KUPPUSWAMI RAJA Vs. PERUMAL RAJA

JUDGEMENT

(1.) THE two Letters Patent Appeals arise out of the common judgment of Basheer ahmed Sayeed, J. , in S. A. Nos. 1342 and 1343 of 1954. They raise identical and common questions of fact and law arising out of two suits, O. S. Nos. 105 and 107 of 1952, District Munsif Court, Tiruchirapalli. The two suits though filed separately by two different plaintiffs are identical in averments made and the reliefs claimed by them. The defendants are the same in both the suits.

(2.) THERE were two brothers, one Perumal who died in 1950 and one Chinnappa who died in 1949. Perumal left behind him his widow, Kuppammal, the first defendant in both the suits while Ammani Ammal the widow of Chinnappa is the second defendant in both the suits. These two brothers had three sisters and duraiswami, the plaintiff in O. S. 105 of 1952 is the son of Nachiar Ammal, one sister, while Kuppuswami, the plaintiff in O. S. No. 107 of 1952 is the son of another sister Venguammal. Defendants 3 to 6 are the children through another sister Lakshmi Ammal. Defendants 7 to 11 are the children of the 6th defendant, one of the sons of Lakshmi Ammal aforesaid.

(3.) DORAISWAMI, one of the nephews filed the suit O. S. Nos. 105 of 1952, for recovery of the properties set out in the C schedule to the registered Will executed by Perumal and Chinnappa, the two brothers on 31-10-1942, and marked as Ex. A-1 in the case, while Kuppuswami, the plaintiff in O. S. 107 of 1952, claimed relief of recovery of possession of the properties set out in the Schedule E to the aforesaid Will. Their main case was that the will, Ex. A-I is a mutual reciprocal Will under which, amongst other things, the aforesaid bequests have been made in their favour that it is an irrevocable Will, and that in any event it, represented a family arrangement between the two brothers Perumal and Chinnappa. Defendants 2, 4, 6 to 11, who are the real contesting defendants, contested the suit on the ground inter alia that the Will Ex. A-I, was not a mutual reciprocal Will, but was only a joint Will, that it was open to the testators to revoke or cancel the same either jointly or separately during their lifetime or even after the death of either of them, and that as a matter of fact, Perumal, the surviving brother, had executed a registered Will, Ex. B-I, dated 9-8-1950, canceling and modifying the earlier Will and that the plaintiffs are not therefore entitled to claim any rights in terms of the earlier Will, Ex. A-I. They also pleaded that Ex. A-I was not a family settlement but merely a Will and that as the two brothers, Perumal and Chinnappa, were members of a joint family on the death of Chinnappa, the entire properties comprised in and dealt with under the earlier Will survived to Perumal, the surviving brother, and that the earlier Will, ex. A-I, became inoperative and wholly unavailing to the plaintiffs.