Achammal v. Rajamanickam

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 2.9.2009 Coram:The Honourable Mr.Justice M.JAICHANDRENS.A.No.817 of 1995Achammal .. Appellant/Ist Defendant vs.1. Rajamanickam 2.Karthikeyan (died) rep. by his L.Rs.3. Mahalakshmi4. Kala5. Sumathi (Minor)6. Senthilkumar (Minor) ..Respondents/Plaintiff & 2nd Defendant (Minors 5th and 6th respondents rep. by their natural guardian and mother Mahalakshmi, the second respondent) ( Respondents 3 to 6 brought on record as LRs of the Deceased 2nd Respondent vide order of Courtdated 2.9.2009 made in CMP.353/07 )The Second Appeal has been filed under Section 100 C.P.C.againstthe judgment and decree, dated 13.3.1995, in A.S.No.46 of 1993, onthe file of the Subordinate Judge, Nagapattinam, confirming thejudgment and decree, dated 15.7.1992, in O.S.No.244 of 1988, on thefile of the District Munsif Court, Nagapattinam. For Appellants : Mrs.A.SathyaBama For Respondents : Mr.K.Chandramouli senior counsel for Mr.A.Muthukumar J U D G E M E N TThis second appeal has been filed against the judgment anddecree, dated 13.3.1995, made in A.S.No.46 of 1993, on the file of https://hcservices.ecourts.gov.in/hcservices/ the Sub Court, Nagapattinam, confirming the judgment and decree,dated 15.7.1992, made in O.S.No.244 of 1988, on the file of theDistrict Munsif Court, Nagapattinam. 2. The first defendant in the suit in O.S.No.244 of 1988, is theappellant in the present second appeal. The plaintiff in the suit,who is the first respondent herein, had filed the suit on the file ofthe District Munsif Court, praying for declaration of title and forpermanent injunction, in respect of the suit schedule property. 3. The plaintiff in the suit in O.S.No.244 of 1988, had statedthat, out of the total extent of 1.33 acres, in R.S.No.65/4, inNo.137, Vilunthamavadi village, in Nagapattinam, an extent of 67cents, on the western portion of the land, had originally, belongedto Rethina Koundar, the husband of the first defendant and adoptivefather of the second defendant. Rethina Koundar, while in a sound anddisposing state of mind and bodily health, had bequeathed all hisproperties, including the 67 cents in the suit properties, under aWill, dated 25.2.1971. The Will has been duly attested, in accordancewith law and it has been registered in the office of the SubRegistrar, Thirupundi, as document No.71, in Book 3 of the year 1971. 4. It has been further stated that, as per the Will of RethinaKoundar, the entire extent of 67 cents in the suit properties hadbeen given to his adopted son, who is the second defendant in thesuit. After the death of Rethina Koundar, the second defendant hadsucceeded to the entire properties, in accordance with the Will.Thus, the second defendant had got into possession of the land withan extent of 67 cents, in R.S.No.65/4. The patta had also beentransferred in his name and he has also been paying the land revenueto the Government. 5. It has been further stated that the second defendant was aminor on the date of the death of the adoptive father, RethinaKoundar. Therefore, the first defendant, being the adoptive mother,was in possession and enjoyment of the properties given to the seconddefendant by Rethina Koundar, by his Will, dated 25.2.1971. The firstdefendant, as the adoptive mother of the second defendant and as hisguardian, had sold an extent of 7 cents, on the western portion, inthe suit survey number, to one Mariyappan. 6. After attaining majority, the second defendant, as theabsolute owner of the entire 60 cents, had sold the said propertiesto the plaintiff, under a sale deed, dated 10.9.1987, for aconsideration of Rs.14,000/-. The second defendant had received theentire sale consideration and had discharged the loan amountsincurred by him for his family expenses and at the time of hismarriage. https://hcservices.ecourts.gov.in/hcservices/

7. It has been further submitted that, immediately after theexecution of the sale deed, the second defendant had put theplaintiff in possession of the 60 cents of land. Thereafter, theplaintiff had also got the patta transferred in his name, in pattaNo.855. 8. It has been further stated that, in the Will, dated25.2.1971, executed by Rethina Koundar, the properties, set out inthe B schedule of the Will, had been given to the second defendant.The Testator, Rethina Koundar, had added a condition in the Will, inrespect of the properties given to the second defendant. Accordingly,the second defendant and his heirs should enjoy the properties,without the power of alienation. 9. The plaintiff had stated that the said condition is void, asit imposes an absolute restraint on alienation and as the seconddefendant had taken the properties given to him under the Will,absolutely. Therefore, the sale of the suit properties by the seconddefendant, in favour of the plaintiff, is perfectly valid. On thewrong advice of certain persons, the defendants were attempting todispossess the plaintiff from the suit properties, without initiatinglegal steps to set aside the sale deed and to declare it as null andvoid. 