K M VENUGOPAL PILLAI Vs. K M MADHAVAKRISHNAN

JUDGEMENT

(1.) IN a suit for partition tried before the learned subordinate Judge of Erode (U. S. No. 87 of 1956), the following were the relationships between the parties, which will also explain the array of the parties before us in the respective appeals. There was a certain Marimuthu Pillai who had, two wives, the junior wife being the second defendant in the suit. By the senior wife, he had two sons, the first defendant and one Rajagopala Pillai, who is dead, the husband of the third defendant. The plaintiff is the son by the junior wife, and defendants 4 and 5 are the daughters of the third defendant and Rajagopala Pillai aforesaid. The sixth defendant, who is a party with significant claims relative only to certain properties ct. D schedule, is alleged to be the permanently Kept mistress of the first defendant. Defendants 7 to 116 were Impleaded as tenants of B schedule properties, and with most of those parties we are not now concerned. But we might briefly note that defendants 102 and 115 are the sons of the first defendant.

(2.) APP. No. 322 of 1959 has been preferred by defendants 102 and 115, the sons of the first defendant earlier referred to, App. Mo. 280 of 1959 has been preferred by the father (first defendant), and App. No. 440 of 1959 has been preferred by the second defendant (Parmayee Ammal alias Thangammai) the junior wife, the memorandum of cross objections in App. NO. 322 of 1959 has been instituted by the plaintiff, and is confined to certain restricted pleas that we shall later take note of. In this context itself, it will be necessary to note that the deceased Marimuthu pillai left considerable moveable and immoveable properties, at the time of his death, inciting substantial cash, and securities such as fixed deposits in two locked iron safes. Several of the areas of controversy in this suit, such as the truth of a prior alleged partition, or the actual shares of the parties, are' no longer in dispute. It is not in dispute that the disruption or the family was on 15-12-1953, with the notice given by the plaintiff of his severance in status, and that the death of the father occurred on 104-1953. it is not now in dispute that the plaintiff is entitled to a fourth share of the assets, second defendant similarly to a fourth snare, defendants 1 and 3 each to a fourth. The parties agree that the properties were divided after the suit by mutual co-operation between them, and that there was an interim final decree on 19-11-1954, at which the immoveable properties were apportioned.

(3.) IN view of the above facts, and as we indicated earlier, it is with regard to certain restricted areas of the controversy alone that the appeals have been, argued before us. As far as the two ladies in the suit were concerned, namely, the second defendant and the third defendant, the interim final decree specified and declared the items allotted to them, in terms of a consent between the parties, this is a consent decree, which has become final. Nevertheless, subsequent to the suit, a contention arose whether the limited' interest obtained by these ladies under that decree, became enlarged to an absolute interest by virtue of Section 14 (1) of Act XXX of 1956, and the extent to which Section 14 (2) of that Act affected such enlargement. it will be immediately noticed that at the time of the interim final decree, the nature of the interest obtained by these ladies had necessarily to be defined in terms of Section 3 (2) of Act XVII of 1937. The only parties who could raise this controversy were the first defendant and his sons, defendants 102 and 115; even with regard to them, the point was highly academic. They are not the immediate reversioners to the ladies, assuming that the court had to anticipate rights to the properties after the; respective lives of the ladies who have also made alienations of some items and they could be regarded even as ultimate reversioners only by the contemplation of several contingencies which cannot now be possibly foreseen. In that situation, it was indeed unfortunate that the parties invited the adjudication of court upon the additional issues which were framed on 22-8-1958, with reference to the rights of the ladies under Act XXX of 1956. This did not arise within the ambit of the suit at all, and was wholly superfluous for the determination or any present claim in the suit. Nevertheless, as we find from the record, the parties not merely invited the adjudication of court, but advanced pleadings and their learned counsel adduced arguments upon the relevant additional issues. The learned Subordinate Judge came to the conclusion, on a consideration of the aspects of this matter, that defendants 2 and 3 were entitled to the allotted snares not merely as limited owners, but as absolute owners, whose rights had been enlarged by virtue of Section 14 (1) of the Hindu Succession act.