KUMARASAMI MUDALIAR Vs. NARAYANSAMI

JUDGEMENT

(1.) The plaintiff as the reversioner of one Anaiappa sues to recover certain lands in the possession of the various defendants. Anaiappa, the last male holder, died in 1867 and his widow. Alagathai, sold the lands in question in 1873 to one Rangasami. Defendants 1 to 11 are his heirs, and the other defendants, about sixty in number, are in possession of various plots claiming under alienations made by some descendant or other of Rangasami. Alagathai died in 1922 and the present suit was instituted in 1924. The learned Subordinate Judge has dismissed the suit holding inter alia that the alienation was made by the widow under circumstances which render it lawful and valid.

(2.) Several questions have been argued but for the dioposal of this appeal, it is sufficient to deal with two of the defences raised. The first point is whether the plaintiff has succeeded in showing that the property in questions was on the date of the alienation (Ex. 7) a part of Anaiappa's estate. Anaiappa inherited several properties from his father Kannappa, but the suit property was not a part of his paternal estate but originally belonged to one Suryamurthi, his mother's paternal uncle. One Suppammal was the first wife of Anaiappa, and her mother belonged to the family of Suryamurthi. The suit lands are in the village of Kularnangalam. Besides these Suryamurthi's family owned about 26 acres of land in a village called Madakulam. After the death of Anaiappa, several persons put forward claims to the Madakulam lands. Anaiappa had a daughter by Suppammal by name Kahammal. She was one of the persons that claimed the lands. Suppammal's maternal uncle was one Meenakshisundaram and his son-in-law, Velappa was another claimant. These two persons asserted rival titles to . the lands through Suryamurthi. Their claims were resisted by Alagathai, who stated, that on the contrary, her husband had before his death, become the owner. So much for Madakulam lands. But in regard to the suit lands, there was no such claim put forward by any person claiming through Suryamurthi. It may therefore be safely held that at the death of Anaiappa, they formed a part of his estate. This is the finding of the learned Subordinate Judge and with that we agree. But this finding does not conclude the question. The point yet remains: Did they continue to form a part of the deceased's estate on the date of Ex. 7, the sale in favour of Rangasami? The defendants allege, that Anaiappa made an oral will directing the suit lands to be dedicated to some deity and that his widow, Alagathai, immediately after his death, giving effect to his desire, dedicated the lands to god Subrahmanya. The question is, Has this plea been established? The learned Subordinate Judge records the following finding: I have therefore to hold on issue 4 that Anaiappa Mudali bequeathed his properties in favour of his wife Alagathai by means of a nuncupative will for a charity as contended by some of the defendants,

(3.) The appellant's contention that the learned Judge has acted on some inadmissible evidence (a previous judgment) in coming to this conclusion is no doubt well founded. Rejecting that evidence, we find that there is sufficient material on the record which supports the learned Judge's conclusion. Soon after Anaiappa's death, the present plaintiff's grandfather one Kumarasami (the brother of Anaiappa), appears to have put forward some claim to Anaiappa's property. It is difficult to say at this distance of time what the nature of that claim was; but there can be no doubt of the fact that some claim was preferred. Ex. 22, dated 8 June 1868, shows that Kumarasami and Alagathai entered into a settlement. By that deed, the former takes threefourths of Anaiappa's prpperty, leaving the widow the remaining fourth. The point to note is, that this settlement comprises only Anaiappa's estate got by him from his ancestors on the paternal line. Not content with the property which he obtained under Ex. 22, Kumaraswami, three months later, put forward a claim to the Madakulam lands also: Ex. D. He asserted that his deceased brother Anaiappa was the owner of those lands, they having originally belonged to Suryamurthi's family and that, on his brother's death, he became entitled to them. Why then did Kumarasami who claimed every other property of Anaiappa, not claim the suit lands? This conduct is consistent with the defendant's version, that they had been dedicated to the deity. More than that we find that as early as in April 1869, a patta for these lands was actually issued to Alagathai on behalf of the deity: Ex. K.