APPAN PATRA CHARIAR Vs. VSSRINIVASA CHARIAR

JUDGEMENT

(1.) The plaintiff is the appellant. He purchased the plaint lands in December 1909 from the first defendant. The first defendant has a minor step-brother who is the second defendant and also an uterine sister, the third defendant. The first and the third defendants mother was the pre-deceased first wife of one Srinivasa Chariyar who died on the 14th November 1908. Within a fortnight before his death and on the 1st November 1908 (when he was on his death-bed and with the knowledge that his dissolution was not far off), he executed the will, Exhibit V (a), by which he gave the properties mentioned in the Schedule A attached to the will to his eldest son, the first defendant, gave the properties mentioned in the Schedule B to his minor son, the second defendant, and the land mentioned in the Schedule C to his daughter, the third defendant, besides making some other provisions. It is not denied that relatively to the A and the B schedule properties bequeathed to the two sons, the C schedule property left to the daughter is one of small value and it would not be an unreasonably large gift to be made by a very well-to-do father to his only daughter, though he has two undivided sons. It is further found that the first defendant, the elder of the two sons who was a major at the time of the will consented to this provision being made in favour of his sister and attested the will and that the second defendant s mother, the testator s second wife, also consented.

(2.) Within a year of the testator s death, however, the widow acting as the guardian of her minor son (the second defendant) repudiated in one respect the validity of the very fair testamentary arrangements made by her husband and while willing that the A schedule properties which were given to her step-son, the first defendant, for his share by her husband, should be his and that the B schedule properties given to her son, the second defendant, should belong to the said son absolutely, grudged the gift of the C schedule properties to her step-daughter, the third defendant. Thereupon on the 3rd November, 1909, the first defendant and the step-mother acting as guardian of the second defendant executed the agreement (Exhibit K) by which the C schedule properties were arranged to be sold and converted to cash and the sale-proceeds divided equally between the two sons. It was in pursuance of this agreement that the first defendant sold the properties to the plaintiff in December 1909 under Exhibit A.

(3.) The lower Appellate Court held that though the properties dealt with under the will, Exhibit V (a), were ancestral properties in which the two sons of the testator owned interests by birth, a reasonable gift could be made by the father in favour of his only daughter so as to bind his sons and that such a gift even though made by will would be binding on the sons if they consented to it. It also held that the first defendant having consented to the dispositions in the will was bound thereby and that the second defendant, though a minor at the time, was also bound as consent could be given on his behalf by his mother in his interests and such consent was given. On these findings it held that the third defendant became the sole owner of the C schedule properties, that is, the plaint lands by the testamentary gift and that the plaintiff purchased nothing but a bag of wind under the sale deed (Exhibit A). The lower Appellate Court accordingly dismissed the plaintiff s suit with the costs of the defendants Nos. 2 and 3.