10. In fact, the first defendant, as the guardian of the seconddefendant, had sold 7 cents in the western portion of the suit surveynumber to one Mariyappan. Therefore, the defendants are estopped fromcontending that the properties given to the second defendant, underthe Will of Rethina Koundar, are inalienable. Even otherwise, thetitle of the plaintiff in the suit properties cannot be questioned bythe defendants without having the sale deed, dated 10.9.1987, setaside by a competent Court, in the manner known to law. Since thedefendants were attempting to trespass upon the suit properties andas they were compelling the plaintiff to surrender a portion of thesuit properties to them, the plaintiff had filed the suit, inO.S.No.244 of 1988, praying for a decree declaring that the plaintiffis the true, lawful and absolute owner of the suit properties and fora permanent injunction restraining the defendants and their men,servants and agents, from, in any manner, interfering with theplaintiff's peaceful possession and enjoyment of the suit propertyand for an alternative relief directing the defendants to put theplaintiff in possession of the suit properties.11. In the written statement filed on behalf of the firstdefendant, while denying the claims made by the plaintiff, she hadstated that the statement that the first defendant, as the guardianof the second defendant, had sold 7 cents of the land in the suitproperties to one Mariyappan, is false. The suit properties belong to https://hcservices.ecourts.gov.in/hcservices/ the first defendant and the patta is also in her name and she hasbeen paying the kists for the said properties. Further, the suitproperties are in the enjoyment of the first defendant. The claimsmade by the plaintiff that the first defendant had sold 7 cents inthe suit properties to one Mariyappan and that the second defendanthad sold 60 cents of the land to the plaintiff, by a sale deed, dated10.9.1987, are false. 12. It has been further stated that the sale deed said to havebeen executed by the second defendant is void and unsustainable inlaw. In fact, the first defendant has been in continuous possessionand enjoyment of the suit properties. Further, there is no cause ofaction for the filing of the suit by the plaintiff. Therefore, thesuit is to be dismissed with costs. 13. In the additional written statement filed on behalf of thefirst defendant, it has been stated that the plaintiff has no rightin the suit properties. The sale deed, said to have been executed bythe second defendant to the plaintiff, is invalid in law. He ought tohave filed a separate suit for the alternative relief claimed by him,by paying separate court fee. 14. In the written statement filed on behalf of the seconddefendant, it has been stated that the suit is a fraudulent one.Since the suit properties have been in the possession and enjoymentof the first defendant, the plaintiff has no right in the saidproperties. The second defendant has no knowledge of the Will ofRethina Koundar, dated 25.2.1971. 15. The statement of the plaintiff that the first defendant hadsold away a portion of the suit properties, is false. The sale deed,dated 10.9.1987, said to have been executed by the second defendant,is a fraudulent document. The claim of the plaintiff that the seconddefendant had received a sum of Rs.14,000/-, as consideration, forthe sale of 60 cents of the suit properties, to the plaintiff, isalso false. Further, the claim of the plaintiff that he had taken thepossession of the suit properties from the defendants is incorrect.Further, the plaintiff had taken certain signed papers from thesecond defendant with the intention of misusing them for wrongfulpurposes. 16. In view of the averments made on behalf of the plaintiff, aswell as the defendants, the trial Court had framed the followingissues for consideration:"(i) Whether the Will, dated 25.2.1971, writtenby Rethina Koundar, is valid?(ii) Whether the second defendant is entitled to https://hcservices.ecourts.gov.in/hcservices/ the absolute rights in the properties found in theWill, dated 25.2.1971?(iii) Whether the sale deed, dated 10.9.1987, isvalid? Whether the claim of the second defendant thatthe sale deed had been written fraudulently withoutdue consideration having been given to the seconddefendant is true?(iv) Whether the plaintiff is entitled to thereliefs sought for by him?(v) What are the reliefs, the parties to the suitare entitled to?"17. From the evidence of the first defendant, the trial Courthad found that she has been taking care of the second defendant fromhis younger days and that he has been living with her, even thoughshe had denied the claim of the plaintiff that the second defendantis an adopted son of the Rethina Koundar. When the second defendantwas enrolled as a student in the School, the names of the firstdefendant and Rethina Kondar had been given as the parents of thesecond defendant. The said document had been marked as Exhibit A.6.The marriage invitation of the second defendant has been marked asExhibit A.5, wherein the names of the first defendant and RethinaKoundar had been shown as the parents of the second defendant. Insuch circumstances, the trial Court had come to believe that RethinaKoundar had written a Will, marked as Exhibit A.15, dated 25.2.1971,in favour of the second defendant. Thus, the trial Court had come tothe conclusion that the Will marked, as Exhibit A.15, is valid andthe first defendant had been given the B schedule properties, asshown in the Will. 18. From the recitals of the Will, the trial Court