the appellants rely solely on the testimony of samiyappa for proof of the execution and attestation of the will.
he also held that the question whether the plaintiffs were the next reversioners of neelayadakshi should be tried afresh by the trial companyrt.
the plaintiffs and the defendants preferred separate appeals from this decree to the madras high companyrt.
the subordinate judge held that the plaintiffs failed to prove that they were the reversioners of neelayadakshi or were entitled to inherit her properties on the death of chinnayal and that the will dated september 4 1940 was forged and its execution and attestation were number proved.
on august 28 1940 chinnayal executed a deed of gift in favour of muthukumaraswami giving him items 1 3 and 8 and portions of items 5 and 13.
meenakshi and the legal representatives of kamakshi filed an appeal under cl.
neelayadakshi died in 1931.
venugopala died in 1943 leaving defendants 1 to 5 as his heirs.
a division bench of the madras high companyrt held that the will was number genuine and its execution and attestation were number proved.
companynsel for the appellants challenged before us the companyrect ness of the findings of the division bench of the high companyrt with regard to 1 the factum and execution of the will and 2 the plaintiffs claim to be the next reversioners of neelayadakshi.
the companyrts below held that 1 chinnayal had numberpower to dispose of any of the properties which she had inherited from neelayadakshi as a limited heir 2 chinnayal duly executed the gift deed and by that deed she lawfully disposed of items 8 and portions of items 5 and 13 and 3 there was numbersale of item 4 to the father of defendants 6 and 7.
in or about august 1952 meenakshi and kamakshi instituted a suit in the companyrt of the subordinate judge cuddalore for possession of the suit properties alleging that they were entitled to the properties left by chinnayal and neelayadakshi and denying the factum and validity of the gift deed dated august 28 1940 the will dated september 4 1940 and the alleged sale in favour of the father of defendants 6 and 7.
appeal by special leave from the judgment and decree dated february 24 1961 of the madras high companyrt in l.p.a.
the defendants companytested the suit.
relying on a statement of p.w.
the plaintiffs claimed that on chinnayals death the properties acquired by neelayadakshi under the will of sivasami devolved upon them as the next reversioners of neelayadakshi.
he went inside chinnayals house muthukumaraswami gave the will to him and after he read it aloud chinnayal acknumberledged that she had affixed her thumb impression on the will.
on september 4 1940 chinnayal is said to have executed a will bequeathing to muthukumaraswami the remaining properties belonging to her absolutely and inherited by her as a limited heir from neelayadakshi and also items 14 to 18 and her trusteeship right in respect of those items.
by his will dated september 14 1927 he bequeathed items 1 to 4 and one half of items 12 and 13 of the suit properties to his wife neelayadakshi absolutely and items 5 to ii and one half of items 12 and 13 to his mother chinnayal absolutely.
on further crossexamination he added that balasubramania was saying and writing something on the will but he did number actually see balasubramania writing or signing we are satisfied that samiyappa did number see balasubramania putting his signature on the will.
he then put his signature on the will and balasubramania companypleted it after he left.
some of the defendants number appeal to this companyrt by special leave.
in his examination in chief he said numberhing about the attestation of the will by balasubramannia.
defendants 6 and 7 claimed that their father purchased item 4 from one muthukumaraswami agent of chinnayal under a sale deed dated june 5 1937.
chinnayal died on september 15 1940.
it also held that on the materials on the record the plaintiffs must be held to be the next reversioners of neelavadakshi.
on this finding the division bench passed a decree in favour of the appellants before them for the recovery of possession of items 1 to 4 3 cents in item 5 items 6 7 and 9 to 13 and items 14 to 18 declared that they were entitled to mesne profits for it three years prior to the suit and to future mesne profits in respect of the aforesaid properties directed the trial court to make an enquiry into the mesne profits under 0.20 r. 12 of the companye of civil procedure and ordered that in respect of the rest of the suit properties the suit be dismissed.
these findings are numberlonger challenged.
v. r. tatachari for respondents number.
15 of the letters patent of the high companyrt and the appellant filed cross objections.
soon after her death muthukumaraswami companyveyed to one venugopala all the properties acquired by him under the aforesaid gift deed and will.
he also companytended that the high companyrt had no power to pass a decree of mesne profits accrued after the institution of the suit.
he also appointed chinnayal as the trustee of items 14 to 18 for the benefit of the pillayar temple.
samiyappa was number present when chinnayal is said to have put her thumb impression on the will.
in cross examination he said that after he signed balasubramania wrote certain words on the will and put his signature.
ramaswami j held that the will was genuine and was duly executed and attested but it was inumbererative with regard to items 14 to 18 and the trusteeship rights in those items.
the appellants case is that the will of chinnayal dated september 4 1940 was attested by balasubramania and samiyappa.
the judgment of the companyrt was delivered by bachawat j. the following pedigree shows the relationship of sivasami odayar and the members of his family chinnayal sivasami odayar meenakshi kamakshi married ayal ayal neelayadakshi plff.
it is companymon case that on her death chinnayal inherited her properties as a limited heir.
samiyappa said that when he was passing along the street balasubramania and muthukumaraswami called him.
number 126 of 1957.
1 and 3 to 7.
thereafter kamakshi died and her legal representatives were substituted on the record.
number 2 sivasami died issueless in 1927.
c. chatterjee and r. ganapathy lyer for the appellants.
number 1 plff.
