K.S. Ramamurthi, J. - (1.) The plaintiffs have instituted this proceeding for the construction of the will of the late Narayana Guruviah Chetty, dated 12th October, 1915, marked as Exhibit P -1, by which amongst other things the testator had created certain religious and charitable endowments, and the point on which the decision of this Court is sought relates to the question whether house and ground bearing Municipal door No. 133, Audiappa Naicken Street (more fully described in the schedule appended to the plaint) still forms part of the trust estate as being covered by the terms of the will.
(2.) Late Narayana Guruviah Chetty amassed large properties as his self -acquisitions by his own exertions and the trade that he was carrying on. His wife was one Narayana Ethirajamma and they had no issues. Guruviah Chetty had adopted a son who predeceased the adoptive father, leaving a widow. The will left behind by Guruviah Chetty was a detailed and an elaborate one prepared under the instructions and with the assistance of a lawyer and contains 95 paragraphs. Under this will the testator made several bequests and legacies in favour of his near relatives and substantial portions of the properties have been endowed for religious and charitable trusts. Guruviah Chetty died on 28th October, 1915, i.e., about a fortnight after the execution of the will aforesaid. Under the will the testator had appointed the following eight persons, including his wife as trustees to his estate and also to act as executors to get probate of the will and carry out the directions contained in the will : (1) Wife, Narayana Ethirajamma; (2) Prathy Kanniah Chetty; (3) Pabbichetty Bashyakarloo Chetty; (4) Pabbichetty Venkatramiah Chetty; (5) Vemulapatti Rangiah; (6) Vutukuri Narayana Chetty; (7) Pabbichetty Basaviah Chetty and (8) Pabbichetty, Ramanujam Chetty. The widow, Narayana Ethirajamma died on 25th July, 1964 leaving behind her a will under which she had bequeathed her properties including House No. 133 Audiappa Naicken Street to the second defendant, her sister's son. Of the eight trustees appointed under the will of the testator, all are dead except the first defendant, P. Ramanujam Chetty. In the vacancies caused by the death of the other trustees the plaintiffs and the second defendant have been chosen and appointed as trustees for administering the trusts. The point which is in controversy turning upon the true construction of the will, Exhibit P -1, with particular reference to the conduct of the testator even during his lifetime and the uniform course of conduct and actings of the trustees for about fifty years past is plaintiffs, is that as per the provisions of the will the widow Ethirajamma is only entitled to a right of residence in the house Nowhether this property, door No. 133, Audiappa Naicken Street, is trust property or whether this property has been excluded from the will and is the separate property of the widow, Narayana Ethirajamma and therefore validly conveyed to the second defendant under her will. The contention of the present trustees, the . 133, Audiappa Naicken Street, and that on her death trustees are entitled to take possession of the same for and on behalf of the trusts. The contention of the second defendant, in which he is fully supported by the first defendant (the only surviving trustee out of the board of trustees appointed by he testator), is that the disputed property has been excluded from the operation of the will, that even during the testator's lifetime he had gifted this property to his wife, Ethirajamma, and had also handed over to her all the title deeds relating thereto as part and parcel of the transaction of gift, that throughout, all the trustees and executors have acted (during this unbroken period of fifty years) on the footing that the property is excluded from the operation of the will, and that the same has been gifted by the testator to his wife even during his lifetime, and that the widow Narayana Ethirajamma obtained possession of the property and has been in enjoyment in her own right for about 50 years de hors the will, and that in any event she had perfected her title to the property by adverse possession for over the statutory period. The first defendant has filed a written statement completely supporting this case of the second defendant.
(3.) Application No. 1341 of 1965 has been filed by the second defendant for filing a supplemental written statement. The plaintiffs have also filed their objections as to why the supplemental written statement should not be received. The points that are raised in the additional written statement are all obvious points and well within the knowledge of the plaintiffs. In one sense it is an elaboration of the stand taken up by the second defendant in the written statement already filed by him. The questions of law that are raised in the supplemental written statement are questions which arise out of facts which are not in dispute and about which there can be no doubt or controversy and I am satisfied that this is a case in which the additional Written statement should be received.;