KRISHNA VENI Vs. RAJAGOPAL

JUDGEMENT

(1.) DEFENDANTS 1, 3 and 4 in O. S. 19/78 before the Court of subordinate Judge, Kozhikode and appellants ina. S. 383/81 before this Court, are the appellants in this appeal. Respondents 1 and 2 were the plaintiffs. The suit was filed for partition of property which originally belonged to one Janaki, grand-mother of plaintiffs and defendants 1 to 6. Preliminary decree for partition was passed in favour of the plaintiffs. Judgment of the learned single judge by which the appeal filed by defendants 1, 3 and 4 was dismissed, is under challenge in this appeal.

(2.) AS mentioned earlier, the property which is sought to be partitioned, namely, plaint B schedule property, belonged to one Janaki. She had two daughters, Kamalakshi and Meenakshi. Plaintiffs and defendants 5 and 6 are children of Kamalakshi whereas defendants 1 to 4 are the children of meenakshi. Defendants 7 to 10 are assignees of a portion of the plaint schedule property. Janaki had executed a Will Ext. A1 dated. 7. 1. 1941 bequeathing A schedule property therein to Krishnan and Madhavan, her two sons and Kousalya, daughter of Meenakshi. B schedule property was bequathed to her daughters Meenakshi and kamalakshi. Kamalakshi pre-deceased Janaki leaving plaintiffs and defendants 5 and 6 and deceased Sikandar and Krishnakumar as her legal heirs. Janaki died in the year 1948. Meenakshi died in the year 1957 leaving defendants 1 to 4 as her legal heirs. Plaintiffs contended that half share which Kamalakshi would have obtained had she survived Janaki, had devolved on the plaintiffs, defendants 5 and 6, Sikandar and Krishnakumar. Half right in B schedule property which meenakshi had, devolved on her children who are defendants 1 to 4. It is contended that the partition deed executed between defendants 1 to 4 taking in the properties which. devolved on the legal heirs of Kamalakshi and also the assignment deeds executed in favour of strangers, are fradulent documents brought about, without the knowledge of plaintiffs and defendants 5 and 6 and therefore, not binding on them. It is also contended that the entire compensation received from Calicut Municipal Corporation in respect of 2. 57 cents of land acquired, was received by defendants 1 to 4 without the knowledge of the plaintiffs and defendants 5 and 6. Defendants 1,2 and 4 filed a joint written statement contending that since Kamalakshi died during the life time of janaki, bequest in favour of Kamalakshi was lapsed and whatever right kamalakshi would have had under the Will in the B Schedule property devolved on meenakshi and therefore, plaintiffs and defendants 5 and 6 have no right to plaint B schedule property. Their case was supported in the written statement filed by defendants 7 and 10. 10th defendant raised a further contention that he was a bonafide transferee and that even if the plaintiffs had any right in the property. it was barred by adverse possession and limitation. Defendants 5 and 6 filed a joint written statement adopting the plaint averments.

(3.) S. 105 of the Indian Succession Act, 1925 provides that if a legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the Will that the testator intended that it should go to some other person. S. 106 provides that if a legacy is given to two persons jointly, and one of them dies before the testator, the other legatee takes the whole. S. 107 deals with a legacy given to legatees in distinct shares. In such cases, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property. S. 109 reads as follows: "109. 'when bequest to testator's child or lineal descendant does not lapse on his death in testator's lifetime:- Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the will".