VENKATESWARA PATTAR (INSANE) Vs. KMANKAYAMMAL

JUDGEMENT

(1.) This is an appeal by the plaintiffs, who sued in the lower Court for the recovery of certain properties or in the alternative, for partition. The first plaintiff has admittedly been a lunatic since 1920. The second plaintiff is his son, born in March, 1924. The third plaintiff is another son, born pending the suit. The first plaintiff's father (Krishna Josier) died on the 26 of September, 1923, leaving him surviving (besides the first plaintiff) two daughters who are defendants 1 and 2 in the case. The third and fourth defendants respectively are their husbands.

(2.) In view of first plaintiff's unfortunate condition, Krishna Josier, who was possessed of a decent extent of property, was naturally anxious to make some satisfactory arrangement for the management of his property after his death. His first attempt in this direction was Ex. A a will dated 6 of July, 1920. The first plaintiff had then an infant son about a year old, and the scheme of Ex. A is based on that circumstance. That child died sometime later, and to add to the misfortune of the parties, relations between Krishna Josier and first plaintiff's father-in-law became strained, so much so that, early in 1922, Krishna Josier left his old house and thereafter lived in a new house of his own. The result of this step was that Krishna Josier's daughters were more with him than before, while the first plaintiff's wife and her father stayed in the old house. The wife had not even attained majority by that time, and as the first plaintiff required care and attention, he would appear to have been living generally with his father and sisters. These circumstances necessitated a change of the scheme of the original will (Ex. A) and Krishna Josier accordingly executed a new will, Ex. B on 31 December, 1922. The relations between Krishna Josier and the first plaintiff's father-in-law grew worse day by day, and at the time of the registration of Ex. B there seem to have been very unpleasant manifestations of protest on the part of the first plaintiff's wife. It is also not unlikely that Krishna Josier was made to feel, in an increasing degree, the reasonableness of making some provision for his daughters, and for the performance of his obsequies and shraddhas. There was also the continuing problem of making provision for the lunatic son and his wife, and also for the contingency of their having sons and daughters. The old man took legal advice and according to that advice, executed two documents Exs. I and II on the 9 of January, 1923, the first purporting to be a deed of partition, and the second a testamentary disposition of most of the properties which under Ex. I Krishna Josier reserved for his shares. The validity and effect of these documents is the principal question for determination in the appeal. On the same day Krishna Josier also executed Ex. VI, a deed of trust setting apart certain properties, out of his share, for certain charities. The validity of this document is also in question.

(3.) The second plaintiff, was born in March, 1924, and was thus in the mother's womb at the date of Krishna Josier's death (September, 1923). This makes it possible for the second plaintiff to contend that if there had been no valid partition under Ex. I he would be a co- parcener, and that the will Ex. II would be invalid as also the trust deed. This suit was therefore instituted on his behalf, within a few months of his birth, to have it declared that Ex. I could not and did not effect a partition between Krishna Josier and the first plaintiff, that the second plaintiff is accordingly a co-parcener, and is as such entitled to all the properties of Krishna Josier. It suited his case to say, that the first plaintiff, by reason of his insanity, had ceased to be a co-parcener at least from 1920, and to rely on the fact that Krishna Josier himself distinctly asserted in Ex. I that the first plaintiff was not entitled to any share. The plaint also made a point of the fact that Ex. I, though purporting to be a deed of partition, is in substance a disposition by Krishna Josier, on the footing of his being absolute owner of all the properties, and no share is in fact allotted to the first plaintiff himself. Anticipating however, the possibility that Ex. I may be construed as an exercise of the father's power to effect a severance of status between himself and the son, the plaint also alleged that the division of properties into Schedules A and B in Ex. I was not fair and equal, and it contained an alternative prayer that all the family properties might be divided into two equal shares and one share might be given to the plaintiffs.