T K PIRMANAYAGAM PILLAY Vs. ARUMUGHAM PILLAY

JUDGEMENT

(1.) The facts of these second appeals are somewhat complicated but a reference to the main features is all that is necessary for deciding them. The plaint properties originally belonged to a certain Issakiadumperumal Pillai, who died in 1862. The plaintiffs alleged that he had made a nuncupative will granting life-estate in his properties to his widow Piramuthu Animal and a remainder over in favour of his five daughters, of whom Nallavadivammal was one and Subbammal another. Sometime after his death his widow left a registered will, Ex. A, dated 1870, in which she purported to give effect to the wishes of her husband by giving an absolute title to the five daughters in respect of the properties. The nuncupative will has been found to be not true, and it has been held that. Nallavadivammal obtained only a limited estate in the properties which enured for the lifetime of the sisters. These findings have not been attacked before me and the argument proceeded on the assumption that these are binding on the parties. Subsequent to the death of Piramuthu the five daughters including Nallavadivammal and Subbammal effected a partition as evidenced by Ex. B, dated 3 June 1879, whereby each of them purported to take absolutely for her share certain properties, giving up her interest in the properties allotted to others and excluding the right of succession by survivorship in case one of them predeceased the others. It will be a question for consideration as to whether the right of succession by survivorship of any one of the daughters as regards the property of the others has been really excluded by this document. On 30 March 1910 Nallavadivammal made a settlement of the properties which she acquired under Ex. B. in favour of her son, defendant 1, and of his sons, i.e., her grandsons who are plaintiffs in this suit. As defendant 1 was of a week and imbecile intellect, she appointed her daughter-in-law (the mother of the plaintiffs) and defendant 2 (their sister's husband) to manage the properties. Sometime later, i.e., on 2 April, 1912, defendant 1 professing that the suit properties belonged to him, alienated them to defendant 2 by Ex. 6. Impugning the validity of this sale-deed the plaintiffs instituted a suit, out of which these two second appeals have arisen, for the recovery of their two thirds share in the properties together with past and future profits. The High Court on a previous occasion held that the plaintiffs suit being one for partial partition, was not maintainable inasmuch as they had asked only for a two-thirds portion of the alienated properties. They were then allowed to amend the plaint and make a claim for two-third share in all the properties settled upon them. This has been done now.

(2.) It may be stated here on 23 January 1921, even before the High Court actually remanded the suit for fresh trial, Subbammal, the last surviving daughter of Piramuthu, had died and in consonance with this new state of affairs, the plea was raised that the plaintiffs, at the time this amended plaint was filed, were on account of Subbammal's death not entitled to the actual possession of the property. On the fresh pleadings, the District Munsif held that the plaintiffs were not entitled to get possession of the suit property as they had lost their title to it by the death of Subbammal, on account of which fact the property became vested in the reversioners; but they were given a decree against defendant 2 for mesne profits before suit and for subsequent mesne profits from the date of the plaint till 23 January 1921 when Subbammal died. Against this decree, two appeals were filed, one by the plaintiffs and the other by defendant 2. In the former the plaintiffs contended that their claim for possession can be resisted only by a reversioner and not by defendant 2, who, in the eye of the law, must be deemed to be a trespasser. In the latter appeal, defendant 2 as the appellant challenged the decree awarding mesne profits to the plaintiffs. The learned Subordinate Judge in the judgment now under appeal allowed the claim made by the plaintiffs for possession of two- thirds share of the suit properties and dismissed defendant 2's appeal regarding mesne profits. The Subordinate Judge held that, subsequent to the death of Subbammal, so long as the reversioners to the estate did not question the settlement deed, defendant 2, who is in the position of a trespasser, cannot by any means resist the claim of the plaintiffs. The plaintiffs have thus won their case on all the points urged by them.

(3.) The two second appeals, which I have now to decide, have been filed by defendant 2, one against the judgment and decree giving possession of the properties to the plaintiffs (that is S. A. 815 of 1925) and the other against the judgment and decree dismissing his appeal (that is S. A. 960 of 1925.) In S. A. 815 of 1925 Mr. Venkatasubramaniam has in a very careful argument strongly urged two contentions. The first is that the partition deed Ex. B does not put an end to survivorship as the daughters of Nallavadivu, at the time when they entered into the arrangement, thought that they had absolute estate in the properties which they were dealing with. It is argued that according to the trend of decisions, unless it is shown that the daughters were conscious of the rights of survivorship possessed by them and that they intended to give up such rights, no act on their part putting an end to the survivorship amongst themselves can be effective. This argument, if accepted, would show that there was no property over which Nallavadivu had a right of disposition and the plaintiffs suit will have then to be dismissed in its entirety. The second argument is that assuming that survivorship was put an end to by the partition deed, still according to the decision in Srinivasa Chariar v. Raghava Chariar A.I.R. 1924 Mad. 676 confirmed in L. P. A. No. 10 of 1924, Nallavadivu cannot confer any title under Ex. 0 to the plaintiffs as against defendant 2 even though he is not a reversioner. If this argument is accepted then the Munsif's judgment declining to give possession but awarding mesne profits will have to be restored.