CHITTAMBALA MUDALIAR Vs. PARTHASARATHY MUDALIAR

JUDGEMENT

(1.) The plaintiff is one of the executors of the will of one Ramanuja Mudaliar, a Hindu, who died on the 21 October, 1913. The defendants are the sons of Ramanuja Mudaliar. The plaint allegations are that the testator bequeathed the properties mentioned in the schedules to the plaint to charity, that the executors applied for probate of the will in T. O.S. No. 2 of 1914 and the defendants entered a caveat and contended that the will was brought about by undue, influence and was invalid, that they (defendants) filed C.S. No. 103 of 1914, for a declaration that the property was joint family property and that the testator Ramanuja Mudaliar, who was a member of the joint family, could not dispose of the property of the joint family by will, that both T. O.S. No. 2 of 1914 and C.S. No. 103 of 1914 were compromised and a razinamah was entered into between the executors and the defendants on 20 October, 1914, as a result of which two of the items were left for charity and the other items were taken by the defendants and that the said razinamah is not valid and binding on the charity, for various reasons alleged in para. 9 of the plaint. The plaintiff prays for a declaration that the razinamah, dated 20 October, 1914 in C.S. No. 103 of 1914, is void and of no effect and that the properties, mentioned in Schedules A to D of the plaint, belong to the charity, for recovery of the properties in Schedules A to C from the defendants and for incidental reliefs.

(2.) The first defendant pleads that his father had no right to dispose of, by will, the joint family property belonging to himself, his father and his brothers, that the compromise was a bona fide one in the interests of all concerned and is not void for any of the reasons mentioned in the plaint and that the plaintiff is not entitled to any relief. The 2nd defendant adopts the written statement of the 1 defendant and states that the suit is the result of ill-feeling between the plaintiff and the defendants.

(3.) The following issues have been framed: (1) Is the razinamah decree in C.S. No. 103 of 1914 invalid and not binding on the charity for any of the reasons stated in para. 9 of the plaint and, if so, is the plaintiff not entitled to question it ? (2) Is the suit res judicata by reason of the decrees in C.S. No. 103 of 1914 and C.S. No. 250 of 1919 ? (3) Is the suit barred by limitation ? and (4) To what relief are the parties entitled ? Issue 1 The plaintiff's case is that the properties mentioned in the plaint schedules and other properties were acquired by Ramanuja Mudaliar and that the defendants had no right to them as they were the self- acquisition of Ramanuja Mudaliar. Ramanuja Mudaliar had no ancestral estate, worth mentioning, as evidenced by Ex. B, a partition deed, dated 10 June, 1880. He was a Sub-Assistant Surgeon and was attached to the General Hospital, and he seems to have acquired properties before 1902 (vide Exs. D, E, F, G, H and J.) After his retirement, he was employed in the State of Ghatwal and was paid Rs. 80 a month. He executed a will, Ex. K, on 8 September, 1910, and a codicil, Ex. L, on 8 March, 1911 wherein he bequeathed some properties to charity and gave some properties to his sons. He. executed another will, on 2nd April, 1912, whereby he gave the items, mentioned in the plaint, to charity, subject to certain rights, in favour of his son's widow and his sons. The plaintiff says that the defendants had no right to any of the properties, as they were the self-acquisition of Ramanuja Mudaliar and that their contention in C.S. No. 103 of 1914, that the properties were joint family properties was an unfounded one and that for the peace of the family, the vakils for the executors and the defendants settled the disputes, whereby the charity has lost a considerable portion of the property.