SUNDARAMOORHTY Vs. SHANMUGHA NADAR

JUDGEMENT

(1.) PLAINTIFFS are the appellants. They filed the suit in forma pauperis for partition and separate possession of their half share in "A" Schedule properties and for recovery of past and future profits. In the plaint, they claimed that the properties mentioned in A Schedule originally belonged to Subbammal, maternal grand-mother of plaintiffs 1 and 2 and defendants 7 and 9 and she executed a registered will on 13th May, 1948. bequeathing the properties to her grandsons and appointing their mother as guardian and therefore each one of them secured one-fourth share in the suit properties. The first plaintiff attained majority in May 1965 and the second plaintiff is still a minor. It is on attaining majority, the first plaintiff realised that the suit properties are in the possession of defendants 1 to 6 and 8 and therefore, the suit has been laid for the reliefs prayed for therein.

(2.) 5th defendant filed a written statement adopted by defendants 6 and 8, claiming that they have purchased items 6 and 7 in, "A" Schedule for Rs. 5,000 from defendants 7 and 9 and plaintiff 1 and 2 reprepresented by their mother and guardian Bagiammal under sale deed dated 27th July 1960 and all the debts mentioned in the sale deed have been discharged. A sum of Rs. 1,400 was reserved for being paid to plaintiffs 1 and 2 on their attaining majority. The first plaintiff received his share of Rs. 700 on 30th March, 1966 and handed over a receipt, but in spite of it, he had filed the present suit on 6th April, 1966 challenging the alienation made on his behalf. Subbammal died in 1950 within 2 years of the execution of the registered will. Second plaintiff was born several years after her death and therefore he is not entitled to any properties as a legatee under the will. As for the first plaintiff, he having received his share of Rs. 700 on 30th March, 1966, has also ratified the sale and" hence he cannot file a suit for partition of his share. So far as items 1 to 5 of plaint "A" Schedule are concerned, a preliminary decree was passed in respect of the third share of plaintiff No.1, where as the claim of the second plaintiff was dismissed. Regarding items 6 and 7 with which defendants 5, 6 and 8 are concerned, the suit claim was dismissed. Defendants 1 to 4 had remained ex parte in the proceedings.

(3.) THEREFORE, unless it be shown that on the date of the death of the testator, the rights have vested and only taking of possession is postponed, a different date from the date of the death of the testator, would be irrelevant. In this case, if it is to be held that the properties would vest only after the second plaintiff attained majority, between 1952 and upto the date when second plaintiff becomes a major, the right to the property will be kept in abeyance and such a concept being unknown to law and against the law of perpetuity, the contention of Mr. Ramachandran based on T.B.Sri Rangi v. Asia Bai2is unacceptable. This is not a case where the Explanations to section 111 of the Succession Act can be invoked. The matter decided in Narayanan's Case3, was taken up to the Supreme Court and in A. Narayanan v. Commissioner Income-tax 1 , it was held that there has been no prior bequest in favour of any other person and legal possession of the property on the death of the testator was not vested in or reserved for any other person and there being no postponement of vesting of legal possession in the grandsons in existence of the date of the testator's death only such of them who were born on the date of the death of the testator would be entitled to the property, and not those who were born subsequently even though such a provision was contemplated in the Will. When the law on this aspect has been so laid down by the Supreme Court, Mr.Ramachandran's contention that the Supreme Court was conscious of the decision renddered in T.B.Sri Rangi v. Asia Bail2and having not specifically over ruled it because the Division Bench of this Court has referred to that decision in paragraph 5 of the Judgment and that it will continue to be applicable to cases which would come within the Explanation to section III of the Succession Act is without any force. Hence, on the first point, the second plaintiff cannot chaim any interests in the suit properties by virtue of the registered will dated 13th May, 1948, he having been born subsequent to the death of the testatrix, and in this case, it was not a gift to a class of persons but to the persons who have been mentioned in the will and who were alive on the date of the death of the testatrix. In this view, the concurrent findings of the Court below regarding the disentitlement of the second plaintiff of the suit properties, it is hereby confirmed.