MADHAVAN Vs. KANNAMMAL

JUDGEMENT

(1.) THE properties involved in both the suits, out of which these appeals arise, belonged originally to one Vazhithunai Mudaliar. Though there was a controversy in the Court below whether the properties belonged to him absolutely as his self acquired properties or his joint family properties, that controversy is not present in this Court. It is now admitted on all hands that the properties belonged absolutely to Vazhithunai Mudaliar. He died on 18.12.1948 leaving a will dated 15.3.1944 marked as Ex.B.43. He had a wife by name Kanniammal, four daughters, namely, Nagarathinammal, Kanakavalli Ammal, Indirani Ammal and Kanakammal and a son by name kanniappa. Kanniappa died on 3.4.1963 leaving a widow by name Muniammal. Nagarathinammal had two sons, Madhavan and Vasudevan. THE appellant in both the appeals is the said Madhavan. It is not necessary to refer to the other members of the family for the purpose of these two appeals.

(2.) KANNIAMMAL, the wife of Vazhithunai Mudaliar, filed a suit in O.S.No.4 of 1969 for partition and separate possession of her 3/4th share in the properties left by her husband claiming that she was entitled to one half share on the death of her husband and got another one fourth share on the death of her son. That suit was contested by her daughter-in-law, Muniammal. That ended in a compromise where- by certain properties were allotted to KANNIAMMAL and certain other properties were allotted to Muniammal. Thereafter, Muniammal filed O.S.No.10 of 1965 for a declaration of title of herself and that of her mother-in-law KANNIAMMAL to the plaint-schedule properties and for an injunction restraining defendants 2 to 6 from interfering with their possession. The second defendant was Nagarathinammal. The third defendant was her husband. Defendants 4 to 6 were her sons. When that suit was pending, KANNIAMMAL filed O.S.No.62 of 1971 for a declaration of her title to the suit properties and for an injunction restraining the defendants from inter-ferring with her possession. The defendants in that suit were Nagarathinammal and her sons and alieness from them. Muniammal filed another, suit in O.S.No.63 of 1971 against Nagarathinammal,her sons and two other for a declaration of her right to the suit properties and for an injunction. In O.S.62 of 1971, KANNIAMMAL, had claimed damages on the ground that the defendants had unlawfully removed, the produce from the land. In O.S.No.63 of 1971, Muniammal had claimed damages in a sum of Rs.7,000 on the ground that the 4th and 5th defendants had cut and carried away trees worth Rs.2,000 and the other defendants had removed the produce from the land worth about Rs.5,000.

(3.) IN these two second appeals, the decrees granted in O.S.Nos.62 and 63 of 1971 are challenged. Mr.N.Sivamani, learned counsel appearing for the appellants puts forward the following contentions: (1) The plaintiffs having come to Court with a specific case that the properties were joint family properties of Vazhithunai Mudaliar and that after his death they were divided by Kanniappa Mudaliar in a partition dated 25.2.1963 and that they were entitled to the properties by virtue of the said partition, were not entitled to abandon that case and claim relief on the basis of the ease set up by the defendants, viz., the properties were the self-acquired properties of Vazhithunai Mudaliar and that he bequeathed the same under Ex.B.43 to his son Kanniappa and his daughter Nagarathinammal, (2) On a construction of Ex.B.43 it has to be held that the properties bequeathed to kanniappa would pass on to Nagarathinammal's heirs when Kanniappa Mudaliar died without an issue. Hence, neither Kanniammal, the mother of Kanniappa, nor Muniammal, wife of Kanniappa is entitled to claim the suit properties. (3) As regards the damages claimed by the plaintiffs in both the suits, there is absolutely no evidence on record in support of the said claim. While the trial Court did not find it necessary to consider the question of damages as it proceeded to dismiss the suits, the lower appellate Court without proper discussion of the matter proceeded to grant a decree as prayed for, by the plaintiffs and hence the judgment and decree of the lower appellate Court with regard to damages are wholly unsustainable. (4) Kanniammal died during the pendency of the suit and her daughters Kanakavalli INdirani and Kanakammal came on record as her legal representatives claiming that Kanniammal had bequeathed her properties to them under a will dated 20.10.1970 marked as Ex.A.16. Though the genuineness of the will has been upheld, in the application to bring the legal representatives on record, it should be observed by this Court that the conclusion arrived at by the trial Court in the proceedings to bring the legal representatives on record is not final and that the question whether the will of Kanniammal is genuine or not should be left open to the decided in future proceedings that may be instituted by Nagarathinammal's heirs who will be entitled to a share in the properties as the grand children of Kanniammal in the event of her intestacy.