DHARMA UDAYAR Vs. RAMACHANDRA MUDALIAR

JUDGEMENT

(1.) The defendant in the suit is the appellant. There were three brothers : Ponnuswami, Munuswami and Govindarajulu. They were the sons of one Thandavaraya. On 19th June, 1917, Thandavaraya, his two sons, Munuswami and Govindarajulu and Manonmani, the widow of Ponnuswami, entered into a partition which is evidenced by Exhibit A-1. The defendant is the son of Munuswami. Govindarajulu executed a will Exhibit A-2 on 12th August, 1931, in favour of his sister, Ammakannu, who settled the properties on the plaintiff under Exhibit A-3, dated 25th January, 1960. The question that arises is as to the effect of the partition deed Exhibit A-1.

(2.) According to the plaintiff Govindarajulu got a vested remainder in respect of the properties given to Manonmani under Exhibit 1 and therefore the plaintiff is entitled to the properties settled on him. According to the defendant, however, the effect of Exhibit A-l is to give an absolute right to Manonmani and he is entitled to the properties as Manonmani's husband's heir.

(3.) To Exhibit A-l, as already mentioned, Thandavaraya, his two sons, Munuswami and Govindarajulu, and Manonmani, the widow of a predeceased son, were parties. The defendant contends that the property has been allotted to the four people for their shares and they got absolute title. We are concerned only with the question as to what Manonmani got under this document. I am unable to accept the argument on behalf of the defendant that Manonmani got an absolute title. The document merely says that Nos. 3 and 4 to that document i.e., Munuswami and Govindarajulu, could sell or gift the properties which fell to their share. It does not say that there is no objection to any of the parties to the document alienating the properties which fell to their respective shares. This is clear also from the fact that Thandavaraya and his wife were merely to enjoy the properties given to them for their life, and Munuswami and Govindarajulu were to pay the kist on those lands. The further provision that Nos. 3 and 4, that is, Muniswami and Govindarajulu were to have separate pattas also emphasises the fact that after the lifetime of Thandavaraya as well as of Manonmani, it is Govindarajulu and Munuswami that got the properties. There is no provision for transfer of patta either to Thandavaraya or to Manonmani. In respect of the properties given to Manonmani the provision was that she was to enjoy the properties for her life and that after her Govindarajulu and Munuswami were to get these properties. The fact that in respect of the properties given to Thandavaraya as well as to Manonmani, it is provided that Govindarajulu and Munuswami were to perform their funeral ceremonies and take their properties does not mean that it is a condition precedent to their taking their share and that therefore Govindarajulu having died before Manonmani would not be entitled to a share in the properties given to Manonmani. Quite clearly what was created under this document in favour of Thandavaraya and Manonmani was merely a life interest and there was a gift over in respect of both those properties in favour of Govindarajulu as well as Munuswami. Therefore what Munuswami and Govindarajulu got was a vested remainder and Govindarajulu was competent to execute the will, Exhibit A-2.