SRINIVASAGAM ASARI Vs. CHINNAMMAL

JUDGEMENT

(1.) In these appeals the Court is called upon to decide the effect of the will of one Sundaram, who died in the mon July, 1933. The testator had two sons, Shanmugam and Sethuraman and a daughter, the plaintiff in the two suits which have given rise to the appeals. Shanmugam predeceased his father. He left a widow Swarnavalli, but no issue. Sethuraman died on the 23 February, 1936 and Swarnavalli in March, 1940. Sundaram executed a will dated the 29 January, 1933, in which he purported to leave for charitable purposes the net income of the properties described in the document, after deducting certain sums for the maintenance of his son Sethuraman and his daughter-in-law Swarnavalli. The properties were described by the testator as being his own, One of the questions in the appeals is whether the properties belonged to the joint family. Another question is, assuming that the testator had the right to dispose of the properties by a will, whether the directions amounted to a dedication to charitable uses or merely created a charge for such uses. It is quite clear that the testator intended that Sethuraman and Swarnavalli should act as trustees of the charities mentioned in the will and that they did so act has been found as a fact. It is also said on behalf of the appellants that even if the properties belonged to the joint family, as the Subordinate Judge has found, the plaintiff is not in a position to challenge the validity of the endowments as Sethuraman accepted as being valid the provisions of the will and acted as a trustee of the charities named therein.

(2.) In O.S. No. 90 of 1942, filed on the 18 November, 1942, namely, two years and eight months after the death of Swarnavalli, the plaintiff claimed the estate as the heir of her brother on the basis that the will was invalid. She averred that her father had torn up the will. This allegation was entirely false and it is now accepted on her behalf that her father did leave the will relied upon by the defendants and that it was executed by him when in full possession of,his faculties. In this suit the plaintiff sought to set aside certain alienations of properties covered by the will for which Swarnavalli was responsible when she was acting as the sole trustee of the charities declared in the will after her husband's death." Appeal No. 113 of 1944 is from the decree passed in O.S. No. 90 of 1942. The appellants are the fifth and sixth defendants, who are two of the alienees.

(3.) The plaintiff filed O.S. No. 15 of 1943 to recover another lot of property alleged by her to belong to her father's estate. It was in the possession of the second defendant, who claimed to be a usufructuary mortgagee of it. The mortgage had been created by Swarnavalli after her husband's death and the plaintiff said that it was invalid. The suit was decreed and Appeal No. 436 of 1944 is the result.