SELLAMANI AMMAL Vs. THILLAI AMMAL

JUDGEMENT

(1.) This appeal which is brought from a judgment and decree of the High Court of Judicature at Madras reversing in part the judgment and decree of the Subordinate Judge of Trichinopoly raises a question of some difficulty arising under the will of Subbaraya Pillia who died on 28-9-1916, and will be hereafter called the testator. Some facts concerning the testator's family must first be given. He was the adopted son of Subhapathi Pillai of Achalpuram in the Tanjore district and Swarnathammal, his wife, who had no other children. Swarnathammal was the daughter of Kandaswami Pillia who was the son of Thiruvarasu Pillai. The latter was the owner of an estate known as the Kudapalli Estate in the Trichmopoly district. Kandaswami predeceasing his father, upon the death of the latter this estate descended to Swarnathammal who managed it until her death in 1904 or 1905, She was succeeded in the estate by the testator who managed it until his death in 1916. Sabhapathi had in the meantime died having in the year 1884 executed a will which he described as an arrangement of his family affairs. In it he recited that all the acquisitions made by him were made with the moneys belonging to his wife Swarnabammel and gave her a life estate therein.

(2.) On 23-9-1916, five days before his death the testator made his will. He had at that time four children, namely, two sons, Nataraja aged 16, and Sabhapathi aged 9, and two unmarried daughters Thillai aged 18 and Swarnathammal aged 7. By his will the testator appointed his two elder brothers Kuppuswami Pillai and Muthu Pillai as guardians of his family properties and charity properties and the minor children, with directions to keep accounts of the receipts and disbursements. In order to keep a check on the said guardians he appointed as mel vichtaanaikars (supervisors) M. Sundararn Pillai Avargal and V. A. Arurachalam Chettiar Avargal, and after a direction to pay his debts, and to keep proper accounts, proceeded as follows: "The said guardians shall, with the permission of the mel vicharanaikars(supervisors) not only perform the marriages of the minor girls, defraying expenses to the extent of rupees two thousand for each girl but shall also give to each girl lands worth rupees five thousand or (rupees five thousand) in cash, and after the family debts are discharged, shall also give to the minor girls with the consent of the melvicharanaikars, rupees three thousand worth of jewels out of the family funds apart from the jewels which I have made and given to them. Until minor Nataraja Pillai completes his twenty-first year the guardian and the mel vicharanaikars shall act in the aforesaid manner and deliver the property to the said Nataraja Pillai along with accounts up to 30-9-1921. If, at the time when the said Nataraja Pillai takes charge of the properties, the amounts mentioned in this will or any portion thereof remain unpaid to the said girls, he shall pay to each of them the amount due to her. If he fails so to give, each of them shall recover the amount on the liability of the A schedule properties."

(3.) The daughter Thillai was married to Animal on 1-6-1919. The expenses of the marriage were met by Nataraja Pillai, who had also given her some jewels. She is a respondent to this appeal. Nataraja Pillai died on 24-6-1919, and was survived by his minor brother Sabhapathi Pillai. On 18-12-1919, the Court of Wards was appointed to take up the management of the Kudapalli Estate. Sabhapathi Pillai attained the age of 18 years in 1923, and attained the ago of 21 years in 1926. He died in June, 1929, leaving the appellant as his widow him surviving. Neither land of the value of Rs. 5,000 nor cash of that amount having been paid to Thillai, on 1-12-1933, she commenced a suit against the appellant and the Manager Court of Wards Kandapalli Estate Trichinopoly and Swarnathammal claiming a right to the legacy of Rs. 5,000 and payment of it with interest. At about the same time her sister Swarnathammal who is respondent 2 to this appeal commenced a suit against the same first two defendants and Thillai as defendant 3 claiming the same relief. In these suits two substantial questions arose for decision which were intended to be covered by the issues framed in them, viz.: 1. Whether the testator had so blended his own estate with his ancestral estate that it was not in his power to give legacies of Rs. 5,000 to his daughters: 2. Whether in any case the suits were barred by limitation, a. question that only arose if the first question was answered in the negative.