Dhanalakshmi Ammal and Another vs The Official Trustee of Madras and Others

Ismail, J.—This suit for partition relates to 12 items of immovable properties described in Schedule ''B'' to the plaint and the relationship

between the parties to the litigation appears from the following genealogical tree:

(table missing page no. 118)

Cota Varadappa Naidu was the daughter''s son of Cota Ethirajulu Naidu but was adopted by Cota Ethirajulu Naidu. Admittedly all the 12 items

of the suit properties originally belonged to Cota Ethirajulu Naidu and he dealt with these and other properties belonging to him by a series of

seven documents, dated September 25. 1907, December 23, 1912, September 16. 1914. September 17, 1914, August 19. 1916, August 29.

1916 and September 6, 1916. After the last of the seven documents. Cota Ethirajulu Naidu died in 1917. Items 1, 2, 3, 7 and 11 of the suit

properties were dealt with by Cota Ethirajulu Naidu under the settlement deed, dated September 25, 1907. Under that document, Cota Ethirajulu

Naidu reserved a life estate to himself in all the properties mentioned in the Schedule which included these 5 items and on his death, his adopted

son Cota Varadappa Naidu, subject to the payment of Rs. 50 per mensem to Ramanujammal, wife of Ethirajulu Naidu, and Rs. 5 per mensem to

Kuppammal, widow of Ramanjalu Naidu, deceased uncle of Ethirajulu Naidu, was to take a life interest to the extent of three-fourth share in the

properties and the remainder of the said three-fourth share was to go to his grandsons Kothandaramaswamy Naidu and Bashyakarluu absolutely.

With regard to the remaining one-fourth, the deed provided that on the death of the settlor, it should be taken by Gajapathi Ramaswamy Naidu,

the natural brother of Cota Varadappa Naidu, that is, the daughter''s son of Cota Ethirajulu Naidu and Komalammal, his wife, jointly for life and on

the death of either of them, the survivor was to take the whole for life, that on the death of the survivor, (he said estate should pass to Varadappa

Naidu for life, if he survived, and the remainder absolutely to Kothandaramaswamy Naidu and Bashyakarlu Naidu and if Varadappa Naidu did not

survive, the one-fourth should pass absolutely to Kothandaramaswamy Naidu and Bashyakarlu. By a release deed, dated June 1, 1935,

Gajapathy Ramaswamy Naidu and Komalammal relinquished their rights under the settlement deed, dated September 25, 1907, as also those

under another deed, dated September 25, 1916, in consideration of receiving a sum of Rs. 125 per mensem in full quit of their rights, with the

result the entire items 1, 2, 3, 7 and 11 were to belong absolutely to Kothandaramaswamy Naidu and Bashyakarlu Naidu, after the death of Cota

Varadappa Naidu. Out of these 5 items, item 11 was sought to be dealt with by a subsequent settlement deed, dated September 25, 1916. It was

executed by Ethirajulu Naidu, Cota Varadappa Naidu, Gajapathy Ramaswamy Naidu and Komalammal daughter of Ethirajulu Naidu and the

settlors directed that out of the income from the property certain charities have to be conducted and certain allowances to be paid. The

superstructure on item 4 was settled under the settlement deed, dated September 17, 1914, on Ethirajulu Naidu for life and after his life-time on

Varadappa Naidu and afterwards on Kothandaramaswamy Naids absolutely. In Civil Suit No. 141 of 1927, on the file of this Court, it was held

that the said item 4 was allotted to Varadappa Naidu and Kothandaramaswamy Naidu in equal shares. The superstructures on items 5 and 6 were

dealt with by the settlement deed, dated December 23, 1912, and they were settled on Ethirajulu Naidu for life and after his life-time on

Varadappa Naidu and on the death of Varadappa Naidu, the properties were to go to Kothandaramaswamy Naidu absolutely. But the sites

continued to belong to Kothandaramaswamy Naidu and Varadappa Naidu. Item 8 was endowed for trust by a trust deed, dated August 19,

1916, and item 9 had been endowed for certain charities under the Will of Kothandaramaswamy Naidu, the common ancestor, that is, the father

of Cota Ethirajulu Naidu and this fact is recited in the settlement deed, dated September 16, 1914. Item 10 relates to lands in Shevapet near

Thiruvallur and they were endowed for certain charitable purposes under the trust deed, dated September 16, 1914. The superstructures oil item

12 were given away to the Plaintiffs 1 and 2 herein by a deed, dated September 6, 1916. However, prior to this, the very same superstructures

were settled by Ethirajulu Naidu on Kothandaramaswamy Naidu, the brother of the Plaintiffs under a settlement deed, dated September 17, 1914.

But the site belonged to Kothandaramaswamy Naidu and Varadappa Naidu.

There were some earlier litigations in respect of the properties belonging to the common ancestor and one of them which is relevant for the

purpose of this suit is Civil Suit No. 141 of 1927, to which I have already made a reference.

Before proceeding further, one or two other facts must be mentioned here. Bashyakarlu Naidu, the second son of Varadappa Naidu died in

1908 and Kothandaramaswamy Naidu, his elder brother had two wives, namely, the second and the third Defendants herein. The fourth

Defendant is the son of Kothandaramaswamy Naidu through the second Defendant while the fifth Defendant is the son of the said

Kothandaramaswamy Naidu through the third Defendant. Kothandaramaswamy Naidu died in 1946 and after his death, the third Defendant re-

married on September 8, 1949 and by virtue of the said re-marriage she forfeited all her rights to her husband''s property and consequently she

had no claim to the property and she had been impleaded here only as a formal Defendant. One year prior to the death of Kothandaramaswamy

Naidu in 1946, Cota Varadappa Naidu died in 1945 and his widow Kamalammal died on August 9, 1960. It appears that prior to 1950 the entire

properties were in the management of Mr. Brahmayya, an auditor. After the re-marriage of the third Defendant, the question of the guardianship of

Kothandaramaswamy Naidu''s minor son, the fifth Defendant herein arose. Kamalammal, widow of Varadappa Naidu, as the grandmother of the

minor children filed Original Suit No. 104 of 1950, on the file of this Court u/s 10 of the Guardians and Wards Act VIII of 1890. By an order,

dated August 25, 1950, this Court appointed the Official Trustee, Madras, as the property guardian of both the minor sons of

Kothandaramaswamy Naidu, namely, Defendants 4 and 5 herein and on December 1, 1950, Kamalammal was appointed as the guardian of the

person the fifth Defendant herein, while the second Defendant continued to be the guardian of the person or her son, namely, the fourth Defendant

herein. After the Official Trustee was appointed guardian of the property of Defendants 4 and 5 herein, all the properties which were in the

management of Mr. Brahmayya were handed over to the Official Trustee. Since the Official Trustee was appointed as the property guardian of

only the fourth and fifth Defendants herein, he filed Civil Suit No. 91 of 1952, on the file of this Court (Originating Summons) for obtaining

directions of this Court with reference to the actual shares the minors had in all the 12 items of properties which were handed over to him. In the

plaint presented by the Official Trustee, a copy of which has been marked as exhibit P-2, by consent of all the parties, the Official Trustee referred

to the dispositions of the properties of Ethirajulu Naidu by the several deeds referred to above and pointed out that in relation to items 1, 2, 3, 7

and 11 the question for consideration was whether Kothandaramaswamy Naidu and Bashyakarlu Naidu got a vested remainder or a contingent

remainder under the document, dated September 25, 1907 and if they took a vested remainder and the interest became vested at the time of the

deed itself, on the death of Bashyakarlu Naidu in 1908, his right would not lapse and would ensure for the benefit of his heirs and in this view on

the death of Varadappa Naidu in 1945, Kothandaramaswamy Naidu got a half share in the properties and the remaining half share went to the heir

of Bashyakarlu, namely, his mother Kamalammal, but Kamalammal''s right to the half share was questioned by the other claimants. Consequently

according to the Official Trustee, the question that had to be determined was what are the shares to which Kamalammal, widow of Cota

Varadappa Naidu, two minors, namely, Defendants 4 and 5 herein and the two widows, namely, Defendants 2 and 3 herein were entitled to in

respect of items 1, 2, 3, 7 and 11. The Official Trustee also pointed out the complication that arose as a result of the subsequent settlement deed,

dated September 25, 1916, in respect of item 11 and stated that if a vested remainder was created in favour of Kothandaramaswamy Naidu and

Bashyakarlu Naidu by the document of 1907, the question that had to be considered was to what extent the settlement deed, dated September

25, 1916, could be valid and acted upon. With regard to item 12, the Official Trustee referred to the disposition of the superstructures in favour of

the Plaintiffs herein by the settlement deed, dated September 6, 1916 and stated that one of the superstructures was not then in existence. He also

stated that since the entire site belonged to Kothandaramaswamy Naidu and Varadappa Naidu, the shares therein of Kamalammal, widow of

Varadappa Naidu and Defendants 2 to 5 herein will have to be determined. With regard to item 4, the Official Trustee pointed out that the

superstructure had been settled under the settlement deed, dated September 17, 1914, and as the site belonged to Varadappa Naidu and his son

Kothandaramaswamy Naidu in equal shares, on the death of Varadappa Naidu, his widow Kamalammal took an equal share along with her son

Kothandaramaswamy Naidu and on Kothandaramaswamy Naidu''s death, his half share went to his two minor sons and to his two widows and it

had to be decided what shares Kamalammal and Defendants 2 to 5 herein were entitled to. So also with regard to items 5 and 6, superstructures

having been dealt with by the settlement deed, dated December 23, 1912, the question as to what shares Kamalammal and Defendants 2 to 5

herein had in the site had to be determined. With regard to items 8, 9 and 10, the Official Trustee pointed out that they had been endowed for

charities. In the written statement filed by Kamalammal, a copy of which has been marked as exhibit P-3, by consent of all the parties, she claimed

that under the settlement deed, dated September 25, 1907, Bashyakarlu Naidu got vested remainder in the properties and on his leath in 1908, his

half share passed on to her and she became entitled to the same. Obviously the claim related to items 1, 2, 3, 7 and 11. She also contended that

her right to item 11 would not be affected by the subsequent settlement deed. With regard to items 4, 5 and 6, her case was that she was entitled

to a half share in the said items, as her husband died in 1945, after the coming into force of the Hindu Women''s Right to Property Act. She

conceded the right of the Plaintiffs herein to the superstructures on item 12 and claimed her share only in the site. She also put forward a claim that

she was entitled to an account of the income from the properties from 1945 up to that date and for payment of half of the same after adjusting the

payments already made to her and prayed that the Official Trustee may be directed to pay to her one half share of the net income. Further, with

regard to the endowed properties, she stated that the charities may be carried out as per the terms of the deeds, dated September 16, 1914, and

August 19, 1916. The second Defendant herein also filed a written statement, a copy of which has been marked as exhibit P-4, by consent of all

the parties, wherein she contended that with regard to items 1, 2, 3 7 and 11, the rights of Kamalammal would depend upon whether the

document, dated September 25, 1907, was a Will or a settlement and whether the gift to Bashyakarlu Naidu was a vested or a contingent

remainder. With regard to items 4, 5 and 6 her case was that Kamalammal would only be entitled to her husband''s half share in the sites during her

life-time. With regard to the superstructures on item 12, she contended that the Plaintiffs herein did not acquire any right in view of the earlier

settlement deed, dated September 17, 1914. She also contended that she was entitled to an account of the income from the properties, namely,

items 1, 2, 3, 7 and 11 and superstructures on items 4, 5, 6 and 12 and income attributable to lands on which the superstructures stood, from

1945 up to that date and to payment of her share of the same, after adjusting the payments already made to her and taking into account all

payments of excess, if any, made to the other parties. In the written statement filed by the Plaintiffs herein, a copy of which has been marked as

exhibit P-5 by consent of all the parties, they put forward a claim not only to the superstructures on item 12, but also the site itself. The entire

controversy was considered and disposed of by Panchapakesa Iyer, J., by his judgment and order, dated August 15, 1953, a copy of the

judgment having been marked by consent of all the parties as exhibit P-6 and a copy of the decretal order having been marked as exhibit P-7. The

learned Judge came to the conclusion that with regard to items 1, 2, 3 and 7, Kothandaramaswamy Naidu and Bashyakaralu Naidu obtained a

vested remainder and consequently on the death of Bashyakaralu Naidu, Kamalammal, his mother as his heir, became entitled to a half share in the

said items. It is necessary to extract the language of the learned Judge himself in view of the fact that certain arguments were advanced on the

same. The learned Judge stated:

I have no doubt, on perusing P-1 fully (settlement deed, dated September 25, 1907) that on a proper construction, it will only be a settlement

deed, as named by the settlor himself, and would never be a will, and that Kothandaramaswami and Bashyakaralu, got a vested interest under P-l

in a half share each, and not a mere contingent interest, as argued by Mr. Atchyuthan Nambiar. In that view it follows that Kamalammal the first

Defendant, the mother of Bashyakaralu, would be entitled to Bashyakaralu''s half share in these 4 items, as his heir for life and that Defendant 2

(the 2nd Defendant in this suit) and these two minors will be entitled to 1/6th share each, the one-sixth share of D-2 being only holdable for life, I

declare accordingly. With regard to item 11, the learned Judge came to the conclusion that since Ethirajulu Naidu had disposed of the said item

under the settlement deed, dated September 25, 1907, the subsequent settlement deed, dated August 29, 1916, would be of no legal effect.

Consequently, the learned Judge declared:

Defendants 1 and 2 (Kamalammal and the 2nd Defendant herein) and the two minors will take the same shares in item 11 also.

With regard to item 12, the learned Judge came to the conclusion that though the superstructures on the said item were settled in favour of the

Plaintiffs herein, under the settlement deed, dated September 6, 1916, Ethirajulu Naidu had earlier settled the very same superstructures on

Kothandaramaswamy under the settlement deed, dated September 17, 1914. However, Kothandaramaswamy did not exercise any right in

respect of the superstructures pursuant to the settlement deed, dated September 17, 1914, and on the other hand, the Plaintiffs took possession of

the superstructures pursuant to the settlement deed, dated September 6, 1916 and they had perfected their title by adverse possession and they

did not lose the right to the superstructures in view of the fact that one of them fell down in 1932. At the same time the learned Judge rejected the

claim of the Plaintiffs herein to the site of item 12 itself. With regard to this, the learned Judge''s conclusion was:

I hold that Defendants 5 and 6 (Plaintiffs herein) are not entitled to the sites in Nos. 5 and 6 Barnaby Road comprised in item 12 and that these

sites will devolve like the other sites on Defendants 1 and 2 (Kamalammal and the 2nd Defendant herein) and the two minors, in shares of one half,

one-sixth, one-sixth and one-sixth, Defendants 1 and 2''s share being only holdable by them for life, and devolving on the minors and their heirs

thereafter.

With regard to items 4, 5, 6, 9 and 10 the learned Judge pointed out that on the admission of all the parties the judgment and decree in Civil Suit

No. 141 of 1947, on the file of this Court had established the rights of Kothandaramaswamy and Varadappa to these sites and held:

It will follow from this that Kamalammal the first Defendant will be entitled to her husband''s half share in the sites for life and Defendant 2 and the

two minors to one-sixth share each in the half share of Kothandaramaswamy, Defendant 2''s one-sixth share being only for life, and it is declared

accordingly. The superstructures in items, 4, 5 and 6 will be taken in three equal shares by the second Defendant for life and by the two minors

absolutely.

The learned Judge also fixed the rent payable by the Plaintiffs herein for the site in item 12 as Rs. 5 per month. The learned Judge stated:

I do not want to leave this matter open for future litigation, as it is a minor matter and these girls, Defendants 5 and 6 (Plaintiffs herein) need not be

again harassed by suits and proceedings. The said rent of Rs. 5 per month for each of the sites will be paid by Defendants 5 and 6 with effect from

22nd February 1952, the date of the filing of the suit.

The present suit has been filed exclusively based on the rights declared by this Court in Civil Suit No. 91 of 1952. The claim of the Plaintiffs

herein is that the rights which Kamalammal acquired in items 1, 2, 3, 7 and 11 as the heir of Bashyakaralu and in the sites of items 4, 5, 6, 8, 9, 10

and 12 on the death of her husband Cota Varadappa Naidu in 1945, have become absolute estate u/s 14(1) of the Hindu Succession Act, 1956,

since Kamalammal died only on August 9, 1960, and consequently under the provisions of the said Hindu Succession Act, 1956, they are entitled

to one-third share each in the estate of Kamalammal. According to the Plaintiffs, the other one-third share in the said estate of Kamalammal will go

to Defendants 2, 4 and 5 herein. In relation to items 8, 9 and 10, the plaint proceeds on the basis that the superstructures alone were endowed for

charities. The actual prayer in the plaint is for partition and separate possession of the Plaintiff�s one-third share each in the said items and for

directing the 1st Defendant, the Official Trustee to render an account of his management from the date of his appointment in 1950 onwards till

delivery of possession to the parties to the suit and also for directing the 1st Defendant to pay the Plaintiffs their share of the said income. The plaint

also contains another prayer:

to declare that the superstructures on items 8, 9 and 10 are endowed to charities of which Plaintiffs and Defendants 2, 4 and 5 are entitled to the

following shares, namely, first and second Plaintiffs to one-third and Defendants 2, 4 and 5 to two-ninth each.

However, learned Counsel for all the parties agreed before me that it was not only the superstructures of items 8, 9 and 1.0 (There cannot be any

superstructure with regard to item 10 because it comprises only of lands) that were endowed for charities, but the entire items 8, 9 and 10 had

been endowed for charities. In view of this agreement between the parties, the learned Counsel for the Plaintiffs submitted before me that the

Plaintiffs do not claim for themselves any right in the management of the charities. Consequently it is unnecessary to consider further this prayer.

At the time when the plaint was presented, Defendants 4 and 5 were minors and they were represented by the Official Trustee, their property

guardian. The Official Trustee filed a written statement and therein he contended that the decision of this Court in Civil Suit No. 91 of 1952,

constituted res judicata and the Plaintiff�s cannot claim anything more than what that decision gave them. According to the Official Trustee,

under that decision Kamalammal got only a life interest in the suit properties and after the death of Kamalammal her share will pass to the minors as

absolute estate and the Plaintiffs can have no manner of right to the same and since Kamalammal who was alive after the passing of Act XXX of

1956, had not preferred any claim of absolute right in the said items during her life-time, the same cannot now be agitated by the Plaintiffs who can

trace their right only through her. It is on this contention the Official Trustee claimed that he was not accountable to the Plaintiffs, though he

admitted that he was in possession of all the 12 items of properties on behalf of the rightful sharers. The 2nd Defendant in her written statement

contended that the entire items 8, 9 and 10 were dedicated for charitable purposes and with regard to the other items, after the death of

Kamalammal, her share passed to the 2nd Defendant and Defendants 4 and 5 and the Plaintiffs have no right to the same and they cannot claim for

partition and separate possession of the same along with the amounts due for rents and profits. However, the 2nd Defendant stated that in the

event of the Plaintiffs being held entitled to a share as stated by them, her share also may be partitioned and possession given to her along with the

amounts found due on accounts taking. The 3rd Defendant in her written statement stated that she had been impleaded only as a pro forma

Defendant to the suit, she having re-married after the death of her husband and she adopted the written statement filed by the 1st Defendant on

behalf of her minor son, the 5th Defendant in the suit, and prayed that the Court will be pleased to protect and save the interests of the minor 5th

Defendant.

On these pleadings, the following issues were framed by this Court:

(1) Does the dedication of items 8, 9 and 10 for charitable purposes comprise the entire properties, namely, land and the superstructure or the

superstructure alone?

(2) Are the properties, items 8, 9 and 10, liable for division?

(3) Is the claim of the Plaintiffs barred by proceedings in Civil Suit No. 91 of 1952, High Court, Madras, and principles of res judicata?

(4) Are the Plaintiffs entitled to the superstructure of item 12 to the exclusion of Defendants 2, 4 and 5?

(5) Was the superstructure No. 5, Barnaby Road constructed by the Plaintiffs?

(6) Are the Plaintiffs entitled to partition of the B Schedule properties and if so to what share? What are the shares to which Defendants 2, 4 and 5

are entitled in the B Schedule properties?

(7) Is not the 1st Defendant in possession of the properties mentioned in the B Schedule on behalf of the Plaintiffs also?

(8) Is the 1st Defendant liable to render account to the Plaintiffs and if so, what is the amount payable by him to the Plaintiffs?

(9) To what reliefs are the parties entitled.

During the pendency of the suit, the 5th Defendant having been born on February 2, 1945, became a major and he was declared so by an order

of the learned Master, dated November 23, 1966 in Application No. 2689 of 1966 and the Official Trustee was discharged from the guardianship

of the 5th Defendant by an order, dated November 23, 1966, in Application No. 2690 of 1966. Pursuant to these orders, the 5th Defendant, if he

was so advised, had to file a written statement on or before March 11, 1967, but he did not file the same within the time. Thereafter, he filed an

Application No. 1016 of 1967, to condone the delay in filing the written statement but that application was dismissed on July 7, 1967. The matter

was not pursued further. Consequently the only written statement of the 5th Defendant is that filed by the first Defendant on his behalf.

Similarly the 4th Defendant having been born on August 24, 1947, was declared a major by an order, dated November 14, 1968, in

Application No. 2390 of 1968 and the 1st Defendant was discharged from guardianship by the same order. In view of this, the 4th Defendant has

filed a separate written statement, dated November 20, 1968. In paragraph 12 of this written statement, his case is that after the death of

Kamalammal, the Plaintiffs have no right to a share and in the event of this Court holding that Kamalammal died possessed of an absolute share in

the property, the share had to be divided equally between him, 5th Defendant and the Plaintiffs into four equal shares. In paragraph 14 of the

written statement, he states that he is not bound by the judgment and decree in Civil Suit No. 141 of 1927 and Civil Suit No. 91 of 1952, in so far

as they affect his rights giving a right to the Plaintiffs to claim a share in the estate of the deceased Kamalammal.

In view of the agreement between the parties that the entire items 8, 9 and 10 were endowed for charitable purposes and are not available for

division and the submission of the learned Counsel for the Plaintiffs that in the management of those charities the Plaintiffs do not claim any right in

themselves, the first two issues can be easily disposed of on this basis and do not require any further consideration.

My finding on the other issues necessarily involves the question as to what extent the decision of this Court in Civil Suit No. 91 of 1952, is

conclusive on the rights of the parties and is binding on them. It is admitted that all the parties to this suit were parties to the Civil Suit No. 91 of

1952, Defendants 4 and 5 being represented by the Official trustee, their property guardian who figured as the Plaintiff. The Plaintiffs herein rest

their claim on the said decision and the first Defendant also in his written statement has contended that the said decision constituted res judicata.

Mr. R. Gopalaswami Iyengar, learned Counsel for the 5th Defendant, sought to contend that the decision in Civil Suit No. 91 of 1952, is not

binding on his client, since the Official Trustee as the property guardian of his client was guilty of negligence. However, he very soon realised that

no written statement on behalf of the 5th Defendant being on the file, he cannot put forward any such contention and, therefore, proceeded to

argue solely on the basis that the decision in Civil Suit No. 91 of 1952, declares the rights of the parties and is binding on all the parties and the

only question for consideration is, what is the nature and the extent of rights declared by the said decision.

Mr. K.G. Manickavasagam, learned Counsel who appears for the second and the fourth Defendants, contended that the decision in Civil Suit

No. 91 of 1952, cannot be res judicata so far as it related to the superstructures on item 12, the question regarding the same could not be said to

be in issue in Civil Suit No. 91 of 1952. On the face of it, this argument is untenable. I have already referred to the plaint in that suit and the plaint

expressly referred to this question of the ownership of the superstructure on item 12 and the judgment also clearly indicated that the question was

argued before the learned Judge and the decretal order also mentions that the Plaintiffs became entitled to the superstructures on item 12, but they

were not entitled to the site and they had to pay a rent of Rs. 5 each for the said site. Once Mr. K.G. Manickavasagam realised this position, he

did not press the point. Consequently the entire argument proceeded on the basis that the decision of this Court in Civil Suit No. 91 of 1952,

declared the rights of all the parties and it is binding on all the parties.

The principal argument with regard to the nature and the extent of the rights of Kamalammal, mother of the Plaintiffs, as declared by this Court

in Civil Suit No. 91 of 1952, was advanced by Mr. R. Gopalaswami Iyengar, learned Counsel for the 5th Defendant. It will be convenient to

consider his argument separately in relation to items 1, 2, 3, 7 and 11, since the right of Kamalammal in respect of those items was in her character

as the mother and heir of Bashyakarlu Naidu and in relation to the sites in items 4, 5, 6 and 12, since the right of Kamalammal in respect of those

items was in her character as the widow of Gota Varadappa Naidu, under the Central Act XVIII of 1937 (The Hindu Women''s Rights to

Property Act, 1937). The contention of Mr. Gopalaswami Iyengar, with regard to items 1, 2, 3, 7 and 11 is two-fold. The first is that under the

decision of this Court, Kamalammal obtained only a life interest in the half share of her son Bashyakarlu Naidu and the remainder was not dealt

with and consequently on the death of Kamalammal, the heirs of Bashyakarlu became entitled to the whole interest and Defendants 4 and 5 are the

heirs of Bashyakarlu as his brother''s sons. The second argument is that if the judgment in Civil Suit No. 91 of 1952, is said to declare a woman''s

estate in favour of Kamalammal with reference to the half share of Bashyakarlu, Section 14(2) of the Hindu Succession Act 1956, will apply and,

therefore, Kamalammal did not acquire an absolute estate so as to enable the Plaintiffs to succeed to the same.

As far as the first argument is concerned, I do not have the slightest hesitation in holding that the same is wholly untenable. This Court in Civil

Suit No. 91 of 1952, after having come to the conclusion that Bashyakarlu Naidu obtained a vested remainder under the settlement deed, dated

September 25, 1907, held that on the death of Bashyakarlu Naidu, Kamalammal as his mother and heir succeeded to the property. Certainly this

right of Kamalammal flowed from the Hindu Law and under that law, the mother acquired what is known in Hindu law as a woman''s estate or a

limited estate. Apart from this, the judgment itself, the relevant portion of which I have already extracted, does not use the expression life interest. It

is impossible to conclude that, even by implication, that judgment purported to recognise or create only a life interest in favour of Kamalammal. To

hold that this Court declared only a life interest in favour of Kamalammal is to do not only violence to the language of the judgment but also to

attribute ignorance of a basic legal position to this Court or an intention to cut down and qualify the right to which she was entitled under the law.

When this judgment used the expression, as his heir for life in this context, it merely meant that the mother had what is known in Hindu law as a

woman''s estate or a life estate or a limited estate, but did not intend to add to or subtract from the rights she acquired as heir of her son under the

Hindu law, which alone this Court applied. Consequently I reject (his contention of Mr. Gopalaswami Iyengar.

The second contention is also equally untenable. Section 14(1) of the Hindu Succession Act, 1956, having provided that:

Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner

thereof and not as a limited owner.

Sub-section (2) proceeded to provide for an exception thereto as:

Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree

or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribed a

restricted estate in such property.

In Santhanam v. Subramania ILR (1967) 1 Mad. 68, Veeraswami, J., had to consider an argument about the scope of Section 14(2) of the

Act. It was contended before the learned Judge that the declaratory decrees declaring or recognising the preexisting right of a Hindu woman would

not come within the scope of Section 14(2) of the Act and only those decrees which constitute the foundation of the source of title of a Hindu

woman would come within the scope of the said sub-section. After elaborately considering the scope of Section 14 of the Act and the decision of

several Courts thereon, the learned Judge stated at page 78:

Though on my understanding of the Sub-section (1) I am disposed to take the view that there is no justification to exclude from the scope of Sub-

section (2) decrees, which are but declaratory of preexisting rights, in view of the current of judicial opinion, out of deference thereto, I do not

propose to differ from it in the circumstances of this case, for, I think it will be unnecessary to do so on the view I take as to what precisely is

meant by a preexisting right in the context of this case.

In Gurunadham Chetty v. Navaneethamma (sic) 1 M.L.J. 454 Natesan J. observed:

For Sub-section (2) to apply, it is an essential condition that the instrument which limits or restricts the estate should itself be the source or

foundation of the female''s title in the property. If she has an existing right in the property, the interposition of an instrument will not affect the

operation of Sub-clause (1) on the property. If the instrument, be it decree or order or award, or deed of partition, merely declares the pre-

existing title of the Hindu woman 10 any particular property, Sub-section (2) would not take the property Out of the coverage of Sub-section (1).

Where a female Hindu takes property under an instrument of the kind specified in Sub-section (2) and not by virtue of any antecedent legal right or

title in the property, any restriction placed on the property would have its full effect.

In Swaminatha Pillai v. Kamalammal (Second Appeal No. 1358 of 1963 on the file of this Court) decided on March 12, 1968, I had to

consider a similar question. In that case there were three brothers, namely, Srinivasa Pillai, Natesa Pillai and Packiriya Pillai. Natesa Pillai died first

survived by his widow Baggiathammal and a son Swaminatha Pillai. In January or February 1940, Srinivasa Pillai died leaving behind his widow

Kamalammal and his daughter Veerammal. A few months thereafter Packiriya Pillai also died leaving behind his widow Kasiammal and her son

Thiruvenkatam Pillai. Thereafter the widow of Srinivasa Pillai instituted Original Suit No. 142 of 1940, on the file of the Court of the District Munsif

of Valangiman, impleading others as Defendants, for partition and separate possession of her one-third share of the properties in the joint family.

