KOTHANDARAMA GRAMANI Vs. SELLAMMAL

JUDGEMENT

(1.) THIS is an appeal against the decree and judgment of the District Judge 01 south Arcot at Cuddalore in O. S. No. 43 of 1933, dismissing the appellant's suit for a declaration that a set lement deed executed by his grandfather Varadappa in favour of his second wife, Sellammal, the first respondent in the appeal, was void and not binding on the appellant. Varadappa who owned considerable properties was survived by his second wife Sellammal and four sons, respondents 2 to 5 to this appeal. Varadappa died in the year 1950. Prior to his death he executed a deed of settlement Ex. 15. 1 in favour of the first respondent given" her an interest for life 36 acres of land. The sons of Varadappa were evidently not pleased with the settlement. They tried to trespass on the properties settled upon their step mother. Thereupon the first respondent filed O. S. No. 113 of 1946, on the file of the District Munsif's court, Tindivananl, for a declaration, of her right to the properties under the settlement and an injunction restraining the defendants to the suit from interfering with her possession. Three out of the four sons of Varadappa were made parties to the suit. The father of the appellant Chinnathambi was the fourth defendant to that suit. The defendants contested the suit on the ground that the properties were joint family properties or at least jointly acquired properties and that varadappa could not therefore validly make a settlement in favour of the first respondent. Varadappa who was alive at the time of the suit was examined as the first witness on the side of the plaintiff in that suit. Ho supported the claim of the first respondent. The suit was in substance a claim by the first respondent against rest of the members of the family putting forward the right of Varadappa to execute the settlement deed on the basis that the property was Varadappa's self-acquired property or that even otherwise was valid on the footing that as the father of a joint Hindu family he was emitted to make a reasonable provision for the maintenance of his second wife. The defence was a common to all the defendants. They set up the title in the family and contested the claim. The District Munsif held that the properties settled were self-acquired properties of Varadappa and that even if it were held to be joint family properties the settlement was a reasonable provision for the maintenance of the second wife having regard to the extent of the properties owned by the family. In that view he decreed the first respondents claim.

(2.) AN appeal wag taken to the Subordinate Judge of Cuddalore against the decree of the District Munsif. The learned Subordinate Judge affirmed the finding of the trial court that the properties were self-acquired. But he held that the properties should be deemed to have been blended with joint family properties and therefore part of coparcenary property. In that view the learned Subordinate Judge allowed the appeal and dismissed the suit.

(3.) A second appeal was taken to this court against the decree of the appellate court. This court set aside the decree of the Subordinate Judge on the ground that the plea of blending of self acquired property with the other joint family property was not open to the defendants as they had not raised if in the trial court. This court therefore remanded the appeal for a further consideration by the subordinate Judge on the other questions involved in this case namely whether the joint family properties were jointly acquired by the father and his sons' and whether even if the properties were held to be joint family properties provision made under Ex. B. 1 in favour of the settler could he deemed to be reasonable and proper one in the circumstances of the case. The learned Subordinate Judge held in favour of the first respondent on both the points. He held that the properties were not joint family properties. He also held that Ex. B. 1 was valid and binding upon the members of the family. The result was that the decree of the trial court was confirmed. A second appeal is stated to have been filed on behalf of the contesting defendant but that was rejected under Order 41 Rule 11 C. p. C.