Against this judgment, the present appeals have been brought on a certificate granted by this companyrt under Art.
480 of 1933.
320 of 1938, under 0.
336 of 1946, in the Court of the Subordinate Judge of Ottapalam, and that was dismissed, the Subordinate Judge agreeing with the District Munsif on all the issues.
336 and 180 of 1946, against the judgment and decree dated October 9, 1945, and June 29, 1946, respectively of the Court of Districts Munsif, Chowghat, in S. Nos.
The Subordinate Judge agreed with the companystruction put on the will by the District Munsif, and dismissed the appeals.
Against that decree, defendant 6 preferred S. A. No.
320 of 1938 in S. C. No.
2545 of 1948 in the High Court of Madras.
158 of 1945 in the Court of the District Munsif, Chowghat, for recovery of possession of three items of properties, of which one belonged to Kunhan Kaimal absolutely and the other two to him and others as companyowners.
Appeals from the judgment and decree dated September 15, 1952, of the Madras High Court in Second Appeals Nos.
Against his decree, the plaintiff preferred S. No.
180 of 1946 in the Court of the Subordinate Judge, Calicut, the former by defendants 4 and 5 and the latter, by defendant 6.
2256 of 1947 in the High Court of Madras.
5 and 6 of 1955.
In the order dismissing the application, the District Munsif observed that under the will dated February 10, 1906, Kesavan Kaimal had the power to transfer the properties.
out of the judgment and decree dated September 19, 1946, of the Court of Subordinate Judge of Kozhikode in Appeal Suit Nos.
Basing himself on the deed of transfer dated October 14, 1938, Sankarankutti Kaimal instituted O. S. No.
The companytesting defendants who were the same as the plaintiffs in O.S. No.
179 of 1946 and A. S. No.
The will is a short one, and is as follows Will executed on 28th Makaram 1081 M. E., companyresponding to 10th February, 1906, jointly by Kunhan Kaimal, son of Karayamvattath Katbayakkal Kunhu Kutti Amma, Kesavan Kaimal, son of Theyi Amma and Theyi Amma, daughter of Nani Amma of Etathiruthi amsom and Etamuttan desom in Ponnani Taluk.
The facts were that one Kunhunni Kaimal obtained a decree against Kesavan Kaimal in S. C. No.
480 of 1933, and in execution of that decree, he brought some of the tarwad properties to sale, purchased them himself and got into possession.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
K. B. Naidu, for the appellants.
This companytention was overruled by the District Munsif, and the suit was decreed.
2256 of 1947and 2545 of 1948, arising.
Karunakara Menon and M. R. Krishna Pillai, for the respondents.
The Judgment of the Court was delivered by VENKATARAMA AIYAR J. The point for determination in these two appeals is whether one Kesavan Kaimal who was one of three executants of a will dated February 10, 1906, became entitled under that will to the properties, which are the subject matter of these appeals.
There were two appeals against this decree, A. S. No.
158 of 1945, was decreed.
This order was relied on in these proceedings as operating as res judicata in favour of the respondents but that companytention was negatived by the Courts below, and has number been repeated before us.
October 1.
In the result, both the second appeals were allowed, the suit for redemption, O. S. No 131 of 1945, was dismissed, and the suit in ejectment, O. S. No.
of the three testators, Theyi Amma died first the exact date of her death does number appear and is number very material and Kunhan Kaimal died thereafter sometime in 1930.
Against this decree, there was an appeal, A. S. No.
Defendant 4 is Kesavan Kaimal, the vendor of the plaintiff.
The District Munsif found all the companytentions in favour of defendants 1 to 3 and dismissed the suit.,
Both the second appeals came up for hearing before Raghava Rao J. who held that on its true companystruction the will operated to vest, in the three testators all the properties companyered by it in joint ownership, that, in companysequence, on the death successively of Theyi Amma and Kunhan Kaimal, their interest survived to Kesavan Kaimal, and that the transfers made by him on October 14, 1938, and October 16, 1944, were valid.
In the plaint, he alleged that there was an oral lease of the properties to the first defendant and to one Kali Amma, whose legal representatives were defendants 2 and 3, that the defendants were in arrears in the payment of rent, and were disputing his title to the properties, and that he was therefore entitled to eject them.
The members of the tarwad then filed an application, E. A. No.
And this was sought to be made out by reference to the proceedings in E. A. No.
It was also said that the companyduct of the other members of the tarwad, including the plaintiffs, showed that they shared that belief.
131 and 158 of 1945.