Obviously her claim was based on (Act XVIII of 1937}, the Hindu Women''s Rights to Property A 1937. A preliminary decree for partition in her

favour was passed on April 16, 1941. After the preliminary decree, the parties entered into a compromise and a final decree was passed en June

11, 1941, in terms of the said compromise. Under the terms of the compromise, in lieu of all the rights which the Plaintiff had in the joint family

properties, she was given a life estate in four items of agricultural lands. It is thereafter she instituted Original Suit No. 198 of 1961, on the file of

the Court of the District Munsif of Valangiman at Kumbakonam, for declaration that she has become absolutely entitled to those four items of

properties, under the Hindu Succession Act, 1956. One of the defences to the claim was that the compromise decree fell within the scope of

Section 14(2) of the Hindu Succession Act and under the terms of the said compromise decree, she was given only a life estate in the said four

items of properties. The Courts below held that the compromise decree did not fall within the scope of Section 14(2) of the Hindu Succession Act

and consequently the Plaintiff became entitled to an absolute estate in the said four items of properties and in this second appeal I affirmed that

conclusion. Dealing with the scope of Section 14(1) and (2) of the Hindu Succession Act, 1956, I pointed out:

It will be seen that Sub-section (1) read with the explanation thereto is of the widest amplitude and is consistent with its object to improve the legal

status of Hindu women enlarging their limited estate in property inherited or held by them to an absolute estate. Sub-section (2) at the same time

constitutes an exception carving out certain specified cases from the scope and the sweep of Sub-section (1).

After pointing out the observations of Veeraswami J., and Natesan, J., in the case referred to already, I observed, with reference to the facts of the

case before me:

It must be remembered that prior to this compromise entered into between the parties, there was a preliminary decree for partition of the family

properties declaring the one-third share of the Plaintiff therein. This compromise expressly states that the Plaintiff was given the life interest in the

four items of properties only in lieu of all the rights and interest of the Plaintiff in the family properties. A preliminary decree in a suit for partition

declaring the right and share of a party can never in itself constitute the source or foundation of title of that party. The very basis of the preliminary

decree is the recognition and the working out of a preexisting right of a party in the properties sought to be partitioned.

In Sampathkumari v. Lakshmi Ammal ILR (1962) Mad. 832, 854 one K.G. Muthuswami Chettiar died intestate on April 28, 1945, leaving

behind his two widows, Lakshmi Ammal and Balammal and two daughters through them. On June 5 1946, a partition was effected as between the

two widows. One of the contentions advanced was that this partition came Within the scope of Section 14(2) of the Act Venkataraman J., stated:

The document says that the first Defendant Lakshmiammal should get and enjoy the A Schedule properties (plaint C Schedule properties), and

cash of Rs 28,748.4.0; similarly Defendant 4 was to get and enjoy the B Schedule properties thereto (plaint D Schedule properties) and cash of

Rs. 28,014.10.0. It says that each was to pay the public taxes due on the lands allotted to each. The first Defendant is asked to do some charities

out of items 7 and 8 of the properties allotted to her. It then says that except ties of friendship there would be no other connection between the

parties. It concludes with the recital that after their lives, the properties mentioned in the two Schedules should go to the heirs at law. In support of

the contention that there is restriction of enjoyment, reliance is placed by the learned Advocate for the Plaintiff, only on this last mentioned clause.

But it merely states what would otherwise have happened, namely, that the property would go to the heirs according to law, namely, heirs of

Muthuswami Chettiar. It is to be noted that there is no clause whatever restricting the ordinary Hindu woman''s estate which the two widows

would'' normally have.

Secondly, we are also in agreement with the learned Subordinate Judge that it cannot be said that the widows acquired the right to the properties

only under the partition deed, for the simple reason that they had acquired the right even previously by inheritance as widows of their husband and

the partition merely divided the properties allotting some to the first Defendant and the rest to the fourth Defendant. The word acquired means that

prior to the acquisition, the widows could not have had any interest in the lands whatever.

In Udhav Shankar Gangawane and Others Vs. Tarabai and Others, , a Hindu father died in 1945, survived by his widow and two sons,

Govind and Shankar. Govind himself died a few days after him, leaving two widow Anasuya and Kamalabai and a daughter Tarabai. The widows

and daughter of Govind filed a suit for partition against Seethabai the mother of Govind and Shankar the brother of Govind. A decree was passed.

Seethabai was awarded in lieu of her one-third share postal cash certificate of the value of Rs. 10.000 for her enjoyment for her lifetime. After her

death, the corpus was to go to Shankar. her other son. Seethabai died in 1958. After her death. Shankar obtained a succession certificate in

respect of the postal cash certificates, but he was required to furnish security for safeguarding the share of Anusayabai and Tarabai, if any, in the

said amount. After the death of Shankar his heirs filed the present suit for declaration of their title contending that the share certificates were of the

exclusive ownership of Shankar after Seethabai''s death and after him of their ownership. The trial Court decreed the suit, but the District Court

modified the decree, holding that they had only a one-half share and the other one-half share belonged to Tarabai, daughter of Govind. The

argument advanced before the Bombay High Court was that under the terms of the decree Seethabai was to enjoy the income from the certificate

for her lifetime and after her death, the certificates shall belong to Shankar. Rejecting that contention, the Bombay High Court observed:

The word ''acquire'' having regard to the context must and can only mean acquisition for the first time under any of the instruments mentioned there

or under a decree. When the female has already by reason, of law or otherwise an interest in the property, then she does not '' acquire'' any

interest in it by reason of the instrument or the decree, and in that case the restriction imposed cannot be effective. In this connection it must be

remembered that ordinarily the word in a Statute must receive its ordinary meaning. But a word may have a wider or limited meaning by reason of

the context or its purpose. The Court has while construing a statutory provision to consider the language used, other relevant provisions, the

circumstances under which the statute was enacted and its purpose having regard to the intention of the Legislature in enacting Section 14 of the

Act which was to reform the Hindu Law and give full status to women, the word ''acquire'' must mean acquisition for the first time. The decree did

nothing but provide what was according to law her right If there had been no decree she would by reason of the Hindu Women''s Rights to

Property Act, 1937, have a one-third share as a Hindu widow and if would have ripened into an absolute estate. Does then the passing of a

consent decree in terms of the statute then in force alter the matter? In my view it cannot have that effect, because by the decree she did not

acquire the property but by it what was her own was defined.

Thus, it is clear both on the authority and on the language of Section 14(2) itself, that for an instrument or a decree or order or an award to fall u/s

14(2) of the Act, it must be the source of title of the female concerned under which for the first time the female acquires the property. A property

cannot be said to be acquired by her both under the provisions of law applicable to the case and under the instrument, decree or order or award.

If the right or title of the female to the property is anterior to the instrument, decree or order or award, it cannot be said that the female acquired

the right only under the instrument, decree or order or award. A property can be acquired only once and once it is acquired under the personal law

applicable to the parties, it cannot be said that she again acquired it under an instrument, decree or order or award, simply because that such

instrument, decree or order or award, works out or gives effect to the title or right which she had already acquired.

Under these circumstances, I am of the opinion that the argument of Mr. Gopalaswami Iyenger based upon Section 14(2) of the Act must fail.

It cannot be contended that the judgment in Civil Suit No. 91 of 1952, is the source of title of Kamalammal in respect of these items. On the death

of Bashyakarlu Naidu in. 1908, as his mother Kamaiammal. became his heir and by the law of inheritance she became entitled to the property.

What the judgment and decree in Civil Suit No. 91 of 1952, did is to affirm, define and declare that right and it cannot be contended that the

judgment and decree of this Court in Civil Suit No. 91 of 1952 is the source of title of Kamaiammal in respect of Bashyakarlu Naidu''s share in

these items of properties. It cannot also be argued the Kamaiammal for the first time acquired her right to Bashyakarlu Naidu''s half share in these

items only under the decree, sinces she had acquired the same, the very moment of the death of Bashyakarlu Naidu by the operation of the Hindu

law of inheritance. Otherwise it will lead to an absurdity that after the death of Bashyakarlu Naidu in 1908, his interest came to be vested in

somebody else and only by virtue of the judgment and decree in Civil Suit No. 91 of 1952, the person in whom that interest had vested afresh in

Kamaiammal. All that the judgment and decree did was to recognise her pre-existing right acquired under the Hindu Law of inheritance as an heir

to her son and declare the same.

Even with regard to the sites in items 4, 5, 6 and 12, the argument of Mr. Gopalaswami Iyengar is two-fold. His first argument is that under the

judgment and decree in Civil Suit No. 91 of 1952, Kamaiammal got only a life interest in these properties and the Ultimate destination of the

properties held to remain with Defendants 4 and 5 herein and this decision as to the ultimate destination of the properties will constitute res judicata

and therefore the Plaintiffs herein cannot have any right or interest in Kamalammal''s half share in these items. The second argument is that under

the provisions of the Hindu Women''s Rights to Property Act, 1937, the widow obtained only a right to claim partition and during her lifetime the

survivorship remained suspended and i! the widow died without demanding partition, the survivor ship revived and the property would go by way

of survivorship and nothing will remain to be inherited by the heirs of the widow; in this case Kamalammal died only in 1960 and she had a right to

demand partition even subsequent to the coming into force of the Hindu Succession Act, 1956, and as she did not demand partition of her

husband''s interest in the coparcenary property which she acquired under the provisions of the Central Act XVIII of 1937 (The Hindu Women''s

Rights to Property Act), on her death, the interest survived to Defendants 4 and 5 herein.

As far as the first argument is concerned, it is based on the expression used by his Court in its judgment in Civil Suit No. 91 of 1952 wherein,

with regard to the site of item 12, the learned Judge said that the sites would devolve like the other sites on Kamalammal and Defendants 2, 4 and

5 herein in shares of one-half, one-sixth, one-sixth and one-sixth, the shares of Kamalammal and the second Defendant herein being only holdable

by them for life and devolving on the minors and their heirs thereafter. With regard to items, 4, 5 and 6, the learned Judge merely stated that

Kamalammal would be entitled to her husband''s half share in the sites for life and Defendants 2, 4 and 5 herein to one-sixth share each in the half

share of Kothandaramaswami Naidu the 2nd Defendant''s one-sixth share being only for life. It will be noticed that in relation to the site in item 12

only the learned Judge used the expression in respect of Kamalammal''s interest as holdable for life and with regard to other items even such an

expression was not used. In my opinion, the use of such expression is wholly immaterial and it does not have the effect of creating only a life

interest or life estate in Kamalammal. The learned Judge was obviously considering the right of Kamalammal to her husband''s half share and that

right, whether it was taken under the original Hindu Law or under the provisions of the Hindu Women''s Rights to Property Act, 1937, was only a

limited estate known as a Hindu woman''s estate. The reasoning which I have given in regard to items 1, 2, 3, 7 and 11 for rejecting the similar

argument of the learned Counsel will equally apply to the argument with regard to these items as well. Consequently, I hold that with regard to

these items also, Kamalammal acquired only a woman''s estate as known to Hindu Law and not any other limited estate. The further argument of

the learned Counsel is that since the learned Judge has stated that the half share was holdable by Kamalammal for life and it would devolve on the

minors and their heirs thereafter, that would constitute resjudicata precluding the Plaintiffs herein from putting forward any right or claim to the half

share of Kamalammal. I am of the view that this argument of the learned Counsel is entirely misconceived. For the purpose of understanding what

constitutes res-judicata, we must bear in mind what exactly the scope of the controversy and the point for decision was in Civil Suit No. 91 of

1952. The Official Trustee was appointed as the property guardian of Defendants 4 and 5 herein and consequently for the purpose of exercising

his rights and discharging his obligations as such property guardian, be wanted to obtain the directions of this Court as to what exactly the shares of

the two minors were in the 12 items of properties, the entiretv of which was handed over to him. In paragraph 12 of exhibit P-2, he stated the

position as follows:

The administration of the properties in the Schedule and their income raise questions regarding the interpretation of the various trust deeds and their

binding nature and the shares to which the various persons interested are entitled in the properties and the income therefrom. The Plaintiff cannot

carry on the administration without appropriate directions of court in the matters abovementioned.

Therefore, the Court had to decide as to what was the share of the minors and the other parties in the 2 items of properties. The Court had also to

decide which of the parties were entitled to what shares in the said 12 items of properties which came into the possession of the Official Trustee. If

the Court came to the conclusion that any one of the parties before it was entitled to a particular share in the properties, it was not further required

and it was not necessary for the Court for the disposal of the matter before it, to decide as to what would happen to that property, on the death of

the party concerned. Consequently, what would constitute res judicata would be the decision of the Court in Civil Suit No. 91 of 1952, holding

that Kamalammal and Defendants 2, 4 and 5 herein were entitled to definite shares in the properties which were the subject matter of those

proceedings. It was not necessary for the Court to decide what would happen to Kamalammal''s share of the property on her death. When the

learned Judge observed that the share of Kamalammal was holdable for life and would devolve on the minors and their heirs thereafter, the learned

Judge merely indicated the future devolution according to Law then in force and it cannot be said that the learned Judge decided and that decision

was necessary for the disposal of the matter, that after the death of Kamalammal. Defendants 4 and 5 herein would succeed to the property. The

decision of the Supreme Court in Vaithilingam Pillai Charities v. Vijayavalli Achi (1966) 2 S.C.J. 259 supports this conclusion of mine. In that

case, one Vaithilingam adopted one Kalyanasundaram as his son. After the adoption, a deed of partition was entered into under which major

portion of the properties Vaithilingam had then was given away to Kalyanasundaram and about 100 acres were retained by Vaithilingam for the

maintenance of himself and his junior wife Kamakshi. After the death of Vaithilingam, Kalyanasundaram filed Original Suit No. 54 of 1904, against

Kamakshi claiming possession of the said 100 acres of land. Kamakshi''s defence was that she was entitled to be in possession of the entire 100

acres for her life, after the death of her husband. The Subordinate Judge of Kumbakonam in whose Court the suit had been filed held that

Kamakshi was entitled to retain for her life 50 acres out of the 100 acres of land in dispute and that the other 50 acres should go to

Kalyanasundaram on Vaithilinga''s death. In coming to this conclusion the learned Subordinate Judge had stated that Vaithilingam and Kamakshi

were in the position of tenants in common in respect of the said 100 acres and:

The share of Vaithilingam should go to his legal representatives after his death and that the share of the first Defendant (Kamakshi) should go after

her death to her representative.

This decision of the Subordinate Judge became final in view of the affirmation of that decree by the appellate Court. Vaithilingam prior to the

adoption of Kalyanasundaram, had created a trust. The trustee thereof filed a suit against Kalyanasundaram and obtained a decree against him for

Rs. 30,000 in respect of a claim for mense profits against him in execution of that decree, the vested interest which Kalyanasundaram had in the 50

acres of land set apart for the enjoyment of Kamakshi under the decree in Original Suit No. 54 of 1904, was sold and the trustee purchased the

same. After the death of Kamakshi on November 30, 1954, the trustees filed a suit against Kalyanasundaram''s widow and daughter and certain

other persons for possession of 50 acres of land which had been in Kamakshi''s possession till her death and also for mesne profits, basing their

claim on the purchase by them of Kalyanasundaram''s vested interest in them which had fallen into possession on Kamakshi''s death. The defence

to that claim was that the judgment in Suit No. 54 of 1904, had held that on Kamakshi''s death the 50 acres in her possession would go to her

representatives and that this judgment operated as a bar to the claim of the trustees and consequently the trustees had not acquired any right or

interest in the said 50 acres. Obviously this defence was based on the sentence in the judgment of the learned Subordinate Judge which I have

already extracted. Dealing with this contention, the Supreme Court observed:

The question appears to us to be whether this sentence in the judgment amounts to a decision operating as res judicata. It is unnecessary to refer to

the decisions on the point of res judicata it is enough to say that a decision can operate as res judicata if it was necessary for the purpose of the

case in which it had been given. There is no dispute between the parties on this point.

Now, it seems to us perfectly clear that no question arose in suit No. 54 of 1904, as to the person who would succeed after her death, to any

property that might come to Kamakshi under a decree made in it. It was not necessary for the learned Subordinate Judge for the decision of any of

the disputes that arose in that suit to say to whom the lands that went to Kamakshi would go on her death. It would, therefore, appear that the

sentence in the judgment in suit No. 54 of 1904, on which learned Counsel for the Respondents relied could not operate as res judicata bearing the

present suit

Applying the language of the Supreme Court to the facts of this case, no question arose in Civil Suit No. 91 of 1952, as to the person who would

succeed after her death to any start that might go to Kamalammal under the judgment made in it and it was not necessary for the learned Judge of

this Court for the decision of any of the disputes that arose in that suit to say to whom the share that went to Kamalammal would go on her death.

Therefore, the observation of the learned Judge in the judgment in Civil Suit No. 91 of 1952, that Kamalammal would hold her half share for her

life and the same would devolve on the two minors and their heirs thereafter would not operate as res judicata, barring the claim of the present

Plaintiff to Kamalammal''s interest, after her death. Consequently, I reject the first argument of the learned Counsel.

The second argument of the learned Counsel proceeds on the basis that Cota Varadappa Naidu and his son Kothandaramaswami Naidu

constituted a Hindu coparcenery and on the death of Cota Varadappa Naidu, Kamalammal his widow became entitled to the interest which Cota

Varadappa had in the joint family property u/s 3(2) of the Hindu Women''s Rights to Property Act, 1937. One answer to this contention is that

there is nothing in the judgment in Civil Suit No. 91 of 1952, to show that Cota Varadappa Naidu and Kothandaramaswami Naidu constituted a

Hindu undivided family and the right of Kamalammal was declared only u/s 3(2) of the Hindu Women''s Rights to Property Act, 1937, Act XVIII

of 1937. The relevant portion of the judgment in Civil Suit No. 91 of 1952, dealing with items 4, 5, 6, 9 and 10 is:

It is admitted on all sides that the judgment and decree in C.S. No. 141 of 1947 on the file of this Court exhibits P-9 and P-10, have established

the rights of Kothandaramaswami and Varadappa to these sites. It will follow from this that Kamalammal the first Defendant will be entitled to her

husband''s half share in the sites for life and Defendant 2 and the two minors to one-sixth share each in the half share of Kothandaramaswami,

Defendant 2''s one-sixth share being only for life, and it is declared accordingly.

This portion of the judgment is completely consistent with Cota Varadappa and Kothandaramaswami Naidu being entitled to the said items in their

individual right and not as members constituting a joint family. If the properties were said to belong to the joint family, the language would have

been different. The language that the rights of Kothandaramaswami and Varadappa to these sites have been established is somewhat inappropriate

to the situation where the property belonged to a joint family then consisting of Cota Varadappa and his son Kothandaramaswami Naidu. This

inference is consistent with the case of the Official Trustee in the plaint in Civil Suit No. 91 of 1952. In paragraph 5 of exhibit P-2 dealing with the

site of item 12, the Official Trustee had stated:

As the site belonged to Varadappa and his son Kothandaramaswami in equal shares on the death of Varadappa, his widow Kamalammal 1st

Defendant took an equal share along with her son Kothandaramaswami.

This sentence also is totally inappropriate to the situation where the site belonged to a joint Hindu family of which Cota Varadappa and his son

Kothandaramaswami were members at that time. No doubt, the 2nd Defendant herein in her written statement (exhibit P-4) contended in

paragraph 5:

With regard to the plaint item 4, corresponding to the door No. 7, Barnaby Road, it is common ground that the site in which it stands together with

the site relating to Door Nos. 8, 8-A, 5 and 6. Barnaby Road, are coparcenary property in which both Cota Varadappa Naidu and his son Cota

Kothandaramaswami Naidu were both entitled in equal undivided sharees and the first Defendant Kamalammal would only be entitled to a life

interest in her husband''s half share in the site.

Notwithstanding this, as I pointed out already, the judgment itself proceeds as if the sites belonged to Cota Varadappa Naidu and

Kothandaramaswami Naidu jointly and not to a joint family consisting of Cota Varadappa Naidu and Kothandaramaswami. This will be a sufficient

answer to the contention of the learned Counsel for the 5th Defendant that since, in such an event, the right of Kamalammal would have arisen u/s

3(1) of the Hindu Women''s Rights to Property Act and not u/s 3(2) thereof and consequently the question of the other coparceners being entitled

to Varadappa''s interest or Kamalammal dying without demanding a partition will not arise. However, in view of the contention put forward by the

2nd Defendant in her written statement in Civil Suit No. 91 of 1952, referred to by me already, and the absence of any specific finding in the

judgment of this Court in that case with regard to such a contention of the 2nd Defendant, I do not want to rest my conclusion on this point alone

and, therefore, I proceed to consider the argument of Mr. R. Gopalaswami Iyengar on the basis that Cota Varadappa Naidu and

Kothandaramaswami constituted a Hindu undivided family and the sites in these items belonged to that family and Kamalammal acquired her right

only u/s 3(2) of the Hindu Women''s Rights to Property Act 1937.

Section 3(2) and Section (3) of the Hindu Women''s Rights to Property Act, XVIII of 1937, are as follows:

Section 3(2) When a Hindu governed by any school of Hindu Law other than the Dayabhaga School or by customary law dies having at the lime

of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same

interest as he himself had.

Section 3(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman''s

estate, provided however, that she shall have the same right of claiming partition as a male owner.

Mr. Gopalaswami Iyengar argued that the decisions of various High Courts and the Supreme Court have established that a widow who acquired a

right u/s 3(2) of the Hindu Women''s Right to Property Act, 1937, does not become a coparcener along with me other coparceners of the family,

the right of survivorship is suspended during her lifetime and if she demands partition during her lifetime, her husband''s interest in the family would

become denned and such defined share would be inherited by her husband''s heirs on her death and on the other hand, if she does not demand

partition during her life time, on her death, the suspended survivorship will become alive and her husband''s interest will go by way of survivorship

to the other coparceners: in this case Kamalammal did not demand partition till her death on August 9, 1960, and therefore, on her death, the

suspended survivorship revived and Cota Varadappa Naidu''s interest in these sites would go by way of survivorship to the other coparceners of

the family and will not be available for inheritance by the Plaintiffs herein. In this context Mr. Gopalaswami Iyengar very strongly relied on the

decision of the Supreme Court in Satrughan Isser Vs. Smt. Subujpari and Others, and in particular the approval by the Supreme Court of the

observation of Subba Rao J., (as he then was), in delivering the judgment of the Full Bench of this Court in Parappa v. Nagamma ILR (1954)

Mad. In that case one Musammat Chando Kuer, widow of Babuji, instituted a suit on April 23, 1949, against the collaterals of her husband for a

decree for partition and separate possession of her husband''s share and her case was that her husband separated in 1934, from the coparcenary

of which he was a member and on his death on October 28, 1937, his share in the family property devolved upon her, but the Defendants failed

and neglected to divide the estate and deliver to her the share inherited by her. During the pendency of the suit, Chando Kuer died on March 9.

1951. and her daughter (Appellants before the Supreme Court) were brought on record of the suit as her heirs and legal representatives. The trial

Court came to the conclusion that the alleged separation of Babuji from the coparcenary in 1934 was not established and his interest in the

coparcenary property developed upon the surviving coparceners and in this view dismissed the suit. In appeal, the Patna High Court granted a

decree for possession of a share in the property devolved upon the surviving coparceners and that on the death of Babuji on October 28, 1937,

Chando Kuer by virtue of the Hindu Women''s Rights to Property Act acquired in the property of the coparcenary the same interest which Babuji

had and by the institution of the suit for partition that interest became defined, and on her death if devolved upon the Appellants as heirs to the

estate of Babuji. It is against that judgment of the High Court, the matter was taken up in appeal to the Supreme Court. In that context, the

Supreme Court elaborately considered the law as it was then existing prior to the enactment of the Hindu Women''s Rights to Property Act, XVIII

of 1937, and the effect of that enactment. Referring to the Act, the Supreme Court pointed out:

The Act seeks to make fundamental changes in the concept of a coparcenary and the rights of members of the family in coparcenary property. The

Hindu law as laboriously developed by the Anglo-Indian Courts in the light of certain basic concepts expounded by the ancient law givers, had

acquired a degree of consistency and symmetry. The Act in investing the widow of a member of a coparcenary with the interest which the member

had at the time of his death has introduced charges which are alien to the structure of a coparcenary. The interest of the widow arises not by

inheritance, nor by survivorship, but by statutory substitution: Potti Lakshmi Perumallu Vs. Potti Krishnavenamma, . Her interest in the property is

the limited interest known as a Hindu woman''s estate, but the Act gives her the same power to claim partition as a male owner has. The Act is,

however silent about the mode of devolution of the property obtained on partition, on a termination of her estate, about the right of the surviving

coparceners qua the interest vested in the widow, about the rights of the widow qua the interest of the surviving coparceners, and about several

other matters.

Having made this observation, the Supreme Court proceeded to state the principal characteristics of a Hindu coparcenary and the limited estate

held by a Hindu female known as a Hindu Woman''s estate and pointed out the consequences of the Hindu Women''s Rights to Property Act,

XVIII of 1937, in the following terms, on which Mr. Gopalaswami Iyengar, has placed very strong reliance:

By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which

her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the

surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow

does not on that account become a coparcener: though invested with the same interest which her husband had in the property she does not acquire

the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the

coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking

that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of

the coparcenary so as to carve out a denned interest in favour of the widow in the coparcenary property Potti Lakshmi Perumallu Vs. Potti

Krishnavenamma, . The interest acquired by her u/s 3(2) is subject to the restriction on alienation which are inherent in her estate. She has still

power to make her interest definite by making a demand for partition as a male owner may. If the widow, after being introduced into the family to

which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property. But if

she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary property, and the right

of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition or her estate is otherwise determined,

the interest in coparcenary property which has vested in her will devolve upon the heirs of her husband. It is true that a widow obtaining an interest

in coparcenary property by Section 3(2) does not inherit that interest but once her interest has ceased to have the character of undivided interest in

the property. It will upon termination of her estate devolve upon her husband''s heirs. To assume as has been done in some decided cases that the

right of the coparceners to take her interest on determination of the widow''s interest survives even after the interest has become definite, because

of a claim for partition, is to denude the right to claim partition of all reality. It is in this context the Supreme Court stated that the following

observations made by Subba Rao J., in delivering the judgment of the Full Bench in Parappa v. Nagamma ILR (1954) Mad. 183, correctly set out

the effect of the Act on the question under review:

She could ask for partition and separate possession of her husband''s share. In case she asked for partition, her husband''s interest should be

worked out having regard to the circumstances obtaining in the family on the date of partition. If she divided herself from the ether members of the

family during her lifetime, on her demise the succession would be traced to her husband on the basis that the property was his separate property. If

there was no severance, it would devolve by survivorship to the other members of the joint Hindu family.

Sinle in the case before the Supreme Court the widow died during the pendency of the suit and her daughters were brought on record as her

legal representatives, the Supreme Court had to consider the decisions of certain High Courts holding that the interest was personal to the widow

and it came to an end on her death. The Supreme Court stated that the dictum of this Court in Subba Rao v. Krishna Prasadam ILR 1954 Mad.

257 that the widow''s interest is a personal interest and comes to an end on her death cannot be regarded as a correct statement of the law. So

also, the Supreme Court stated that the view of the Nagpur High Court in Shamrao Bhagwantraw v. Kashibai AIR (1956) Nag 110 that:

The right of a widow to obtain her share in the joint family property (even after a suit for partition is filed by the widow) under the Hindu Women''s

Rights to Property Act is a special one. It comes to an end with the widow, when her death occurs during the pendency of a suit (filed by her). The

cause of action is not extended to her legal representatives. and the observations of the Madhaya Pradesh High Court in Bhagabai v. Bhaiyalai ILR

1957 M.P. 114 that the property obtained by a widow of a deceased coparcener after a suit for partition does not become th2 separate property

of her deceased husband and on her death the property reverts to the coparcenary.

proceed upon an assumption which is inconsistent with well settled rules of Hindu Law according to Mitakshara school.

In my opinion, even this decision does not support the case of the learned Counsel. Mr. Gopalaswami Iyengar frankly conceded that if

Kamalammal had demanded partition during her lifetime, from that moment onwards her hubsand''s interest in the coparcenary estate would

become denned and separate and the survivorship would not be operative, but contended that in this case Kamalammal had not demanded a

partition. In my opinion, with reference to the facts of this case, it is clear that Kamalammal had demanded a partition of her half share. I have

already referred to the written statement filed by Kamalammal in Civil Suit No. 91 of 1952, exhibit P-3. In that written statement she categorically

stated that since her husband died in the year 1945, after the coming into force of the Hindu Women''s Rights to Property Act, she was entitled to

a half share in the sites of the concerned items. Not content with this, she went a step further and contended in paragraph 5 of the written statement

that she was entitled to an account of the income from the properties, items 1, 2, 3, 7 and 11 and the income attributable to the land on which the

superstructures Nos. 7, 8 and 8-A, Barnaby Road stood (items 4, 5 and 6) from 1945 up to that date and to payment of one halt of the same,

after adjusting the payments already made to her. I am of the view that this contention of Kamalammal that she was entitled to a half share and

entitled to an account of the income from the properties from 1945 and to payment of one half of the same to her definitely constituted a demand

for partition on her part. In the decision above referred to, the Supreme Court pointed out:

On the making of a claim for partition the interest of the widow gets defined. The right which the widow may claim is not different from the right

which her husband could claim if he had been alive; therefore, the right of the coparceners to take the joint property by survivorship on the death of

a coparcener does not survive a demand for partition by the widow in the coparcenary, and.

A Hindu widow acquires u/s 3(2), even before the division of the property, an interest in property and that interest gets denned as soon as an

unequivocal demand for partition is made by her.

Whether in a particular case there has been a demand for partition or not is not a matter of form but one of substance. The facts that Kamalammal

did not file a suit for partition and the claim referred to by me was made by her in the written statement filed by her in Civil Suit No. 91 of 1952,

which itself was not a suit for partition do not affect the case. In substance Kamalammal had asserted her right to her husband''s interest in the joint

family property and claimed a definite share therein as representing her husband. In my opinion, this is sufficient to put an end to the survivorship

which the other coparceners may have had.

Even assuming that the claim of Kamalammal in her written statement would not constitute a demand for partition, still I am of the view that the

judgment in Civil Suit No. 91 of 1952, would have the effect of putting an end to the survivorship. In that judgment, this Court ascertained the

definite share which Kamalammal had in the joint family property representing her husband and consequently that interest of Kamalammal in the

joint family property having been defined by the said judgment, the survivorship came to an end.

There is yet another answer to the contention of Mr. Gopalaswami Iyengar. Even assuming that Kamalammal during her lift-time did not make

a demand for partition and the judgment of this Court in Civil Suit No. 91 of 1952, did not define her interest in the joint family. I am of the view

that the interest which Kamalammal acquired u/s 3(2) of the Hindu Women''s Right to Property Act (XVIII of 1937) will constitute the property

possessed by her at the commencement of the Hindu Succession Act, 1956, and therefore, will become her absolute estate u/s 14 of that Act. The

decision of the Supreme Court relied on by the learned Counsel and referred to by me already did not deal with the effect of the Hindu Succession

Act on the interest which a Hindu widow acquired u/s 3(2) of the Hindu Women''s Right to Property Act (XVIII of 1937).

In Kuppathammal v. Sakthi AIR 1957 Mad. 596, Rajagopala Ayyangar J., had to consider the question whether even after the coming into

force of the Hindu Succession Act, 1956, under which the Hindu Women''s Rights to Property Act, XVIII of 1937, was repealed, a widow had

the right to claim partition. In this context, dealing with the right of a Hindu widow under the Hindu Women''s Rights to Property Act, XVIII of

1937, the learned Judge observed:

In the case of the separate property of the last male owner Section 3(1) enacts that the widow or all the widows together in case of plurality of the

deceased shall be entitled to the same share as the son and under Sub-section (2) of the section in the case of coparcenary property she or they

were to have the interest of the deceased. The vesting in either case is absolute, in the sense that the statute does not impose any condition or

require any formalities to be complied with before the share or the interest becomes vested.

It might be that if the exercise of the rights conferred by the enactment is obstructed or the enjoyment of the rights conferred is disputed by any

hostile act the widow might be compelled to resort to Courts to vindicate their right but this clearly does not import into the right any imperfection

or render the rights created inchoate in any manner.

The decision of the Supreme Court already referred to namely, Satrughan Isser Vs. Smt. Subujpari and Others, , after observing that the decisions

of the Madras High Court in Subba Rao v. Krishna Prasadam ILR (1954) Mad. 257, of the Nagpur High Court in Bhagwantrao v. Kashibi AIR

1956 Nag 110 and of the Madhya Pradesh High Court in Bhagabai v. Bhaiyalal ILR 1957 M.P. 114 did not represent the correct statement of the

law, proceeded to state:

The assumption that though the right vested in the widow by the Act is a right of property which may on demand for partition become separated

from the coparcenary property, it is still liable to revert to the coparcenary on the determination of the widow''s estate, does not give full effect to

the statutory conferment upon the widow of the same right of claiming partition as a male owner.

Thus it is clear that right which a Hindu widow gets u/s 3(2) of the Hindu Women''s Rights to Property Act XVIII of 1937, is a real and effective

right of property. If that be the case, the further question arises, namely, is there anything to prevent that right of property coming within the scope

of Section 14(1) of the Hindu Succession Act, 1956.

The Supreme Court in Gummalapura Taggina Matada Kotturuswami Vs. Setra Veeravva and Others, had held:

The word, ''possessed'' in Section 14 is used in a broad sense and in the context means the state of owning or having in one''s hand or power.

The same view was reiterated by the Supreme Court in S.S. Munna Lal Vs. S.S. Rajkumar and Others, . The Supreme Court again elaborately

considered the scope of Section 14(1) in Mangal Singh v. Rattno AIR 1967 S.C. 1786. In that case a Hindu widow who had entered into

possession of land belonging to her deceased husband in 1917, but who was illegally dispossessed by the collaterals of her husband in 1954,

instituted a suit for possession and during the pendency of the suit, the Hindu Succession Act, 1956, came into force and the Plaintiff herself died in

1958 and her legal representatives were brought on record. The Supreme Court held that the land was possessed by the Plaintiff when she died in

1958, within the meaning of Section 14(1) of the Act and, therefore, her legal representatives must be deemed to have succeeded to those rights.

In this context, the Supreme Court elaborately considered the use of the expression, any properly possessed by a female Hindu in Section 14(1) of

the Hindu Succession Act. After referring to the meaning of the word, possession given in Wharton''s Law Lexicon, fourteenth Edition at page

777, the Supreme Court observed:

Thus three different meanings are given: one is the State of owning, the second is having a thing in one''s own hands, and the third is having a thing

in one''s own power. In case where property is in actual physical possession, obviously it would be in one''s own hands. If it is in constructive

possession, it would be in one''s own power. Then there is the third case where there may not be actual, physical or constructive possession and,

yet, the person still possesses the right to recover actual physical possession or constructive possession; that would be a case covered by the

expression the state of owning...It appears to us that the expression used in Section 14(1) of the Act was intended to cover cases of possession in

law also. Where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other

cases of actual or constructive possession. On the language of Section 14(1), therefore, we hold that this provision will become applicable to any

property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property.

In my opinion, this observation establishes that a Hindu widow who has acquired her husband''s interest in the joint family property u/s 2(2) of the

Hindu Women''s Rights lo Property Act, 1937, and who owns that interest is possessed of that interest within the meaning of Section 14(1) of the

Hindu Succession Act, 1956.

Further, this question directly came up for consideration before the Andhra High Court in Kanuri Sri Sankara Rao Vs. Kanuri

Rajyalakshamma, . In that case, the Plaintiff was the adopted son and the Defendant was the adoptive mother and the suit related to the estate of

the deceased adoptive father who died on June 7, 1956. The contention of the Plaintiff was that on a proper interpretation of the terms of the

Hindu Succession Act read with the Hindu Women''s Rights to Property Act, he was entitled to a three-fourths share in the suit properties and his

adoptive mother was entitled only to a one-fourth share. The learned Subordinate Judge held that under the provisions of the Hindu Women''s

Rights to Property Act, the adoptive mother was entitled to a half share and that after the passing of the Hindu Succession Act, she was entitled to

that half share absolutely. It is against that judgment the matter came up in appeal before the High Court of Andhra Pradesh. One of the

contentions advanced before the High Court was that Section 14 of the Hindu Succession Act did not apply inasmuch as the adoptive mother did

not acquire any right in her husband''s half share before the commencement of the Act by reason of no partition having been effected.

Umamaheswaram, J., rejected this contention and held that prior to the passing of the Hindu Succession Act, the interest of the adoptive father had

devolved on his widow and it is property possessed by a Hindu female within the meaning of Section 14 of the Hindu Succession Act. The learned

Judge further pointed out that the mere fact that the widow did not claim partition does not mean that she was not in joint possession of her

husband''s interest along with the surviving coparceners and as soon as her husband died and as soon-as his interest devolved on her, it must be

held that she had acquired an interest in the property and by a claim for partition, she merely works out that right.

The recent judgment of the Supreme Court confirms this position. In Sukhram and Another Vs. Gauri Shankar and Another, . Hukam Singh

and Sukhram were two brothers and Chhidda was the son of Sukhram and they constituted a Hindu undivided family and were governed by the

Mitakshara Law of the Benares School. Hukam Singh died in 1952, leaving him surviving his wife Kishan Devi. On December 15, 1956, Krishnan

Devi sold a half share in a house and shop belonging to the joint family, to Gauri Shankar. Sukharam and his son Chhidda then commenced an

action in the Court of the Munsif of Ghaziabad for a decree declaring that the sale by Krishnan Devi to Gauri Shankar was without consideration,

and for an order cancelling the sale deed. The question for consideration was whether the said sale was valid or not. I must point out here that the

husband died in 1952 and by the time when the Hindu Succession Act, 1956, came into force on June 17, 1956, the widow had not demanded

any partition and after the Act came into force without demanding a partition, she sold away her husband''s half share on December 15, 1956. One

of the arguments advanced was that the widow was not possessed of the property on the date when the Act came into force. Dealing with this

argument and the effect of Section 14 the Supreme Court stated:

The plea raised in the District Court that Kishan Devi was not'' possessed '' of the property which she sold to Gauri Shankar was rejected and has

not been set up before us. Clearly therefore on the express words of Section 14(1) of the Hindu Succession Act, Kishan Devi acquired on June

17, 1956, rights of full ownership in the interest which Hukam Singh had in the property of the family during his life-time, and she was competent

without the consent of the male members of the family to sell the property for her own purposes.

This observation of the Supreme Court is of very great significance, with reference to the argument of Mr. Gopalaswami Iyengar that without

demanding a partition, a widow cannot destroy the right of survivorship of the other coparceners and she cannot be said to be in possession of a

definite share in the property. As I already pointed out, the widow had not demanded partition in this case at all Still the Supreme Court points out

that on June 17, 1956, the widow acquired rights of full ownership in the interest which her husband had in the family during his life-time. The same

judgment further points out:

But the words of Section 14 of the Hindu Succession Act are express and explicit; thereby a female Hindu possessed of property whether

acquired before or after the commencement of the Act holds it as full owner and not as a limited owner. The interest to which Kishan Devi became

entitled on the death of her husband u/s 3(2) of the Hindu Women''s Rights to Property Act, 1937, in the property of the joint family is indisputably

her ''property'' within the meaning of Section 14 of Act XXX of 1958, and when she became ''full owner'' of that property she acquired a right

unlimited in point of user and duration and uninhibited in point of disposition.

Thus, this decision indisputably establishes that the interest which a Hindu widow acquires u/s 3(2) of the Hindu Women''s Rights to Property

Act, 1937, in the joint family property standing in the shoes of her husband is the property to which Section 14(1) of the Hindu Succession, 1956,

applies and under that section she becomes an absolute owner of that interest notwithstanding that no partition has been demanded by her prior to

the coming into force of the Hindu Succession Act, 1956. For all these reasons, J. reject the contention of Mr. Gopalaswami Iyengar that the

Plaintiffs herein are not entitled to succeed to the half share in these items as heirs of their mother Kamalammal.

In the plaint, the Plaintiffs have put forward an alternative contention, namely, that even assuming that Kamalammal took only a life interest

under the judgment and decree is Civil Suit No. 91 of 1952 and succession to the properties in question had to be traced to Bashyakaralu Naidu,

then the Plaintiffs are solely entitled to the said properties to the exclusion of Defendants 2, 4 and 5, under Sections 8 and 9 of the Hindu

Succession Act. Mr. Gopalaswamy Iyengar counters this argument by saying that Section 8 of the Hindu Succession Act is net retrospective in

operation as held by the Supreme Court in Eramma Vs. Verrupanna and Others, and succession to Bashyakarlu Naidu had to be traced as on the

date of the death of Bashyakarlu Naidu and if that be the case, the Plaintiffs would not be the heirs of Bashyakarlu Naidu. The reply of Mr. K.S.

Sankara Iyer, learned Counsel for the Plaintiffs, is that the heirs of Bashyakarlu Naidu had to be ascertained as on the date of the death of

Kamalammal, the holder of the life interest, and not as on the date of the death of Bashyakarlu Naidu. In view of the conclusion I have come to

namely that what Kamalammal had was only a life estate in the properties in question which became her absolute property u/s 14(1) of the Hindu

Succession Act, 1956, it is unnecessary for me to consider this contention. Consequently, my conclusion is that the Plaintiffs are entitled to succeed

as heirs of Kamalammal to her half share in items 1, 2, 3, 7 and 11 and the sites in items 4, 5, 6 and 12.

The next question is what are the respective shares to which the parties are entitled. In the plaint itself the Plaintiffs claimed that they are entitled

to one-third share each in Kamalammal''s hah share and the other one-third share will go to Defendants 2, 4 and j. On the other hand, Mr.

Manickavasagam, learned Counsel for the 4th Defendant contended that the Plaintiffs will be entitled to one-fourth share each and Defendants 4

and 5 will be entitled to another one-fourth share each in Kamalammal''s share in these properties. However, neither contention is correct. u/s

15(1) of the Hindu Succession Act, 1956, the property of a female Hindu dying intestate shall devolve according to the rules:

(a) Firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the huband....

In this case Kamalammal''s property will devolve upon the Plaintiffs, her daughters and Defendants 4 and 5 her grandsons through a predeceased

son and the 2nd Defendant will not come into the picture at all. Rule 2 of Section 16 of the Hindu Succession Act, 1956, provides:

If any son or daughter of the intestate had predeceased the intestate leaving his or her own children alive at the time of the intestate''s death, the

children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate''s death.

Consequently, Defendants 4 and 5 will take what their father would have taken, if their father was alive on the date of the death of Kamalammal. If

Kothandaramaswami was alive on the date of the death of Kamalammal, her heirs would be Kothandaramaswami and the Plaintiffs, one taking a

one-third share. That one-third share which Kothandaramaswami would have taken would now be available to Defendants 4 and 5 equally, with

the result in the half share of Kamalammal, the Plaintiffs are entitled lo a one-third share each and Defendants 4 and 5 are entitled to a one-sixth

share each. Since Kamalammal''s half share has not been separated from the other shares and the 2nd Defendant''s rights have already been

declared under the judgment and decree in Civil Suit No. 91 of 1952, the ultimate division of the entire property as between the parties will be as

follows: In the entire properties of items 1, 2, 3, 7 and 11 and in the sites of items 4, 5, 6 and 12, the share of the 1st Plaintiff is one-sixth, the share

of the 2nd Plaintiff is one-sixth, the share of the 2nd Defendant is one-sixth (one-third of half being the share of Kothandaramaswami) and the

shares of Defendants 4 and 5 are one-fourth each (one-third of one half share of Kothandaramaswami plus one-sixth of one-half share of

Kamalammal). It is needless for me to point out that as far as the superstructures on items 4, 5 and 6 are concerned, the rights of Defendants 2, 4

and 5 have already been declared as one-third each.

I may mention straightaway that the learned Counsel for the Defendants 2, 4 and 5 represented to me that in (he event of my decreeing the suit

of the Plaintiffs, I may direct the division of a1! the properties as between all the sharers. As a matter of fact, the 2nd Defendant in her written

statement itself has made such a request.

One other question that has to be considered is in relation to the prayer for accounting. Mr. Manickavasagam, learned Counsel for the 4th

Defendant, contended that in any event the Plaintiffs are not entitled to an accounting for the management of the suit properties by the Officer

Trustee. I may point out straightaway that the Official Trustee himself did not raise any such objection. He has admitted that he is in possession of

the entire properties and he is in possession of the same on behalf of the rightful owners. Since I have held that the Plaintiffs herein are entitled to

the shares mentioned already in the suit properties, it must follow that the Official Trustee is in possession of the properties on their behalf as well.

No doubt, the Official Trustee came into possession of the properties by virtue of his appointment as the property guardian of [he two minors,

namely, Defendants 4 and 5. Nonetheless admittedly he was put in possession of the entire suit properties and not merely the share of Defendants

4 and 5. Exhibit P-8 an order of this Court, dated April 5, 1951. made in Application Nos. 4960 of 1950 and 543 of 1951, makes it clear that a

direction was issued to the Official Trustee to pay a sum of Rs. 200 to Kamalammal every month, commencing from April 1, 1951, and this was

obviously because Kamalammal had a share in the properties put in the possession of the Official Trustee. The said order itself makes it clear that

the order was passed without prejudice to the contentions of the parties and without going into the question of the rights of persons interested in the

property. Consequently, once the rights of the parties are declared, the Official Trustee is accountable to all the parties who are the own-rs of the

property of which he is in possession and management. Naturally in the accounting, amounts already paid by the Official Trustee to various parties

pursuant to the orders of the Court will have to be taken into account and adjusted. Therefore, I hold that it is not open to Mr. Manickavasagam

learned Counsel for the 4th Defendant, to raise any such objection, particularly when no relief of accounting is asked for against the 4th Defendant

or against the 2nd Defendant whom alone he is representing.

Mr. Manickavasagam, then argued that the Plaintiffs will not be entitled to accounting from the date of the appointment of the Official Trustee

in 1950, as they have prayed for, but only from August 18, 1953, the date of the judgment and decree in Civil Suit No. 91 of 1952, when alone

their rights were declared by this Court. I am of the opinion that this argument is not tenable. Admittedly, the Official Trustee is accountable to

Defendants 4 and 5 with respect to their shares from the date of his appointment as the property guardian and, therefore, it cannot be contended

that the Official Trustee is not accountable for the management of the entire suit properties to Defendants 4 and 5 from the date of his appointment

as the property guardian and from August 18, 1953, he is accountable to the said Defendants 4 and 5 in respect of their shares only and to other

parties in respect of their shares. The proceedings in Civil Suit No. 91 of 1952, make it absolutely clear that when the Official Trustee took

possession of the properties, on the date of his appointment, he took possession of the properties with the knowledge that other parties also had

claims with regard to the same. Consequently, it is not feasible to split up the accounting upto August 18, 1953 only in favour of Defendants 4 and

5 and after August 18. 1953 in favour of all the parties entitled to the suit properties. Therefore, the Official Trustee will have to render an account

of the management of the suit properties from the date of his taking possession of the properties to all the parties entitled to the same.

No other point or ground was urged before me.

As a result of the above discussion, my findings on the various issues are:

Issue No. 3.--The claim of the Plaintiffs is not barred by proceedings in Civil Suit No. 91 of 1952, High Court, Madras, and principles of res

judicata and as a matter of fact, those proceedings constitute the very basis of the claim of the Plaintiffs.

Issue No. 4.--On the admission of all the parties that the judgment and decree in Civil Suit No. 91 of 1952, High Court, Madras, constitute res

judicata and are binding on all the parties, the Plaintiffs are entitled to the Superstructure of item 12 to the exclusion or Defendants 2, 4 and 5.

Issue No. 5.--The Plaintiffs have claimed that the original superstructure No. 5 Barnaby Road fell down in 1932 and it had been reconstructed by

them. In the judgment in Civil Suit No. 91 of 1952, it has been held that the fact that the superstructure fell down in 1932, did not put an end to the

right of the Plaintiffs to the superstructure. No arguments were advanced before me to contradict the claim of the Plaintiffs that No. 5 Barnaby

Road was reconstructed by them after the original superstructure fell down in 1932. Hence I find that the superstructure No. 5 Barnaby Road was

constructed by the Plaintiffs.

Issue No. 6.--The Plaintiffs are entitled to partition of the suit properties and in items 1,2,3,7 and 11 and in the sites of items 4.5.6 and 12 the

Plaintiff and 2nd Defendant are entitled to one-sixth share each and Defendants 4 and 5 fire entitled to one-fourth share each and in the

superstructures standing of items 4. 5 and 6, Defendants 2, 4 and 5 are entitled to one-third share each.

Issue No. 7.--The Official Trustee was in possession and enjoyment of the suit properties on behalf of the Plaintiffs as well as Defendants 2, 4 and

5.

Issue No. 8.--The 1st Defendant is liable to render an account of his management of the suit properties from the date of his taking possession of

the same on his appointment as the property guardian of Defendants 4 and 5 and the parties herein will be entitled to a share in the net income,

proportionate to their shares in the properties, after adjusting any amount the parties might have received.

Issue No. 9.--In the result, the suit is decreed and a preliminary decree for partition and accounting is passed, with the rights of the parties,

declared as above.

In view of the close relationship between the parties, I direct that the costs of all the parties do come out of the estate. The costs of the Official

Trustee also will come out of the costs.