P A T SUBBARAYA PILLAI Vs. VAHEESAN MINOR

JUDGEMENT

(1.) THESE three appeals are preferred by Sub-barayaa Pillai, the younger son of thillainayagam, who died on 15-8-1947, leaving a Will, Ex. A. 1, dated 20-2-1945. Even in 1940, Thillainayagam had executed a partition deed, Ex. B. 1, by which he purported to divide some of the properties owned by him and his sons as joint family properties claiming the rest as his self-acquisitions. But in the Will, thillainayagam treated all the properties as his self acquisitions and claimed a power of disposition over the entire estate. He provided by his will, for his daughters, his wife, his second son and his first son's sons. Subramania, the son of Thillainayagam, by his first wife, who was thus cut out from any share in the family properties by the Will filed O. S. No. 120 of 1947 on the file of the subordinate Judge's Court of Cuddalore for partition of his share in the joint family properties. He contended that the partition deed of 1940 executed by his father, as also the Will executed by him were not valid and operative in law, since the properties were all joint family properties. That litigation came up to this Court in appeal, A. S. No. 721 of 1949, and it was held that the properties were joint family properties and consequently, the partition was not operative though it effected a division in status between Thillainayagam and his two sons. As regards the Will, this Court held that it was operative over a third share of the estate which belonged to Thillainayagam as a divided member. The decree of this Court in the prior litigation was made on 3-10-1953. Thereafter in 1956 and 1957, three suits were instituted against the appellant, one by Vaheesan, the only son of subramaniam the son of Thillayanagam, another by Pattammal, a daughter of thillainayagam, and the third by Vridhambal, the senior widow of Thillainayagam, for recovery of legacies granted to them under the Will of Thillainayagam. All these three suits were tried together and the plaintiffs in the litigation succeeded. Against the three decrees in those suits, the present appeals are preferred by the second son of Thillainayagam.

(2.) WHEN the three suits were beard together, common evidence was recorded and the suits were disposed of by a common judgment, as substantially the same questions of fact and law arose in all the suits. App. No. 126 of 1958 is against the decree in O. S. No. 77 of 1956, the suit instituted by minor Vaheesan by next friend, and, the other two appeals arise out of the decrees in the two suits instituted by the widow and daughter respectively of Thillainayagam. The widow and daughter of Thillainayagam were given cash legacies of one thousand rupees each, while Vaheesan was given lands to the extent of thirty five acres and forty eight cents under the Will. The properties given to minor Vaheesan by Ex. A. 1, the will, were described in Schedule A to the Will. In the partition which was effected under the final decree in the prior suit O. S. No. 120 of 1947, properties were allotted to Thillainayagam's share under Schedule C to that decree and properties allotted to Subbaraya were described in Schedule B to that decree. Some of the properties were allotted to Subbarayaa by the partition decree are properties which were given to minor Vaheesan by the will Ex. A. 1. By the decree in the suit at the instance of minor Vaheesan, the appellant was directed to give possession of such of the A schedule properties in the Will, Ex. A. 1 which were allotted to him by the partition decree, and also the minor plaintiff was allotted properties from out of the plaint B schedule properties to make up the value of the legacy granted under Ex. A. 1 to the minor plaintiff. Thus, the appellant lost not only some of the properties allotted to him under the partition decree which originally were granted under the Will to the minor plaintiff, but he was also asked to make good from out of his other properties, an equivalent extent representing the deficiency which the minor plaintiff had suffered by reason of his not being able to get all the properties bequeathed to him under the Will of his grandfather. In respect of the two legacies in favour of the ladies, the learned judge gave decrees for money against the appellant, with interest.

(3.) TWO main questions arise for consideration in the appeal against the decree in the suit instituted by minor Vaheesan. The first is based upon the doctrine of election and the second relates to the manner in which the legacies contained in the Will of Thillainayagam should be worked out in the light of the finding of this court in the prior litigation that the Will would be operative only in respect of thillainayagam's one third share in the family properties.