SHAKUNTALA Vs. M B JAISOORYA

JUDGEMENT

(1.) This appeal is against the judgment of our learned brother, Ansari, J. The facts relating to this appeal briefly are that one Bhumayya, son of Sambiah, was the owner oF house No. 489-16-B (new) known as "Rukmini Vilas" situated in Mahubpura, Gowliguda, Hyderabad. The said Bhumiah executed a will on 23rd Isfanclar, 1349 Fasti ( 23/01/1940), under which he bequeathed the house by dividing it into three portions giving away two portions to his sons, who are defendants 1 and 2 in the case, and one portion to his wife, Rukkamma.Three rooms on the ground floor and three rooms on the top floor, marked red in the plan annexed to the will, were given over to the wife, while two rooms on the first floor and three rooms on the ground-floor, marked yellow in the plan were given over to the sons. The further recital in the will is to the effect that the upstairs of the house and three rooms on the ground floor were in the occupation of Dr. Bopardikar with whom the property had been mortgaged for a sum of Rs. 5000.00, that a rental agreement had been taken from the mortgagee for a period of ten years under a stipulation that the rent payable by him was to be adjusted towards the amount of principal and interest due under the mortgage.There is a direction in the will that the discharging of the mortgage was to be by the sons and the portion given over to the wife under the will was not to be charged with the liability under the mortgage. It was also stated in the will that the rent of the other portion of the house shall be utilised, for the maintenance of his wife, Rukkamma and her two unmarried daughters. The wife was directed to meet the expenses of the marriages of these daughters by selling or mortgaging the house given over to her.In addition to these conditions there was also a further condition that in the event of any of the beneficiaries under the will selling his or her portion of the property bequeathed, the other beneficiary would have the right of pre-emption, that is to say, would have the option of buying the property. Bhumiah died on 28/01/1940. After his death the family appears to have lived in their respective portions of the house amicably till 23/11/1950 when Rukkamma died.After her death there appear to have been family disputes. The present suit was brought by the four daughters of Rukkamma on 26/03/1951. The plaintiffs allege that after their mothers death disputes arose between themselves and their step brothers, that the tenants withheld payment of rent and offered to pay the rents only on the plaintiffs getting a decree from a competent court for a declaration that they were the owners of the property.This suit was filed for a declaration of their title to the suit property having become entitled to the same after the death of Rukkamma, the original beneficiary under the will. The defendants, the sons, pleaded inter alia that the property in dispute belonged to the joint family; that a few days prior to their fathers death, the fathers mental condition was not quite sound and taking advantage of the weak mental condition of their father their stepmother, the mother of the plaintiffs, exercised undue influence over him and obtained his signature on the will now sought to be relied upon by the plaintiffs.It was also urged that the document relied upon was not a will, but a deed of partition, and not having been registered was inadmissible in evidence. Various issues were framed in the case and the trial court held that the document Ex. N. 1 was a will. The trial court on the question as to whether the property was joint family property or not, held that the house was joint family property and as such the testator could not have bequeathed it by will. It therefore held that the mother of the plaintiffs had only a limited estate in the property and not being stridhana property the plaintiffs were not entitled to any declaration of ownership as asked for.It also held that it had not been established that the plaintiffs were in possession of the property and as such a mere suit for a declaration was not maintainable. One Other point that was decided by the trial court was that the will had been acted upon by the sons till the death of Rukkamma and as such they were estopped from disputing tho title of tho testator.

(2.) The lower appellate court, upheld the finding that the house called "Rukmini Vilas" was joint family property and as such could not have been bequeathed by will by Bhumiah. In the result the suit was dismissed. When the matter was taken in second appeal before the High Court the learned Judge came to the conclusion that the house could not be regarded as joint family property and in that view dissented from the concurrent findings of the courts below.While holding that the testator was competent to execute the will, the property not having been established as being the joint family property, the learned Judge on a construction of the various clauses of the will came to the conclusion that the testator did not grant an absolute estate to his wife, that the words occurring in the will like malik had been controlled by other words in the will which indicated that the wife was only given the usufruct of the property. The learned Judge therefore held that the wife had no heritable estate under the will, which her daughters could claim as her heirs under the law. In the result he dismissed the appeal, but granted leave.

(3.) It is stated that at the time when leave was asked for by the appellant under Clause 15 of the Letters Patent, an objection was raised on behalf of the learned counsel for the respondents that no leave could be granted for the reason that Clause 15 of the Letters Patent did not apply to this case. The learned Judge however without deciding this question of preliminary objection with regard to the appeal granted leave and observed, that this preliminary objection could be raised when the appeal was being argued.