Judgment

SHARMA J.:- This appeal by special leave is directed against the decree passed by the High Court in favour of the plaintiff respondents in a suit for partition.

2. The property in suit belonged to Smt. Rathinammal, who after executing a registered will died in 1942. According to the terms of the will her two sons Natesan, defendant No. 1, and Subramanian, plaintiffs witness No. 2 (PW-2), were to remain in possession of the properties without any power of alienation and had to pay the taxes and conduct regularly certain religious festivals, and thereafter their sons were to manage the properties on similar terms. The will further provides that after their attaining majority the great grandsons, i.e., the sons sonssons of the testatrix will get the properties as absolute owners.

3. Subramanian, the younger son of the testatrix, who has been in the present suit examined as the second witness on behalf of the plaintiffs, has one son Arunachalam, defendant No. 15. The three plaintiffs, Ramesh, Ganesh and Sivalingam are the sons of the defendant No. 15. The defendant No. 1 got four sons and ten sons sons. The main dispute in the suit is about the share which the plaintiffs are entitled to under the terms of the will. They claim, that they being the only grandsons of Subramanian have half share in the properties, the remaining half going to the grandsons of the defendant No. 1, namely, defendants Nos. 5 to 14. On behalf of the defendants it is pleaded that the suit properties have to be divided amongst all the 13 great grandsons of the testatrix in equal shares. The defendants also contended that the suit was fit to be dismissed as the defendant No. I and the defendant No. 15 had finally partitioned the properties in 1975, and no question of a further partition arises. The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity.

4. The trial Court rejected the plea based on the rule against perpetuity. Having regard to the interest of the defendant No. 1, his brother Subramanian and Arunachalam, defendant No. 15, the court held that the alleged partition of 1975 was illegal and not binding on the plaintiffs. So far the shares of the plaintiffs and the defendants 5 to 14 are concerned, agreeing with the defence case, the court held that the parties would take the properties as per capita. However, the suit was dismissed on the ground that the plaintiffs were still minor.

5. Or, appeal by the plaintiffs, the High court confirmed the finding of the trial Court that the 1975 partition. was illegal. On the question of the shares of the parties, the High Court agreed with the plaintiffs and held that the division would take place as per stirpes. Taking into account the fact that during the pendency of the appeal two of the plaintiffs had attained majority, the High Court passed a decree in their favour for one-sixth share each. So far the third plaintiff is concerned. the High Court declared his right without passing a decree for partition. The defendants are challenging the decision of the High Court by the present civil appeal.

6. The learned counsel for the appellants has contended that as per the terms of the will the great grandsons of the testatrix have inherited the suit properties as per capita and the conclusion of the High Court on this aspect is illegal. The English version of the operative portion of the will has been quoted in paragraph 7 of the judgment of the trial Court and is not challenged by either party before us. After mentioning the rights and the duties of her sons the testatrix has stated the position of her grandsons and great grandsons thus:-

"They (that is, sonssons) have also to pay the taxes and out of their income conduct the aforesaid festivals regularly. Then their male issues after attaining majority have to take possession of the said properties in equal shares and enjoy them with all powers of alienation."

It has been