CHETTI BALAKRISHNAMMA ALIAS BALAKRISHNA Vs. CHETTI CHANDRASEKHAR RAO

JUDGEMENT

(1.) Defendant No. 6 is the appellant. The plaintiff filed the suit for partition of the plaint schedule property claiming on the basis of a registered will executed by his grandfather Chetti Venkataswamy in 1953 (Ext. 43).

(2.) One Sarathi had two sons, Venkataswamy and Narasimhulu. Venkataswamy died on 5-5-1957 leaving his widow Ammayamma and two sons Krishnamurty and Balakrishna (defendants 4 and 6 respectively) and daugher Sundaramma (defendant No. 8). Krishnamurty' wife is Anusuya (defendant No. 5) and Balakrishna' son is Jagannadha (defendant No.7). Krishnamurty' son Chandrasekhar is the plaintiff and the three daughters Suguna, Geeta and Vanaja are defendants 1, 2 and 3 respectively. Narasimhulu died on 24-4-1952 leaving three wives, Narasamma, Sundaramma and Manikyamma who were issueless. According to the plaintiff' case, Venkataswamy and Narasimhulu had a business of selling country cigar and out of the money thus earned lots of properties were acquired. After death of Narasimhulu in 1952, his three widows filed suits for partition which were ultimately disposed of on compromise and in the said compromise Venkataswamy got 10 annas share and the three widows got six annas share. Venkataswamy had executed a registered will on 20-4-1953 disposing of his properties in a particular manner. Venkataswamy died on 5-5-1957. The plaintiff was born on 3-10-1961. Under the will all lands in village Matiapalli would vest with Sundaramma after the death of Venkataswamy and the remaining properties would be enjoyed by Ammayamma but she had no power of alienation. After the death of Ammayamma half of the properties would go to Balakrishna and rest half would devolve upon the children of Krishnamurty and the sons of Krishnamurty would receive 10/16th share after the death of Ammayamma. Therefore, under the will, Krishnamurty was excluded from getting any interest in the property of Venkataswamy. Notwithstanding the aforesaid will, on 17-9-1961, a family arrangement was entered into which is Ext. A and under, the family arrangement, the members of Krishnamurty' family, namely defendant No. 4, Defendant No. 5 and defendants 1, 2 and 3, all got one share and both Krishnamurty and Anusuya, father and mother of the plaintiff, were parties to the said family arrangement. Plaintiff' case is that the property in question being the self-acquired property of Venkataswamy and he having executed a will indicating the manner in which the property will devolve, defendants 4 and 5 had no authority to enter into a family arrangement under Ext. A and, therefore, the so-called family arrangement under Ext. A is not binding on the parties and the will must be given effect to. Accordingly, he prayed for partition.

(3.) Defendants 6 and 7 are the contesting defendants and it is their case in the written statement that the suit is not maintainable and the family arrangement was entered into in order to keep peace and harmony in the family and the plaintiff' family namely his parents and others have been benefited by that family arrangement and the arrangement having been acted upon the same cannot be challenged now by the plaintiff. It is also their case that the will in favour of an unborn child is not valid and even if it is valid, the same is superseded by the family arrangement dated 17-9-1961 (Ext. A).