PALAPALA SEETHARAMASWAMY Vs. PALAPALA SUJYA KUMAR

JUDGEMENT

(1.) The unsuccessful defendants in both the Courts below are the appellants. The only substantial question of law which had been put forward in the present Second Appeal by the learned Counsel representing the appellants is as hereunder: "Whether the will dated 22-2-1953, Ex-A2, executed before the birth of the respondents is valid ?"

(2.) Both the Counsel had advanced elaborate arguments on this aspect. The Counsel representing the appellants had pointed out that this is a bequest made in favour of unborn persons and hence the same is not valid and thus both the Courts below had recorded erroneous findings in relation to Ex-A2. The Counsel for the plaintiff - respondents in the appeal, per contra had explained the different provisions of the Indian Succession Act, 1925 ( for short "the Act") and also had placed reliance on a decision of the Madras High Court in the case of Damodara Moothan v. Ammu Amma and others 1 and also a decision of the Privy Council in the case of Aniruddha Mitra v. The Adminissstrator General of Bengal and others 2 and had submitted that especially in the light of the clear language of Section 113 of the Act, the said bequest is valid and binding. Hence both the Courts had recorded findings in accordance with the law and such findings need not be disturbed in the present Second Appeal.

(3.) The respondents -plaintiffs filed O.S.No.99 of 1980 on the file of Subordinate Judge's Court at Parvathipuram which was transferred and renumbered as O.S.No.6 of 1987 on the file of Subordinate Judge's Court at Bobbili. It was pleaded in the plaint referred to in the Judgment of the trial Court as hereunder: