PALANIAPPAN AND ORS. Vs. KUPPAMMAL AND ORS.

JUDGEMENT

(1.) This appeal has been filed by the Defendants 1 to 3, 5 to 10 and 26 in Original Suit No. 23 of 1960, on the file of the Court of the Additional Subordinate Judge of Erode, decreeing the suit. The plaint itself gives a genealogical tree, showing the relationship of the parties. There was one Karuppanna Chettiar, who died in 1914, leaving two widows, Malaikolundu Ammal and Kungumayee Ammal. His estate devolved on them. Malaikolundu Ammal died in 1934. Thereupon, Kungumayee Ammal, the younger widow, became the sole owner. She died on 30th March 1949. On her death, succession had to be traced back to Karuppan Chettiar, the last male owner, and the estate devolved on his two grand -daughters, Malayammal and Kuppammal. Malayammal was the daughter by the first wife, Malaikolundu Ammal. Kuppammal is the daughter by his second wife Kungumayee Ammal. Actually Malaikolundu Ammal had another daughter. Angayee who was the elder sister of Malayammal, but she had died in 1932, when succession opened on the death of Kungumayee Ammal and hence it was that only the two surviving grand -daughters, Malayammal and Kuppammal took the estate. Each of course, had only a limited estate, familiarly known as the Hindu widow's estate. (Vide Mulla's Hindu Law, paragraph 174 to 176.) They could not enjoy the properties amicably together and hence a partition took place between them, evidenced by exhibits A -15 and B -15. dated 25th October 1949. Exhibit A -15 is the copy of Kuppammal, who is the first Plaintiff in the sure, and exhibit B -15 is the copy of Malayammal produced by the first Defendant, who claims to be the son of Malayalnmal, adopted on 28th May 1953.

(2.) Exhibits A -15 and B -15 are unregistered and that is why a controversy has arisen whether they are admissible. According to Kuppammal, the first Plaintiff, and her sons and daughter, Plaintiffs 2 to 5, exhibit A -15 and B -15 merely constitute a memorandum of the oral partition which had taken place two days before (on a Sunday). But, according to the first Defendant, exhibit A -15 and B -15 themselves constitute an instrument of partition, and, because they deal with immovable properties more than hundred rupees in value, they are inadmissible for want of registration under Sec. 49 read with Sec. 17 of the Registration Act. We shall deal with that question in due course, but we may state here that under terms of exhibits A -15 and B -15, fifteen items of immovable property fell to the share of Malayammal and twenty live items fell to the Share of Kuppammal. These forty items have been listed out in the B schedule to the present plaint as items 1 to 40 Schedule A being the genealogical tree. As a matter of detail items 1 to 15 of the B schedule of the present plaint are listed out in the A schedule to exhibits A -15 and B -15 and items 16 to 40 of the plaint B schedule are listed out in the B schedule to exhibits A -15 and B -15. According to the terms of exhibits A -15 and B -15 Malayammal should not encumber or alienate any of the properties which fell to her enjoyment for any reason and, even if she did so, it would not be valid in law. The documents further recite that because Malayammal had no male or female heirs and Kuppammal had male and female heirs the properties allotted to Malayammal for her enjoyment should after her life time, be enjoyed by Kuppammal, who is the grandsons of Kuppammal (who are Plaintiffs 2 to 4).

(3.) The Plaintiff alleged that this was binding on Malay animal as a family arrangement, but that contrary to this arrangement, Malayammal effected same sales of some of the properties allotted to her. She also adopted Palaniappan alias Balasubramanaim, the first Defendant, on 28th May 1953. Her husband Kanniappa had died on 6th May. 1950. The Plaintiffs contend that the adoption is not valid, because, according to them, Malayammal had no authority from her husband or from the nearest reversioners to make the adoption. The validity of the adoption is, therefore, another important question which arises for our decision. Malayammal died on 1st February 1959, but before that she had Executed a Will, exhibit B -1, dated 14th September 1954 and settlement deed, exhibit B -2, dated 16th April 1957, in favour of the first Defendant, Palaniappan. She took the stand that, by virtue of Sec. 14(1) of the Hindu Succession Act, XXX of 1956, which came into force on 17th June 1956, the properties which had been allotted to her under the deed of 25th October, 1949 or later under an oral arrangement, she had become the absolute owner of those' properties and was, therefore, competent to execute the Will or the settlement. She also effected some sale on 30th March, 1957 and 9th April 1957 (exhibits A -5 to 7) on the same footing.