KRISHNASWAMI AYYAR Vs. TBRAMACHANDRA RAO

JUDGEMENT

(1.) The facts out of which this appeal arises are as follows : One Ramaji Bavaji Pandit, a Mahratta Brahmin of Tanjore, died on 10 August 1858. Before his death, he had adopted a son, Bavaji Ramaji Pandit, whose son is the present plaintiff. He also left two widows, Kamakshi Boyee and Tulaja Boyee. He had also executed a will dated 6 August 1858 (Ex. 5) making various dispositions of his property. After giving certain properties to his relations, half of the remaining properties he devised to his two widows, who "shall be entitled to and take the same". By an arrangement in the year 1860 between the two widows, Tulaja Boyee got the suit house belonging to the deceased. A creditor of the widows filed O.S. No. 275 of 1872 against them for the recovery of a debt contracted by them after their husband's death. A decree was obtained and In Court auction in execution of the decree, the house was sold and purchased by the decree-holder and one Krishnaji Kottayya. They sold their rights in the house by Sale deeds to one Chinnaswami Ayya whose legal representatives are defendants 1 and 2. Defendants 3, 4 and 5 are lessees under defendants 1 and 2. Tulaja Boyee died on 2nd April 1916, and on her death the plaintiff and his undivided younger brother, Jeevanna Rao, became the revarsioners to the suit property on the looting that the widow had only a life interest. Jeevanna Rao died in June 1921 and the whole of the reversionary interest survived to the present plaintiff. The suit was filed on 2 April, 1928, exactly within 12 years of the death of Tulaja Boyee to recover the suit property on the ground that the decree in O.S. No. 275 of 1872 and the sale in execution thereof, do not bind the reversionary estate after the death of Tulaja Boyee. The plaintiff contends that on a proper construction of the will of Ramaji Bavaji, the widows had only a life estate. Hence the suit to recover possession of the property from the defendants.

(2.) Between 1872 and the present suit, there were two other litigations which should be noticed. The earlier litigation came up to the High Court in Appeal No. 74 of 1896, which was disposed of by Collins, C.J., and Shephard, J., on 13 July 1897. They held that: there being no indication of an intention to five a larger estate, we must assume that the husband intended that a widow's estate only should pass.

(3.) The judgment is now Ex. C. Again in the year 1917, there was another litigation. The present plaintiff and his brother Jeavanna Rao sued to recover certain other properties belonging to the estate from some other defendants on the ground that only a life estate passed to the widows under the will and that the plaintiffs were entitled to the estate as reversioners. The matter came up to the High Court and Wallis, C.J., and Seshagiri Iyer, J., held that an absolute ?estate passed under the will : vide 1919 Ramachandra Rao v. Ramachandra Rao 1919 Mad. 557. The plaintiff took the matter to the Privy Council. The judgment of the Board was delivered by Lord Buckmaster. Their Lordships held that the points argued as to the effect of the gift in the present case are not now open to consideration, for in their Lordships opinion the decision given on 13 July 1897, by the High Court at Madras, is a clear and complete determination as between the parties to that suit and those claiming under them, which the present litigants cannot dispute.