H VENKATACHALA IYENGAR Vs. B N THIMMAJAMMA

JUDGEMENT

(1.) This appeal arises from a suit brought by the appellant in the Court of the Subordinate Judge, Mysore, as the sole executor of the will alleged to have been executed by one Lakshmamma on 22nd August 1945, (Ex. A). In this suit the appellant claimed a declaration that the said Lakshmamma was the owner of the properties mentioned in the schedule attached to the plaint and as such was entitled to dispose of them by a will; and he asked for consequential reliefs purporting to give effect to the bequests made by the said will. The schedule attached to the plaint describes the properties covered by the will under five items. First three items in the schedule refer respectively to 5, 4 and 4 agricultural lands at Hampapura village, whereas the fourth item includes 9 lands at Arjunahalli village and the last item is a vacant site in Hampapura village. According to the plaint, under the will respondent 1 was entitled only to a life interest in items 1 and 2 and that on her death the said items would vest in respondents 2 to 4 and respondent 5 respectively. Since respondent 1 was in possession of all the five items, the appellant claimed a decree for possession against respondent 1 in respect of items 3, 4 and 5 and a declaration that respondent 1 was to have only a life interest in items 1 and 2. By his plaint the appellant also claimed to recover Rs. 2,100 which had been collected by respondent 1 by way of income from the suit lands and a further prayer was made for the payment of current mesne profits by respondent 1.

(2.) Before referring to the pleadings of the parties it would be relevant to mention the material facts in regard to their relationship which are not in dispute. One Annaji Iyengar who died in July 1903 left behind him is adopted son, the appellant, and two daughters Gundamma alias Ranganayakamma who is still alive and Lakshmamma alias Achamma who is alleged to have executed the will in suit and died thereafter on 26th September 1945, at Mandya. Respondents 2 to 4 are the sons of the appellant. Lakshmamma was married to Sadagopalachar who died in December 1908. The couple had three children, a son named Narayana Iyengar who died on 14th January 1944, without any issue and left behind him his widow respondent 1; and the two remaining children of Lakshmamma were daughters Thirumalamma and Yadugiramma. Both of them are dead. Thirumalamma was married to one G. Parthasarathy Iyengar by whom she had a son of weak intellect, who died pending litigation, and three daughters Neelu, Jaya and Padmini. Yadugiramma was married to Kalbagal Garudachar and by him she had a son Narasimha Iyengar, respondent 5, and daughter Lilly. Kalbagal Garudachar had a son S. G. Kalbagal (hereinafter described as Junior Kalbagal) from his first wife. Jaya was married to Kalbagal Junior. The claim made by the appellant under the will is resisted by respondent 1. Respondents 2 to 5 have not appeared in the proceedings.

(3.) According to the case set out by the appellant in his plaint Annaji Iyengar had made a gift of properties, items 1 an 2, in favour jointly of Lakshmamma and Sadagopalachar under a registered deed of gift on 16th February 1902 (Ex. D). It was also alleged that the said Annaji Iyengar had executed a will on 31st August 1901, (Ex. B2(a)) under which he had bequeathed in favour of Lakshmamma and Sadagopalachar hypothecation bonds to the extent of Rs.10,320 as gift with the express stipulation that the survivor of the legatees should take the whole of the bequest by survivorship. The appellant alleged that Sadagopalachar was a man of very moderate means and had given up his petty job in the registration department in order to manage the properties received by him and his wife from Annaji Iyengar. During the course of the management Sadagopalachar used the cash of rupees 10,320 received by bequest under the will of Annaji Iyengar to buy some immoveable properties including items 3 and 4. Since Sadagopalachar pre-deceased his wife Lakshmamma, all his rights in the properties acquired under the gift deed as well as those subsequently purchased devolved on Lakshmamma alone by survivorship. That is how she became the absolute owner of the said properties. Alternatively it was alleged by the appellant that even if survivorship did not apply and so her son Narayana Iyengar acquired interest to half the share in the properties covered by the gift deed, he had during his lifetime sold away considerable properties of his father and mother much above the value of his half share and in consequence the remaining properties which represent Lakshmamma's half share became her absolute properties. On this alternative ground the absolute title of Lakshmamma with regard to all the properties in suit was set up. The appellant thus claimed that Lakshmamma was entitled to make a will and asked for a declaration in that behalf and consequential reliefs so as to give effect to the terms and dispositions of the will. According to the appellant the will propounded by him was the last testament of Lakshmamma and it had been executed by her voluntarily and of her own free will while she was in a sound and disposing state of mind.