VENKATALAKSHMAMMAL Vs. BALAKRISHNACHARI

JUDGEMENT

(1.) This second appeal is preferred against the decree and judgment of the learned Subordinate Judge of Salem, in A. S. No. 133 of 1953, reversing the decree and judgment of the learned District Munsif of Krishnagiri in O. S. No. 248 of 1950.

(2.) One Swarnambal, the deceased first plaintiff, whose daughters are the second plaintiff and defendants 6 and 7, filed the suit, out of which this second appeal arises, for redemption on the footing that she had inherited the properties of her husband one Pappachari who died in the year 1928. Pappachari had a son by name Moogi Puttuswami who died 1 1/2 years before the date of this suit leaving a widow and a minor daughter, defendants 3 and 4 respectively. Moogi Puttuswami was born deaf mute and this is the finding under issue 2 which is not challenged. The suit properties were usufructuarily mortgaged by the first plaintiff in favour of the first defendant on 30-3-1943. While so, defendants 3 and 4 claiming rights in the properties as the heirs of Puttuswami mortgaged the same properties on 4-2-1950 in favour of defendants 2 and 5 for a consideration of Rs. 700/- for discharging the prior mortgage debt dated 30-3-1943 and also the alleged debts of Puttuswami. The learned District Munsif decreed the suit for redemption holding that since Puttuswami was held to be congenitally deaf and dumb, he could not have inherited his father's properties on his death in 1928, and that the first plaintiff alone had inherited them. On appeal the learned Subordinate Judge called for a finding on an issue which he framed, viz., "Whether the suit properties are the ancestral or self-acquired properties of Pappachari?" This order was taken in revision by the second plaintiff in C. R. P. No. 305 of 1954 and it was dismissed with the observation that the interests of justice required that the matter should be investigated and the fact finally ascertained as to the nature of the property. The learned District Munsif after giving the parties an opportunity to adduce further evidence and marking Exs. A-2 and A-3, the Road Cess Chittas, and Ex. B-5, a registered partition deed dated 11-6-1925 between Pappachari and his three brothers, and Ex. B-6, a registered sale deed dated 9-7-1878 by Sathan and others in favour of Balakrishnnappa, the father of Pappachari, found that the three items of properties covered by the suit were the ancestral properties of Pappachari and not his self-acquired properties as contended by the second plaintiff.

(3.) The learned Subordinate Judge after receiving this finding held that these items were enjoyed by Pappachari as his ancestral properties which he got after partition and not his self-acquired properties. On that footing he came to the further conclusion that on the death of Pappachari, Moogi Puttuswami as the sole surviving coparcener took the whole of the family estate and that on the death of Moogi Puttuswami his heir was his widow viz., the third defendant and that therefore the deceased first plaintiff had not inherited the properties and that her mortgage in favour of the first defendant was without title.