T B SRI RANGI Vs. ASIA BAI

JUDGEMENT

(1.) THIS second appeal arises from the decree and judgment of the District Judge, coimbatore, in A, S. No. 465 of 1954 which confirmed the decree and judgment of the Subordinate Judge, Nilgiris at Ootacamund in O. S. No. 193 of 11952. The third defendant in the suit is the appellant. The suit was for partition and delivery of separate possession of the plaintiff's 3/5th share or in the alternative 4/6th share in certain buildings and sites described in the schedules to the plaint. In the present appeal we are concerned only with two of the properties, namely, shops bearing door Nos. 307 and 308. One Kamakshi was the owner of the properties. She had a daughter, Lakshmi, through whom she had a grandson, rangaswami. On 29-8-1924 Kamakshi executed a will, Ex. A. 48, the construction of which is the point for consideration in the present appeal. Under that document the suit properties were bequeathed to the children of Rangaswami. Kamakshi died on 18-1-1925. On the date of the will Rangaswami had only one child, a daughter, Yasoda, but by the time the testatrix died there was also a son to him by name Sundararaja. In addition three children were born to Rangaswami before Yasoda attained the age of 18 years and five more were bom thereafter. When Sundararaja attained 18 there were six children. On 31-1-1944 Yasoda and Sundararaja who had by then become majors sold under Ex. B-12 the properties to one Nanja Gouder. Nanja Gouder thereafter created a mortgage over the property for a sum of Rs. 5,000. On 10-12-1945, nanja Gouder sold under Ex. B. 1 to one Simarathmull, the husband of the plaintiff the properties for Rs. 6000, Rs. 5000 being reserved with the purchaser for discharging the mortgage. Simarathmull did not discharge the mortgage. The mortgagee filed a suit on the mortgage in O. S. No. 159 of 1947 making all the persons interested in the properties as parties thereto. Pending the suit, on 16-8-1948 Rangaswami acting on behalf of his then minor children executed a sale, Ex. A-6 in favour of the plaintiff, Simrathmul's wife for a sum of Rs. 7000. The suit at the instance of the mortgagee ended in a decree and in execution thereof the properties were brought to sale and the third defendant became the purchaser. The contest is now between the plaintiff relying on her title, Ex. A. 6 and the third defendant claiming under the purchase in the court auction. The basis of the latter claim is under Ex. B. 12, whereby Yasoda and Sundararaja sold to the mortgagor. Ex. A. 6 on the other hand, would invest the purchaser there under, viz. , the plaintiff the title of the other children of Rangaswami on whose behalf it was executed. The main dispute in the suit related to the quantum of share to which the plaintiff and the 3rd defendant would be entitled. The learned Subordinate Judge held that the plaintiff, was entitled to 4/6th share of the properties as on the date when Sundararajan attained the age of 18 four more children were born to Rangaswami who according to the learned Judge also would take the benefit under the will. That meant that Ex. B. 12 could be valid only in regard to 2/6th share while Ex. A. 6 could convey the remaining 4/6th as belonging to the four subsequently born children. On that finding he passed a preliminary decree for partition declaring that the plaintiff was entitled to 4/6th share while the defendants 1 to 3 would be entitled to 2/6th share. The 3rd defendant filed an appeal to the District Court, Coimbatore, and the learned appellate Judge agreed with the trial court and confirmed the decree. The 3rd defendant, as stated already, has filed the present appeal against the decree of the appellate court.

(2.) IT is contended on his behalf that the plaintiff could not get any share as only those children that were in existence on the date of the testatrix's death that would obtain rights in the properties. I cannot agree. The legacy under Ex. A. 48 was expressly stated to be not for the children living at the testator's death but to all the children of Rangaswami. But the question would still arise as to how many of the ten children born to Rangaswami would be entitled to participate in the benefits under the will. For a due consideration of the question it is necessary to set out the relevant provision of the will. It runs thus:

(3.) IN the latter case the denial of the legacy to the children unborn on the date of distribution is not by reason of the rule of perpetuity because all the children would come into existence before the lifetime of Rangaswami who was alive at the date of the death of the testatrix but that on the construction of the will for that there was nothing to give them as the properly had been distributed before they were born to the earlier born children under the provisions of the will. I cannot therefore accept the contention raised on behalf of the respondents by mr. P. S. Balakrishna Iyer when he relying on Section 111 of the Indian Succession act with special reference to illustration 6 thereto, contended that all the children of Rangaswami would take under the will.