had also cometo the conclusion that the second defendant would get absolute rightsin the B schedule properties given to him under the Will of RethinaKoundar, dated 25.2.1971. According to the Will, the first defendantwas to take care of the B schedule properties, without having thepower to alienate the same and to hand over the properties to thesecond defendant, on his attaining majority. The trial Court had heldthat the condition that the properties should be enjoyed by thesecond defendant and his legal heirs, without alienating the same,cannot be held to be valid, in accordance with Section 138 of theIndian Succession Act, 1925. Once a property is bequeathed,absolutely, a condition imposed restraining alienation would be void.Therefore, the trial Court had come to the conclusion that the seconddefendant had absolute rights in the B schedule properties, mentionedin the Will, dated 25.2.1971. https://hcservices.ecourts.gov.in/hcservices/

19. With regard to the third issue, the trial Court had foundthat the sale deed, dated 10.9.1987, is valid in law. The sale deed,dated 10.9.1987, is a registered document and the second defendanthad clearly stated the reasons for the sale of a portion of the Bschedule properties, which had been got by way of a Will written byRathina koundar in his favour. Since sufficient evidence had not beenshown by the defendants to show that the sale deed, dated 10.9.1987,marked as Exhibit A.1, is invalid, the trial Court had come to theconclusion that the plaintiff had obtained the suit properties by wayof the said sale deed. However, it had been found that the possessionof the suit properties has been with the first defendant, as admittedby the plaintiff. In such circumstances, the trial Court had decreedthe suit declaring the title of the plaintiff in the suit propertiesand by directing the defendants to hand over the possession of thesuit properties to the plaintiff. 20. Aggrieved by the judgment and decree of the trial Court,dated 15.7.1992, made in O.S.No.244 of 1988, the first defendant hadfiled an appeal in A.S.No.46 of 1993, on the file of the SubordinateCourt, Nagapattinam. The Subordinate Court, Nagapattinam, had framedthe following points for consideration:"(i) Whether the Will written by Rethina koundar, on25.2.1971, is valid in law?(ii) Whether Karthikeyan is the adopted son of Rethinakoundar, and the appellant in the appeal?(iii) Whether the first respondent is entitled to thereliefs sought for in the plaint?(iv) What are the reliefs the appellant is entitledto?"21. From the evidence available, the first appellate Court hadfound that the Will written by Rethina koundar, in favour of thesecond defendant, is valid and that the second defendant is theadoptive son of the first defendant, namely, Achammal, and RethinaKoundar. Therefore, the plaintiff had got the suit property by way ofthe sale deed, marked as Exhibit A.1. Since the possession of thesuit properties has been with the first defendant, who is theappellant in the first appeal, the first appellate Court hadconfirmed the findings of the trial Court by dismissing the firstappeal, by its judgment and decree, dated 13.3.1995.22. Aggrieved by the concurrent findings of the Courts below,the first defendant in the suit had filed the present second appealbefore this Court. https://hcservices.ecourts.gov.in/hcservices/

23. This Court had admitted the second appeal on the followingsubstantial question of law:"Whether the bequest under Exhibit A.15 is hit by therule of perpetuity?" 24. It has been contended on behalf of the appellant that thelower appellate Court had erred in holding that the second respondentis the adopted son of the deceased Rathna Koundar, without sufficientproof of such adoption in the manner known to law. The alleged Will,dated 25.2.1971, was neither true nor genuine, since the dueexecution of the Will had not been proved by the plaintiff. The firstappellate Court had misconstrued the contents of the alleged Will tohold that the second defendant was entitled to the suit properties,absolutely. The lower appellate Court had also failed to see that, asper the provisions of the Indian succession Act, 1925, the bequest tothe second defendant was hit by the rule of perpetuity and therefore,it is void. Since the Testator had not given an absolute estate tothe second defendant, the plaintiff cannot claim absolute right inthe suit properties. 25. The learned counsel appearing for the appellant had alsosubmitted that it is for the plaintiff to have proved that theadoption of the second defendant by Rethina Koundar and the firstdefendant, was in accordance with law. Though Rethina koundar, thefather of the second defendant, was alive at the time of the filingof the suit, he had not been examined. Since the second defendant wasonly a holder of a life estate, he could not have alienated the suitproperties in favour of the plaintiff. In support of the saidcontentions, the learned counsel had relied on the decision of thisCourt in CHANDRA NAGESWARAN Vs. T.R.BALAKRISHNAN & OTHERS (1991) 1MLJ 378 . 26. It was also contended that since the second defendant haddied, the sale executed by him is not valid after his death. Insupport of such a contention the learned counsel had relied on thedecision, reported in UMA DEVI NAMBIAR Vs. T.C.SITHAN (DEAD) (2004) 2CTC 287. 