ARUMUGHAM CHETTIAR AND ORS. Vs. A. VALLINAYAGAM PILLAI

JUDGEMENT

(1.) DEFENDANTS 1 to 3 are the appellants. The suit was for partition and separate possession of the plaintiff's one third share in the plaint schedule properties and for mesne profits.

(2.) THE case of the plaintiff was that one Thiruvengadathammal got the suit properties under a will dated 25th January, 1925, that Thiruvengadathammal executed a will on 13th June, 1931 giving a life -estate in the plaint schedule properties to her daughter -in -law Sivagnanathamal, wife of Manickavasagam Chettiar and the vested remainder to her three sons, viz., Surianarayanan Chettiar, Ammugham Chettiar and Kasiviswanathan. Arumugham Chettiar is the first defendant and Kasiviswanathan is the second defendant. Minor Chelli Manickathammal, daughter of the second defendant, has been impleaded as the third defendant. According to the will of Thiruvengadathammal, marked as Exhibit A -2 in the case, Sivagnanathammal had to enjoy the properties without any power of alienation till her lifetime and after her lifetime, her three sons should take the properties absolutely. The plaintiff obtained a decree against Surianarayanan Chettiar for Rs. 1,580.97 with future interest and costs in O. S. No. 157 of 1940, on the file of the Court of the District Munsif, Ambasamudram. The plaintiff filed E. P. No. 297 of 1949 and attached the undivided one -third share of the vested remainder belonging to the judgment -debtor Surianarayanan Chettiar and brought it for sale. The plaintiff -himself became the auction -purchaser in the Court -auction held on 10th March, 1950 and the same was duly confirmed, and a sale certificate was issued to the plaintiff on 15th April, 1950. The plaintiff obtained symbolic delivery through Court under Order 21, Rule 96, Civil Procedure Code on 4th May, 1950. Ever since, the plaintiff has been in possession of the undivided one -third of the vested remainder of Surianarayanan Chettiar. Surianarayanan Chettiar died on 29th October, 1946. The life -estate holder Sivagnanathammal died on 6th March, 1966, and on her death the plaintiff is entitled to possession of one -third share in the properties. Since the first and second defendants, have taken possession of the whole of the plaint schedule properties, the plaintiff came forward with the suit.

(3.) DEFENDANTS I and 2 contended that Surianarayanan Chettiar and defendants 1 and 2 were not given vested remainder. Surianarayanan Chettiar pre -deceased Sivagnanathammal and so he was not entitled to one -third share. The contingent right Was not liable to be attached, and the delivery proceedings were not valid and binding on the defendants. In O. S. No. 357 of 1940, Surianarayanan Chettiar's heirs were not impleaded. The defendants were not aware of the suit O.S. No. 357 of 1940 and delivery proceedings. Subsequent to the death of Sivagnanathammal, the defendants have become entitled to the suit properties and they have been in enjoyment thereof. The income from the suit lands will be 38 kottahs of paddy, and not 50 kottahs as claimed by the plaintiffs. The lands were leased out to Pandara Kudumban during the life -time of Sivagnanathammal, and the said Pandara Kudumban was cultivating the lands. The second defendant settled his properties on his daughter, the third defendant. The third defendant adopted the written statement of defendants 1 and 2. On the pleadings and on the evidence on record, the trial Court held that life interest was given to Sivagnanathammal under Exhibit A -2, that Surianarayanan Chettiar and defendants 1 and 2 were given the vested remainder under the will Exhibit A -2 and that therefore the plaintiff is entitled to partition and separate possession of a one -third share in the properties. Aggrieved by the decision of the trial Court, the defendants preferred an appeal to the Sub -Court, Tirunelveli. The lower appellate Court held that Surianarayanan Chettiar got vested remainder under Exhibit A -2 and not a contingent interest in the suit properties, and that Sivagnanathammal never took absolute estate under the will Exhibit A -2.