VENKOBA SAH Vs. RANGANAYAKI AMMAL

JUDGEMENT

(1.) These appeals relate to certain items of property, which admittedly on 15 October 1914, formed part of the joint family property of two undivided brothers, Sundara and Ekambara Pandaram. On that day Sundara Panda-ram 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 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. 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. The main argument against this conclusion in the appeal before us was that the will does not; purport to dispose of the property at all, but is merely a record of a promise made by Ekambara of what he agreed to do in certain future, eventualities. To appreciate this argument it will be necessary to set out certain passages in the will. The operative portion of the will runs as follows: I have got a brother named Ekambara Panda-ram. All the immoveable and the moveable properties and outstandings of the family, belong to me and ray said brother equally. Being attacked with asthma now and being apprehensive of my life, I execute this will. I may recover my health by the grace of Sri Kachapeswara Swami. If, perhaps, I do not recover my health, and I die, I have made a request to my younger brother to act according to the undermentioned particulars, and accordingly he has complied with it. So, after me, my brother should absolutely get all my immoveable and moveable properties and the outstandings and pay off the dues and further, he should act without fail according to the undermentioned arrangement.

(3.) Then follow particulars of arrangement and the daughter's future is referred to in the following lines; As Sri Kachapeswara Bhagavan has given me only a female child not named and 14 months old, she should be supported properly and my brother and my wife Ranganayaki should after (mutual) consultation get her married to a boy whom they like. My brother should give my said daughter jewels for Rs. 1000 as stridhanam. After such marriage, he should execute a stridhana deed so that the said female child herself may absolutely get the land mentioned in the first schedule in No. 25. Salabogam village, Conjeevaram, from son to grandson and so on in succession and should also put her in possession of the land. In default of my brother doing so in the very year of marriage, my said daughter should take the same thinking that I have given it to her as stridhanam on this very day.