SEETHAIAMMAL Vs. RAMAKRISHNAN ASARI

JUDGEMENT

(1.) Aggrieved over the judgment and decree passed by the first Appellate Court reversing the decree and judgment passed by the Trial Court declining to pass a decree of recovery of possession, the defendants have filed the present second appeal. For the sake of convenience, the parties are referred to as per their rank in the suit.

(2.) The brief facts of the plaintiff case are as follows.

(3.) The case of the defendants is that on the death of the last widow, the testator, the suit property devolved on the plaintiff and his two brothers and they got the property absolutely and enjoyed the same as joint owners. The restriction for life mentioned in the clause in the Will is repugnance for the fact that it creates perpetual restriction. There cannot be successive and permanent life estate. The plaintiff and his brothers have understood the provisions of the Will and also enjoyed the property as absolute owners. The plaintiff and his brothers partitioned the property, bequeathed by original owners by a registered partition deed. The plaintiff being a party to the registered partition deed, cannot question the validity of the partition and he is estopped both by deed and conduct from questioning the nature of the estate enjoyed by the Ganapathi Asari. The said Ganapathi Asari under terms of the registered partition deed was in possession and enjoyment of the property excluding the plaintiff and other brothers and he has also executed a mortgage deed. Subsequently after his death, the wife of the Ganapathi Asari has sold the property to the first defendant for sale consideration of Rs.9,000/-(Rupees Nine Thousand only). Hence, it is the contention of the defendants that the suit itself is not maintainable.