RAMACHANDRA AIYAR (DECEASED) Vs. RANGANAYAKI AMMAL

JUDGEMENT

(1.) The main point to be decided in this appeal relates to the character of the property held by Varada Pillai defendant No. 2. His father Vijayaraghava executed a will (Ex. B) on the 29 April, 1918 under which he bequeathed the property to his sons for enjoyment during their lives. It also provided against the alienations of this property by them but contained a clause that his grandchildren could do so after the property devolved on them subsequent to his sons death. It contained a further provision for charity as well; but we are not at present concerned with the property which was reserved for charity or with the right and duty of conducting the same.

(2.) Vijayaraghava had three sons at the time when the will was executed, Thiruvengada Pillai, Varada Pillai and Krishna Pillai but the youngest of these (Krishna Pillai) died during his lifetime. Vijayaraghava died in October, 1918, and the eldest son of his, Tiruvengada, five years later.

(3.) Varada Pillai, the second defendant, entered into a partnership with the first defendant and carried on business for some time. They could not pull on satisfactorily and the first defendant brought a suit for dissolution of partnership and rendition of accounts in the Court of the District Munsif of Dharmapuri (O.S. No. 73 of 1926). A preliminary decree was passed and after the accounts were taken some money was found due to him by Varada Pillai. A final decree was consequently passed in favour of the first defendant. In execution of that decree he brought the properties in suit to sale and purchased them himself. The present plaintiffs 1 and 2 who are the daughters of Thiruvengada Pillai and the 3 plaintiff who is the daughter of Varada Pillai brought the present suit asking for a declaration that they were the owners of the properties purchased by the first defendant and the first defendant had not acquired any proprietary rights in them by reason of his purchase through Court. The plaint also contained a prayer in the alternative that if Varada Pillai was found entitled to a third share of the income from the lands for his life time subject to the liability with which the said right was burdened under the will, that the first defendant should not get anything more than his (Varada Pillai s) right of enjoyment in a third of the suit properties during his life time. A prayer for injunction restraining the first defendant from interfering with the plaintiffs possession of the suit properties was also included. The first defendant pleaded that the properties were the joint properties of Vijayaraghava and his sons and that the will of Vijayaraghava was for that reason invalid. The second objection raised by him was to the effect that the will was cancelled by Vijayaraghava during his lifetime and the cancellation was recorded on the back of the original will. The third plea, which is really the main plea in this appeal, was that the property was taken by Vijayaraghava's sons under the will as joint tenants and devolved on Varada Pillai as a survivor after the death of his brother Thiruvengada which he was entitled to enjoy for his life time in any case. The District Munsif of Krishnagiri held on the last the two points against the plaintiffs and dismissed their suit. On appeal to the Subordinate Judge of Salem this judgment was reversed and the plaintiffs suit was decreed. Aggrieved by that judgment and decree the first defendant has come up to this Court in second appeal.