SHYAMA BHAI Vs. PURUSHOTHAMADOSS

JUDGEMENT

(1.) This is a suit by the plaintiff who is the widow and legal representative of one Goverdhanadoss against the defendant, her deceased husband's brother, for a declaration that the plaintiff's husband and the defendant ware members of a divided family, that the plaintiff's husband was entitled to a half share on all the properties devised under the will of his father and that the plaintiff is entitled to a half share in the properties, which were decreed to the plaintiff's husband and the defendant, in C.S. No. 163 of 1917 for partition and delivery to the plaintiff of her share and in the alternative for maintenance at Rs. 500 a month and arrears.

(2.) One Raghunathadoss, who was the father of the plaintiff's husband and the defendant, was carrying on a large business, as a jewel merchant. He died about the 20 of October 1903, leaving behind him, the plaintiff's husband and the defendant, his sons. Ha left a will, dated the 19 of October, 1903, which is probatad and which I shall refer to later on. The will directs the executors, after payment of certain legacies, to hand over the residue of the estate to the plaintiff's husband, when he attains the age of 23 and the defendant, when he attains 21. The executors obtained possession and were in management of the estate. The plaintiff's husband and the defendant filed O.S. No. 163 of 1917, against the executors for an account and for possession of the properties, bequeathed to them and a decree was passed in that suit in their, favour, in execution of which they got possession of the properties, movable and immovable. A few months after getting the decree in that suit, the plaintiff's husband died.

(3.) The plaintiff's case is that both by virtue of the will of Raghunathadoss and the decree in C.S. No. 163 of 1917, her husband and the defendant obtained the properties as tenants-in common and not as joint tenants and that she is entitled to one half share in the properties, which were recovered in execution and which formed part of the properties of the testator Raghunathadoss. She contends that by reason of the contentions, raised by her husband and the defendant that they took the properties as tenants-in-common, the defendant is estopped from setting up any title to the properties, by right of survivorship, even assuming that they were not tenants-in-common, under the terms of the will. The plaintiff states that on the date of her husband's death, which took place on the 28 June, 1920, she was a minor 16 years old, that she continued to live in her husband's house, for a short time and thereafter she went to live with her parents, that the defendant who was the de facto guardian and who was in possession of the properties of her husband, is bound to account to her for such properties and that the defendant in 1924, asserted his rights to all the properties by survivorship and declined to hand over her share to her. She states that the defendant in reply to a notice set up an arrangement, whereby she was only entitled to the interest on Government paper, of the face value of Rs. 10,000 of the 31/2 per cent, lean, which was set apart for her maintenance and had no further rights. She denies any such arrangement and states that even if the arrangement is valid, it is not binding on her.