SARASWATHI AMMAL Vs. RAJAGOPAL AMMAL

JUDGEMENT

(1.) This application was originally filed for leave to appeal to the Federal Court against the decree & Judgment in A.S. No. 625 of 1945 & A. S. 200 of 1946 on the file of this Court, & has now to be treated as an application for leave to appeal to the Supreme Court. These two appeals arose out of a suit O. S. 35 of 1944 filed in the Subordinate Judge's Court, Tiruhelveli, in the following circumstances. One Kanakasabapathi Pillai died intestate on 24-8-1942 leaving behind him his wife Gomathi & two daughters Rajagopala Ammal & Saraswathi Ammal. After Kanakasabapathi's death his widow succeeded to all his properties, movable & immovable, including a flourishing bus transport business. On 4-11-1943 Gomathi purported to execute a sale deed of 32 buses, their accessories & a charcoal shed which formed part of the Bus business to K. Ramaswami Dass, the husband of Saraswathi Ammal. On the same day, she executed a deed of settlement under which she dedicated about 25 items of immovable property for the maintenance & performance of 'Guru pooja' every day at the 'Samadhi' of her husband & for conducting 'Annadhanam' on his death anniversary every year. Out of these items seventeen had been inherited by her from her husband, while eight of them were purchased by her. Gomathi died on 7-3-1944 & her two daughters became entitled to the properties left by Kanakasabapathi as well as Gomathi. Soon after her death Rajagopala Ammal filed the suit for partition of properties movable & immovable, described in several schedules to the plaint. We are concerned only with Schedules I, II & III-c. There were two defts. Her sister Saraswathi Ammal was the first & the second deft, was Saraswathi Animal's husband. Schedule I comprised the buses, etc., which had been sold by Gomathi to deft. 2 in 1943 & the plff. attacked the sale as a sham & nominal transaction & brought about by fraud & undue influence practised upon Gomathi by the defts. In respect of Schedule II her case was that all the 25 items belonged to & formed part of Kanakasabapathi's estate & the endowment in favour of the 'Samadhi' & 'Annadanam' was totally illegal & invalid. Five items described in Schedule III-c (items 1 to 5) were claimed by her though the sale deeds in respect of these properties stood in the name of her sister, deft, l on the ground that they were purchased with the moneys belonging to the estate of her deceased father. The suit was tried by the learned Subordinate Judge of Tirunelveli who passed a preliminary decree on 5-11-1945. He held that the sale of Schedule I properties to deft. 2 was sham, nominal & brought about by fraud & undue influence & therefore the properties were partible. With reference to Schedule II be held that all the 25 Items, covered by the settlement deed formed part of the estate of Kanakasabapathi. He held that the dedication to the 'Samadhi' was unlawful, but the dedication for 'Annadanam' was valid. He therefore confirmed the settlement deed in respect of items 1 to 17 & item 25 & declared that items 18 to 24 were available for partition. With regard to Schedule III-c, the learned Judge held that the consideration for the sales proceeded from the estate of Kanakasabapathi & hence they were partible. The defts. 1 & 2 filed an appeal to the High Court, A. S. No. 625 of 1945. The plff. also filed an appeal A. S. No. 200 of 1946. Both the appeals were heard together by a Division Bench of this Court & disposed of by a common judgment on 12-4-1949. This Court confirmed the finding of the learned Judge as regards Schedule I properties. So far as the properties in Schedule II were concerned, this Court held that the dedication completely failed in respect of all the items covered by the settlement deed & therefore held that all the 25 items of Schedule II were partible. This court agreed with the lower Court as regards Schedule III-c properties. In pursuance of this judgment a decree was made, the material part of which runs thus: "1. That for the first para of the lower Court's decree declaring the properties available for partition & directing division of the properties including the properties in Schedule I & the income from the bus concern, & for Clauses 1 to 3 of the decretal portion of the lower Court's decree regarding moneys payable to the plff. & deft. 1, the following clauses be & hereby are substituted, namely:

(2.) As the appeals in this Court were disposed of & the application for leave to appeal was filed before the coming into force of the Constitution, the provisions of Sections 109 & 110, Civ. R.C., as they stood on the date of the application would apply to this case; vide 'Ramaswami Chettiar v. Ramanatha Chettiar, 1950-2-MLJ 400 & 'Palani Goundan v. Rama Goundan, CMP 3990 of 1949.

(3.) 'Prima facie' it appears to us that all the conditions laid down in the two sections are satisfied & the petitioners are entitled to a certificate that the case fulfils the requirements of these sections. The appeal proposed to be filed is from a decree passed in appeal by a High Court. The amount or value of the subject-matter of the suit in the Court of the first instance is admittedly over Rs. 10,000. The amount or value of the subject-matter in dispute on appeal to the Supreme Court, that is to say, the value of the properties in Schedule II & items 1 to 5 of Schedule III-c, even taking a half share therein as the subject- matter in dispute is over Rs. 10,000. The decree appealed from i.e., the decree of this Court does not affirm the decision of the Court immediately below because it has varied the decision of the Court below as regards the properties divisible between the plff. & deft. 1. So far as Schedule II properties are concerned the appeal also involves a substantial question of law, namely, whether a dedication for the performance of 'Bum pooja' at a 'Samadhi' & for conduct of 'Annadanam' on the death anniversary of a person is illegal & invalid.