1. This second appeal arises out of a suit for maintenance filed by the plaintiff who is the widow of one Ramayya. She claims Rs. 40 a year for her lifetime with past maintenance to be charged on the properties mentioned in the plaint. Her husband Ramayya had a brother Brahmayya. Ramaya died issueless in 1912. Brahmayya died, three years after, leaving a son who is defendant 3.
2. On 19th January 1911 Ramayya executed a will, Ex. A. At that time his brother Brahmayya was alive. The evidence of defendant 3 is that his father was an old decrepit man unable to sign. There is no question about the genuineness of the will or of Brahmayya's being of sound disposing mind. Both the Courts find that the will is genuine. Under that will he gives his wife the jewels and what he calls his self-acquired property and he gives his share in the ancestral property, which he held in common as a member of the joint family consisting of himself, his brother and defendant 3 to defendant 3. He has also made some provision for his wife's maintenance. The material portion of the will as regards maintenance runs as follows:
My entire share in the ancestral dry and wet lands has been given away to Venkatanarasayya. You should therefore be receiving out of the ancestral property Rs. 36 per year towards maintenance and Rs, 4 for clothing; in all Rs. 40 in words (forty rupees,) through your life from the said Venkatanarasayya and you should receive the same by the 30th Magha Bahula of each year. After my lifetime in case Venkatanarasayya is not favourably disposed towards you, you should receive the sum of forty rupees from him as per the above condition and maintain yourself.
3. The previous Clause 7 says that if she likes she should live with his elder brother's son Venkatanarasayya and his wife. This will is attested by defendant 3, Venkatanarasayya who under the will is the legatee of the half-share in the ancestral lands which the testator possessed. There can be little doubt from the evidence and the exhibits on record that after the death of the testator defendant 3, who under the will gets his half-share, was to pay the plaintiff's maintenance at Rs. 40 a year as provided for in the will. He admits in his evidence that he paid her maintenance for six years according to the will and that he did not pay her afterwards because he fell ill and the lands did not yield. Defendant 3 executed two mortgage-deeds, Exs. II and II-a, in favour of defendants 1 and 2. Ex. II is dated 8th June 1913 and Ex. II-a is dated 18th August 1915. The testator, as I have said before, died in 1912 and Brahmayya died between the date of Ex. II and that of Ex. II-a; the exact date of his death is not known. So that we find a year after the testator's death there is a clear recital in Ex. II that the mortgage of defendant 3, took under the will all the lands. He mentions the lands and then says as follows:
Which has been in my possession and enjoyment, the same having been acquired by my father and grandfather and which has been in my possession and enjoyment, the same having devolved on me under the will dated 18th January 1911 executed by my junior paternal uncle Boddanapalli Ramayya Garu and registered as No. 3 of 1911 and retained the property in my possession.
4. A similar statement is made in Ex. II-a. Defendant 1 was examined, He states that defendant 3 told him that his paternal uncle bequeathed the property to him and that the will is mentioned in the bonds. Though he says that he did not see the will or take a copy of the will defendants 1 and 2 were both mortgagees so that there can be little doubt that the mortgagees were aware of the will and were also aware that defendant 3 derived title under the will, Defendants 1 and 2, who are brothers, got a decree against defendant 3, and in execution attached the properties mortgaged to them under Exs. II and II-a. The plaintiff filed a claim petition asserting her right to maintenance charged on the properties Her claim was dismissed. Hence this suit.
