The intent of the testatrix in a Will overrides applicable succession laws, affirming immediate vesting of property despite delayed possession, allowing Class II heirs rights to inheritance.

JUDGMENT :

N.SATHISH KUMAR, J.

Challenging the judgment and decree of the trial Court passing a preliminary decree and directing division of property into four equal shares and allotment of each one such share to the plaintiff and third defendant, the appellants/defendants 1 and 2 are before this Court.

2. The parties are referred to by their respective ranks in the trial Court.

3. The brief facts of the case is as follows:

The suit properties originally owned by one Vachala Ammal, who is the first wife of Govindhan, namely the father of the parties to the suit. Through the first wife Vachala Ammal, Govindhan had four sons viz., Chandrasekaran, Anandhan, Murali and Krishnamoorthy and one daughter by name Vijaya. Said Vachala Ammal left a registered Will dated 21.03.1965 bequeathing suit 'A' schedule property absolutely to the four sons born to her and it is also indicated in the Will that till last son attains majority, the property shall be maintained by her husband Govindhan and after the last son attains majority, the father has to release the property in favour of four sons. In the same Will, bequeath has also been made in favour of her only daughter in respect of suit 'B' schedule property. The plaintiff is the son of Govindhan, born through his second wife. It is the case of the plaintiff that two of the sons born to Vachala Ammal viz., Anandhan and Krishnamoorthy were died on 29.05.1973 and 07.08.1979 respectively as bachelors. Therefore, their father being Class II legal heir was the only person succeeded their share in the property as according to the plaintiff, his father Govindhan become entitled to half share in the suit 'A' schedule property on the death of Anandhan and Krishnamoorthy as bachelors. Said Govindhan had executed a settlement deed on 26.06.2015 bequeathing 1/4^th share in favour of the plaintiff and another 1/4^th share in favour of the third defendant and they became absolute owners of the property. Therefore, the plaintiff filed the above suit seeking partition of suit 'A' schedule property.

4. It is the contention of the first defendant in the written statement that the suit property was acquired by their mother Vachala Ammal and she had executed a Will dated 21.03.1965. In the said Will it is clearly stated that the children born to the second wife should not get any right in the property. Therefore, their father executing the settlement deed in favour of the plaintiff and third defendant is against the intention of the testatrix. Hence, they disputed the allotment of shares to the plaintiff.

5. The second defendant filed a written statement stating that suit is not maintainable for non-joinder of necessary parties. Two of the sons born to testatrix viz., Anandhan and Krishnamoorthy died on 29.05.1973 and 07.08.1979 respectively. According to the second defendant, there is a specific clause in the Will to the effect that no property should be given to the children born to the second wife of said Govindhan and therefore, Govindhan has no legal right to execute the settlement deed in favour of his sons born through the second wife.

6. The third defendant had, in fact, supported the case of the plaintiff.

7. Based on the above pleadings, the trial Court framed the following issues and Additional Issues:

Issues:

i) Whether the plaintiff is entitled to the relief of ¼ share in the suit property as prayed for?

ii) To what other relief?

Additional Issues

i) Whether the settlement deed alleged to be executed by Govindhan in favour of plaintiff and 3^rd defendant dated

26.06.2015 is valid?

ii) Whether the Govindhan has got any right under the Will executed by 1^st wife?

iii) To what