(BODDANAPALLI ANDI) LAKSHMAMMA Vs. (VENDURI) SREERAMALU

JUDGEMENT

(1.) This second appeal arises out of a suit for maintenance filed by the plaintiff who is the widow of one Ramayya. She claims Rs. 40 a year for her lifetime with past maintenance to be charged on the properties mentioned in the plaint. Her husband Ramayya had a brother Brahmayya. Ramaya died issueless in 1912. Brahmayya died, three years after, leaving a son who is defendant 3.

(2.) On 19 January 1911 Ramayya executed a will, Ex. A. At that time his brother Brahmayya was alive. The evidence of defendant 3 is that his father was an old decrepit man unable to sign. There is no question about the genuineness of the will or of Brahmayya's being of sound disposing mind. Both the Courts find that the will is genuine. Under that will he gives his wife the jewels and what he calls his self-acquired property and he gives his share in the ancestral property, which he held in common as a member of the joint family consisting of himself, his brother and defendant 3 to defendant 3. He has also made some provision for his wife's maintenance. The material portion of the will as regards maintenance runs as follows: My entire share in the ancestral dry and wet lands has been given away to Venkatanarasayya. You should therefore be receiving out of the ancestral property Rs. 36 per year towards maintenance and Rs, 4 for clothing; in all Rs. 40 in words (forty rupees,) through your life from the said Venkatanarasayya and you should receive the same by the 30 Magha Bahula of each year. After my lifetime in case Venkatanarasayya is not favourably disposed towards you, you should receive the sum of forty rupees from him as per the above condition and maintain yourself.

(3.) The previous Clause 7 says that if she likes she should live with his elder brother's son Venkatanarasayya and his wife. This will is attested by defendant 3, Venkatanarasayya who under the will is the legatee of the half-share in the ancestral lands which the testator possessed. There can be little doubt from the evidence and the exhibits on record that after the death of the testator defendant 3, who under the will gets his half-share, was to pay the plaintiff's maintenance at Rs. 40 a year as provided for in the will. He admits in his evidence that he paid her maintenance for six years according to the will and that he did not pay her afterwards because he fell ill and the lands did not yield. Defendant 3 executed two mortgage- deeds, Exs. II and II-a, in favour of defendants 1 and 2. Ex. II is dated 8 June 1913 and Ex. II-a is dated 18 August 1915. The testator, as I have said before, died in 1912 and Brahmayya died between the date of Ex. II and that of Ex. II-a; the exact date of his death is not known. So that we find a year after the testator's death there is a clear recital in Ex. II that the mortgage of defendant 3, took under the will all the lands. He mentions the lands and then says as follows: Which has been in my possession and enjoyment, the same having been acquired by my father and grandfather and which has been in my possession and enjoyment, the same having devolved on me under the will dated 18 January 1911 executed by my junior paternal uncle Boddanapalli Ramayya Garu and registered as No. 3 of 1911 and retained the property in my possession.