and arises in the following circumstances. One
Rangaswami Chettiar was a man of considerable property and used
to Jive in Poolathur village.
He first married one Bappini and had
a son by her.
But both the son and Bappani died.
He therefore
married Ammathayee, who was defendant No. 2 in the suit and is
appellant No. I before us.
He had a. son and two daughters by
her. But unfortunately all the three children died. Thereafter
Rangaswami Chettiar married Lakshmiammal in 1943.
She was
the first defendant in the suit. It appears that no child was born to
Lakshmiammal for about three .years and therefore Rangaswarni
Chettiar married a fourth time. His. fourth wife was the sister of
his second wife named Supputhayee. In February 1949 Lakshmiammal gave birth to a son. There is dispute as to the question whether
Lakshmiammal had left her husband about 1945 or so because of
frequent quarrels between the two.
Anyhow the fourth wife had
also no children. In June 1953 Rangaswami Chcttiar fell ill. He
was first treated as an out-patient in Batlagundu hospital and later
admitted as an in-patient. On June 16, 1953 he executed a registered deed of gift in favour of his second wife Ammathayee of certain·
immovable joint family property. Lakshmiammal when she came
to know of this gift published a notice in a newspaper accusing
the second and fourth wife of trying to deprive her and her minor
son of their due share in the joint family property by having the
gift deed executed and claimed that the gift deed was not valid. On
SCptember 4, 1953, Rangaswami Chettiar sent a notice in reply to
the notice published by Lakshmiammal. In that notice Rangaswami Chettiar accused Lakshmiammal of having left him a year
and a half after the marrial!e after quarrelling with him. He also
accused her of living a life of promiscuity thereafter. Finally
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AMMATHAYBE v. KUMARESAN (Wanchoo, J.)
355:;
he said in the notice that the son born to Lakshmiammal in February I 949 was not his son. La]q;hmiammal gave a reply to this
ootice of Rangasmami Chettiar oil September IS, 1953, in which
she maintained
that the child was Rangaswami
Chettiar's.
She also claimed that Rangaswami Chettiar's mind had been poisoned against her by his two other wives. She denied that she had any
connection with any other man besides Rangaswami Chettiar. l n
December 1963 Rangaswami Chettiar died.
The present suit was filed a year later on January 3, .1955 on
behalf of the minor son. He claimed half share in the joint family
properties left by Rangaswami Chettiar. To this suit the three
widows who b~tween them have half share were defendants Nos .
1, 2 and 3. Three other defendants were made parties to the suit
to whom we shall refer later as they are not concerned with the
main controversy between the plaintiff and the two step-mothers
(i. e. second and third defendants).
The main defence of the two step-mothers, who are now appellants before us, was that the plaintiff though born to Lakshmiammal
was not the son of Rangaswami Chettiar and was therefore not
entitled to any share in his properties. Further
Ammathayee
pleaded that the gift deed in her favour was valid and that even if
the plaintiff was the son of Rangaswami Chettiar he would be entitled to half share of the properties other than those gifted to her by
Rangaswami Chettiar before his death. There were other issues
in the suit, but we are not concerned with them in the present appeal.
On the main question, namely whether the plaintiff was the son
of Rangaswami Chettiar, the trial court found in his favour. Further
on the question whether the gift deed in favour of Ammathayee was
vaUd, the trial court was of opinion that it was. not competent for
Rangaswami Chettiar to make a gift of immovable joint family
property to his wife. The trial court therefore held the gift to be
invalid and gave the plaintiff a decree for his half share in the property left by Rangaswami Chettiar, including the properties gifted
to Ammathayee before his death.
Thereupon the two step-mothers went in appeal along with
two other defendants and contested the finding of the trial court
on both these issues. The High Court however upheld both the
filldings. On a consideration of the evidence, the High Court
C(llJle to the conclusion that the heavy burden that lay on those who
disputed the paternity of the plaintiff-respondent in view of s. I 12
of the Indian Evidence Act, No. 1 of 1872, had not been discharged
i~ this case and it had not been proved that Rangaswami Chettiar
had no access to Lakshmiammal on or about the time when the
plaintiff-respondent could have been conceived. On the question
oll the gift deed, the High Court held that Hindu law did not permit
a husband to gift joint family immovable pq>perty to his wife in
356
SUP.RJIME COUllT R.EPOl.TS
(1967) 1 s.c.a.
