C V VYTHINATHA AIYAR Vs. CVVARADARAJA AIYAR

JUDGEMENT

(1.) One Varadaraja Aiyar died on the 7 February, 1925, leaving movable and immovable properties worth about Rs. 20,000. The first defendant-appellant is his son, and the plaintiff is the son of the first defendant. Varadaraja Aiyar executed two wills, Ex. LX in 1912 and Ex. B in 1922. By the second will he revoked the first one. Under the first will his properties, described as his self-acquisitions and additions therefrom, were given to the first defendant. Under the second, a life interest in half the estate was given to the first defendant while the bulk of his estate was bequeathed to the plaintiff. The suit out of which this appeal arises was instituted by the plaintiff to declare that the plaintiff and the first defendant are entitled to a life interest in two equal shares over the suit properties with a remainder over to the plaintiff and his sons, to call upon the first defendant to render a full account of the entire estate left by the testator and in exclusive possession of the first defendant and pass a general administration decree against him. These declarations are asked for on the basis of the second will which dealt with the suit properties as the self-acquired properties of Varadaraja Aiyar. The plaintiff has also an alternative claim. He stated that if the will is not valid, he may be given his half share of the properties free from encumbrances and with mesne profits. The first defendant attacked the validity of the second will. He stated that the will is not valid, that the properties are joint family properties and not his self-acquisitions, that Varadaraja Aiyar had no right to make the will, that he is not liable to render accounts, that he has spent large sums on litigation and that he has no objection to a partition. The second defendant is the mother of the first defendant. She is a legatee under the will. The third defendant is the daughter of the first defendant. She is also a legatee, and defendants 4 and 6 are tenants in possession.

(2.) The main question for decision is whether the second will is valid, and this in its turn depends on the question whether the plaint properties are the self-acquisitions of the deceased Varadaraja Aiyar or are to be treated as joint family properties over which he had no disposing power. The case of the first defendant-appellant is that all the properties standing in the name of Varadaraja Aiyar were acquired by him with a nucleus of family funds, that his "earnings were freely thrown in the common stock and they all became by mingling with other joint family funds part and parcel of the joint family properties"; or in other words, that the suit properties were acquired by a blending of his own earnings and the amount which he got as ancestral property. The case of the plaintiff is that the properties are the self-acquisitions of Varadaraja Aiyar and that no portion which he got from his family was utilised by him in acquiring them. The question is which view is the right one.

(3.) The learned Subordinate Judge on a careful consideration of the circumstances came to the conclusion that it cannot be said that the properties acquired by Varadaraja Aiyar are joint family properties, that though there was a nucleus of ancestral property it was not proved that the properties which he acquired can be traced to the nucleus and that there is nothing in the evidence to show that Varadaraja Aiyar blended his private earnings with the ancestral property which came into his possession. In the circumstances he held that the suit properties were the self-acquired properties of Varadaraja Aiyar and on that basis gave the plaintiff the main declaration asked for by him. It is not necessary for the purposes of this appeal to refer in detail to the various other subsidiary reliefs as the findings on them were not seriously attacked before us. We may also state that the first defendant challenged the will on the ground that it was obtained by fraud and undue influence exercised by the plaintiff on Varadaraja Aiyar, but the Subordinate Judge held that this plea was not made out and it has not been pressed before us in appeal. Another plea raised by the first defendant, that the streedhanam funds of his mother were also used in the acquisition of the properties, was negatived by the Subordinate Judge as there was not any evidence to support the allegation that she had any streedhanam funds, and this also has not been pressed before us.