Judgement

T. L. VENKATARAMA AIYAR, J. : The point for determination in these two appeals is whether one Kesavan Kaimal who was one of three executants of a will dated February 10, 1906 became entitled under that will to the properties, which are the subject-matter of these appeals.

2. The will is a short one, and is as follows :

"Will executed on 28th Makaram 1081 M.E., corresponding to 10th February, 1906 jointly by Kunhan Kaimal, son of Karayamvattath Kathayakkal Kunhu Kutti Amma, Kesavan Kaimal, son of Theyi Amma and Theyi Amma, daughter of Nani Amma of Etathiruthi amsom and Etamuttan desom in Ponnani taluk. We have hereby settled and agreed that all the movable and immovable properties acquired jointly and separately by us till now, and those which we may be so acquiring in future and those which have devolved on us and those which we may yet be obtaining shall be held by us in our possession and under our control dealt with by us as we please till our death and that subsequent to our death, Kalliani Amma s children, Kali and Kunhu Kutty, Thona Amma s children, Parukutty, Kunhunni, Kochu Govindan and Ramar, and the children of the deceased Narayani Amma, namely, Kunhunniri, Kuttiparu and Lakshmikutty and their children and the children who may be born to them as also the children who may be born of them, shall as our heirs and legal representatives, hold the said properties in their possession and enjoy them hereditarily in equal shares amongst themselves.

2. Except after our death, the aforesaid persons shall not lay claim to any of the properties belonging to us.

3. It is settled that in the event of our effecting any transfers or alienation of the said properties, either jointly or severally till our death, the aforesaid persons shall have the right and freedom only in respect of the remaining items of properties to the exclusion of those items of properties included in the above transactions.

4. It is hereby further settled and agreed that subsequent to our death, save our legal representatives aforesaid and such of those as may be born hereafter, no other persons shall have the right to claim to or right of entry upon the entire properties movable and immovable found belonging to us.

And we have signed herein in the presence of the undersigned witnesses-

(signed) Kunhan Kaimal.

( " ) Kesavan Kaimal.

( " ) Theyi Amma."

3. Of the three testators, Theyi Amma died first - the exact date of her death does not appear and is not very material - and Kunhan Kaimal died thereafter sometime in 1930. It is the case of Kesavan Kaimal that in the events which had happened, he had become entitled by survivorship to all the properties disposed of by the will, including those of Kunhan Kaimal, and on this footing he conveyed on October 14, 1938 seven items of properties, of which three belonged to Kunhan Kaimal, to one Sankarankutti Kaimal and on October 16, 1944, another three items of properties which belonged to Kunhan Kaimal, to Kalyani and Vijayan. These transfers led to the two litigation, which have culminated in the present appeals.

4. The legatees under the will dated February 10, 1906, instituted O. S. No. 131 of 1945 in the Court of the District Munsif, Chowghat, then in the Province of Madras, for recovery of possession of three items of properties which had belonged to Kunhan Kaimal, after redeeming a mortgage for Rs. 100 created over those properties on February 3, 1901. The plaintiff claimed that on the death of Kunhan Kaimal in 1930 they had become entitled to those properties as legatees under the will. Defendants 1 to 3 represented the mortgagees. Defendant 6 was Kesavan Kaimal, and defendants 4 and 5 were brought on record as persons claiming to be entitled to the suit properties under a deed of transfer by defendant 6, dated October 16, 1944. Defendants 4 to 6 contested the suit, and pleaded that on a proper construction of the will, the properties of Kunhan Kaimal survived to Kesavan Kaimal on the death of the former in 19