the circumstances in which the gift was made in this case. The
High Court therefore dismissed
the appeal so far as the stepmothers of the plaintiff-respondent were concerned. The High
Court however allowed the appeal of defendants Nos. 4 and 5
who were the brothers of the two step-mothers of. the plaintiffrespondent and set aside the decree of the trial court with respect to
them by which they were made accountable. There was also a crossobjection before the High Court with respect to certain properties
which were iii the possession of the sixth defendant. That crossobjection was dismissed on the ground that the plaintiff-respondent
had failed to prove that those properties were joint family properties
left by Rangaswami Chettiar. Thereafter the two widows who
are the appellants before us applied for and obtained a certificate
to appeal to this Court as the decree of the High Court was that of
variance, and that is how the matter has come before us.
The two main questions which have been argued before us are·-
(i) whether the plaintiff-respondent was the
son
of
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Rangaswami Chettiar, and
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(ii) whether the deed of gift
was valid.
So far as the first question is concerned, there is a concurrent finding
of the trial court as.well as of the High Court that the plaintiffrespondent is the son of Rangaswami Chettiar. Ordinarily therefore this Court would not interfere with this concurrent finding of
fact.
But it is urged that the High Court did not accept the evidence on this point in the same measure as the trial court did, and
that there are circumstances which should have led the High Court
(when it did not accept the evidence in full) to hold that the plaintiffrespondent was not the son of Rangaswami Chettiar. It is also
urged that the High Court was in error in holding on the basis of
s. 112 of the Evidence Act that the paternity of the plaintiff-respondent had been proved. We are of opinion that there is no force
in this contention. The main evidence on behalf of the plaintiffrespondent was that of his mother, Lakshmiammal. On the other
hand the appellants relied on the notice sent by Rangaswami
Chattiar to Lakshmiammal denying the paternity of the plaintiffrespondent, and it is urged that a notice of this kind is very strong
evidence rebutting the presumption that the plaintiff-respondent is
the son of Rangaswami Chettiar, and this is particularly so in the
present case because Rangaswami Chettiar was keen on having a
son and had married four times for that purpose. He would not
have thus denied the paternity of the son born to his third wife in
the circumstances if that was true. The High Court was not oblivious of the force of these circumstances. But the evidence of
Lakshmiammal was that she never quarrelled with her husband and
that her husband married again because she did not give birth to a
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AMMATHAYEE v. KUMARESAN (Wanchoo, I.)
357
child for about three years, and the fourth marriage of Rangaswami
Chettiar took place with her consent. She also said that she had
not left the house of Rangaswami Chettiar and that the plaintiffrespondent was Rangaswami Chettiar's son. She further said
that her co-wives became jealous after the birth of the plaintiffrespondent to her and· that is why they influenced Rangaswami
Chettiar against her. This evidence was relied upon by the
trial court and the High Court has not disbelieved it. It is also in
evidence that Lakshmiammal was living in her father's house in the
same village as Rangaswami Chettiar, even according to the appellants' witnesses and that Lakshmiammal's father's house W3' only a
furlong away from Rangaswami Chettiar's house. It was in these
circumstances that the High Court had to consicjer the question
whether the heavy burden which lies on a person denying the paternity of a child born during wedlock had been discharged. It is true
that Rangaswami Chettiar had given the notice to Lakshmiammal in
which he denied the paternity of the plaintiff-respondent; but that
notice stands in no better position than would have been the statement of Rangaswami Chettiar even if he was alive when this suit
was fought out in the trial court. Section 112 is in these terms-
"The fact that any person was born during the continuance of a valid marriage between his mother and any
man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man,
unless it can be shown that the parties to the marriage
had no access to each other at any time when he could have
been begotten."
Itraises inter a/ia a conclusive presumption that a child born during
the continuance of a valid marriage between his mother and any
man is the legitimate son of that man, and this conclusive presumption can only be rebutted if it is shown that the parties to the
marriage had no access to each other at any time when he could
have been begotten. The appellants therefore had to prove, as
Rangaswami Chettiar would have had to prove even if he was alive
when the suit was fought out in the trial court, that he had no
access to Lakshmiammal at any time when the plaintiff-respondent
could have been begotten. We have already said that even according to the appellants Lakshmiammal was only living one furlong
away in her father's house from where Rangaswami Chettiar was
living. In these circumstances the evidence produced in the present
suit falls far short of proving that Rangaswami Chettiar had no
access to Lakshmiammal at any time when the plaintiff-respondent
could have been begotten. We have therefore no hesitation in
agreeing with the High Court, particularly taking into account the
evidence of Lakshmiammal which has not been disbelieved by the
High Court, that the appellants had completely failed to prove non-
358
SUPl.EME COUl.T
ltEPOllTS
(1967] I S.C.ll.
