KASTURI Vs. VENU

JUDGEMENT

(1.) THE above second appeal has been filed by the defendants 1 and 2, who have failed through-out, in O.S.No.362 of 1978, on the file of the Sub-Court, Tiruvannamalai, against the judgment and decree of the learned Additional District Judge, North Arcot at Vellore dated 24.2.1983 in A.S.No.174 of 1981, confirming the judgment and decree of the learned trial Judge. THE case of the plaintiff/1st respondent, before the trial court, was that the suit properties belonged to one Kuppusamy, who had a son by name Gurubaran, and two daughters Unnamalai and Parvathi Ammal, that Parvathi Ammal pre-deceased Kuppusamy, leaving behind her son Venu, the plaintiff, and Unnamalai is the 3rd defendant, whose son is the 4th defendant. THE wife of Kuppusamy, by name Amaravathi, was said to have died during September, 1963 and Gurubaran, the Only son of Kuppusamy, also died intestate during the year 1968, leaving behind his wife Kasturi, the 1st defendant, and a minor daughter Thavamani, the 2nd defendant, who has since become major even during the proceedings before the first appellate court and is the 2nd appellant in her own right. Kuppusamy the original owner was said to have executed a registered Will dated 26.7.1962, marked as Ex.A-1, under which according to the plaintiff, the testator had bequeathed the suit properties to his wife Amaravathi for life, then to Gurubaran for his life and after his life-time to the male progenies of Gurubaran. Since Gurubaran died without any male issues, the plaintiff claims that the estate reverted back to the testator and intestate succession opened as the consequence of which the plaintiff became entitled to have the decree for partition and separate possession of his l/3rd share in the suit properties as the son of the predeceased daughter of the original owner, Kuppusamy. THE other ground of challenge made to the Will of Kuppusamy needs no reference since the consideration by the courts below and the submission before this Court was only on the nature and scope of the bequest made under the Will and whether the bequest in favour of Gurubaran's heirs under the Will failed, as claimed by the plaintiff.

(2.) DEFENDANTS 1 and 2 filed a written statement contending that the plaintiff had not correctly and properly set out the terms and conditions of the Will in the plaint that the last clause in the Will which provided that after the death of Gurubaran, who is only a life-estate holder, his children should get the properties has been deliberately omitted in the plaint and as per the last clause the 2nd defendant who is the daughter of late Gurubaran would be absolutely entitled to succeed to the entire estate after the life time of Kuppusamy's wife. In respect of the other claims also the defendants contested the claim of the plain-tiff that the Will is either void, as alleged, or that the bequest has failed, as claimed. The 3rd defendant filed separate written statement virtually supporting the claim of the plaintiff and claiming a right in herself for a share. The 4th defendant has come on record as the legal representative of the 3rd defendant, who died during the pendency of the suit.

(3.) MR. A.K.Kumarasamy, learned counsel appearing for the appellants contended relying upon the substantial question of law formulated at the time of admission of the appeal that the courts below have committed a grave error of law in the construction they chose to place on the Will Ex.A-1 and that this courts below are not correct in holding that in this teeth of the provisions contained in Sec.88 of the Act that the earlier clause in the Will regarding the male issue will take effect in preference to the later clause. Per contra, MR.S. Parthasarathy, learned counsel appearing for the respondents contended that the courts below have properly construed the Will keeping in view the intention of the Testator and that there is nothing wrong in the meaning ascribed by the courts below to the word in the later portion of the Will to mean only taking in conjunction with the words found in the earlier portion of the Will. According to the learned counsel the issue, if at all, arising is only the meaning to be given to a word in the Will and that does not by itself involve any construction of document to justify the claim of any substantial question of law arising in the second appeal. In other respects, the learned counsel for the respondents adopted the reasons assigned by the courts below in support of the judgment as part of his argument. Both the learned counsel have adverted to certain decisions and I consider it appropriate to refer to the same before dealing with the submissions of the counsel.