SARASWATHI AMMAL Vs. RAJAGOPAL AMMAL

JUDGEMENT

(1.) This appeal arises out of a suit for partition. The Plaintiff and defendant 1 are daughters of one Kanakasabapathi Piilai. Defendant 2 is the husband of defendant 1. Kanakasabapathi was a self-made man and built up a flourishing motor bus service and also acquired substantial properties, movable and immovable. He died on 24-8-1942 without any male issue and left him surviving a widow, Gomathi Ammal, and two daughters, the plaintiff and defendant 1. His widow continued the motor service and managed the other properties with the help of defendant 2 as her Manager and died on 7-3-1944. Defendant 1 and her husband were throughout living with her mother. On her mother's death they both, got into possession of all the properties including the motor service. The plaintiff accordingly brought the present suit originally as one for administration but later amended it as one for partition and separate possession of her half share in the properties. Both the Courts below have decreed partition with ancillary reliefs. There are some minor variations in the decree of the High Court from that of the Subordinate Judge, details of which it is not necessary to notice. The defendants are the appellants before us.

(2.) Shortly before her death, the widow, Gomathi Ammal, executed two documents both on the same day namely 4-11-1940, (1) a sale-deed by which she conveyed the entire bus service as a going concern to defendant 2 for consideration of Rs. 80,000/- (vide Ex. D-6) ; and (2) a settlement deed by which she dedicated some immovable properties worth about Rs. 27,000/- for the performance' of certain services purporting to be of a religious and charitable character (vide Ex. D-8). The main dispute between the parties was as to the validity of those two deeds, apart from certain minor contest as to whether some of the suit properties were part of the Kanakasabapathi's estate and liable for partition. As regards the sale-deed (ExD-6) both the Courts below have concurrently. found that it was executed for grossly inadequate consideration and brought about by undue influence and fraud of defendant 2. The sale-deed was accordingly set aside. With reference to the dispute as regards the individual items of property, the Subordinate Judge found that item 25 of Sch. II, item 6 of Sch. III-C. and item 5 of Sch. IV did not form part of the estate of Kanakasabapathi and that all the other items belonged to the said estate. The finding also has been confirmed by the High Court. There is no further appeal to this Court as regards these matters

(3.) The only questions before us are those arising out of the settlement deed (Ex. D-8) and relate to the properties comprised in Schedules I and II attached thereto. They form Sch. II of the plaint. For a proper appreciation' of the points that arise on this appeal, it is desirable to set out the settlement deed (Ex. D-8) executed by Gomathi Ammal which reads as follows : '