access of Rangaswami Chettiar to Lakshmiammal at any time when
the plaintiff-respondent could have been begotten. In these circumstances there is no reason for us to interfere with the concurrent
finding of fact as to ~he paternity of the plaintiff-respondent and we
hold that he is the legitimate son of Rangaswami Chettiar.
This brings us to the question of the validity of the gift deed in
favour of Ammathayee. The gift deed begins with the following
recital:
"As you happened to be my second wife and in
accordance with the promise made to you by my father,
K. K. Ramasami Chettiar at the time of my marriage
with you, and according to the directions given to me also
to execute a document in your favour and also in consideration of the affection you are having for me, and your
obedient nature"
and then follow the words making the gift of certain immovable
properties in her favour. According to the donee-appellant, the value
of this immovable property was about one-tenth of the entire property left by Rangaswami Chettiar. The argument on behalf of
the donee-appellant is that the gift was valid as it was of a reasonable portion of the immovable property, firstly because it was made
by a husband in favour of a wife out of love and affection, and
secondly because it was made by her husband to carry out the
pious obligation that lay on him to fulfil the wishes of his father to
make some provision for Ammathayee, which his father had indicated at the time of her marriage.
Hindu Jaw on the question of ·gifts of ancestral property is
well-settled.
So far as movable ancestral property is concerned, a
gift Out of affection may be made to a wife, to a daughter and even
to a son, provided the gift is within reasonable limits. A gift for
example of the whole or almost the whole of the ancestral movable
property cannot be upheld as a gift through affection: (see Mulla's
Hindu Law, I 3th Edn. p. 252, para 225).
But so far as immovable
ancestral property is concerned, the power of gift is much more
circumscribed than in the case of movable ancestral proprty. A
Hindu father or any other managing member has power to make a
gift of ancestral irnmova!>le property within reasonable limits .for
"pious purposes", (see Mulla's Hindu Law, 13th Edn. para 226
p. 252).
Now what is generally understood by "pious purposes"
is gift for charitable and/or religious purposes.
But this Court
has. eJttended the meaning of "pious purposes" to cases where a
Hindu father makes a gift within reasonable limits of immovable
ancestral property to his daughter in fulfilment of an antenuptial
promise made on the occasion of the settlement of the tenns of her
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AMMATHAYEE v. KUMARESAN (Wanchoo, /.)
359
marriage, and the same can also be done by the mother in case the
father is dead: [see Kamala Devi y. Bachu Lal Gupta. (1)]
In Guramma Bhratar Chanbassappa Deshmukh v. Malappa,(2)
it was observed by this Court that "the Hindu law texts conferred a
right upon a daughter or a sister, as the case may be, to have a share
in the family property at the time of partition. The right was .lost
by efflux of time. But it became crystallized into a moral obligation. The father or his representative can make a valid gift by
way of reasonable provision for the maintenance of the daughter,
regard being had to the financial and other relevant circumstances
of the family.
By custom or by convenience, such gifts are made
at the time of marriage, but the right of the father or his representative to make such a gift is not confined to the marriage occasion
.. .' ..... Marriage is only a customary occasion for such a gift.
But the moral obligation can be discharged at any time, either during the life time of the father or thereafter." But we have not been
referred to a single case where a gift by a husband to his wife of
immovable ancestral property if made, has been upheld. We
see no reason to extend the scope of the words "pious purposes"
beyond what has already been done in the two decisions of this Court
to which reference has been made. The contention of the doneeappellant that the gift in her favour by her husband· of ancestral
immovable property made out of affection should be upheld must
therefore fail, for no such gift is permitted under Hindu Law insofar as inunovable ancestral property is concerned.
