IMPORTANT POINTS
While acting as second appellate court, High Court cannot consider a case not set up by plaintiffs. It cannot exercise the jurisdiction without framing any substantial question of law. It cannot apply a provision on its own without any pleading.
No case can be decided by applying subsequent provision if it is not made retrospective.
When an heir becomes absolute owner by virtue of Will, he/she would be entitled to alienate such property by ay mode to anyone.

JUDGMENT

Abhay Manohar Sapre, J.

Leave granted.

2. This appeal is filed by the legal representative of the original defendant against the final judgment and order dated 26.07.2012 passed by the High Court of Judicature at Madras in S.A. No. 873 of 2003 whereby the High Court allowed the appeal filed by the respondents (plaintiffs) herein in part and set aside the judgment and decree passed by the Trial Court in respect of ‘A’ Schedule properties and modified the judgment and decree to the effect that each respondent(plaintiff) was held entitled to 1/3rd share in respect of ‘A’ Schedule property except Item No.2 of ‘A’ Schedule and for consequential relief regarding mesne profits in respect of 2/3rd share of the respondents(plaintiffs) in ‘A’ Schedule property and accordingly confirmed the judgment and decree passed by the Trial Court in respect of ‘B’ Schedule property.

3. We herein set out the facts, in detail, to appreciate the issues involved in this appeal.

4. The dispute in this appeal is between the heirs of one Perumal Naidu, who was the original ancestor in the family. The legal heirs of Perumal Naidu represent three branches of the family.

5. The questions, which arise for consideration in this appeal, are what is the extent of share of each heir of Perumal Naidu in his properties; secondly, how the devolution of each heir’s share would take place; and thirdly, on the death of any heir, how his/her share would devolve on his/her legal representative in law. These are broadly the issues which arise in this appeal.

6. In order to properly answer the aforementioned questions, which lie in a narrow compass and based on more or less undisputed facts, it is necessary to set out the family genealogy tree.

   Genealogical Tree

7. As would be clear from the family tree, the original ancestor of the family was one male Hindu - Perumal Naidu. He owned extensive immovable properties situated in Thenkarai Esanur, Thiruvaikur Vattam, Nagapattinam Taluk in State of Tamil Nadu. The details of the properties held by Perumal Naidu are set out in the plaint and would hereafter be referred to as “suit properties”.

8. Perumal had three wives-Subbammal, Lakshmi Ammal and Pappu Ammal. Out of the first marriage with Subbammal, one daughter was born - Muthammal. Out of the wedlock of Muthammal, two daughters-Andal Ammal and Vijayalakshmi were born. Vijayalakshmi, however, died during her minority. Out of the wedlock of Andal Ammal, one son-Seetharama Naidu (plaintiff No.1) and a daughter- Sagunthala (plaintiff No. 2) were born.

9. Out of Perumal Naidu’s second marriage with Lakshmi Ammal, two daughters were born-Alamelu Ammal and Ramanujatha Ammal (defendant). Both did not have any issue. Alamelu Ammal died in 1987 whereas Ramanujatha Ammal died in 2004. So far as Perumal Naidu’s 3rd wife-Pappu Ammal is concerned, she died issueless.

10. On 27.12.1923, Perumal Naidu executed a Will and bequeathed his immovable and movable properties including the suit properties to his heirs such as, his 3rd wife, two daughters from second wife, his granddaughters from first wife and his son-in-law. The Will specified the extent of properties bequeathed to each heir named above. Soon after the execution of the Will, Perumal Naidu died in the 1924.

11. The execution of the Will by Perumal Naidu gave rise to litigation amongst his heirs. One suit being Civil Suit No.13/1924 was fi