S NARAYANA DOSS Vs. ARUMUGATHAMMAL

JUDGEMENT

(1.) THIS is a Letters Patent appeal against the judgment of Subrahamnyam, J. , in s. A. No. 73 of 1955, on the file of this court, confirming the judgment and decree in A. S. Nos. 88 and 90 of 1954 on the file of the District Court, Tirunelveli.

(2.) THE decision of the dispute between the parties to this appeal depends upon the true construction of the will, Ex. A. 1 in the case executed by one Velayutha konar on 11-2-1924. The testator died in 1927 leaving him surviving his widow, sellathammal and three daughters, Arumugathammal, Subbammal and shanmughammal by his pre-deceased wife. Under the will he made bequests in favour of his three daughters, and it is the nature of these bequests that is in controversy. The third daughter Shanmugathammal died in 1929. She dies issueless. Sellathammal, Velayutha Konar's widow died on 9-1-1943. Shanmugathammal's husband instituted the suit, O. S. No. Of 1953 on the file of the District Munsiff's Court, Tirunelveli, for possession of the immoveable property which formed the bequest in favour of his wife under the will of her father velayutha Konar. The first defendant in the suit is Arumugathammal, one of the three daughters, and the second defendant is the son of the other daughters, subbammal, Subbammal herself having died sometime after the death of sellathammal. The plaintiff claimed as the heir of his deceased wife, shanmugathammal and his contention was that the bequest in favour of shanmugathammal under the will conferred an absolute estate upon her. The contention of the defendants was that Shanmugathammal having died issueless, under the terms of the will she get only a life estate, and that there was a gift over in favour of the two daughters, Arumugathammal and Subbammal.

(3.) THE learned District Munsif of Tirunelveli who tried the suit construed the will as conferring an absolute estate in favour of Shanmugathammal and granted a decree as prayed for in favour of the plaintiff. On appeal by the defendants before the District Court of Tirunelveli (A. S. No. 88 and 90 of 1954) the judgment and decree of the trial court were set aside and the suit was dismissed on the finding of the lower appellate court that Shanmugathammal did not obtain an absolute heritable estate under the will. The plaintiff preferred a second appeal, S. A. No. 73 of 1955 in this court, and Subrahamanyam, J. , confirmed the judgment and decree of the lower appellate court but granted leave to appeal under the Letters patent. This Letters Patent Appeal has therefore been preferred by the plaintiff.