MURUGESAM PILLAI Vs. MEENAKSHISUNDARA AMMAL

JUDGEMENT

(1.) This appeal arises out of THE petition for the execution of a decree after recognizing the petitioner as the legal representative of the deceased plaintiff. The petitioner-respondent is the mother of the decree-holder who died since the passing of the decree. The prayer in the petition is that the petitioner may be brought on record as the legal representative of her son the plaintiff and that the charged properties may be sold for the realisation of Rupees 15,000 with interest and costs. The facts are those. One Narayana Pillai died on 17 March 1912. The plaintiff-decree-holder was the son by his third wife. Defendant 1 is the son lay the second wife. Defendant 2 is defendant 1's mother. The plaintiff and defendant 1 were both of them minors at the death of their father. Before his death Narayana Pillai made a partition of properties on 26 February 1912, and afterwards made a. will on 15 March 1912 dealing with the property that came to his share in the partition. This will benefited defendant 1 but not the plaintiff. Under the will defendant 3 was constituted the guardian of defendant 1 and defendant 4 was made the guardian of the plaintiff. Narayana Pillai died two days after the date of the will. After his death, while both the plaintiff and defendant 1 were minors, the plaintiff brought a suit for partition of all the family properties on the ground that the will and the partition made by their father were invalid and not binding on him. It was stated in the plaint that there were various outstandings amounting to more than a. lakh of rupees due to the family, many of which the father had transferred unjustly to defendant 1. The suit ended in a compromise decree. Defendant 1 by the time of the decree had become a major while the plaintiff, the decree-holder, was still a minor. It is the construction of a portion of that decree which relates to a pecuniary relief that is involved in the execution petition.

(2.) decree after affirming the partition and the will made by the father of the parties provided that defendant 1 should pay plaintiff a sum of Rs. 12,000 to which the plaintiff was not entitled either under the partition or under the will. It also stated that a sum of Rupees. 3,000 was payable to the plaintiff by way of mesne profits. This was with reference to the properties allotted to the plaintiff under the partition and which, were in the possession of defendants 1 and 4. These are the two items of the pecuniary relief in the decree with which we are concerned. The passage in the decree around the construction of which controversy has ranged relates to these items and is as follows: In view of the fact that defendant 1 got much property from his maternal grandrather Arumugham Pillai, some mediators interested in the plaintiff, among whom were Mogaiyur Subramaniam Pillai and the plaintiff's mother, Meenakshisundara Ammal, requesting him to give the plaintiff some money, whereupon defendant I agreed to give plaintiff Rs. 12,000 as a matter of grace and out of love. The plaintiff should recover this Rs. 12,000 and the aforesaid Rs. 3,000 being the mesne profits amount, in all, Rs. 15,000 and interest thereon from this date at 8 annas per cent per mensem by taking proceedings in execution against defendant 1 and against his stare of the plaint-mentioned properties and against his other properties obtained by him. under the settlement dated 2 June, 1904, after executing a registered receipt in favour of defendant 2 to the effect that every sort of plaintiff's claim for partition or for mesne profits had been settled and satisfied so far as defendant 1 was concerned and giving the receipt to defendant 1 directly or through Court within about six month's after the plaintiff's attaining his majority, i.e., within 31 March 1927 the aforesaid properties should remain charged until the aforesaid amount is recovered. So long as the plaintiff does not execute an acquaintance receipt as aforesaid, in favour of defendant 1, within the aforesaid time, the plaintiff is not entitled to recover the above amount in the aforesaid manner.

(3.) The plaintiff died on 11 July 1925. It is not disputed that he would have attained his majority on 30 September 1920. On behalf of the appellant the learned Advocate-General argues that having regard to the terms of the decree, the right to recover Rs. 15,000 is conditional and contingent on the minor attaining majority and on his being in a position to execute a registered release deed" : see ground 3 and as this condition, has become impossible as he died before he attained his majority the right has not become vested and so the petitioner is not entitled to execute the decree. His argument is that the right conferred is personal to the plaintiff as it has been given as a matter of grace and out of love and that it is contingent on his attaining majority and executing a receipt by way of acquaintance. He says that the matter is left beyond doubt as the last sentence in the extract quoted above specifically says, so long as the plaintiff does not execute an acquaintance receipt as aforesaid in favour of defendant 1 within the aforesaid time the plaintiff is not entitled to recover the above amount.