PAPPAMMAL Vs. ALAMELU AMMAL

JUDGEMENT

(1.) This appeal is against the decree of the learned Chief Justice in S. A. No. 196 of 1925. The suit was one for partition and mesne profits. The findings of fact are that the property originally belonged to defendant 1's father and on his death his widow succeeded. She demised it under Ex. I to defendant 1 and her husband. The widow is said to have died in 1911. Subsequently to this, defendant 1's husband married a second wife, the plaintiff. He died in 1917. The co-widows, defendant 1 and the plaintiff, lived together till 1921, when defendant 1 turned the plaintiff out of the enjoyment of the suit property claiming the whole as the reversioner to her father. The trial Court and the lower appellate Court both held that defendant 1 had acquiesced in the position that her husband was a co-owner of the property and therefore was now estopped from interfering with the passing of his share to the plaintiff. On the ground that this concurrent finding of fact concluded the case, the learned Chief Justice held that there was in second appeal no question of law and ho dismissed the second appeal. Defendant 1 put in the present appeal.

(2.) Now, prima facie, the legal position of defendant 1's husband on the facts stated above is that he succeeded to the half-share of the widow's limited estate during her lifetime and that his ownership therefore came to an end on the death of the widow, on which event the reversioner to defendant 1's father would step into the inheritance. Less than 12 years have elapsed before the suit since the death of the widow and defendant 1 is undoubtedly the nearest reversioner. It would seem to follow that defendant 1's title to her father's property is incontrovertible, and, since she has not been defeated by adverse possession, she is entitled to possession, and to defeat the plaintiff's claim.

(3.) The plaintiff, however, founds her case on the contentions that the settlement deed, Ex.. I, conferred on her husband an absolute estate, and that since its date,. 1889, her husband was, up to his death,, enjoying his share absolutely. But clearly the donor under Ex. I, could not confer more than she possessed, and even if she-purported to confer an absolute estate she-could not do so as she herself was merely holding a widow's estate in the property. The plaintiff therefore cannot rely or Ex. I as giving her husband an absolute estate.