As to the contention that Rangaswami Chettiar was merely
carrying out his father's wishes when he made this gift in favour
of his wife and that act of his was a matter of pious obligation laid
on him by his father, we are of opinion that no gift of ancestral
immovable property can be made on such a ground. Even the
father-in-law, if he had desired to make a gift at the time of the
marriage of his daughter-in-law, would not be competent to do so
insofar as immovable ancestral property is concerned. No case
in support of the proposition that a father-in-law can make a
gift of ancestral immovable property in favour of his daughter-inlaw at the time of her marriage has been cited. There is in our
opinion no authority to support such a proposition in Hindu law.
As already observed, a Hindu father or any other managing member
has power to make a gift within reasonable limits of ancestral
immovable property for pious purposes, and we cannot see how a
gift by the father-in-law to the daughter-in-law at the time of marriage can by any stretch of reasoning be called a pious purpose,
whatever may be the position of a gift by the father or his representative to a daughter at the time of her marriage. One can understand such a gift being made to a daughter when she is leaving the
(1) [1957] S.C.R. 452.
(2) [1964] 4 S.C.R. 497.
360
SUPUMB COtJaT llEJ'Ol.TI
[1967) l B.C.1.
family of her father. As it is the duty of the father or his representative to marry the daughter, such a gift may be and has been
held by this Court to be for a pious purpose. But we see no pious
purpose for such a gift by a father-in-law in favour of his daughterin-law at the tinre of marriage. As a matter of fact the daughterin-law becomes a memlicr of the family of her father-in-law after
marriage and she would be entitled after marriage in her own right
to the ancestml immovable property in certain circumstances, and
clearly therefore her case stands on a very different footing from the
case of a daughter who is being married and to whom a reasonable gift of ancestral immovable property can be made as held by
this Court.
Learned counsel for the donee-appellant further refers to the
fact that gifts made in token of love by her father-in-law to
a
daughter-in-law are permitted and become her stridhan property.
That is so. But that does not mean that a father-in-law is entitled
to make a gift of ancestral immovable property to a daughter-inlaw so as to convert it into her stridhan. Generally such gifts are
of movable property. But even if gifts of immovable property in
such circumstances are possible, the two provisions must be read
harmoniously. If therefore Hindu law does not permit a father-inlaw to make a gift of ancestral immovable property to his daughterin-law, he cannot make such a gift for purposes of stridhan.
Further
if .gifts by the father-in-law to the daughter-in-law which become
stridhan include gifts of immovable property, they can only refer to
such immovable property as is not ancestral immovable property, for
that is the only way in which the two provisions can be reconciled.
We have therefore no difficulty in holding that there is no warrant
in Hindu law in support of the proposition that a father-in-law can
make a gift of ancestral immovable property to a daughter-in-law
at the time of her marriage. If that is so, we cannot see how what
the father-in-law himself could not do could be made into a pious
obligation on the son as is claimed in this case, for that would be
permitting indirectly what is not permitted under Hindu law directly.
Further in any case gifts of ancestral immovable property can
only be ,for pious purposes, and v.:e doubt whether carrying out the
directions of the father-in-law and making a gift in consequence can
be said to be a gift for a pious purpose, specially when the fatherin-law himself could not make such a gift. We are therefore of
opinion that this gift cannot be upheld on the ground that l:langaswami Chettiar had merely carried out the wishes of his father
indicated on the occasion of the marriage of Ammathayee.
The appeal therefore fails and is hereby dismissed with costs to
to the plaintiff-respondent.
Before we part with this appeal, we should like to refer briefly
to the case of Natarajan Chettiar who was defendant No. 6 in the
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AMMATHAYEE v. KUMARESAN (Wanchoo, I.)
361
A
trial court and is respondent No. 3 before us. He was made a
party with respect to certain properties in schedule D to the plaint.
His case was' that the properties. in schedule D were not liable to
be partitioned. This contention of his was upheld by the trial
court. That is why the decree does not provide for partition of D
schedule properties. It was therefore unnecessary for the appellants
B
to make him a party to the present appeal unless the appellants
claimed some relief against him. Learned counsel for the appellants
has stated that no relief is being claimed against Natarajan Chettiar
respondent No. 3. The appeal therefore must fail as against
Natarajan Chettiar who will get -his costs from the appellants but
no hearing fee.
C
Further among the properties to be divided where a gold chain
(item 6) and certain promissory notes (items Nos. 2 to 4) of schedule- B. The trial court held that_ there was no proof that these
items 'existed. In the decree however this ha:s not been made quite
clear. We therefore direct that the trial court will correct the decree
to bring it into line with iis finding on these items.
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Appeal dismissed.