SRINIVASAGAM ASARI AND ANR. Vs. CHINNAMMAL AND ANR.

JUDGEMENT

(1.) IN these appeals the Court is called upon to decide the effect of the will of one Sundaram, who died in the month of July 1983. The testator had two sons, Shanmugam and Sethuraman, and a daughter, the plaintiff in the two suits which have given rise to the appeals. Shanmugam predeceased his father. He left a widow Swar -navalli, but no issue. Sethuraman died on 23rd February 1936 and Swarnavalli in March 1940. Sundaram executed a will dated 29th January 1933 in which he purported to leave for charitable purposes the net income of the properties described in the document, after deducting certain sums for the maintenance of his son Sethuraman and his daughter -in -law Swarnavalli. The properties were described by the testator as being his own. One of the questions in the appeals is whether the properties belonged to the joint family. Another question is assuming that the testator had the right to dispose of the properties by a will, whether the directions amounted to a dedication to charitable uses or merely created a charge for such uses. It is quite clear that the testator intended that Sethuraman and Swarnavalli should act as trustees of the charities mentioned in the will, and that they did so act has been found as a fact. It is also said on behalf of the appellants that even if the properties belonged to the joint family, as the Subordinate Judge has found, the plaintiff is not in a position to challenge the validity of the endowments as Sethuraman accepted as being valid the provisions of the will and acted as a trustee of the charities named therein.

(2.) IN O.S. No. 90 of 1942, filed on 18th November 1942, namely, two years and eight months after the death of Swarnavalli, the plaintiff claimed the estate as the heir of her brother on the basis that the will was invalid She averred that her father had torn up the will. This allegation was entirely false and it is now accepted on her behalf that her father did leave the will relied upon by the defendants and that it was executed by him when in full possession of his faculties. In this suit the plaintiff sought to set aside certain alienations of properties covered by the will for which Swarnavalli was responsible when she was acting as the sole trustee of the charities declared in the will after her husband's death. Appeal No. 113 of 1944 is from the decree passed in O.S. No. 90 of 1942. The appellants are defendants 5 and 6, who are two of the alienees. The plaintiff filed Order Section No. 15 of 1943 to recover another lot of property alleged by her to belong to her father's estate. It was in the possession of defendant 2, who claimed to be a usufructuary mortgagee of it. The mortgage had been created by Swarnavalli after her husband's death and the plaintiff said that it was invalid. The suit was decreed and Appeal No. 43C of 1914 is the result. The two suits were dealt with in a common judgment. The appeals can also be dealt with together.

(3.) IN the first place, we will deal with the question whether the properties covered by the will belonged to the testator in his own right or whether they belonged to the joint family. The testator was a carpenter and as such did not earn more than Re. 1 -8 -0 per diem. His father was one Nallaperumai who died many years ago. Nallaperumal had another son, Ramalingam. When Nallaperumal died he left property which became ancestral property in the hands of his sons. In 1903 the sons decided to separate. The movable properties of the joint family were partitioned in that year. Sundaram's share of these properties amounted to Rs. 3500, represented by debts due to the joint family. In 1306 the immovable properties were partitioned and to Sundaram was allotted property valued in the deed of partition at as. 1200. The learned Subordinate Judge says that this was probably an undervaluation. While we can well believe this to be the case, we will assume that it was its true value. Therefore, by 1907 Sundaram became the owner of what was ancestral property to the value of Rs. 4700. Admittedly he carried on a money -lending business. He could only have carried on this business with what he had received in the partition with his brother. Certainly his earnings as a carpenter would not have been sufficient to provide the capital for a money -lending business. He was obviously of a thrifty nature. In addition to money -lending he conducted chit funds in his own name, but here again the capital required for them could only have come from the nucleus of the ancestral properties and what he had made out of them. It was not until 1917 that he was in a position to buy the first of the immovable properties which stood in his name at the time of his death. The value of these properties was some Rs. 38,000. The Subordinate Judge has hold that they must have been acquired out of the nucleus of the ancestral properties which fell to Sundaram's share in the partition with his brother. With this opinion we are in full agreement. He had no capital apart from that which came to him in 1903 and 1906. The ancestral properties which he received in these years provided a sufficient nucleus for the acquisition in the course of years of the properties in suit and therefore the burden of proving that they belonged to the testator in his own right lay upon the appellants. They have certainly not discharged the burden.