A. MALAYALAM PILLAI Vs. MALAYAMMAL

JUDGEMENT

(1.) THIS Letters Patent Appeal is against the judgment of Veeraswami, J., (as he then was) in Second Appeal No. 548 of 1961. The appellants are the plaintiffs in O.S. No. 109 of 1955 on the file of the Court of the Subordinate Judge, Tiruchirapalli. The two plaintiffs in the suit are one Malayalam Pillai and one Thangavelu Pillai while the sole defendant is one Ponnusami Pillai. All the three of them viz., the two plaintiffs and the sole defendant, are the sons of one Appavu Pillai. The dispute relates to properties originally owned by one Karuppanna Pillai who is the paternal uncle of the abovesaid Appavu Pillai. Appavu Pillai's father Marudanayakam Pillai is still alive and this Marudanayakam Pillai is the brother of Karuppanna Pillai, the original owner of the suit properties. Karuppanna Pillai had no issue. It is common ground that Appavu Pillai, the father of the plaintiffs and the defendant, was the foster -son of Karuppanna Pillai, the testator. The said Karuppanna Pillai, died in the year 1947 leaving his last will and testament Exhibit B -1 dated 3rd March, 1942. He has dealt with his properties in five schedules in that will, described as A, B, G, D and E schedules. We are now concerned with the properties in the E schedule as they are the subject -matter of the suit. The said Karuppanna Pillai has created a trust in respect of the suit properties (E schedule in the will) and the dispute between the parties is regarding the validity of the said trust. The plaintiffs claim partition and separate possession of a 2/3 share (1/3 for each of them) in the suit properties on the ground that the trust created under the will of Karuppanna Pillai in respect of those properties is wholly invalid and that as per the other terms of the will, the said properties should be equally shared by the plaintiffs and the defendant who are the sons of Appavu Pillai.

(2.) UNDER the will Exhibit B -1, Karuppanna Pillai (hereinafter referred to as the testator) provided that the properties described in A, B, and C schedules shall be respectively taken and be in the possession of the defendant, the 1st plaintiff and the 2nd plaintiff, who were directed to perform certain charities from out of the income of the respective properties. One Palaniammal and one Chellammal are the daughters of Appavu Pillai (sisters of the plaintiffs and the defendant). The testator created a life - -estate in favour of the said Palaniammal and Chellammal in respect of the D schedule properties and directed that after their lifetime those properties shall be dealt with in the same way as the E schedule properties. But we are not concerned in the present litigation with any of the properties in schedules A to D for only the E schedule properties are made the subject -matter of the suit.

(3.) THE case of the plaintiffs has been that the bequest of E schedule properties as found in the portion of the will extracted above is invalid in law inasmuch as the bequest is for samadhi kainkaryam, that the residuary clause under which properties not dealt with by the will shall be shared by the plaintiff and the defendant comes into operation and that therefore they are entitled to partition and separate possession of their 2/3 share in the said properties. They also prayed for an account from the defendant regarding the income from the properties from 27th February, 1949, the date on which the plaintiffs had given notice to the defendant making their demand for partition.