ALLA VENKATAPPADU Vs. MUDDANA ATCHAYYAMMA

JUDGEMENT

(1.) The appellants are the third and the fourth defendants, and the wife of the first defendant in O.S. No. 57 of 1937 in the Court of the District Munsiff of Vizagapatam. The plaintiff in that suit was the widow of a certain Appadu who had died in July, 1934. The father of this Appadu had married the daughter of one Jaganna and jaganna had taken him into the family as his illatom son-in-law. The first defendant was the grandson of Jaganna. Disputes apparently arose between the first defendant and Appadu and in consequence they executed the settlement deed, Ex. C, dated 2nd May, 1932. The plaintiff filed O.S. No. 57 of 1937 on the footing of this settlement deed, and claimed possession of her husband's half share of the properties, on the ground that the defendants had trespassed on them in 1935, together with mesne profits from that year and, in case it was found that she was not entitled to possession, she claimed maintenance at the rate of Rs. 12 per mensem and arrears of maintenance amounting to Rs. 180.

(2.) The District Munsiff considered that the plaintiff was entitled to possession and passed a decree accordingly. The learned Subordinate Judge took the same view as to the construction of Ex. C as the District Munsiff but during the pendency of the appeal the first defendant had died. The material portion of Ex. C runs as follows : It is arranged that from this day the properties mentioned in paragraph 3 herein should be enjoyed during our lifetime each having a right to half share therein without having any right of sale, gift, mortgage, etc.; and the property should be kept and enjoyed jointly and if at our death either of us leave no male issue his half share should be enjoyed by the heirs of the other person along with their own half share.

(3.) The plaintiff's husband left no male issue and the question at issue regarding the construction of the document was whether Appadu's share passed to the male issue of the first defendant on Appadu's death or whether it passed only after the death of the first defendant. In my opinion the construction put on the document by the lower Courts was correct as it is "our lifetime" and "at our death" that are spoken of. Even then, however, on the death of the first defendant during the pendency of the appeal Appadu's share of the property passed to the other defendants so that the decree for possession could not have been enforced. The learned Subordinate Judge referred to this and considered that the case before him was one in which the altered circumstance should be taken into account by him. He consequently varied the decree of the District Munsiff and gave the plaintiff a decree for mesne profits from 1935 which were to be ascertained on the presentation of a petition in that behalf to the Court and for maintenance at the rate of Rs. 85 per annum.