R. SAKUNTHALA Vs. P. RENGANATHAN

JUDGEMENT

(1.) The first and the eigth defendants are the appellants. The suit for declaration and permanent injunction was dismissed by the trial court. The first appellate court reversed the finding and allowed the appeal. Aggrieved by the judgment of the first appellate court, the first defendant filed the second appeal. Pending appeal, the eigth defendant got herself transposed into second appellant.

(2.) The case of the plaintiff as found in the plaint is that, the suit property originally belong to one Duraisamy Naidu. He had three wives. Through his first wife he had one son by name Ramalingam. His second wife died issueless. Through the third wife he had three sons by name, Gopalakrishnan, Packirisamy and Mohanraj. The plaintiff is one of the grand son of Duraisamy Naidu. During the life time of Duraisamy Naidu, he executed a Will on 01.04.1943 bequeathing his property to the second and third defendants who are the sons born to his third wife Andal. As per the Will, the property has to be enjoyed by the 2nd and 3rd defendant for life without right of alienation. After their life time the properties should devolve on their male decendants. Duraisamy Naidu died on 07.05.1945. The plaintiff and the defendants 4 to 7 are the vested reminders. The defendants 2 and 3, who are the life interest holders, contrary to the recital of the Will, had sold the property to the first defendants on 18.6.1989 without any alienable right. The first defendant has settled the property in favour of the eigth defendant. The said sale and the subsequent settlement will not bind the vested reminders.

(3.) The first defendant in his written statement has contented that the suit is not maintainable. It is filed at the instigation of the second and third defendants. The suit property is the joint family property of the Duraisamy naidu and his sons. Duraisamy Naidu has no right to execute Will in respect of joint family property. Further the said Will was not given effect due to the birth of third son Mohanraj who born after the execution of the Will. After the death of Duraisamy Naidu in the year 1945, dispute arose between his sons and as a result partition was effected on 21.06.1966 among the four sons of Duraisamy Naidu and got it registered. The defendants 2 and 3 along with their mother Andalammal jointly sold the property for valuable consideration. On the date of Duraisamy death, the plaintiff and the defendants 4 to7 were not born. Therefore, the later part of the Will has become otise. The defendants 2 and 3 had become the obsolute owners of the property with right to alienate.