K. GOPALAN Vs. MATHU

JUDGEMENT

(1.) THE question that arises for consideration in this appeal is whether a bequest by a mother in favour of her daughters before the Madras Marumakkathayam Act enures to the benefit of the tavazhies constituted by the daughters and their descendants or to the daughters alone.

(2.) ONE Matha bequeathed all her properties under a will of the year 1918. She had seven children two sons and five daughters. Under the will two items of immovable properties and household articles were bequeathed in favour of her five daughters and a cart and two bullocks in favour of the sons. All the five daughters jointly assigned the properties to Narayani, daughter of one of the legatees. She in turn sold a portion of the property to one Korumbathi who reconveyed the property to Narayani some years later. Thereafter the entire properties were transferred by Narayani to defendants 59 and 60 in the year 1979. The suit for partition O. S.16/1983 before Sub Court, Badagara was filed by a member of the tavazhi of one of the legatees by name Cheeru. The properties are sought to be partitioned in the suit alleging that the 'bequest was in favour of the five tavazhies constituted by the five daughters and their descendants.

(3.) DOCUMENTS were produced on both sides. No oral evidence was adduced on the side of the plaintiff. The 13th defendant was examined as DW 1. On a consideration of the documents and evidence the court below held the bequest to be one in favour of the five tavazhies constituted by the five daughters and their descendants. The properties were directed to be divided among the five tavazhies as if they were holding as tenants in common. The assignment deed executed in favour of 13th defendant was found to be a void document. A preliminary decree for partition was passed for division of the properties into 85 equal shares and for allotment of one share to the plaintiff. Defendants 59 and 60 were found liable to pay profits from the date of suit. Aggrieved by this decision the 59th defendant has come up in appeal.