SOMASUNDARAM AMMAL Vs. K KANTHIMATHINATHA PILLAI

JUDGEMENT

(1.) THE unsuccessful defendants 1 to 8 and the aggrieved 9th defendant in O.S.No.1051 of 1985 on the file of District Munsif Court, Tirunelveli, have preferred these two second appeals.

(2.) THE case in brief is as follows:- THE suit property originally belonged to Valliammal, wife of Ramaiah Pillai and she was in possession and enjoyment. On 23.1.1937 while she was in a sound and disposing state of mind, she executed a Will that after her death, Subbiah Pillai should get the suit property and he should enjoy the same without alienation. He was allowed to enjoy the income from the suit property. After the lifetime of the father, the step mother of the testatrix, namely, Parvathy Ammal and the testatrix's husband's deceased brother's wife Chidambarathammal should enjoy the property jointly during their life time without any power of alienation. If any of the persons predeceased the other person, then the survivor can enjoy the property till her life time without alienation. After the life time of Subbiah Pillai, Parvathi Ammal and Chidambarathammal, the property should go to the testatrix's husband's brothers and their children and they would get the property absolutely. Subbiah Pillai enjoyed the property as per the Will and after his death, Parvathi Ammal and Chidambarathammal enjoyed the property. Chidambarathammal died on 21.2.1983 and as per the condition in the Will, the vested remainder should go to the heirs of the brothers of the testatrix's husband. THE plaintiff is the son of one of the brothers of the testatrix's husband. THE first defendant is the wife of one of the brothers of the testatrix's husband and defendants 2 to 8 are her children. THE plaintiff claims that he is entitled to half share in the vested remainder and similarly, defendants 1 to 8 are entitled to the remaining half. THE 9th defendant is a cultivating tenant of the property and after the death of Chidambarathammal in 1983, she raised cultivation, but she did not pay the share due to the plaintiff. THE plaintiff also issued notice to the 9th defendant claiming the lease paddy. THE allegation of the 9th defendant that she would be liable to pay lease paddy only if there was any yielding is not correct. THE lease paddy for the suit property is 2 kottah per crop. THE paddy was sold at Rs.200 per kottah. Hence the plaintiff filed the suit for partition and separate possession of his half share in the property and also for arrears of lease paddy from the 9th defendant.

(3.) AT the time of admission of S.A.No.922 of 1989, the following substantial questions of law were framed by this Court for consideration: