Ramaswami, J. - (1.) This appeal is brought by certificate from the judgment of the High Court of Kerala in A. S. No. 848 of 1962 dated March 27, 1963 reversing the decree of the Principal Subordinate Judge, Trivandrum in O. S. No. 182 of 1957 dated May 23, 1960.
(2.) The father of the plaintiffs who are appellants herein was a Hindu Nadar, namely Raman Nadar. He had an elder brother named Krishnan Nadar. On May 9, 1946, the said Krishnan Nadar and Raman Nadar jointly executed a deed of will Ex. P-2 in respect of the assets of Krishnan Nadar. On the date of the will, Raman Nadar had only three daughters and no sons. Krishnan Nadar died on December 5,1947. After the death of Krishnan Nadar the appellant's mother was married to Raman Nadar who is the father of the appellants. It is specifically provided in the will Ex. P-2 that in the event of Raman Nadar begetting a son or sons in future, those male issues will succeed to the assets of Krishnan Nadar to the exclusion of the daughters. The material portion of the will, Ex. P-2, reads as follows: "Deed of will executed by Krishnan, aged 51, Nadar, son of Kaliyambi, merchant, Makkavazhi, Kuzhiamvilakathu Veettil, Melkaladi, Airanimuttam, Pakuthy, Nellamn Adhikaram and his brother Raman, son of the said Kaliyambi of do., aged 39 merchant, on 26th Madam, 1111 M. E. with their own consultation and to their entire satisfaction. Some properties have been acquired in the name of the 1st named and in the name of the 2nd named out of love and affection towards him and his children, with the self-acquired money of the 1st named and without the income of the Tarwad properties of the 1st named and without the help of the other members of the Tarwad or the 2nd named. They are held by the 1st named in his possession and enjoyed by him till this date. The 1st named has, till the end of his life, absolute, freedom, authority and right to alienate (the properties) in whatever manner he likes and to execute deeds. The first named is unmarried and the second named has married Parvathy alias Snehappoo daughter of Sarah, Maraikkamuttath Veettil, Vazhuthoor Desom, Neyyatinkara Taluk, through whom he has three daughters Ammukutty, aged 14, Chellamma, aged 10 and Rajammal, aged 5 but no son. As the first named felt himself desirous of making during him life provision for the devolution after his life of the movable and immovable properties belonging to him in absolute rights as aforesaid, the following provisions regarding them are made:The first named till the end of his life will have the right to pay the land revenue to enjoy and dispose in any manner whatsoever all the movable and immovable properties that belong or may belong to himself. After the life of the first named, all the properties above said will be taken and enjoyed by the second named maintaining his children named above and those born to him later and without alienating or wasting the properties. After the life of the second named, if he leaves behind no sons, the three daughters named above and the daughters, if any, born hereafter may enjoy all the movable and immovable properties that may be found to belong to the first named and the second named, either in common or in equal shares, effecting mutation, taking pattahs and paying the revenue in their own names, but without making any alienation thereof. If there be sons born to the second named, they will take after the life of the second named all the movable and immovable properties of the first named and the 2nd named and enjoy them for ever, effecting mutation, taking pattahs and paying revenue, and with all powers of disposal; and in that event, the daughters of the 2nd named will not have and should not claim any right any they will not get any right."
(3.) Soon after the death of Krishnan Nadar defendants 3and 4 and the mother of the 5th defendant as plaintiffs filed O. S. No. 37 of 1124 M. E. for the administration of the estate of the deceased Krishnan Nadar. The mother of the appellants was made one of the defendants in that suit and the allegation was that Raman Nadar had contracted an illicit relationship with her and that he had executed a gift deed Ex. D-1 in her favour in respect of some of the plaint items. O. s. No. 37 of 1124 was dismissed on the ground that the plaintiffs of that suit had lost their rights under the will on the birth of a son to Raman Nadar through his second wife on February 7, 1951 during the pendency of the suit. The plaintiffs in O.S. No. 37 of 1124 filed A.S. No. 98 of 1955 against the aforesaid decree and that was disposed of by a Division Bench of the Kerala High Court on February 2, 1957, The High Court observed as follows: "We do not consider it proper to decide this question (of the legitimacy of the son born to the first defendant in his second marriage) in this suit. This can be gone into in a suit, if any, instituted by or on behalf of the son. The 1st defendant had no right to revoke the will after Krishnan Nadar's death. ....The plaintiffs do not and cannot get the right to possession of the properties until after the 1st defendant's death....but a right to maintenance from the income of the properties has been provided for the plaintiffs by Ex. A (the will) and this they are entitled to get. The 1st defendant is not entitled to do any act which affects this right of the plaintiffs." The High Court remanded the suit for fresh disposal to the Additional Subordinate Judge, Trivandrum. After the suit went back on remand the Additional Subordinate Judge. Trivandrum, held that the plaintiffs were not entitled to any relief and dismissed the suit. The daughters of defendant No. 1 preferred an appeal, A. S. No. 340 of 1959 to the High Court.;