A VENKATARAMAN Vs. S RAJALAKSHMI

JUDGEMENT

(1.) The facts leading to these appeals are as follows : During the course of the judgment, we will refer to the parties as plaintiffs and defendants as that would be convenient. The plaintiffs, who are three in number, filed O. S. 117 of 1972 on the file of the Sub Court, Madurai, for partition and separate possession of their 3/8 share in items Nos. 1 and 2 and 3/4 share in items 3 and 4 of the plaint schedule properties. The suit properties along with some other properties belonged to one Subbiah Iyer. Even at this stage, let us set out the geneological tree : At the time of the death of Subbiah Iyer, there were only three daughters. They are, Mangalam - mother of plaintiffs 1 to 3 and the second defendant Venkataraman, Subbalakshmi the first defendant and Seethalakshmi alias Rukmani the 8th defendant. Subbiah Iyer executed a registered Will on 31st July 1955, whereunder he had made provisions for his daughters and made several bequests in favour of several persons for conducting certain charities. He had also left out certain properties without including them in the will and one among them is item No. 3, Subbiah Iyer died in 1959. He was in possession of huge movables in the form of cash jewels, pronotes, etc. He had advanced moneys to several persons as loan and obtained money decrees against several debtors. One of the decrees so obtained by him was a decree in O.S. 62 of 1956 on the file of the Sub Court, Madurai, against one K. V. Raja alias K. V. Venkatakrishnan and another. Execution proceedings were launched against the debtors in the said suit in E. P. 45 of 1958 and brought for sale item No. 1. Pending the execution proceedings, Subbiah Iyer died. His legal representatives were added as parties and they continued the execution proceedings, brought item No. 1 for Court auction sale, purchased the same and sale certificate was issued in their favour. Mangalam and two other persons took delivery and they were in possession and enjoyment of the same by leasing out the bungalow to tenants and usufructs of the fruit bearing trees to several persons on Kuthagai basis. Seethalakshmi relinquished her right, title and interest in favour of her sisters in consideration to appropriate to herself in toto certain other debts due to the estate of Subbiah Iyer. Thus, Mangalam and the first defendant became entitled to item 1 of the suit property absolutely.

(2.) In the Will executed by Subbiah Iyer, he bequeathed a house property bearing door no. 22, Ponnagaram, Madurai Town, in favour of Mangalam. But even during his lifetime he sold away the same to a third party by expressing his desire to compensate this. In order to fulfil that desire, he directed the two daughters to give a share to Mangalam in the house property given to them in the will. According to the desire of Subbiah Iyer, all these three persons entered into an oral agreement concerning this item. By means of another agreement, Seethalakshmi relinquished her share in regard to item No. 2 as she had done in regard to item 1 of the suit properties. Thus Subbalakshmi and Mangalam became the absolute owners.

(3.) After the death of Subbiah Iyer, the three daughters divided 7- acres of land in Oorseri village and item No. 3 is the share in the property allotted in favour of Mangalam. She has been in enjoyment of the said property. Patta also was transferred in the name of Mangalam. Subbiah Iyer bequeathed 4 acres and 2 cents of nanja lands in Oorseri village to be enjoyed by her absolutely, and the same is mentioned as item No. 2 in the E schedule of the Will. Mangalam had an absolute right in the said property, viz. item No. 4 of the suit property. Mangalam promised the plaintiff to give share in all her properties even during her lifetime. She had a desire to help the plaintiffs, who have number of children. Mangalam died on 10-12-1969 leaving behind plaintiffs 1 to 3 and the 2nd defendant as her heirs. After her death, plaintiffs 1 to 3 and the second defendant became entitled to the suit properties in equal shares. Thus, the plaintiffs are entitled to 3/8 share in items 1 and 2 and 3/4 share in items 3 and 4. Hence the suit.