V DEVADOSS Vs. V PANKIRAJ

JUDGEMENT

(1.) THE plaintiff in O.S.No.112 of 1989 and the defendants in O.S.No.129 of 1988 are the appellants. THE appellants are brother and sister. THE respondents are their brothers. THE suit properties belonged to Mariamma Nadachi, the paternal grandmother of the appellants and respondents. According to respondents, she executed a will on 5.11.1986 marked as Ex.A2 bequeathing the properties in favour of the respondents. She died on 26.12.86. With a prayer to grant probate of the said will, the respondents filed O.P.No.68 of 1987. In view of the contest, it was numbered as O.S.No.129 of 1988.

(2.) THE 1st appellant filed a suit in O.S.No.112 of 89 to divide the suit property on the basis that the property was given to his father Varuvel Nadar by Mariamma Nadachi under the settlement deed dated 17.9.1946, marked as Ex.A10. He has also defended the petition filed by the respondents for the purpose of granting probate. THE respondents contested the suit for partition on the basis of the will in their favour marked as Ex.A2.

(3.) THOUGH the learned counsel for the appellants tried to submit that Ex.A10 is a settlement and by that Varuvel Nadar got right in the property even during the lifetime of Mariamma Nadachi, on perusal of Ex.A10, I am able to see that Varuvel Nadar could get the property only after the lifetime of his mother. Merely because of a restriction to sell the property by his mother during her lifetime, it cannot be said that she had passed on her right in favour of her son Varuvel Nadar even during her lifetime. So the said document can be construed only as a will in favour of Varuvel Nadar, bequeathing the properties in his favour by his mother, Mariamma Nadachi.