RAMAYYA Vs. MAHALAKSHMI

JUDGEMENT

(1.) These are appeals from a decision of the Temporary Subordinate Judge of Tanjore in a suit brought by the plaintiff Mahalakshmi, who is the daugher of Parvathi, who was one of the daughters of Ramaswami, against the first defendant, who is the adopted son of Valliammai, another daughter of Ramaswami. Ramaswami made a Will in favour of one of his widows Swarnam, the grandmother of the first defendant, Swarnam made a Will giving her co-widow, Thailammai, a life-estate, and the first defendent is a donee, and the third defendant an alienee for value, from Thailammai who only had a right to dispose of her life-estate. It will be convenient to deal first with the case of the first defendant who claims under a gift made by Thailammai in excess of her powers. He contends, in the first place, that the plaintiff, who took under Thailammai s Will, cannot dispute the gift made by Thailammai long before the Will. This is quite an unjustifiable extension of the doctrine of election as embodied in Section 35 of the Transfer of Property Act and as regards Wills in Section 167 of the Indian Succession Act. Section 35 in express terms limits the doctrine of election to cases where a person professes, to transfer property which he has no right to transfer and as part of the same transaction confers any benefit on the owner of the property. Section 167 of the Indian Succession Act, which in terms applies to the facts of this case, though the section itself does not in law apply, expresses the doctrine thus : "Where a man, by his Will, professes to dispose of something which he has no right to dispose of, the person to whom the thing belongs shall elect...to confirm such disposition or to dissent from it, and in the latter case, he shall give up any benefits which may have been provided for him by the Will," This doctrine, which is known in England as the doctrine of "election" and in Scotland as the doctrine of "approbate and reprobate," as explained in Codrington v. Codrington (1875) 7 H.L. 854 at p. 861 : 45 L.J. Ch. 660 : 34 L.T. 221 : 24 W.R.648, comes to this--that a man is not at liberty to take under a deed or Will and at the same time to dispute the operation of that deed or Will in other respects, but there is no authority whatever for saying that a person who accepts the benefit under a Will is precluded from disputing some transaction in which the testator was engaged long before his death which is not the subject of the Will at all. All that the testator says here is excluding the properties which I have already given away (a term which includes the gift to the first defendant), I will make the following dispositions." Therefore, the appellant has altogether failed to bring this case within the doctrine of election as expressed in Section 167 of the Indian Succession Act, which is a satisfactory expression of the doctrine as based on juctice, equity and good conscience.

(2.) Then the appellant has contended that the question is res judicata because in a previous suit in which the first defendant s mother was the plaintiff and the present plaintiff was the defendant, it was held that the properties, covered by Exhibit N10 in this case and Exhibit XIII in the other case, were the self acquisitions of the widow Thailammai. A sufficient answer to that contention is that the gift in dispute was a gift to the first defendant s father, who was then alive and not a party to the suit, and the properties given to the first defendant s father were not the subject of the suit. In these circumstances, it is impossible, in my opinion, to say that the question as to whether they were the self-acquisitions or not arose and was decided between the same parties in the previous suit. Therefore, that contention fails.

(3.) Putting aside the defences of election and res judicata, it is admitted for the first defendant that his claim cannot be supported in respect of 3/64 of certain properties and that they must be treated as forming part of the estate of Swarnam and that the plaintiff as co heir with the first defendant to Swarnam s estate is entitled to 1/2 of 3/64 and the first defendant is entitled to the other half. Therefore the first defendant s appeal fails as regards the question as to 3/64.