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2013 DIGILAW 531 (MAD)

Ashok Kumar v. C. Nagarajan (Died)

2013-01-23

M.DURAISWAMY

body2013
Judgment :- 1. The above second appeal arises against the judgment and decree in A.S.No.5 of 20024 on the file of District Court, Salem confirming the Judgment and Decree in O.S.No.719 of 1989 on the file of Principal District Munsif Court, Salem. 2. The 4th defendant is the appellant, respondents 1 to 8 were the plaintiffs, 9th respondent was the 5th defendant and the respondents 10 to 12 are the legal representatives of the deceased first respondent. Defendants 1 to 3 died pending suit. 3. The plaintiff filed the suit in O.S.No.719 of 1989 for to declare that (i) they are the absolute owners of the suit properties in item Nos. 1 and 2 as per settlement deed dated 22.4.1959 and the defendants 1 and 2 are not entitled to any right in them; (ii) to restrain the defendant's 1 and 2 from claiming any right in the suit properties item Nos. 1 and 2 as per decree in O.S.No.476 of 1984 on the file of District Munsif Court, Salem; or otherwise, to order delivery of possession of the suit properties against the defendants 1 to 5 and put the plaintiffs in possession of the suit properties obtained by the 4th defendants in R.E.P.No.75 of 1995 in O.S.No.476 of 1984 on the file of Principle District Munsif Court, Salem. 4. The brief case of the plaintiffs are as follows:- (i) According to the plaintiffs, one Ramasamy Chettiar and Mariappa Chettiar are brothers. They were members of a Hindu joint family and possessed of the suit properties. The said Ramasamy Chettiar died in the year 1936 leaving behind his wife, Sidhayammal, first defendant as his sole heir. Mariappa Chettiar became the absolute owner of the suit property by survivorship. The first defendant had the right of maintenance only as against the joint family properties. On 22.4.1959, Mariappa Chettiar executed a settlement deed in favour of his daughter-in-law, the third defendant and her children, the plaintiffs. The plaintiffs were given vested rights in all the three items of the properties. The first defendant was given right of enjoyment of items 1 and 2. The third defendant let out a portion of item Nos. 1 and 2 to one Lakshmi Ammal and her husband Palanivel. (ii) The third defendant and the plaintiffs filed a suit in O.S.No.494 of 1971 for delivery of possession against Lakshmi Ammal and Palanivel. The first defendant was given right of enjoyment of items 1 and 2. The third defendant let out a portion of item Nos. 1 and 2 to one Lakshmi Ammal and her husband Palanivel. (ii) The third defendant and the plaintiffs filed a suit in O.S.No.494 of 1971 for delivery of possession against Lakshmi Ammal and Palanivel. On 26.6.1972, the first defendant executed a settlement deed in favour of one S.P.Madheswaran, S/o.Palanivel, through his first wife in respect of item No.3 of the suit properties in which she was given the right of residence. (iii) The second defendant filed a suit in O.S.No.251 f 1975 against the first defendant, Madheswaran and others to declare that the settlement deed dated 26.6.1972 as null and void and not binding on him after the death of Sidhayammal. The said suit was decreed on 29.1.1976. On appeal in A.S.No.222 of 1976, filed against the said judgment and decree, the same was allowed and against which, the second defendant preferred a Second Appeal and the same ended in dismissal on 2.7.1981. In the second appeal, the properties were held to be joint family properties and limited interest given to the first defendant under the settlement deed dated 22.4.1959 has enlarged into absolute estate and therefore, the settlement deed dated 26.6.1972 is held to be valid. As per the said judgment, the plaintiffs have no right in respect of item No.3 of the suit properties. (iv) According to the plaintiffs, they are the absolute owners of the item Nos. 1 and 2. The third defendant does not have any right of ownership but only a right of enjoyment. The suit in O.S.No.494 of 1971 was decreed and the same was executed by filing an execution petition. The first defendant filed the suit in O.S.No.476 of 1984 for partition and separate possession of half share in the properties on the ground that the properties are joint family properties. The said suit was decreed and on appeal, the judgment and decree was confirmed and the second appeal filed as against the said judgment and decree was also dismissed. (iv) According to the plaintiffs, the properties being joint family properties of Ramasamy Chettiar and his brother, they are entitled to succeed to the