27. Per contra, the learned counsel appearing for therespondents had submitted that according to the Will of RethinaKoundar, marked as Exhibit A.15, the first defendant was to take careof the second defendant, who was a minor at the time when the Willwas created, till he attains majority. 28. According to Sections 10 and 11 of the Transfer of PropertyAct, 1882, once an absolute right is vested in a person in respect of https://hcservices.ecourts.gov.in/hcservices/ a property, no condition can be imposed restraining the alienation ofthe property and no restriction can be repugnant to the interestcreated therein. 29. As per Section 138 of the Indian Succession Act, 1925, it ismade clear that where a fund is bequeathed, absolutely, to or for thebenefit of any person, but a Will contains a direction that it shallbe applied or enjoyed in a particular manner, the legatee shall beentitled to receive the fund as if the Will had contained no suchdirection. 30. It has been further contended that in the recitals in thesale deed, dated 17.7.1976, marked as Exhibit A.4, executed by thefirst defendant in the suit, who is the appellant in the presentsecond appeal, in favour of one Chidambaram vanniar, it has beenclearly stated that the property mentioned therein was being sold forherself and on behalf of the minor second defendant. 31. The learned counsel had relied on the decision, reported inRAJRANI SEHGAL Vs. PARSHOTTAM LAL (AIR 1992 DELHI 134), wherein, ithad been held that the Court had to read and keep in mind the wholeof the document and then determine the dominant intention of thetestator and give effect to the same, accordingly. Once the Court issatisfied that the testator wanted to give his entire property to thenamed legatee, his son in the present case, then all subsequentrestrictions would be void as being repugnant to the predominantintent on the passing of the entire state to the heir. 32. In view of the contentions made on behalf of the appellant,as well as the respondents and in view of the reasons stated by theCourts below in coming to its conclusions and on a perusal of therecords available, this Court is of the considered view that theappellant in the present second appeal has not shown sufficient causeor reason for this Court to set aside the concurrent findings of theCourts below. 33. Both the trial Court, as well as the first appellate Court,have found sufficient reasons to come to the conclusion that thesecond defendant was the adopted son of Rethina koundar and the firstdefendant Achammal, who is the appellant in the present secondappeal. It has been found that Rethina Koundar had written a Will,dated 25.2.1971, marked as Exhibit A.15, bequeathing his propertiesto the first and the second defendants. 34. It has also been found that the first defendant had soldaway a portion of the properties by way of a sale deed, dated17.7.1976, marked as Exhibit A.4. Further, once an absolute right hadbeen vested in the second defendant, in respect of the properties https://hcservices.ecourts.gov.in/hcservices/ bequeathed to him by way of a Will, dated 25.2.1971, no furthercondition could have been imposed, as per Sections 10 and 11 of theTransfer of Property Act, 1882, restraining the alienation of theproperty or by creating a restriction repugnant to the interestcreated in such a property. Further, Section 138 of the IndianSuccession Act, 1925, makes it clear that when a Will contains adirection that the property bequeathed, absolutely, should be appliedor enjoyed in a particular manner, the legatee shall be entitled toreceive the said property as if the Will had contained no suchdirection. 35. It is also to be noted that the second defendant, who hadexecuted the sale of the suit property in favour of the plaintiff, byway of the sale deed, dated 17.7.1976, marked as Exhibit A.4, is notan appellant in the present second appeal. It is only the firstdefendant in the suit, in O.S.No.244 of 1988, who is the appellantherein. 36. Both the trial Court, as well as the first appellate Court,had rightly concluded that the adoption of the second defendant byRethina koundar and his wife Achammal, the first defendant in thesuit and the appellant in the present second appeal is true and validin law. Thereafter, Rethina Koundar had bequeathed a portion of hisproperties to the second defendant by way of a Will, dated 25.2.1971,marked as Exhibit A.15. The second defendant had sold the propertiesgot by him by way of the Will, dated 25.2.1971, to the plaintiff.Accordingly, the plaintiff has obtained absolute rights in the suitproperties. 37. As such, the trial Court by its judgment and decree, dated15.7.1992, made in O.S.No.244 of 1988, had decreed the suit in favourof the plaintiff. The first appellate Court had confirmed thefindings of the trial Court, by its judgment and decree, dated13.3.1995, made in A.S.No.46 of 1993. In such circumstances, thepresent second appeal is dismissed, confirming the judgment anddecree of the Courts below. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1. The Subordinate Judge, Nagapattinam2. The District Munsif Court, Nagapattinam.Copy to The Section Officer,V.R.Section,High Court, Madras.1 cc To Mr.T.R.Rajaraman, Advocate, SR.441301 cc To Mr.A.MuthuKumar, Advocate, SR.43834S.A.No.817 of 1995bky(co)pmk.27.10.2009