KAMBALA SUNDARARAJAMMA Vs. PSRAMULU CHETTY

JUDGEMENT

(1.) The facts out of which this appeal arises may be stated as follows: One Ramanujulu Naidu died on 31 February 1918 having executed his last will and testament on the preceding day, appointing his wife as the sole executrix and leaving him surviving the said wife Sundararajamma and three sons: Govindarajulu and two others. Under the will he gave a life interest to his widow, but she was given liberty to sell the house and invest the proceeds in three different houses and continue to possess a life interest in the three substituted houses and after her death the houses should belong to the three sons. Probate was obtained of this will on 13 September 1918. Govindarajulu the eldest son filed C. S. No. 628 of 1921 to recover his one third share of the property, which consisted only of a house, on the ground that it was ancestral property and that the testator had no power of testamentary disposition. That suit was disposed of by Coutts-Trotter, J., as he then was. He held that the property was the self- acquired property of Ramanujulu and that the plaintiff had no present right to possession. He therefore dismissed the suit. There was a counterclaim by Sundararajamma in that suit. This counter-claim was decreed. It amounted to Rupees 3,100. On 3 February 1922 Govindarajulu executed a release deed by which he released all his interest in the property of his mother, the consideration being the decree against him for the counter-claim. By that time he was leading a wild and dissolute life and was contracting debts On 17 December 1921 Sundararajamma borrowed a sum of Rs. 1,500 from one J. Narasinga Rao and executed a deed of mortgage over the house. In January 1926 the minor son of Govindarajulu filed:O. S. No. 120 of 1926 in the City Civil Court, Madras, for the recovery of his one-third share by partition and for a declaration that the mortgage in favour of Narasinga Rao was not binding on the estate. In that plaint (Ex. C-2) Janarthanam, the minor son, alleged as follows: Respondent 1 in view of the wasteful habits of respondent 2 and as a family settlement of all disputes and in substitution of respondent 1's duty of purchasing three houses agreed one year ago to partition the house and allot one-third share in the suit house itself to petitioner, one- third share to respondent 3 and one-third share to respondent 4, to which all consented.

(2.) Respondents 3 and 4 referred to above are the other two sons of Sundararajamma, respondent 1. She filed a written statement Ex. C-3 in which she stated: This defendant states that though she is solely entitled to the property under the will and though defendant 2 has no right, still in view of the peace of the family, she agreed to give and convey a one-third share to the plaintiff and his next friend and agreed to convey similarly the remaining two-third shares to defendants 3 and 4 each one-third share.

(3.) No issues were framed in the case and the suit came on for final disposal. Ex. C-1 is the judgment of the City Civil Judge. In para. 7 he says: The only dispute in this case relates to the genuineness or otherwise of the mortgage passed by defendant 1 in favour of defendant 5.