same under the settlement deed dated 22.4.1959 and the first defendant is estopped from contending that she has any right in item Nos. (iv) According to the plaintiffs, the properties being joint family properties of Ramasamy Chettiar and his brother, they are entitled to succeed to the same under the settlement deed dated 22.4.1959 and the first defendant is estopped from contending that she has any right in item Nos. 1 and 2 of the suit properties. Having elected to take the benefit under the settlement deed dated 22.4.1959, she cannot ignore the same and claim share in other properties. According to the plaintiffs, they are not parties in O.S.No.476 of 1984 and the judgment and decree rendered in the same are not binding on them. On 8.2.1991, the defendant filed a memo reporting the death of the first defendant on 17.1.1991 and also stated that the first defendant had executed a Will in favour of the fourth defendant. However, the plaintiffs did not admit the truth and the validity of the Will. Subsequent to the filing of the suit, the fourth defendant obtained delivery of possession in R.E.P.No.75 of 1995 in O.S.No.476 of 1984 and the said properties have to be delivered back to the plaintiffs. The fifth defendant had entered into a fraudulent transaction in respect of one of the suit items and therefore, he has also been added as a party. The sale deed dated 10.12.1998 is binding upon the plaintiffs and the same is hit by lis pendens. In these circumstances, the plaintiffs filed the suit. 5. The brief case of the first defendant is as follows: (i) According to the first defendant, the suit is not maintainable either in law or in facts. The defendant admitted that Ramasamy Chettiar and Mariappa Chettiar were members of undivided Hindu joint family. Mariappa Chettiar did not become the absolute owner of the property by survivorship. The first defendant is in possession of the joint family properties with the right of maintenance. She is entitled to succeed to the share of her husband in the joint family properties as the third item of the property was self acquired property of the Ramasamy Chettiar, which was succeeded by the first defendant. The title of the first defendant in respect of 3rd item was already been declared in O.S.No.251 of 1975 and confirmed in A.S.No.222 of 1976 and A.S.No.33 of 1978. (ii) The first defendant is entitled to half share belonging to her husband in item Nos. 1 and 2 of the suit properties. The title of the first defendant in respect of 3rd item was already been declared in O.S.No.251 of 1975 and confirmed in A.S.No.222 of 1976 and A.S.No.33 of 1978. (ii) The first defendant is entitled to half share belonging to her husband in item Nos. 1 and 2 of the suit properties. The defendant's right to partition was upheld in O.S.No.476 of 1984 and also by the appellate courts, therefore, the defendant filed a petition to pass a final decree and the same is pending. The decree in O.S.No.476 of 1984 is binding on the plaintiffs. The suit is barred by res judicata. (iii) The settlement deed dated 22.4.1959 is not valid and binding on the share of Ramasamy Chettiar and the first defendant. O.S.No.251 of 1975 has nothing to do with item Nos. 1 and 2 of the suit properties. The said suit was in respect of the separate property of Ramasamy Chettiar. The principle of estoppel and doctrine of election are not applicable to the facts of the case. In these circumstances, the first defendant prayed for dismissal of the suit. 6. The fourth defendant adopted the written statement filed by the first defendant and in the additional written statement, he had stated as follows:- According to the fourth defendant, the entire dispute has already been decided. The plaintiffs have no right to agitate the same subject again. The fourth defendant have never entered into any sale agreement with the fifth defendant. The decisions of the prior suits contested by the parents of the plaintiffs are binding on the plaintiffs. In these circumstances, the fourth defendant prayed for dismissal of the suit. 7. Before the trial court, on the side the plaintiffs, first plaintiff was examined as P.W.1 and 15 documents, Exs.A-1 to A-15 were marked and on the side of the defendants, 2 witnesses were examined and 4 documents, Exs.B-1 and B-4 were marked. 8. The trial court after taking into consideration, the oral and documentary evidences of both sides, decreed the suit. 9. Aggrieved over the judgment and decree of the trial court, the fourth defendant has filed appeal in A.S.No.5 of 2002 on the file of II Additional District Court, Salem and the lower appellate court also confirmed the judgment and decree of the trail court and dismissed the appeal. 10. 9. Aggrieved over the judgment and decree of the trial court, the fourth defendant has filed appeal in A.S.No.5 of 2002 on the file of II Additional District Court, Salem and the lower appellate court also confirmed the judgment and decree of the trail court and dismissed the appeal. 10. Aggrieved over the judgments and decrees of the courts below, the fourth defendant has filed the above appeal. 11. Heard Mr. P. Jagadeesan, learned counsel appearing for the appellant, Mrs. Radha Gopalan, learned counsel appearing for the respondents 2 to 8 and Mr. D. Shivakumar, learned counsel appearing for the 9th respondent. 12. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- "(i) Whether the settlement deed executed by Mariappa Chettiar under Ex.A1 is valid in law, in view of the clear finding in O.S.No.476 of 1984 as confirmed by this court in S.A.No.1394 of 1989? (ii) Whether the settlement deed executed by Mariappa Chettiar under ex.A1 is valid especially under the provisions of Hindu Women's Right to Property Act, 1937? (iii) Whether or not the first defendant entitled to half share in item Nos. 1 and 2 of the suit properties as per the judgment and decree in O.S.No.476 of 1994, which was confirmed in Second aeal No.1394 of 1989 by this court? (iv) Whether the lower courts are right in holding that the judgment rendered in O.S.No.476 of 1984 which was confirmed by this court in S.A.No.1394 of 1989 would not bind he plaintiffs and also would not operate as res judicata? 13. Apart from the above substantial questions of law, the learned counsel appearing on behalf of the appellant also raised the following additional substantial questions of law on 7.1.2013:- (i) Whether the settlement deed dated 22.4.1959 under Ex.A1 executed by Mariappa Chettiar is valid and binding on the first defendant, especially when the fist defendant's limited rights in the joint family properties, enlarged not absolute and full ownership in view of section 14(1) of Hindu Succession Act, 1959? (ii) whether or not the first defendant became the full owner of her husband's share in the joint family properties (suit properties) in view of section 14(1) of Hindu Succession Act, 1959? (ii) whether or not the first defendant became the full owner of her husband's share in the joint family properties (suit properties) in view of section 14(1) of Hindu Succession Act, 1959? (iii) Whether the lower courts right in holding that the first defendant is estopped from climbing any right in the suit properties, especially she has not claimed any right under the settlement deed Ex.A1 and the suit properties are not subject matter of the earlier proceedings? (iv) Whether the lower courts right in holding that the appellant failed to prove the registered Will Ex.B2 dated 11.11.1987 as per law, especially the Will is a registered one and the appellant examined the attest or as D.W.2 to prove the same? The learned counsel for the appellant also served a copy of the additional substantial questions of law on the learned counsel for the respondents/plaintiffs on 7.1.2013 and both the learned counsels advanced arguments on all the substantial questions of law at the time of hearing of the appeal. 14. It is not in dispute that one Ramasamy Chettiar and Mariappa Chettiar are brothers and they were members of Hindu undivided joint family. The first defendant is the wife of Ramasamy Chettiar. The second defendant is the son of Mariappa Chettiar and the third defendant is the wife of the second defendant. The plaintiffs are the sons and daughters of the defendants 2 and 3. The respondents 10 to 12 are the legal representatives of the deceased first respondent, who died pending appeal and who was the first plaintiff in the suit. The defendants 1 to 3 died during the pendency of the suit. 15. Under Ex.A1 settlement deed dated 22.4.1959, Mariappa Chettiar settled the suit properties in favour of his daughter-in-law, the third defendant and her children viz., the plaintiffs. Under the said document, the plaintiffs were given vested rights in the suit properties. Under Ex.A4 settlement deed dated 26.6.1972, the first defendant settled the properties in favour of one S.P. Madewaran in respect of item No.3 of the suit properties. According to the plaintiffs, item No.3 of the suit properties is also the joint family property. However, the first defendant contended that the same to be the self acquired property of her husband Ramasamy Chettiar. 16. In respect of item Nos. According to the plaintiffs, item No.3 of the suit properties is also the joint family property. However, the first defendant contended that the same to be the self acquired property of her husband Ramasamy Chettiar. 16. In respect of item Nos. 1 and 2 of the suit properties, there is no dispute that they are the ancestral joint family properties of Ramasamy Chettiar and Mariappa Chettiar. Under Ex.A1 settlement deed dated 22.4.1959, the first defendant was given the right of residence in item No.3 of the suit properties. Under Ex.A1 settlement deed, the 3rd defendant was given life estate in respect of item Nos. 1 and 2 of the suit properties. 17. The 2nd defendant filed a suit in O.S.No.251 of 1975 to declare that Ex.A4 settlement deed dated 26.6.1972 as null and void, not valid and binding on him after the death of the first defendant. From Ex.A5, it could be seen that the said suit was decreed on 29.1.1976. The first defendant preferred an appeal in A.S.No.222 of 1976 and from Ex.A6, it could be seen that the lower appellate court set aside the judgment and decree of the trial court. This court in S.A.No.33 of 1978, confirmed the judgment and decree of the lower appellate court, which is evidenced by Ex.A12. In S.A.No. 33 of 1978, this court held that the suit properties along with other properties are joint family properties of Ramasamy Chettiar and Mariappa Chettiar. 18. It is also pertinent to note that Ramasamy Chettiar died prior to coming into force of the Hindu Women's Right to Property Act, 1937. Therefore, the Act shall not apply to the properties of any Hindu dying intestate before the commencement of the said Act. As per the law then prevailing, the first defendant can claim the right of residence and the right to be maintained from and out of the joint family estate and the rights of the Ramasamy Chettiar in the joint family properties would pass on to his brother viz., Mariappa Chettiar by survivorship, therefore, on the death of Ramasamy Chettiar on 14.1.1936, except the right of residence and the right of maintenance, the other rights in the suit properties pass on to Mariappa Chettiar by survivorship. 19. 19. In Ex.A1 settlement deed dated 22.4.1959, the first defendant was conferred the right of residence and maintenance and a provision was made in the said document giving the right of residence in item No.3 of the suit properties in her favour. Even otherwise, the first defendant would be entitled to claim the right of residence and maintenance in the joint family properties under the Hindu Law. Therefore, the property given to the first defendant towards her maintenance and residence under the Hindu Succession Act, the above said right granted to the first defendant enlarged into an absolute right under section 14(1) of the Hindu Succession Act, therefore, item No.3 of the suit properties was held to be absolute property of the first defendant in second Appeal No.33 of 1978. 20. In Ex.A12, judgment dated 2.7.1981 made in S.A.No.33 of 1978, this court held that item No.3 of the suit properties mentioned in Ex.A1 settlement deed is the absolute property of the first defendant and consequently held that Ex.A4 settlement deed dated 26.6.1972 is a valid document, therefore, it is evident that under Ex.A12 judgment dated 2.7.1981 made in S.A.No.33 of 1978, this court has not declared Ex.A1 settlement deed dated 22.4.1959 as an invalid document. In the said judgment, this court held that in view of execution of Ex.A1 settlement deed dated 22.4.1959, with regard to the right of maintenance and residence to the first defendant in the joint family properties, the said property would enlarge into an absolute estate of the first defendant after the coming into force of Hindu Succession Act, 1956. In Ex.A9, judgment dated 29.9.1989 made in S.A.No.33 of 1978, this court in paragraph No.8, held as follows: "8. ... Here again, such a stand is contrary to pleading and could have no applicability, because it is based upon Exhibit B.39 settlement deed, defendants claim that they have acquired absolute right. This document had come up for consideration in the earlier proceedings and the High Court declared it as an invalid document in so far as the first respondent herein is concerned. This document had come up for consideration in the earlier proceedings and the High Court declared it as an invalid document in so far as the first respondent herein is concerned. It was held that her possession has enlarged into an absolute right, and that was why she filed the present suit for partition." Though the learned Judge held that the High Court had declared Ex.B39 settlement deed (it is marked as Ex.A1 in