PARU KUTTY AMMA Vs. CHETTATH NAVOTH LAKSHMI AMMA

JUDGEMENT

(1.) The petitioners are the plaintiffs in O. S. No. 60 of 1948 instituted by them for partition of the suit properties alleged to be tarwad properties. One Sankaran Nair was the karnavan of the tarwad, whose widow and children are defendants 7 to 14. Sankaran Nair died on 26-7-1948, He executed his last will and testament on 20th September 1944. In and by the said will he dealt with the suit properties as his own private acquisitions and purported to deal with them by bequeathing them not only to his widow & children but to the plaintiffs and other defendants in the suit who are all members of the tarwad, the plaintiffs belonging to one tavazhi. In the suit the plaintiffs contest the genuineness and validity of the Will, their case being that Sankaran Nair was very old, weak In body and in mind and was completely under tile influence of his wife and children, that, moreover, all the properties dealt with by the will were tarwad properties and he had no right to make a testamentary disposition in respect of the same and that the persons under the will do not get any interest in the properties. The prayer in the plaint is one for partition of the properties on the basis of their being tarwad properties. Defendants 7 to 10, the widow and some of the children of Sankaran Nair, filed interlocutory application No. 682 of 1951 in the court of the Subordinate Judge of Ottapalam purporting to be under Section 35 of the Transfer of Property Act, Sections 180, 181 and 189 of the Indian Succession Act and Section 151, C. P. C. for directing such of the parties including the plaintiffs as get a benefit under the will to make an election and signify their intention to confirm the will or dissent from it. it was urged before the lower court that if the plaintiffs wished to impeach the will, as they have done, they must relinquish the benefit they get under it and should not be allowed to approbate and reprobate, that is, to question the genuineness of the will and its validity and, at the same time, if it is eventually found that the properties are not tarwad properties, take the benefit of its provisions by asking for the legacies. The learned Subordinate Judge allowed the petition directing the plaintiffs and others, who get a benefit under the will and are not under any disability, to make an election. The present revision petition is against that order.

(2.) The circumstances under which an election could be asked to be made are provided for in Section 180 of the Indian Succession Act, which is as follows :

(3.) It is, however, necessary to consider whether the principle of election could at all be applied to the facts of the present case. The English law of election is the same as that provided for in Section 180 of the Indian Succession Act. In -' Douglas Menzies v. Umphelby', 1908 AC 224 (A), Lord Robertson refers to the principle of election as being the same as the doctrine of approbate and reprobate and observes as follows at page 232: