Kaliappan (Died) v. A.K.Somasundaram (Died)

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Whether in law the courts below are rightin omitting to note that Exhibit A-1 itself is void for the reason that vested reminder cannot be created in perpetuity and therefore it offendsSection 13 of the Transfer of Property Act?2.Whether in law the courts below are rightin omitting to note that when the respondents have claimed interest in the property only after the life of Pavakkal whether the decree for recovery of possession can be granted when the life interest holder is still alive?3.Whether in law the courts below are rightin overlooking that the recitals in Exhibit A-1conferring rights to unborn male descendants of Ponnammal in perpetuity are repugnant to Sections113, 114 and 115 of Indian Succession Act?4.Whether in law the Courts below did not err in overlooking that the appellants are bonafide purchasers for value without notice who have improved the property and who are entitled to equity under Section 33 of the Specific ReliefAct?"The Contentions, Discussions and Findings on Substantial Questionsof Law No.1 to 4:8.The Learned Counsel for the Appellants/Defendants contends that the trial Court as well as the First Appellate Court have committed an error in holding that the Sale Deed executed by Pavakkal, the mother of the Respondents/Plaintiffs on 10.05.1984 in favour of the Appellants is not valid.

Pavakkal W/o.Kulanthai Gounder;

Marakkal W/o.Kalyani Gounder. Also, in the Will, it is mentioned https://hcservices.ecourts.gov.in/hcservices/ that her son-in-law's son viz., grand child Ramasamy Gounder has toget the 'B' schedule properties. The aforesaid four persons are to enjoy the properties till their life-time and after their life-time, their male heirs are to enjoy the property generation after generation. 24. Ex.A.2-Respondents/Plaintiffs' Lawyer's Notice dated16.11.1984 addressed to the 2nd Appellant/2nd Defendant, it is, interalia, mentioned that Pavakkal viz., the mother of the Respondents/Plaintiffs has no right to sell the schedule property mentioned therein or to encumber the same and that she has no right or claim and without the knowledge of the Respondents/Plaintiffs, their mother Pavakkal has sold the property and the said sale will not bind them. Ex.A.3-Respondents/Plaintiffs' Lawyer's Notice dated16.11.1984 has been issued to the 1st Appellant/1st Defendant(deceased).25.In Ex.A.4, the Respondents/Plaintiffs Lawyer's Notice dated16.11.1984 addressed to the 3rd Appellant/3rd Defendant, it is mentioned that the Respondents/Plaintiffs' mother Pavakkal, as perher mother Ponnammmal's Will dated 11.07.1944, is to enjoy the schedule property mentioned therein and as per the recitals of the said Will, the said property can be enjoyed by the Respondents/Plaintiffs' mother till her life-time and thereafter, her male heirs are to enjoy the property.

By means of Ex.A.7-Sale Deed dated 10.05.1984, Pavakkal has sold the property to Kaliappan. As per Ex.A.8, Pavakkal has sold the property to Karuppannan. Likewise, as per Ex.A.9-Sale Deed dated10.05.1984 Pavakkal has sold the property to the 3rd Appellant/3rdDefendant.

Ex.A.10 is the SSLC School Book of the 1st Respondent/1stPlaintiff wherein his date of birth is mentioned as 15.07.1935.Ex.A.11 is the 2nd Respondent/2nd Plaintiff's SSLC Book in which his date of birth is mentioned as 18.02.1939. Ex.A.12 is the SSLC Bookof the 3rd Respondent/3rd Plaintiff in which his date of birth is mentioned as 01.07.1942.

The Learned Counsel for the Appellants/Defendants cites the decision of the Hon'ble Supreme Court in Brahma Vart Sanatan DharmMahamandal V. Kanhaiya Lal Bagla and others, (2001) 9 Supreme CourtCases 562 at page 563 wherein it is held hereunder: "The will makes it abundantly clear that by unambiguous term the absolute ownership of the properties was bequeathed to W by her husband. Repeatedly in the will, it has been made clear that the intention of the executant of the will was to bequeath absolute right of ownership of his properties to his wife. Admittedly, the deceased widow, W, was the third wife of the testator and the testator was not having any other heir except his wife, who was entitled to maintenance from her husband and from his property. So, after the death of her husband, she would have life interest in the said property even without the Will being executed inher favour. In view of Section 14(1) of the HinduSuccession Act, she would be absolute owner of the said property. Having regard to the well-settled proposition of law in regard to the cases like the one present herein, the exception provided under Section 14(2) of the Act would have no applicability. "

She also relies on the decision of the Hon'ble Supreme Courtin Ramkishorelal and another V. Kamal Narayan, 1963 Supp (2) SCR 417wherein, in paragraph 12, it is observed as follows: “12. The golden Rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To https://hcservices.ecourts.gov.in/hcservices/ ascertain this intention the Court has to consider the relevant portion of the document asa whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing.

The Learned Counsel for the Appellants/Defendants invites the attention of this Court to the decision in G.Narayanan and https://hcservices.ecourts.gov.in/hcservices/ others V. R.N.Rajagopalan and others, AIR 1987 Madras 75 at page 80wherein, at paragraph 8, it is laid down as follows: “8. In so far as the bequest regarding the first schedule properties in favour of the first appellant is concerned, the testator has provided that the first appellant and his heirs should from generation to generation enjoy the properties without in any manner encumbering them and perform the charity, of feeding the Brahminson 'Thuvadasi' days with the income therefrom. The interest thus conferred on the first appellant with reference to the first schedule properties is only a life interest. Cl. 3 of the Will creates not only a life interest in favour of the first appellant but also a series of successive life interests in favour of the heirs of the first appellant.

That apart, the Learned Counsel for the Appellants/Defendants cites the following decisions: (a)In Beni Bai V. Raghubir Prasad, (1999) 3 Supreme Court Cases234 at page 235, the Hon'ble Supreme Court, in paragraph 8, has held as follows: “8. In the present case, the widow was conferred the limited right in lieu of maintenance in recognition of her pre-existing right. Thelimited interest conferred upon her by virtue of the Will being in lieu of maintenance and in recognition of her pre-existing right, the said right transformed into an absolute right by virtue of Section 14 (1) of the Act. The said right was not conferred on her for the first time. Thus sub-section (2) of Section 14 of the Act has no application to the present case. Undersuch circumstances, the widow became the absolute owner of House No. 27 and was fully competent to execute the Gift Deed in favour of her daughter. The Gift Deed executed by the widow was thus https://hcservices.ecourts.gov.in/hcservices/ valid.

The Learned Counsel for the Appellants submits that Pavakkalviz., the mother of the Respondents/Plaintiffs sold the properties, as per Exs.A.7 to A.9-Sale Deeds, to the Appellants/ Defendants and ever since the date of purchase, they are in possession and enjoyment of the same. Further, the Respondents/ Plaintiffs have filed the suit 8 years after the sales that were effected during the year 1984 and that even on the date of filing of the suit, the Respondents/Plaintiffs' mother Pavakkal was alive and she was not added as a party to the suit and also that one more sister and other sisters were not parties to the suit.

It is the contention of the Learned Counsel for the Appellants/Defendants that as per Ex.A.1-Will dated 11.07.1944 no life estate in first clause in respect of 'A' schedule properties was given and that there cannot be any life estate by generation after generation.

The Learned Counsel for the Appellants/Defendants contends that Ponnammal died in the year 1945 and Periyathambi (her husband)died after 3 years in the year 1948 and as per Hindu Succession Act,1956 Ponnammal's right enlarges into absolute estate as per Section14(1) of the Hindu Succession Act, viz., the right of maintenance.

Also, the Learned Counsel for the Appellants/Defendantsprojects a plea that in the Will, Ponnammal's daughter Pavakkal as apre-existing right and hence, Section 14(1) of the Hindu SuccessionAct will apply.

The plea of the Appellants/Defendants is that for non-joinder of Pavakkal and brother Ramasamy in the suit, the suit filed by the Respondents/Plaintiffs is to be dismissed.

It is also the contention of the Appellants/Defendants that the sale by Pavakkal, as per Will and Partition, will bind the Respondents/ Plaintiffs.

The Learned Counsel for the Appellants/Defendants referred to Section 10 of the Transfer of Property Act, 1882 which speaks of https://hcservices.ecourts.gov.in/hcservices/ 'Right of transfer' which is incidental to, and inseparable from, the beneficial ownership of property. As a matter of fact, Section10 of the Transfer of Property Act incorporates a Rule of Justice, Equity and Good Conscience and governs transfers to which the Transfer of Property Act does not apply. Section 10 enjoins that 'acondition which absolutely restraints the power of alienation is void.'

Also, the Learned Counsel for the Appellants/Defendantsdrawn the attention of this Court Section 13 of the Transfer of Property Act which speaks of 'Transfer for benefit of Unbornperson'. Further, the Learned Counsel for the Appellants/Defendantshas also invited the attention of this Court to Section 14 of the Transfer of Property Act which speaks of 'Rule against perpetuity'

It is to be noted that Section 13 of the Transfer of Property Act dealing with 'Transfer for Benefit of Unborn Person' is almost similar to that of Section 113 of the Indian Succession Act,1925. It cannot be lost sight of that Section 13 of the Transfer of Property Act controls Section 113 of the Indian Succession Act and both of them are to be read together, as opined by this Court.

As regards the Rule against perpetuity under Section 14 of the Transfer of Property Act, 1882, it is based on the policy that the liberty of alienation is not to be exercised to its own destruction and that all contrivances shall be void which tend to create a perpetuity or place property forever beyond the reach of the exercise of power of alienation.

It must be borne in mind that the rule against perpetuity does not require that the vesting shall take place at the birth of the ultimate beneficiary. It requires that the vesting cannot be delayed in any case beyond his minority.

Section 10 of the Transfer of Property Act points out to arestriction on the transfer of property. However, Section 11 of the Act refers to a restriction on the enjoyment of property. It is tobe kept in mind that the two Sections is on the same principle thata condition repugnant to the interest created is void. It cannot be gainsaid that Section 11 of the Act speaks of absolute interest only. A restraint on transfer is repugnant to any interest in property, whether absolute or limited, for the right of transfer isan incident of ownership. A restriction on enjoyment is repugnant to https://hcservices.ecourts.gov.in/hcservices/ an absolute interest, but it may not be repugnant to a limited interest such as a lease-hold or a life-estate. Also, the difference between Section 13 of Transfer of Property Act and Section 113 of the Indian Succession Act is that the earlier Section pertains to transfer inter vivos, while the latter relates to bequest which comes into effect only on the death of the testator. The essential feature mentioned in Section 113 of the Indian Succession Act, 1925is that an individual disposing of property to another shall not fetter the free disposition of that property in the hands of numerous generations. The rule is far away from the rule against perpetuity, although their effects sometimes overlap each other.

At this stage, this Court aptly points out the decision of the Hon'ble Supreme Court in Raj Bajrang Bahadur Singh V. ThakurainBakhtraj Kuer, AIR 1953 Supreme Court 7 wherein in paragraph 13 and14, it is held as follows:

13. .... In cases where the intention of thetestator is to grant an absolute estate, an attempt to reduce the powers of the owner by imposing restraint on alienation would certainly be repelled on the ground 'of repugnancy; but where the restrictions are the primary things which the testator desires and they are consistent with the whole tenor of the Will, itis a material circumstance to be relied upon for displacing the presumption of absolute ownership implied in the use of the word "malik". 14..... It is quite true that no interest could be created in favour of an unborn person but when the gift is made to a class or series of persons, some of whom are in existence and some are not, it does not fail in its entirety; it is valid with regard to the persons who are in existence at the time of the testator's death and is invalid as to the rest.

In P.V.S.Vencatachellum V. P.V.S.Kabalamurthy Pillai, AIR1955 Madras 350 at page 351, it is held thus: “Under Section 10 of the Transfer of PropertyAct, a condition absolutely restraining atransferee from disposing of the property is void, and the section is wholly silent as to the validity of qualified restraints on alienation. Acondition imposing a partial restraint on https://hcservices.ecourts.gov.in/hcservices/ alienation is not void. Whether the restraint ina particular case is absolute or partial has tobe gathered from the intention of the transferorfrom the contents of the document. Section 10relates only to transfers made by act of parties. It does not apply to sales under the IndianCompanies Act, nor to transfers by operation of law taking effect 'in invitum' at a sale inexecution of a decree. A family arrangement and acompromise of disputed claims are not transfers. But the principle would be applicable where the condition involves an absolute restraint on alienation. Similarly, the section does not apply to partitions; but restraints clearly offending the rule must be held to be void.

Also, this Court worth recalls the decision of this Court inT.Subramania Nadar V. T.Varadharajan and another, (2003) 2 M.L.J.224 at page 225, wherein in paragraphs 15 and 17, it is laid down as follows: “15. What is given to unborn person need not necessarily vest in him at his birth. Vestingmust, however, takes place other than the limitations prescribed by Section 14. Section 14of the Transfer of Property Act controls Section13 of the Transfer of Property Act and as such both these sections should be read together. 17. The effect of these enactments is that a gift can be made to an unborn person subject to the following conditions (i) that the gift shall beof the whole of the remaining interest of thetestator in the thing bequeathed and not of alimited interest; and (ii) that the vesting is not postponed beyond the life in being and 18years, being the rule against perpetuities as laid down in Section 114.

This Court in the interest of justice, cites the following decisions: (a)In the decision of the Hon'ble Supreme Court in F.M.DevaruGanapati Bhat V. Prabhakar Ganapathi Bhat, (2004) MLJ 180 (S.C.) at page 184 wherein in paragraph 12, it is held hereunder: “12. There is no ban on the transfer of interestin favour of an unborn person. Section 20 permits https://hcservices.ecourts.gov.in/hcservices/ an interest being created for the benefit of an unborn person who acquires interest upon his birth. No provision has been brought to our notice which stipulates that full interest in aproperty cannot be created in favour of unborn person. Section 13 has no applicability to the facts and circumstances of the present case. Inthe present case, the donor gifted the property in favour of the appellant, then living, and also stipulated that if other male children are later born to her brother they shall be joint holders with the appellant.

In law, a perpetuity is the settlement of an estate or an interest in tail, with such remainders expectant upon it as are inno sort in the power of the tenant in tail in possession to dock by any recovery or an assignment as per Lord Nottingham in Duke of Narfolk's Case, (1881) 3 Ch.Ca.1. The original sense of'Perpetuity' is an inalienable, and indestructible interest according to Mukhopadhyaya's Law of perpetuities, at page 25. Themodern sense of 'perpetuity' is an interest which will not vest tilla remote period. Therefore, a perpetuity is a limitation, with aview to take the subject out of commerce, for a longer period than alife or lives in being and 21 years beyond, and in the case of posthumous child, a few months more, allowing for the term of gestation as per Lewis on Perpetuity, Ch.12. As far as our country is concerned, instead of 21 years, the minority of some individuals who are not in existence. In few cases, it may go up to 21 years. Inmodern times, the term 'perpetuity' as the meaning of 'inalienableinterest' against the old fashioned sense of an 'unbarrable entail'[vide Preface to Jarman on Wills, 6th Edn. at page iv].

The ingredients of Section 113 of the Indian Succession Actdeals with the subject of gifts to unborn persons and also it prescribes the limit of the quantum of interest that can be provided to an unborn person i.e. one cannot give a life interest or anyother limited interest to an unborn person. Further, if a bequest isto be made in favour of an unborn person, then, the testator should give the whole of the beneficial interest to that unborn child in order that it should be valid and that if the entire remaining interest is not given such a bequest is wholly void.

Moreover, the testator can provide a fractional interest in any property an unborn individual. The term 'the whole of the remaining interest of the testator' does not refer to the whole property of the testator. The expression 'remaining interest' inlaw, means the entire interest of the testator less the interest carried out by the earlier bequest. The term 'remaining interest'means an interest which is as completed as an interest which thetestator had in the property bequeathed, such interest not being fettered or limited except by and to the extent of the prior estates. However, whether a vested interest is provided in the property bequeathed in favour of an unborn person the vested interest would not be avoided merely by reason of imposition of https://hcservices.ecourts.gov.in/hcservices/ limitations which restrict enjoyment.

In the instant case on hand, the property mentioned in the schedule of the Plaint in O.S.No.153 of 1992 filed by the Respondents/Plaintiffs is in respect of new S.F.No.222 (OldS.F.Nos.2-B/2, 4-B and 5-A) Nanja land extent 2.73 acres (1.26.5hectares) with Koppu, Pali, Pasanavar and other easement rights attached to the land, situated at Nanjai Puliampatti Village, Gobichettipalayam Taluk within the sub-registration district of Thookanaickenpalayam and the registration district of Gobichettipalayam.

In Ex.A.7-Sale Deed dated 10.05.1984 Pavakkal has sold an extent of 0.37 out of hectares 1.26.5 in New Government SurveyNo.222 of Nanjai Puliampatti Village. In Ex.A.8-Sale Deed dated10.05.1984 executed by Pavakkal to and in favour of the 2nd Appellant/2nd Defendant an extent of 0.37.0 has been sold out of hectare1.26.5 in New Government Survey No.222 at Nanjai Puliampatti Villageof Gobichettipalayam Taluk. In Ex.A.9-Sale Deed dated 10.05.1984Pavakkal has sold to the 3rd Appellant/3rd Defendant an extent of0.37.0 out of hectare 1.26.5 in New Government Survey No.222 of Nanjai Puliampatti.

The trial Court, in its Judgment in the main suit, at paragraph 11, has, among other things, opined that though the Appellants/ Defendants have purchased the suit property by means of Sale Deed dated 10.05.1984 and have been in enjoyment of the same, yet, it is not a valid sale as per recitals of Ex.A.1-Will. Further, it also held that since on both sides it has been admitted that the Appellants/ Defendants are in enjoyment of the suit properties, till the death of Pavakkal, as per Sale Deed, they are entitled to be in possession of the same. Also that the trial Court has come to the conclusion that the Respondents/Plaintiffs are entitled to claim recovery of possession in respect of the suit properties from the Appellants/Defendants after the death of Pavakkal.

The trial Court, in the Judgment, has referred to the decision of this Court in Maya Jothi V. Ranganayaki Ammal, 93 L.W.at page 566 wherein it is held as follows: "In this case the settlement confers only a life interest in favour of the defendant and not an absolute interest, and that after her lifetime the property will have to be taken by her heirs who are alive on the date of her death. "

Also, the trial Court has referred to the decision of the Hon'ble Supreme Court in S.Rajagopal Chettiar V. Hamasaveni Ammal https://hcservices.ecourts.gov.in/hcservices/ and others, AIR 1992 Supreme Court 704 wherein it is held as follows: "3. After going through the contents of the will we agree with the view taken by the High Court. We do not agree with the contention of the learned counsel for the appellant raised before us that Padmanabha Chettiar, the testator, of the will wanted to give absolute right in the property to his wife Dhanalakshmi Ammal and thereafter absolute right in favour of his daughter Rajalakshmi Ammal. The above intentionis negatived by a clear mention in the will that after Rajalakshmi Ammal the property shall ultimately go to her male children. In case the intention of the testator was to give the properties absolutely in favour of Rajalakshmiand not merely life interest then there was no question of mentioning that after her it shouldgo to her male children. "

The First Appellate Court, in A.S.No.124 of 1995 filed by the Appellants/Defendants, on 08.11.1996 has held that there are no defects in the Judgment and Decree of the trial Court and accordingly, confirmed the same thereby dismissing the Appeal with costs.

A cursory perusal of the recitals of Ex.A.1-Will dated11.07.1944 executed by Ponnammal (Testatrix) shows that it has following three Clauses: (i) The properties mentioned in the Will were to be enjoyed by her husband Periyathambi Gounder; (ii) After his demise, their 3 daughters viz., 1. Kaliammal;2.Pavakkal; 3. Marakkal are to enjoy the 'A' schedule properties equally; (iii) Thereafter, her son-in-law Kulandaisamy Gounder's sonviz., the grand-son Ramasamy Gounder is to get the 'B' schedule properties. Moreover, after their demise, their male heirs are to enjoy the said properties generation after generation without the power of encumbrance. In respect of 'B' schedule properties, hergrand-son Ramasamy Gounder and his male successive heirs have no right to mortgage/create Bokiyam and even if they have created like that, they are not valid.

It is not in doubt that as per Ex.A.1-Will dated 11.07.1944,the Respondents/Plaintiffs' mother Pavakkal has right to enjoy the suit properties till her life-time. Therefore, when she has executedExs.A.7 to A.9-Sale Deeds dated 10.05.1984 in respect of the https://hcservices.ecourts.gov.in/hcservices/ properties mentioned therein to and in favour of the Appellants/Defendants, then, the said Sale Deeds are a valid one because of the fact that a life interest/life estate holder is entitled to sell her interest to and in favour of thirdparties/strangers, in the considered opinion of this Court.

The Appellants/Defendants, in law, are entitled to be in possession, till the life interest holder viz., Pavakkal is alive, as opined by this Court. During the life-time of Pavakkal, the Respondents/ Plaintiffs cannot seek the relief of declaration of their title in the suit properties. As such, the contra view taken by the trial Court as well as the First Appellate Court, that the Respondents/Plaintiffs are entitled to obtain the relief of declaration in respect of suit properties, are not in accordance with the well laid down principles of law.

However, this Court holds that the Appellants/Defendants are entitled to hold and enjoy the suit properties as per the Sale Deedstill the life-time of Pavakkal. Further, it is held by this Courtthat till the life-time of Pavakkal, the Respondents/Plaintiffscannot claim the recovery of possession in respect of suit properties from the Appellants/Defendants because of the fact that Pavakkal during her life-time, having conveyed the suit properties, the Respondents/ Plaintiffs cannot seek recovery of possession because they as vested remainders have to wait till the exclusion of life interest holder viz., Pavakkal or her demise.

The recital of Ex.A.1-Will dated 11.07.1944 of Ponnammal, the maternal grand-mother of Respondents/Plaintiffs clearly spell out her intention to give the properties for her grand-sons and as such, it does not create any right endlessly, in the considered opinion of this Court. Moreover, the clause in Ex.A.1-Will, '...Thereafter, to be enjoyed by her grand-sons is a valid one for one generation and therefore, it does not offend Section 13 of the Transfer of Property Act which deals with the transfer for the benefit of an unborn person.' Also, that Ex.A.1-Will dated11.07.1944 is not a void one and also it does not offend Section 113of the Indian Succession Act. Continuing further, conferring rights to unborn person is valid up to the first generation because of the fact that the intention of Ponnammal (Testatrix) is to provide for the unborn male children.

The Appellants/Defendants, after their purchase of the suit properties as per Exs.A.7 to A.9-Sale Deeds from Pavakkal, have stepped into her shoes. As a matter of fact, the contents and recitals of Ex.A.1-Will dated 11.07.1944 executed by Ponnammal are explicit and they are self-explanatory, as opined by this Court. In https://hcservices.ecourts.gov.in/hcservices/ the Written Statement filed by the Appellants/Defendants, no plea has been taken that the Appellants/Defendants are the bona fidepurchasers of the concerned properties for value without notice andmade improvements etc. In law, the purchasers of properties, even if they are aware of defective title of vendor at the time of agreement of sale/purchase, are entitled to refuse to purchase the properties and they cannot be compelled to purchase the same.

Section 51 of The Transfer of Property Act, 1882 refers to'Improvements made by bona fide holders under defective titles'. Theambit of Section 51 of The Transfer of Property Act, 1882 is limited, since it applies to a transferee who in good faith believes himself that he is absolutely entitled to. Section 51 of TheTransfer of Property Act, 1882 is a general one whereas Section 63Aof The Transfer of Property Act is a special Section which refers to'Improvements to mortgage property'.

D.W.1, in his cross examination (before the trial Court),has deposed that they have purchased the lands from the Respondents/Plaintiffs mother Pavakkal. The Appellants/Defendants have not taken the plea before the trial Court, in their Written Statement, that they have purchased the properties as bona fide purchasers for value without notice and made improvements thereon. Equally, no issue has been framed by the trial Court in this regard. Therefore, this Courtis not going into the entitlement or otherwise of Equity relief pleaded by the Appellants/Defendants as per Section 33 of the Specific Relief Act, 1963. However, this Court, in the interest of justice, directs the Appellants/Defendants to agitate their rights if any as per Section 51 of The Transfer of Property Act, 1882(relating to improvements etc.) by means of separate legal proceedings before the competent forum in the manner known to law if they so desired and advised.67.it is to be noted that in regard to the relief of recovery of possession, the period of limitation is 12 years.

In law, in an instrument of Will any number of life interests can be created, but a vested remainder cannot be passed on beyond one generation. Inasmuch as the intention of Ponnammal(Testatrix) in Ex.A.1-Will dated 11.07.1944 is to provide for unborn male children, then, conferring of such right to them are valid upto the first generation and in law, there is no fetter/bar on the transfer of interests in favour of an unborn person. Therefore, Ex.A.1-Will specifying a clause that after Pavakkal's life-time, properties are to be enjoyed by her grand-sons are not in any way repugnant to the ingredients of Sections 113, 114 and 115 of the Indian Succession Act. In any event, the clause in Ex.A.1-Will https://hcservices.ecourts.gov.in/hcservices/ '...... grand-sons heir in male line generation after generation are to enjoy the properties without power of alienation', offends rule against perpetuity. Accordingly, the Substantial Questions of Law 1to 4 are so answered.