Validity of alienation of property by first legatee.

Defendants 2 and 3 who have failed in both the Courts are the appellants in this Second Appeal, which raises the question of the true interpretation and construction of a will, Exhibit A-3, left behind by one Mariammal, who died in November, 1954. She left behind her, her husband, Anthonimuthu, a son Madalamuthu Thevar, the plaintiff in the suit, a daughter, Annammal the first defendant and Jabamalai Mariammal, the second defendant, being the widow of a predeceased son. She first created a will, Exhibit A-2, dated 30th November, 1950, under which she bequeathed a house and vacant site of an extent of ten cents T. S. 230 in Coimbatore Municipal Town to her husband, Anthonimuthu, to be taken by him with all powers of alienation and Under this will it was also provided that after the death of her husband, Anthonimuthu, the southern half in the ten cents of vacant land and the house aforesaid was to betaken by the plaintiff, Madalaimuthu with absolute powers of alienation, while the northern half, was to be taken by her daughter, Annammal the first defendant, and her daughter-in-law, Jabamalai Mariammal, second defendant, in equal halves similarly with absolute powers of alienation. Mariammal revoked and cancelled Exhibit A-2 and executed a second will, Exhibit A-3 with which we are now concerned on 25th April, 1951. Under this will, she bequeathed properties to her husband Anthonimuthu to be taken by him with all powers of alienation and . In striking contrast to the provision in the earlier will, Exhibit A-2, this will provided that on the death of Anthonimuthu the entire property as one block, the ten cents of land and the house, was to be taken by the son of the testatrix, Madalaimuthu with all powers of alienation and . At the same time, it provided that Madalaimuthu, the plaintiff should pay a sum of Rs. 300, to the daughter, Annammal, the first defendant and also pay another sum of Rs. 300, to the daughter-in-law JabamalaiMariammal, and that if Madalaimuthu, defaulted to make such payment, the aforesaid two ladies would be entitled to recover the sum from him by resort to Court proceedings. There is the further provision that the two ladies aforesaid have no right whatsoever over the properties and that even if they made any claim, it would be invalid.

The testatrix died on 14th November, 1954, and her husband, Anthonimuthu became entitled to the properties under the terms of the will. Anthonimuthu executed a settlement deed Exhibit A-4 dated 19th May, 1955, under which he gave the southern half of this property to the plaintiff and the northern half in two equal shares to the first and the second defendants. Anthonimuthu died on 1st May, 1956. Under Exhibit B-1 dated nth December, 1957, the second defendant sold to the third defendant her half-share in the northern half which was followed up by a partition Exhibit B-3 dated 11th June, 1958, between the first and the third defendants with regard to the northern half. The plaintiff filed the suit to recover possession of northern half of T. S. 230, the site and the house, on the ground that under the later will Exhibit A-3, what was bequeathed to Anthonimuthu was only a life estate, and that on his death, the plaintiff became entitled to the entire property including the northern half, the subject-matter in dispute, and in the possession of defendants 1 and 3. The Courts below have decreed the suit accepting the plaintiff’s construction of the will. Hence the present Second Appeal.

At this stage it may be mentioned that after the death of the testatrix, Mariammal, the parties proceeded on the footing that Anthonimuthu was entitled to an absolute estate under the will, Exhibit A-3. The deed of settlement, Exhibit A-4, under which the southern half was settled upon the plaintiff proceeds on that footing. The sale deed Exhibit B-l and the partition Exhibit B-3 also proceeded on that footing. The payment of property tax, etc., by all the parties concerned shows that the