VENKOBA SAH Vs. RANGANAYAKI AMMAL

JUDGEMENT

(1.) These appeals relate to certain items of property which, admittedly on the 15 October, 1914, formed part of the joint family property of two undivided brothers, Sundara and Ekambara Pandaram. On that day Sundara Pandaram who was on his death-bed executed what he calls a will (Ex. A), in which certain provisions were made for his wife, Ranganayaki in the event of her being unwilling to live on with her brother-in-law; and for his infant daughter Pattammal, to take effect at the time of her marriage. This will was attested by Ekambara, amongst other attestors, and subsequently registered by him. Ekambara, however some years later executed a mortgage in favour of two Chetties, including in the security the items of property set apart in the will for the maintenance of Ranganayaki and the marriage portion of Pattammal. The mortgagees obtained a decree on the mortgage and their rights as decree- holders were subsequently purchased in insolvency proceedings by one Venku Sah. The question now at issue in these appeals is whether the rights of the widow and daughter under the will are to prevail as against the rights of the heirs of Venku Sah. The two Courts below, the learned Sub-Judge and the learned District Judge of Chingleput, have held against the widow and in favour of the daughter, and have decreed that the property claimed by the daughter should be delivered to her.

(2.) With regard to the widow's claim little or no separate argument has been addressed to us. It was held by the learned Subordinate Judge that though she had in the first instance a valid claim under the will, she did not elect to live apart from Ekambara but remained in the family and consented to be maintained in the ordinary way by him. She was still so residing at the date of the mortgage and relying upon certain rulings to which he refers, the learned Subordinate Judge holds that in those circumstances she could not object to the manner in which Ekambara who was maintaining her might deal with the estate. No attempt whatever was made in the hearing before us to challenge the authority or the applicability of those rulings, and we must decide against the widow's claim.

(3.) The claim of the daughter stands on much firmer ground. On this part of the case the Courts below hold that though the will is invalid as a will since Sundara had no power of disposal over the property with which it deals, being still undivided from his brother, it is valid as a family arrangement to which the consent of the only remaining coparcener Ekambara had been obtained; and, being so valid, conferred upon the daughter an indefeasible title to succeed at the date of her marriage to the property set apart for her.