Madras High Court
Krishna Iyer Represented By His ... vs Swaminatha Iyer And Ors. on 22 February, 1918
Equivalent citations: 47IND. CAS.723
JUDGMENT
1. The facts of the case areas follows:--One Kuppuswami Aiyar was the last male owner of the properties in suit and of other properties. He made a Will under which his mother, his widow and his natural brother were the legatees. Original Suit No. 27 of 1901 was brought by the widow Minachi against her mother-in-law Seshiammal and against her husband's natural brother Srinivasa Iyer disputing the genuineness of the Will. The suit ended in a compromise Exhibit D. Thus the widow's claims were settled. Thereupon two persons claiming themselves to be the nearest reversioners of Kuppuswami Aiyar sued in Original Suit No. 32 of 1902 the widow, the mother and the natural brother for a declaration that the Will was not genuine. This suit also ended in a compromise, Exhibit F. The present suit is by one of the two plaintiffs in Original Suit No. 32 of 1902 for a declaration that he is solely entitled to the property secured under the compromise. It may be mentioned that the the other plaintiff in Original Suit No. 32 of 1902 predeceased Seshiammal. Seshiammal died a few months before the present suit. Plaintiff's case is that as of the two plaintiffs who got the compromise decree, he alone was alive when Seshiammal died, the heirs of the other plaintiff are not entitled to any rights. The compromise provided for the property being taken possession of on the death of Seshiammal. We are unable to agree with the appellant that the two plaintiffs did not take a vested interest in the property. The widow of the last male holder having been bought off by the mother by the compromise of the previous litigation," she was virtually the full owner of the property of Kuppuswami, with the exception of some of the properties given to his natural brother. It was competent to Seshiammal to have alienated the property in any way she liked. Consequently the compromise which secured to the then plaintiffs rights dependent upon the death of Seshiammal, was a vested interest. See Section 19 of the Transfer of Property Act and Rewun Persad v. Musammat Radha Reeby 4 M.I.A. 137 : 7 W.R. P.C. 35 : 1 Suth. P.C.J. 172 : 1 Sar. P.C.J. 327 : 18 E.R. 651 and Bhagabati Barmanya v. Kali Charan Singh 10 Ind. Cas. 641 : 38 C. 468 : 21 M.L.J. 387 : 15 C.W.N. 393 : 9 M.L.T. 411 : 13 C.L.J. 434 : 8 A.L.J. 433 : 13 Bom. L.R. 375 : (1911) 2 M.W.N. 295 : 38 I.A. 54 (P.C.). This vested interest under the Indian law does not pass by survivorship, but is heritable and divisible between the two donees. We do not think they can be said to have sued or obtained the properties as reversioners because they were not reversioners to Seshiammal. In this view, the Subordinate Judge was right in holding that plaintiff is not the sole owner.
2. But he was wrong in refusing to give a decree for partition. We must reverse the decree of the Subordinate Judge and direct him to give a decree to plaintiff for one-half of the suit properties including in those words also the properties for which the suit properties may have been exchanged.
3. Plaintiff is entitled to mesne profits at the rate admitted in Exhibit IIIB. Future mesne profits from the date of Exhibit IIIB up to delivery will also be provided for. Appellant must pay the respondent's costs in this Court. Costs in the lower Court will be provided for in the revised decree.