AMMANI AMMAL Vs. PERIASAMI UDAYAN

JUDGEMENT

(1.) The four items of suit property and others fell to two sisters, Vedambal and 6 defendant, in succession to their father; but Vedambal was in separate possession of the suit items under Ex. A, by which they, to the extent open to them, divided the estate. Vedambal died after alienating item 3 and a portion of item 4, to which this second appeal relates, to 3rd, 4 and 5 defendants. The plaintiffs, the sons of 6 defendant, have sued for a declaration of the invalidity of those alienations and for possession of those items. The question is whether they are entitled to sue, the lower appellate Court having held that they are and remanded the suit for trial on the merits.

(2.) In the plaint the title relied on is that the plaintiffs are the heirs of Veerabhadra, the father of Vedambal and 6 defendant; that is, reversioners of his estate. It is therefore impossible to proceed on the alternative ground, on which it was proposed to support the lower appellate Court's decision, that they could sue as heirs of Vedambal. Moreover, even if that ground were not excluded by the pleading, further reference to it would serve no purpose. For, whatever the extent of Vedambal's interest, it does not appear on principle or authority how her heirs can have had any vested or other right in the property during her life time, which could debar her from alienating it to their prejudice or which they can rely on against 3rd, 4 and 5th defendants, her alienees.

(3.) The plaintiffs claim as reversioners of Veerabhadra's estate would ordinarily be negatived by the fact that the interest of the 6 defendant, his surviving female heir, is still outstanding; and they accordingly contend that the agreement between her and Vedambal, Ex. A, effected a separation between the two shares, into which the estate under it was divided, so absolute as to constitute each share a distinct estate, in respect of which the reversioner's succession would open separately on the death of the sharer concerned. Ex. A. no doubt is expressed in unqualified language, the parties to it agreeing to "enjoy severally for ever absolutely the properties which have fallen to their respective selves" and reciting that "neither should hereafter have a right over the properties set apart for the other," and, if it was open to them to relinquish their whole actual and future interests, each in the other's share, it must be held that they did so. It is urged that, whilst they could do so with the effect of depriving the survivor of the succession to the share of the one first deceased, the latter's share would pass, not to her own heirs, until the life estate might be determined on the survivor's death, but at once to the reversioners.