KAMISETTI SUBBARAYADU Vs. PATHI SUBBAMMA

JUDGEMENT

(1.) ONE Thayaramma died on the 5th January, 1931 leaving a will dated the 30th December, 1930. Thayaramma had a sister who was the plaintiff in the Court below and two children, the elder being the defendant who is the appellant here and the younger a daughter. Both the children were minors when she died. By the will the paternal aunt of the testatrix one Pedda Venkatasubbamma was appointed executrix along with two others and she was also nominated as the guardian of the minors. The appellant became a major in 1942. He was at that time a ward under the Court and a petition was filed to declare him a major resulting in an order dated the 22nd February, 1943. On the 28th February, 1943 his guardian Pedda Venkatasubbamma handed over the properties to him. On the 24th March, 1943 the plaintiff, sister of the testatrix, demanded the right under the will to purchase the half share of item 3 in " D " schedule which is a house belonging originally to the plaintiff and Thayaramma. The will contemplates the exercise by the plaintiff of a right to purchase this half share for half the original price at which the property was purchased. It is common ground that until March, 1943, after the estate had been handed over to the appellant no indication had been given that the plaintiff wished to exercise this option. She says that she abstained from doing so out of deference to the wishes of her aunt Pedda Venkalasubbamma who was also the defendant's guardian. The trial Judge was not inclined to believe this story in the absence of confirmation. The substantial question in this appeal is whether the option which the plaintiff claimed to exercise was still subsisting in March, 1943.

(2.) THYARAMMA 's will is a somewhat lengthy document not drafted by an expert. The relevant passages may be extracted. After a gift to her daughter of the properties in A and C schedules, the testatrix recites:

(3.) NOW the next question arises whether the will contemplates any period during which the option by Subbamma should be exercised. Mr. K. Krishnaswami Aiyangar has argued that there is no limit at all other than such limits as may be imposed by the general law and that Subbamma the plaintiff can exercise the option to purchase the other half share of the house at any time during her lifetime, unless perhaps the property has passed to the hands of third parties without notice of her rights. It must, however, be remembered that this provision for the option in favour of the plaintiff forms part of a passage in the will which defines the executor's powers of sale. The passage is closed by the sentence :