the present suit) as an invalid document in the earlier proceedings, with great respect to the learned Judge, on a perusal of Ex.A12 judgment of this court dated 2.7.1981 made in S.A.No.33 of 1978, I find, this court has not declared the settlement deed as in invalid document. Further, if this court had declared Ex.A1 settlement deed as an invalid document, it would have granted half share in item No.3 of the suit properties to the first defendant and granted other half hare to Mariappa Chettiar. The lower appellate court has rightly held that in view of item No.3 of the suit properties being given to the first defendant in recognition of her pre-existing right, accepting the right, the High Court has granted absolute right in respect of the said property in favour of the first defendant on the basis of section 14(1) of the Hindu Succession Act, 1956. 21. On a perusal of Ex.A4 settlement deed dated 26.6.1972, it could be seen that Mariappa Chettiar and his brother Ramasamy Chettiar were divided. That apart, even in the written statement filed by the first defendant in O.S.No.251 of 1975, the first defendant had admitted that item No.3 of the suit property was purchased by her husband on 9.12.1921 and even prior to the purchase, her husband Ramasamy Chettiar and Mariappa Chettiar were divided. That apart, she has also admitted the relinquishment of the right in the joint family properties by Ramasamy Chettiar. In these circumstances, the first defendant cannot take contrary stand contending that Ramasamy Chettiar and Mariappa Chettiar were not divided and the joint family properties remained intact. After deriving the right in respect of item No.3 of the suit properties given to her in recognition of her pre-existing right under Exs.A1 and A4 settlement deeds the first defendant filed a suit in O.S.No.476 of 1984 claiming half share in item Nos. After deriving the right in respect of item No.3 of the suit properties given to her in recognition of her pre-existing right under Exs.A1 and A4 settlement deeds the first defendant filed a suit in O.S.No.476 of 1984 claiming half share in item Nos. 1 and 2 of the suit properties stating that she, as the wife of Ramasamy Chettiar, would be entitled to claim partition of half share in the joint family properties. The said suit was filed as against the defendants 2 and 3. The said suit was decreed and on appeal, the lower appellate court confirmed the judgment and decree of the trial court and this court also in S.A.No.1394 of 1989, confirmed the judgments and decrees of the courts below. 22. It is not in dispute that the present plaintiffs were not parties in O.S.No.476 of 1984. The learned counsel appearing on behalf of the appellant contended that the present suit filed by the plaintiffs is barred by res judicata. The learned counsel submitted that the parents of the plaintiffs were parties in O.S.No.476 of 1984 and since the plaintiffs were claiming rights through their father in the suit properties, the present suit is barred by res judicata. In support of his contention, the learned counsel relied upon the following judgments:- (i) AIR 1970 MADRAS 474 (R.Pandhubhai v. Bombay Cycle Importing Co.) wherein this court held that even an erroneous decision on a question of law would operate as res judicata as between the same parties in a subsequent proceeding when the same question is raised. (ii) AIR 1979 SC 551 (Ishardas v. The State of Madhya Pradesh and others) wherein the Hon'ble Apeaax court held that in order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parities or between parties under whom they or any of them claim. (iii) 1992 (1) LW 527 (Doraibabu & others v. K.Masilamani and others)) wherein the Division Bench of this court found that there was a provision in the decree that she would take a limited interest in the properties and after her death they would be taken by her grandson and her husband's illegitimate son. (iii) 1992 (1) LW 527 (Doraibabu & others v. K.Masilamani and others)) wherein the Division Bench of this court found that there was a provision in the decree that she would take a limited interest in the properties and after her death they would be taken by her grandson and her husband's illegitimate son. Enlargement of interest acquired by the widow under the decree by applying Section 14(1) of Hindu Succession Act, 1956. Deed of settlement executed by her in favour of her brother's son in 1976 was upheld as legal and enforceable. (iv) 1992 (1) LW 601 (Thota Sesharatnamma and another v. Thota Manikyamma (dead) by LRs. & others) wherein the Hon'ble Supreme Court held that section 