JUDGMENT: Should the 1928 will of the testator who died in the year 1929 be construed in the light of the provisions of the Hindu Succession Act, 1956 and whether the testator intended that the ultimate bequest should go to the heirs of his son both male and female are the questions to be decided here.

2. One Subramania Pillai executed a Will Ex.A-2 dated 22.05.1928. The recitals of the Will will be extracted later. Broadly the intention of the testator appears to have been to protect the properties from being dissipated by his son Manickam who according to the testator was weak and liable to be taken advantage of by others. Therefore, he gave his son a life interest in the property without powers of alienation with the absolute interest to be taken by the heirs of his son. There are other clauses which deal with what should happen if the son Manickam died issueless. On 1.7.1963 under Ex.A-4 Manickam executed a settlement deed in respect of the properties bequeathed under the Will in favour of various persons. Manickam had two wives.

3. In 1976, Ex.A-5 notice was issued by the 1st respondent, one of Manickam’s daughters to her father and the children born to Manickam out of the two wives. There was no reply. No action was taken thereafter by the respondent. On 8.4.1983, Manickam died. On 5.8.1983, another notice Ex.A-6 was sent and thereafter O.S. No.271 if 1984 was filed on 26.4.1984, for partition by the respondents who are the daughters against the other children of Manickam. According to the respondents, the will Ex.A-2 does not indicate that female heirs should be excluded and since the bequest to Manickam’s heirs would come into effect only on his death i.e., 1983, his heirs will have to be determined according to the Hindu Succession Act. The settlement deed executed by the father Manickam who had no right of alienation would not bind them and therefore they were entitled to partition of the suit properties. The appellants who are the defendants, of course denied the claim made by the respondents. According to them, the properties had vested with the male issues of Manickam and therefore there was no property available for partition. In any event, the respondents knew about the 1963 settlement deed as evidenced by the notice Ex.A-5 and the suit filed beyond the period of limitation is not maintainable. According to them, the recitals of the will clearly excluded female heirs.

4. The trial Court was inclined to construe the Will as including the female heirs and also held that the settlement deed was of no legal effect. The suit was decreed. So, the four sons of Manickam and their mother Ambalammal who is the second wife of Manickam have filed the appeal. The first wife Nallammal and the children were arrayed as defendants. But it is clear that the contest is really between the respondents 1 to 3 who are plaintiffs and the appellants.

5. C.M.P. Nos.11640 and 11641 of 1992 were filed to receive the additional written statement and additional evidence which would show that items 5, 19 and 20 are not liable for partition since they are also Pappammal’s property have not been purchased subsequent to the death of the testator. No counter has been filed to these applications. These applications were ordered.

6. Mr.M.Velusamy, learned counsel appearing for the appellants would submit that the suit was barred by time. The respondents knew about the Ex.A-4 settlement deed, had issued Ex.A-5 notice thirteen years thereafter. They chose to file the suit only in 1984. It was submitted that out of the suit items, item 2 must be excluded since it is a trust property; items 24 to 29 were purchased by the wife of the testator subsequent to his death in 1929 and therefore they have to be excluded from partition. The documents are registered sale deeds and certified copy of the Athatchi.

7. From the additional evidence, it is seen that item 19 is purchased in the name of Pappammal in the year 1932, item 21 has been purchased on 25.6.1935 in

Click Here to Read the rest of this document