KANDASWAMI PADAYACHI Vs. THANGAVELU PADAYACHI (DIED) AND OTHERS

JUDGEMENT

(1.) The original owner of the suit property Natesa Padayachi, had three wives, Murugayi, Anjalai, who predeceased her husband and Kasiammal, the third defendant. Murugayi had a son Velayutham, who predeceased his father on 16th August, 1942. Natesa Padayachi died on 28th April, 1949. Dispute arose between the two widows and as also Velayutham's widow which resulted in a suit O.S. No. 119 of 1950 being filed. That was comprised by the third defendant taking Rs. 1550 in cash and executing a release deed. Murugayi died on 24th January, 1951 and Velayutham's widow died on 30th May, 1956. Thereafter the third defendant has purported to sell all the suit properties in favour of the plaintiff. Defendants 1 and 2 claimed the properties as reversioners to the estate of Natesa Padayachi. The plaintiff has failed in both the courts below. The question for decision mainly centers round the effect of the release deed executed by the third defendant. The release deed reads that the third defendant was giving up her right to a share in the properties finally in favour of the other two widows and that she had no further right whatsoever in the family properties. The lower appellate Court has taken the view that the third defendant was entitled to the suit properties whether the release deed is considered as a release of the right to claim partition from the co -widow or a release of not only her right to claim partition, but also the right of survivorship on the death of the co -widow, Murugayi, I do not think there is any doubt at all on the wording of the document that it amounts to a release by the third defendant of any right of survivorship, which the third defendant might have in her husband's estate on the death of her co -widow Murugayi. It is not a mere release of the right to demand partition. ??? "means releasing my right to a share completely or finally." ??? means that in the moveable and immoveable properties of the family, the third defendant had no further right whosoever. It is a clear case of a release of all the rights which a third defendant might have had in the husband's estate. It is not a mere release of the third defendant's right to enjoy her share of the husband's properties during the lifetime of the co -widow as sought to be argued on behalf of the respondents.

(2.) The law regarding the position of the two co -widows succeeding to their husband's estate is clearly laid down in Gouri Nath Kakaji v/s. Mt. Gaya Kuar, 55 M.L.J. 339, where the Privy Council stated as follows:

(3.) Their Lordships referred to their own earlier decision in Bhugwandeen Doobey v/s. Myna Baee, (1867) 2 M.I.A. 487 where it was pointed out.