14(2) of the Hindu Succession Act, 1956 is in the nature of the proviso or an exception to section 14 and comes into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu to the property. If the case falls under the provisions of section 14(1) of the Act, then the female Hindu shall be held to be full owner of the property and sub section (2) of section 14 will only apply where the property is acquired without there being any pre-existing right of other female Hindu in such property. Further, the Apex court affirmed and reiterated that section 14(2) will be construed more in the nature of a proviso or an exception to section 14(1) of the Act. (v) 1998 (3) LW 571 (Raghubar Singh and others v. Gulab Singh and others) wherein the Hon'ble Apex court held that the right to maintenance of a Hindu female flows from the social and temporal relationship between the husband and the wife and that right in the case of a widow is a pre-existing right, which existed under the Shastric Hindu Law long before the passing of the 1937 or the 1946 Acts. Those Acts merely recognized the position as was existing under the Shastric Hindu Law and gave it a statutory backing. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. 23. Where a Hindu widow is in possession of the property of her husband, she has a right to be maintained out of it and she is entitled to retain the possession of that property in lieu of her right to maintenance. 23. Countering the submissions made by the learned counsel appearing for the appellant, learned counsel appearing on behalf of the respondents/plaintiffs submitted that both the courts below have rightly decreed the suit. The learned counsel further submitted that section 4 of the Hindu Women's Rights to Property Act, 1937 shall not apply to the person dying intestate before the commencement of the Act, which came into force on 14.4.1937. Since in the present case Ramasamy Chettiar had died on 14.1.1936, the Act have no application. The learned counsel also in support of her contention relied upon a judgment reported in 2002 (2) MLJ 490 (Kuppuswami @ Mannakatti and another v. Nagarathina Gounder and another) wherein this court held that when the title put forward by the sons is independent of the title by the father, it cannot be said that the suit is barred by res-judicata. The sons have title over the property independent of the right of their father and as such they are entitled to have their right declared by law. 24. There is no dispute with regard to the ratios laid down in the above referred judgments relied upon by the learned counsels appearing for the appellant and the respondents. 25. With regard to the applicability of the judgments to the facts and circumstances of the case is concerned, as already stated, the plaintiffs were not parties in the earlier suit in O.S.No.476 of 1984. In the said suit the second defendant had contended that item Nos. 1 and 2 of the suit properties belongs to him on the basis of the right of inheritance he claimed through his father. The third defendant contended that she was given life estate in the property under Ex.A1 settlement deed. Whereas, in the present suit, the plaintiffs are not claiming rights in respect of item Nos. 1 and 2 of the suit properties either through their father or their mother. They claimed right in respect of item Nos. 1 and 2 of the suit properties only on the basis of Ex.A1 settlement deed, therefore, the plaintiffs claimed their independent right and not the right they derived from their parents. 1 and 2 of the suit properties either through their father or their mother. They claimed right in respect of item Nos. 1 and 2 of the suit properties only on the basis of Ex.A1 settlement deed, therefore, the plaintiffs claimed their independent right and not the right they derived from their parents. I totally agree with the findings of the lower appellate court that the plaintiffs have a title over the suit properties independent of their right of their part and as such, they are entitled to have their right declared by law and therefore, it could be seen that the suit filed by the plaintiffs claiming title to items Nos. 1 and 2 of the suit properties as full owners on the basis of Ex.A1 settlement deed would not be barred by res judicata. 26. The plaintiffs claimed the suit properties as revisionary heirs as per Ex.A1 settlement deed. As already stated, the plaintiffs were not parties in O.S.No.476 of 1984 and their attempts to get themselves impleaded in the final decree proceedings in O.S.No.476 of 1984 ended in failure because of the opposition put-forth by the 4th defendant, therefore, the courts below have rightly found that the judgment and decree passed in O.S.No.476 of 1984 would not bind the plaintiffs. 