5. Two questions arise: whether Ramayya was divided from his brother; and if not whether the will is valid and binding on defendant 3. It was held by both the Courts that Ramayya was not divided at the date of the will from his brother and that the will was invalid because the testator was a member of the joint family. The facts which we have set out above, the evidence of defendants 1 and 3 and the recitals in Exs. II and II-a make it clear that defendant 3, although he could have pleaded that the will was invalid and given the go-by to the will, chose to take under the will the property and that he was paying the plaintiff Rs. 40 a year for her maintenance regularly for six years. This maintenance is the exact amount mentioned in the will; and there can be little doubt that he was acting under the terms of this will when he was paying the maintenance. He also mortgaged the property stating that he got the property under the will. Under these circumstances the question arises whether it is open to the defendant to state that he got the property by survivorship and that the will is invalid. It seems to us that where a person takes property under a will which is open to him to repudiate but does not do so and where he enjoys the property, pays maintenance which is payable under the will to the widow of the testator and deals with the property by mortgaging it leading the widow to suppose that she was getting her rights under the will, he cannot at any subsequent stage plead that the widow has no right except under the Hindu law. It is clear that if he had taken a different attitude on Ramayya's death the widow would have sued for maintenance. Having led to believe that the will was valid and he would not dispute it and having mortgaged the property so as to make her rights under the Hindu law difficult if not impossible of realization, he cannot defeat her rights saying that he mortgaged the property under the right of a member of an undivided family and not under the title given by the will. The mortgagees who had notice of the will and who took the mortgage on the footing that the title of the mortgagor was under the terms of the will cannot, in our opinion, be heard to say that they would set up their rights against the widow which their mortgagor could have set up on the death of Ramayya if he chose to dispute the will. That stage has long passed. The attaching creditors are mortgagees themselves and they attached the property subject to the mortgage. It is not the case of a bona fide creditor who purchased without knowing any of these facts and seeks in execution to recover his money. There is no suggestion here that the will was intended to defeat anybody's rights. Defendant 3 chose to take under the will as he gets three-fourths of the property on the testator's death, namely the testator's half-share and his own one-fourth share as son of his father instead of half which he will get as the son of his father if the testator's share survived. Under these circumstances it seems to us that the terms of the will are binding on defendant 3 and are binding also upon the mortgagees, defendants 1 and 2 and the plaintiff, and they cannot be heard to say that the property can be sold in execution of the decree on the footing that defendant 3 was a member of an undivided family and that the will was inoperative. It has been argued that, on the facts found by us, we can also hold that there was a family settlement. It is no doubt true that the father of defendant 3 though he was alive for about a year after the testator's death, did not object to the terms of the will. According to the evidence he was old and decrepit. But f he was competent to contract contemporaneous consent was necessary. We do not think that on the materials before us it can be said that there was an agreement between defendant 3 and the deceased Ramayya so as to bring the case within the authority of Lakhsmi Chand v. Anandi A. I. R. 1926 P. C. 54 We prefer to rest the case on a different ground. If it were necessary to go into the question we would send the case back for fresh findings on the question as to whether defendant 3 was managing the familly: he states he did in the documents.
6. There is one other aspect of the question which arises, but which it is unnecessary to determine; and that is how far, where a person who is a member of an undivided family leaves a will with the consent of the other co-parceners, he can be held to have become divided in status. It is argued that the Court can presume that he intended to get himself divided when he made the will and that the fact of his making a will which he cannot legally do unless he was divided in status is an unequivocal intention to get himself divided from the other members and that their knowledge of the will by attestation or otherwise is notice of the intention and that as no formal words are necessary to express that intention the mere fact of execution of the will severs the status. There is force in the contention that as a testator must know that he cannot while he is a member of an undivided family leave a will and that as no testator will do an act which will be useless unless he creates a status of separation the execution of a will dealing with his undivided share is an expression of an intention to become separate. We think there is much in this argument as it is clear that it is now settled law that consent of other co-parceners is not necessary and that it is open to a member of a member of a co-parcenary to become divided in status by merely giving notice of his intention and that the notice may be given by any act of his which is consistent with his intention. In the light of the decisions it is clear that if a person who is a member of an undivided family, wants to get himself divided, he can do so by simply making a statement in the will
I want to get myself divided and want to execute this will.
7. Then there would not be any controversy at all if the co-parceners were informed of the will. As we have said before it is unnecessary to deal with these questions at present in view of our other findings.
8. As regards the charge: we think that the will clearly gives a charge as it directs that the maintenance shall be payable out of the share of Ramayya. The direction that the maintenance should be given out of the ancestral property clearly creates a charge in favour of the widow.
9. We reverse the decree of the Courts below, and there will be a decree in favour of the plaintiff as prayed for declaring that the maintenance (past and future) shall be a charge on the half of the property mentioned in the plaint and that the property is liable to be attached by defendants 1 and 2 subject to this charge.
10. Defendants 1 and 2 will pay the plaintiff's costs throughout.