DEVIHILAI IYENGAR Vs. RAGHUPATHI VENKATACHARIAR

JUDGEMENT

(1.) Plaintiff is the appellant. He brought this suit for recovery of ancestral property that had came into possession of his step-mother's brother's families through her Will dated 9 December 1903. The plaintiff's father died on 30 July 1900 while plaintiff was a minor. The plaintiff's mother Nachiar Ammal was his father's junior wife and Chinnapen Janaki was the name of the senior wife. The 1st defendant and the 3 defendant's husband are brothers of Chinnapen Janaki, the plaintiff's step-mother. The 2nd defendant is the 1 defendant's son. On 23 July 1900 the plaintiff's father executed a written Will appointing his junior wife Nachiar Ammal, his sister Alagu Janaki and his aunt's son Ranga Iyengar as managers of his properties after his death and guardians of the minor plaintiff. In case of difference of opinion among them the decision of Nachiar Ammal was to be final. There was a bequest of 1 acre (53 cents, in favour of Ranga Ayyanagar and there was also a provision of 6 kottas of paddy and Rs. 25 each per year for the maintenance of the testator's first wife, Chinnapen Janaki, with the provision, that if she did not accept this allotment, she should have Rs. 1,200 down in cash. The plaintiff's first witness, who is a purohit and also a paternal relation of the plaintiff, deposed that after the plaintiff's father died, Chinnapen Janaki and her brother came and obstructed the performance of the funeral ceremonies and refused to let the corpse be removed from the house until she was given some lands for maintenance in lieu of the paddy and cash provided in the Will. This evidence as to coercion of the plaintiff's guardian given by this witness was not rebutted by anything for defendants. On 4 August 1900 the 3 guardians appointed under the Will entered into an agreement, in which, Chinnapen Janakj, joined, (Ex. II) which contains a statement that the plaintiff's father directed that nanja lauds worth Rs. 2,000 and Rs. 1,200 in cash for providing a residence and other nanja lands specified in the schedule in lieu of the sum of Rs. 1,200 should be given to Chinnapen Janaki for maintenance with all rights of disposal. After this the senior widow Chinnapen Janaki brought a suit (O.S. No. 150 of 1902) for a declaration of her right and for transfer we the patta belonging to the properties allotted to her and obtained a decree ex parte as the plaintiff's guardians did not defend it. The plaintiff's step-mother died on 28 December 1903 after willing away the property in favour of her brothers now plaintiff has come of age and sues for recovery of the joint family property which has been improperly alienated. In the lower Court his suit was dismissed.

(2.) The written Will of the plaintiff's father was clearly invalid in so far as it purported to dispose by Will of joint family property vide Subarammi Reddi v. Ramamma 59 Ind. Cas. 681 : 43 M. 824 : 12 L.W. 249 : (1920) M.W.N. 529 and the appointment under it of testamentary guardians to manage the properties of the plaintiff (a minor co-parcener) was also illegal., wide Chidambaram Pillai v. Rengaswatni Naicker 45 Ind. Cas. 905 : 41 M. 561 : 31 M.L.J. 381 : 23 M.L.T. 266 : (1918) M.W.N. 265 : 7 L.W. 454. The alleged oral Will, even if true, was also invalid for the same reason that the plaintiff's father had no power to dispose of immoveable property belonging to the joint family after his death.

(3.) The learned Subordinate Judge found under Issue No. 6(a) that the properties covered by Ex. II are joint family properties and this finding has not been challenged. He upheld the alienation under Ex. II both as being a proper provision for maintenance and as being a family settlement of a disputed claim.