27. Since the first defendant's husband died even prior to coming into force of Hindu Women's Right to Property Act, 1937, the properties would revert to his brother Mariappa Chettiar by survivorship and would not pass in favour of the first defendant. As stated earlier, she could claim only the right of residence and maintenance from and out of the joint family properties and that apart, the first defendant would not be entitled to claim any absolute right over the joint family properties. It cannot be disputed that pursuant to coming into force of Hindu Succession Act 1956, the limited right conferred on the first defendant in respect of item No.3 of the suit properties enlarged into her absolute estate. It cannot be disputed that pursuant to coming into force of Hindu Succession Act 1956, the limited right conferred on the first defendant in respect of item No.3 of the suit properties enlarged into her absolute estate. Since the first defendant had admitted in O.S.No.476 of 1984 that Ramasamy Chettiar and Mariappa Chettiar were divided and also in Ex.A4 partition deed described Mariappa Chettiar as the divided brother of her husband, even though Mariappa Chettiar had acquired title to the joint family properties by way of survivorship, in recognition of her right to maintenance and residence and gave her item No.3 of the suit properties in the settlement deed, the said property enlarged into her absolute right under section 14(1) of the Hindu Succession Act. The appellate court also rightly found that the first defendant elected to get the benefit in item No.3 of the suit property on the basis of Ex.A1 settlement deed which had conferred benefit to her in respect of item No.3 of the suit properties in recognition of her pre-existing right. The first defendant could not approbate and reprobate the transaction and inconsistently lay a claim over the joint family properties. The courts below also rightly came to the conclusion that the first defendant is estopped from laying a claim over item Nos. 1 and 2 of the suit properties and that apart, her claim in item Nos. 1 and 2 of the suit properties are barred by the doctrine of election. I also agree with the findings of the courts below that the first defendant would not be entitled to claim any right or interest over the item Nos. 1 and 2 of the suit properties. 28. Though the fourth defendant in his additional written statement stated that the first defendant executed a Will in his favour, which was marked as Ex.B2, the said Will was not proved as contemplated under the law. Though the attest or was examined as D.W.2, the evidence of D.W.2 failed to prove the due execution of Ex.B2 Will. The courts below have rightly disbelieved the evidence of D.W.2 and consequently held that the Will was not proved by the fourth defendant. 29. It is also pertinent to note that the validity of Ex.A1 settlement deed dated 22.4.1959 has not been challenged by the parties. The said document was executed by Mariappa Chettiar in favour of minor grand-children. The courts below have rightly disbelieved the evidence of D.W.2 and consequently held that the Will was not proved by the fourth defendant. 29. It is also pertinent to note that the validity of Ex.A1 settlement deed dated 22.4.1959 has not been challenged by the parties. The said document was executed by Mariappa Chettiar in favour of minor grand-children. The first defendant had also derived benefits under Ex.A1 settlement deed in respect of item No.3 of the suit properties and the said document was executed in favour of the minor children for the reason that their father viz., the second defendant was leading a wayward life and not looking after the family and his daughter-in-law viz., the third defendant. The reason for not executing the settlement deed in favour of the minor children is acceptable. In these circumstances, the plaintiffs are entitled to claim right and title in respect of item Nos. 1 and 2 of the suit properties. 30. The judgments relied upon by the learned counsel appearing for the appellant are not applicable to the facts and circumstances of the present case. The courts below have rightly decreed the suit by well considered judgments. 31. In these circumstances, I find no ground much less any substantial question of law to interfere with the judgments and decrees of the courts below. The second appeal is liable to be dismissed. Accordingly, the same is dismissed. However, there shall be no order as to costs.