S NAGARATHINAM Vs. S BALAKATHIRESAN

JUDGEMENT

(1.) THANGAMANI, J. The appellant is the plaintiff in the trial court. Defendants 1 and 2 are his brothers. They are the sons of one Sankiah Pillai and Chithirathammal. While the third defendant is the wife of the first defendant, the fourth defendant is the wife of the second defendant. Door No. 2 in Ramu Pillai Lane, South Veli Street, Madurai , described as item 1 in ' 'A' ' schedule appended to the written statement of the first defendant originally belonged to the mother of Sankiah Pillai. On the death of his mother Sankiah Pillai became exclusively entitled to this house as his separate property. He was also assigned an extent of. 5 cents in Maruthur village. Sankiah Pillai bequeathed these two items in favour of the appellant by his Will Ex. A-1, dated 26. 10. 1966. The appellant claims that on the death of Sankiah Pillai on 29. 121973, he became the exclusive owner of these properties. By the same Will Sankiah Pillai purported to bequeath ' 'A' ' schedule buildings and ' 'B' ' schedule lands and ' 'C' ' schedule nanja land described in the plaint. The appellant instituted O. S. No. 213 of 1979 on the file of learned Subordinate Judge of Madurai for partition and separate possession of his 1/3 share in the abovesaid A, B and C schedule items and the items specified in Schedules D, E, F, G and H in the plaint. His claim was on the basis that A and B schedules are the family ancestral properties. The ' 'C' 'schedule property originally belonged to Chithirathammal, the wife of Sankiah pillai. And on her death on 14. 3. 1978 it devolved on the appellant and defendants 1 and 2 who are her heirs. Plaint D and E schedule are house property and vacant site in Survey No. 44/5 of Thirumalai Nagar Colony. Plaint ' 'F' 'schedule items are vessels while ' 'G' 'schedule are furniture, garments and other articles. Plaint ' 'H' 'schedule are jewels. Alleging that Sankiah Pillai had no right to dispose of plaint A, B and C schedule properties under Ex. A-1 Will, the appellant ignored the provisions of the Will regarding these items and claimed his 1/3 share therein. However, he did not include Door No. 2. Ramu Pillai lane and the 5 cents plot referred to above and described as items 1 and 4 respectively in ' 'A' 'schedule to the written statement of the first defendant. He omitted to include them in any of the plaint schedules.

(2.) DEFENDANTS 1 to 4 contended that plaint D and E schedules are the separate properties of defendants 3 and 4 respectively. All the items described in F, G and H schedules are not available. Out of items 1 to 44 specified in ' 'F schedule, only 18 items are in existence. Of the silver articles, item 45 alone is available, and items 46 and 47 are not at all in existence. In ' 'G' ' schedule, items 1 to 3,13, 14 and 15 are not in existence. The other items are available only in door No. 50, one of the family houses where the appellant himself is residing. In ' 'H' 'schedule jewels items 1 to 11 are not in existence. Items 12 to 15 weigh only 33 1/2 sovereigns. The first defendant has paid Court Fees and prayed for the allotment of his share and the share of his brothers.

(3.) IN Mani Mani and others v. Mani Joshua, (1970)1 S. C. R. 71, it has been laid down that under sec. 180 of the INdian Succession Act, if a legatee has been given any benefit under a Will and his own property has also been disposed of by that very will, the legatee must elect either to confirm such disposition or to dissent from it, and in the latter case, he must relinquish all his claims under the Will if he chooses to retain his own property. The presumption being that a testator intends to dispose of only his own property, general words will not usually be construed so as to include a particular property over which he has no disposing power, unless, such an intention appears on the face of the Will either by express words or by necessary implication. IN Bhau Ram v. Baij Nath Singh, (1962)1 S. C. R. 358: (1962)1 S. C. A. 368: A. I. R. 1961 S. C. 1327, the Apex Court has pointed out that a person who takes a benefit under an order de hors the claim on merits cannot repudiate that part of the order which is detrimental to him because the order is to take effect in its entirety. The existence of a choice between two rights is one. of the conditions necessary for the applicability of the doctrine of approbate and reprobate. While so, it is evident that there is no merit in the contention of the appellant. 7-A Learned counsel for the appellant also submitted that even in this appeal he is entitled to make an election affirming the Will in entirety and claiming share on the basis of the Will as a whole. This is not possible since election once made is irrevocable. Moreover in this case, the plaintiff having made an election and filed the suit has put the defendants to unnecessary inconvenience and made them suffer expenditure. Hence he cannot be permitted to make a fresh election now.