K. H. KRISHNA IYER Vs. PARVATHY AMMAL

JUDGEMENT

(1.) PW. 1 (father and power of attorney holder of plaintiffs) and the 1st defendant are the children of deceased Harihara Iyer, who had three other sons They were followers of Hindu Mitakshara law. The joint family had some little ancestral properties. There, were also self acquisitions in the names of the father and the sons. Harihara Iyer proceeded as if all these self acquisitions, whether in his name or in the names of his sons, were exclusively with his personal funds and belonging to him absolutely. On that assumption in 1124 he executed Ext. A4 styling it to be a settlement deed. All the ancestral properties and self acquisitions in the names of all the six persons were included in it and settled as if he is the absolute owner. He took one share for himself which includes plaint Schedule.4 cents and a residential building purchased in the name of the first defendant in 1123 under Ext. A3. Other properties were settled in the name of the sons separately excluding PW. 1 who is alleged to have relinquished his rights. He provided that during his life time his sons will not have any right and that he will be free to change the disposition and do anything with the properties. The document was provided to take effect only after his death subject to the enjoyment of his wife after his death. The provision regarding the properties taken for his share is that after his death his wife should assign them to the plaintiffs or in the absence of such an assignment they should get the properties absolutely after the death of his wife. Second defendant is the wife of the first defendant. Harihara Iyer died on 5-7-1958 and his wife died on 28-12-1973. Defendants are in possession of the plaint schedule property. The suit is for declaration of title and recovery of possession with mesne profits on the strength of title obtained under Ext. A4.

(2.) The stand taken by the first defendant was that he is the absolute owner under Ext. A3 and the father had no right to include his property in Ext. A4 The inclusion is said to be against his objection. Second defendant contended that at time of Ext. A3 first defendant was not able to get possession, because the property was outstanding with one Vasudeva Iyer as the tenant who had also an agreement for sale in his favour from the landlord on the basis of which he advanced Rs. 1,000/. She claimed to have obtained those rights under Ext. B18. Her further case is that first defendant orally gifted his rights to her and she is therefore the absolute owner.

(3.) On the basis of the evidence on record, both the courts below found that the claim put forward by the second defendant is bogus. I am in full agreement with those findings. Both the courts below decreed the suit on the finding that even though Ext. A3 stands in the name of the 1st defendant it is joint family property because the acquisition was with joint family funds. Therefore the inclusion of the property in Ext. A4 was justified and the claim of the 1st defendant was negatived. S. A.284 of 1982 was filed by the first defendant and S. A. 335 of 1982 by the 2nd defendant. S. A. 335 of 1982 has only to be dismissed for the reasons stated above.