PERIANAVAGI 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 grount No. 65, Kilava Chetti Street, Caintadnpet,Madras, jointly with the second defendant as daughter and heiress of her deceasea father Saunmaga Madaliar; for directing the first defendant to deliver possession of the said premises and to pay the plsinaJ Rs. 378 for past mesne pr fits ana future mesne profits at Rs. 10-8-0 a month for a division of the house between the plaintiff ana the second defendant; for costs and other reliefs.

(2.) The case for the plaintiff is that Shunmuga Madaliar, her father, died in December 1912, leaving a Will, dated the 11 of November 1911, whereby be be queathet to his daughter, Logambal Ammal, wife of the first defendant, the house specified in the plaint, to be enjoyed by her ouring 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 aying without issue; that Probate of the Will was obtained by one of the executors; that after the a death of Shunmga Muaaliar, Logambal Ammal came into possession of the plaint house in which she had only a life-estate an a enjoyed. the same till her aeath; that as LOgambal Ammal died the 1 of October 1918, leaving no issue, the house and ground devolved in law on the plaintiff ana the second defendant who are the nearest heirs of Shunmuga Mudaliar; that the first 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 thereto and that the second defendant has been residing in the house of the first defendant and has been colluding with him.

(3.) The first 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 2 October, 1918, having given birth to a male child on the 30 of September 1918, that the child also died on the 1 of October 1918, that he is, therefore, entitled to the property as heir, and that, even assuming that Logambal Ammal bad 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 all the tights.