Judgment

GROVER, J.: This is an appeal by special leave from a judgment of the Kerala High Court by which the suit instituted by the respondent for recovery of properties described in Schedule A of the plaint and for mesne profit s etc. was decreed in reversal of the decree of the trial Court, dismissing the suit.

2. Uthupu Mani who died in the year 1943 had three sons. The eldest son Uduppu died sometimes between 1929 and 1935. The second son Joshua is the respondent herein, the appellants being the third son Mani Mani and Mariamma their mother and the widow of Uthupu. Uthupu left some daughters also and appellant No. 3 Mani Achamma is one of the daughters. The controversy in the suit out of which the appeal as arisen was confined to a residential house in an area of 10 cents in Kottayam town. This property along with several other properties originally belonged to Uthupu who made certain settlements followed by wills. The first settlement was made in the year 1102 ME corresponding to 1927 AD when Uduppu was alive and Mani Mani was not born. On October 9, 1935 by means of another registered document (Exh. A) called Udampady, Uthupu settled properties thus: Those comprised in A Schedule were given to Mariamma, in B Schedule to Joshua and in C Schedule to Mani. The Schedules contained the following properties:-

"To Mariamma (A Schedule)

Building constructed as Hall and the Cart-shed on 2 cents.

To Joshua (B Schedule)

Storied building and 30 cents garden land.

To Mani Mani (C Schedule)

Four rooms facing West and 36 cents of garden land."

It appears and it has been so found that mutations were effected of the properties so settled in favour of the donees. Later on Uthupu executed a will which he put in an envelope and deposited it in the office of the District Registrar, Kottayam in January 1943. He executed a second will in April 1943 and kept it in custody of the District Registrar. He executed a third will (Exh. 3) on May 31, 1943 which was his last will and testament. In this will he made a mention of the two settlements and the two previous wills and declared that the last will would be final and operative. His other declarations and statements in the will (Exh. 3) will be presently considered as the entire controversy in the present litigation centres on a correct assessment and appraisal of their true scope and effect. It may be mentioned that by this will he left five items of properties to Joshua. These items included the properties in C Schedule which had been given to Mani by the settlement of 1935 and the cart-shed on two cents of land contained in Schedule A which had been given to Mariamma by that settlement. There was no specific mention in the will (Exh. 3) to the B Schedule properties which had been settled on Joshua in 1935.

3. In 1955 Joshua filed a suit laying claim to the B Schedule properties settled on him in the year 1935. His case was founded principally on the allegation that B Schedule properties which had been settled on him in 1935 vested in him by virtue of the settlement and he was the owner thereof and that the five items of properties which were left by the will (Exh. 3) were quite independent of and separate from the aforesaid B Schedule properties. In other words he asserted that he had a right under the will to get the five items bequeathed to him therein in addition to the B Schedule properties which had been settled on him in the year 1935 and which could not form the subject-matter of any bequest by Uthupu by reason of the said settlement. The position taken up on behalf of Mariamma, Mani etc. - the defendants-was that the plaintiff had accepted the benefit under the will by taking the five items of properties bequeathed to him thereby which included the properties originally allotted under the settlement of 1935 to Mariamma and Mani. He had thus exercised his right of election to take the properties under the will and was precluded from asserting any right to properties given to him under the settl