A DRAVIASUNDARAM PILLAI Vs. NSUBRAMANIA PILLAI

JUDGEMENT

(1.) The Court is here concerned with the interpretation of the will of one Kanakasabapathi Pillai who died on the 13 August, 1940. The testator had married twice, but no children were born to him and both his wives predeceased him. He appointed as his executors the plaintiff and the defendant. The plaintiff is a brother of the testator's second wife. The defendant is a son of the testator's brother and is the heir at law.

(2.) In 1934 the testator contemplated retiring from the world and of becoming, to use the expression found in his will, a Tathra Sanyasi. It is apparent from the will that despite his religious inclinations he was a man of considerable vanity and he was anxious to erect a monument to himself, which would " serve to place him before the eyes of the public even more prominently than any dharmam performed when he was alive." We are here quoting from the judgment under appeal. The main question involved in it is whether the will, which was executed on the 29 April, 1934, constitutes a dedication of the residue of the estate for public charitable purposes.

(3.) On the death of the testator his nephew, the defendant, took possession of the estate. The will had been registered, but the defendant decided to repudiate it. He alleged that the testator had publicly stated that he was cancelling the will and consequently had torn it up. As the result of the defendant's attitude the plaintiff was compelled to file this suit. He asked the Court to hold that the defendant had forfeited his office as joint executor by reason of his conduct and that a decree for possession should be granted to him. The defendant persisted in his averment of the revocation of the will. In addition he pleaded that its main provisions were contrary to law and that, as the heir of Kanakasabapathi Pillai, he was entitled to the whole of the residue of the estate. The suit was tried by the Subordinate Judge of Tuticorin, who held that the plea of revocation of the will was false, but he agreed with the defendant that the testator's main directions were invalid, inasmuch as the dominant motive in his mind was the erection of a samadhi in which he was to be buried and that money could not be devoted to such a purpose. On appeal the District Judge of Tinnevelly upheld the decree of the Subordinate Judge.