SELLAYYA PILLAI Vs. DEVARAYA PILLAI

JUDGEMENT

(1.) THIS is an application to review the judgment and decree passed by alagiriswami, J. in S. A. No. 1048 of 1966. Before I deal with the application, I shall set out the facts giving rise to the above second appeal.

(2.) THE suit is for possession. The plaintiff's case is that the suit property originally belonged to one kamakshi Ammal, widow of one Thangaraju alias Sappani Pillai, that she was the divided brother's widow, that due to affection towards the plaintiff she executed a settlement deed on 22-1-1948 setting the properties mentioned therein, including the suit items, in favour of the plaintiff that under the settlement deed the plaintiff got right in all the properties including the suit items, that the right to possession in favour of the plaintiff was however, postponed till after the lifetime of the settlor, that the settlor Kamakshi Ammal died on 17-31963, and that the plaintiff became entitled to take possession of the suit properties and enjoy the same absolutely. The further case of the plaintiff is that the defendant fraudulently prevailed upon the said kamakshi Ammal to execute a sale deed in respect of the suit property in his favour on 23-9-1960, that the sale deed is sham, void and invalid document and that the defendant who trespassed into the suit property after the death of Kamakshi Ammal is bound to hand over possession to the plaintiff. The present suit has been filed for the aforesaid relief.

(3.) THE defendant filed a written statement contending that a mere reading of the document dated 22-1-1948 executed by Kamakshi Ammal will show that it is a testamentary disposition operative after her death, that no right in praesenti was created in favour of the plaintiff, that the document was registered as a will, that the recitals in the document show that the testator preserved her rights to revoke the document, that she executed the sale deed during her lifetime in favour of the defendant of some of the properties covered by the deed dated 22-1-1948, that the rest of the properties comprised in the dated 16-1-1960, and that the deed in question is a will and not a settlement.