KARUPPUDAYAR Vs. PERIATHAMBI UDAYAR

JUDGEMENT

(1.) THE scope of this second appeal lies within a limited compass. The prior facts are briefly the following. One Sellammal enjoyed the suit properties after the death of her husband Arumuga Odayar sometime in 1934 or 1935. During her lifetime, she executed a document, Ex. B-1, styled as a settlement deed, on 25/ 11/1945, in favour of Muthuswami Odayar, her husband's brother's son. The effect of this document has to be considered in this second appeal, and I shall do so a little later in the judgment. On the death of Sellammal issueless, in December 1958, the plaintiffs who are the sons of another brother of her husband filed a suit for partition impleading besides the aforesaid Muthuswami Udayar as the second defendant, his brother Karrupudayar as the first defendant. Defendants 3 and 4 are alienees. The case of the plaintiffs was that the settlement deed was not valid beyond the lifetime of Sellammal, and that it was so held by the District Munsif in a prior decision, O. S. 147 of 1947, and which decision was confirmed by this court in second appeal. The plaintiffs also contended that Sellammal by means of this gift deed divested herself of her possession in the suit properties; that that state of affairs also existed in 1956, when the Hindu Succession Act (XXX of 1956) came into force, and continued up to her death in December 1958. Consequently, S. 14 of ACT XXX of 1956 would not have any effect on the properties settled prior to the coming into force of the Act, by the window under Ex. B-1 and, on her death, her reversioners, namely, plaintiffs 1 and 2 and defendants 1 and 2 were entitled to share the properties. On the other hand, the main contesting defendants, the second defendant, urged that, even after the settlement deed the widow was in constructive possession of the properties, and in 1956 when Act XXX of 1956 came into force, her interest became an absolute interest and the second defendant under the settlement could take advantage of that absolute interest, and claim the entire property, and thus resist the plaintiff's suit for partition into shares among the reversioners. The trial court decreed the suit, and defendants 1 and 2 appealed. In the appeal, the learned Subordinate Judge of Cuddalore confirmed the decision of the trial Court, except in regard to item 23. That item, as it appeared from the evidence, did not belong to the estate of Sellammal's husband, and therefore, the second defendant, the settlee from her, could claim that property in full right and without its being brought into the common hotchpot for division. The appellate court confirmed the trial Court's decision in regard to the other items and modified it only in respect of item 23. Against that decision, the present second appeal is filed by defendants 1 and 2. There is also a Memorandum of cross-objections appeal filed by the plaintiffs in regard to item 23. It may be said straightaway that, so far as item 23 is concerned, the finding of the lower appellate court that it did not belong to the estate of Arumugha Udayar was based on the evidence and this finding of fact is not susceptible of being interfered with in second appeal, and, therefore, the cross appeal is dismissed.

(2.) IN regard to the second appeal, the decision turns on the interpretation of Ex. B-1, the settlement deed of Sellammal. Ex. B-1 can be rendered thus:

(3.) THE decisions which learned counsel have cited before me in this connection all derive authority from the principal decision of the Supreme Court in Kotturuswami v. Veeravva, There it is laid down that the word "possessed" in s. 14 of Act XXX of 1956 is used in a broad sense and in the context means the state of owning in one's hand or power. The judgment makes the position clear in the following words: