PERIANAYAGI AMMAL Vs. ARATNAVELU MUDALIAR

JUDGEMENT

(1.) This is a suit by the plaintiff for a declaration that she is entitled to the possession and enjoyment of house and ground No. 65, Kilava Chetti Street, Chintadripet, Madras, jointly with the 2nd defendant as daughter and heiress of her deceased father Shanmuga Mudaliar, for directing the 1 defendant to deliver possession of the said premises and to pay the plaintiff Rs. 378 for past mesne profits and future mesne profits at Rs. 10-8-0 a month, for a division of the house between the plaintiff and the 2nd defendant, for costs and other reliefs.

(2.) The case for the plaintiff is that Shanmuga Mudaliar, her father died in December, 1912, leaving a will, dated the 11 of November, 1911, whereby he bequeathed to his daughter Logambal Ammal, wife of the 1 defendant, the house specified in the plaint to be enjoyed by her during her life and to devolve on her children at her death, that the will does not contain any gift over in the case of Logambal Ammal dying without issue, that probate of the will was obtained by one of the executors, that after the death of Shunmuga Mudaliar, Logambal Ammal came into possession of the plaint house in which she had only a life estate and enjoyed the same till her death, that as Logambal Ammal died on the 13 of October, 1918, leaving no issue, the house and ground devolved in law on the plaintiff and the 2nd defendant who are the nearest heirs of Shanmuga Mudaliar, that the 1 defendant has been setting up a false claim and title to the property on his own behalf as heir to his deceased wife, and has been in unlawful and wrongful possession of the property and enjoying the rents and profits thereof and that the 2nd defendant has been residing in the house of the 1 defendant and has been colluding with him.

(3.) The 1 defendant filed a written statement admitting the will and stating that the executors distributed the estate according to the provisions of the will in the year 1913, that Logambal Ammal was in possession and enjoyment of the same till her death in the year 1918 and that he has been in enjoyment ever since. He denies the construction placed on the will by the plaintiff and states that Logambal Ammal had an absolute estate in the house under the bequest of her father, that she died on the 2nd of October, 1918, having given birth to a male child on the 30 of September 1918, that the child also died on the first of October, 1918, that he is therefore entitled to the property as heir, and that, even assuming that Logambal Ammal had only a life estate, the absolute interest vested in the child at its birth and on the death of the child and of Logambal Ammal he became entitled to ail the rights.