- (1.)ONE Doraiswami Mudaliar married Balamani Anni in 1921. On 14-4-1921, he executed a registered settlement deed gifting items 1 and 2 of the suit properties to her absolutely but with a restraint on her powers of alienation only during his lifetime. A short while before his death in 1940 he had purchased items 3 and 4 and a suit for recovery of possession of these items was pending when he died. Even prior to this purchase he had executed a Will in 1938, bequeathing certain properties to some charities of which he had constituted the first defendant, who is the appellant, as the manager. In the suit relating to items 3 and 4 the first defendant applied to the court to be brought on record as the legal representative. The first plaintiff in the suit who is a son of a divided brother the Doraiswami, made a similar application. The latter was rejected and the first defendant was brought on record as the legal representative. The first plaintiff set up title claiming rights under another Will of Doraiswami which he propounded, but that was found against in certain other proceedings. Balamani died in 1956. Claiming that succession to the estate of Doraiswami opened on the occurrence of her death, the plaintiffs, the sons and daughter of a divided brother of Doraiswami, brought the suit. They attacked the charity and the trust said to have been created by the Will of Doraiswami as illusory. They also claimed that items 3 and 4 continued to be enjoyed by Balamani who also dealt with those items of properties by way of mortgage and lease. With regard to items 1 and 2 Balamani was claimed to the absolute owner. It appears that in the Will of the year 1938, doraiswami had purported to deal with items 1 and 2 as well. The plaintiffs alleged that such a devise in respect of these items could not be effective as Balamani was the absolute owner of these properties and they were not properties of the testator which he could validly dispose of. The plaintiffs accordingly sought a declaration of their title to items 1 to 4. Possession was not however, asked for, as defendants 2 and 3 were entitled to be in possession as cultivating tenants.
(2.)IN addition to this relief, certain jewels belonging to Balamani had been entrusted with a friend of the family, one Ramaswami Padayachi. This person is said to have deposited them in the Tanjore Permanent Bank. The legal representatives of Ramaswami Padayachi were impleaded as well as the Bank for the recovery of these jewels.
(3.)THE first defendant who is the contesting defendant and whose pleas have been rejected both by the trial and the lower appellate Courts, alleged that the settlement executed in 1921 by Doraswami in favour of Balamani was ineffective as Balamani was on that date a minor and incapable of making or accepting a contract. It was also alleged that Doraiswami was dealing with the properties as his own, and in fact, he made a disposition of these items of properties items 1 and 2 as well under his Will, thereunder he granted Balamani the right of enjoyment till her lifetime. The properties were thereafter to pass to the first defendant. It was also claimed by the first defendant. It was also claimed by the first defendant that items 3 and 4 were also covered by the Will, if being the intention of Doraswami that all of these properties should comprise the estate set apart for charity. It was further alleged that the first defendant had been in possession of the properties all along and that Balamani was not in exclusive possession as claimed. With regard to the jewels, the first defendant again asserted that the jewels were gifted to him by Balamani and that for that reason he alone is entitled to the jewels.