Judgment · High Court · 2006

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29-09-2006CORAMTHE HONOURABLE MR. JUSTICE P.K. MISRAANDTHE HONOURABLE MR. JUSTICE M. JAICHANDRENL.P.A.NO.163 OF 20021. Rajeswari, W/o. Jagannathan2. Jagannathan S/o. Kuppuswamy Naidu. Appellants/ DefendantsVs.

Kannammal, W/o. Sundaram Chettiar2. Ponnarasi, D/o. Sundaram Chettiar3. Rajagopal S/o. Sundaram Chettiar. Respondents/ PlaintiffsAppeal filed under Clause 15 of the Letters Patent againstthe judgment passed by the leaned single Judge dated 21.3.2002 inA.S.No.1032 of 1987, reversing the judgment dated 5.1.1987 inO.S.No.7642 of 1983, on the file of IV Assistant Judge, City CivilCourt, Chennai. For Appellants : Mr.S.V. Jayaraman Senior Advocate for Mrs.R.T. ShyamalaFor Respondents : Mr.R. Mukundan forM/s. N.S. VaradachariJ U D G M E N TP.K. MISRA, JDefendants are the appellants against the reversingdecision.

Plaintiffs / Respondents filed the suit fordeclaration of title, possession and for mesne profits. Such suithaving been dismissed, the plaintiffs filed A.S.No.1032 of 1987before the High Court. Learned single Judge has reversed the https://hcservices.ecourts.gov.in/hcservices/ decision of the trial court and decreed the suit. Hence thepresent appeal.

The facts in brief are as follows :-The property in question admittedly belonged to one SwamiNaidu. He executed a registered deed of settlement dated 2.4.1932in favour of his son-in-law K. Munuswami Naidu. Munuswami Naidudied leaving behind his two daughters, namely, Nanukannammal and Dadabai Ammal, three sons, namely, Narayana Naidu, Danaraj and Nandagopal, and widow and three sons of a pre-deceased sonKulasekaran, namely, Prasanna Ammal, Murthy, Rajeswara Rao and Amarnath. The sister and the three brothers of Dadabai Ammal andthe surviving heirs of deceased Kulasekaran, executed a registereddeed of release dated 31.5.1979 in favour of Dadabai Ammal. Dadabai Ammal had two sons, namely, Parthasarathy and Raghu andone daughter, namely, Rajeswari (Defendant No.1). Defendant No.2is the husband of Rajeswari. On 31.5.1979, Dadabai Ammal executeda registered deed of settlement in favour of her two sons. Subsequently, Dadabai Ammal and her two sons sold the property toone Sundaram Chettiar, the original plaintiff. The presentrespondents, who were the appellants before the learned singleJudge, are the legal representatives of such Sundaram Chettiar.

The contention of the plaintiff was that even thoughhe had acquired a valid title, the defendants disturbed hispossession. The plea of the defendants was to the effect that thevendors of the plaintiffs did not have exclusive title over theproperty, the female heirs of Dadabai Ammal are also entitled toequal right and the sale deed dated 11.12.1980 is a fraudulent oneand the defendants are in possession.

On the basis of the pleadings of the parties, thetrial court had framed the following issues :-"(1) Whether the suit has not been properly valued ? (2) Whether the settlement deed dated 2-4-32 is notvalid ? (3) Whether the release deed dt. 31-5-79 is notvalid and binding ? (4) Whether the settlement deed dated 31-5-79 wasbrought about by undue influence ? (5) Whether the sale deed in favour of the Plaintiffis not valid ? (6) Whether D1 is the owner and has got title to thesuit property ? (7) Whether the 2nd Defendant is not a proper party ? (8) Whether the Plaintiff is entitled to mesneprofits, if so to what extent ? (9) To what relief if any the Plaintiff isentitled? "

Under Issue No.2, the trial court found that the deedof settlement dated 2.4.1932 had been executed and was as suchvalid. While discussing under the other relevant Issue Nos.3,4and 5, the trial court held that the first defendant being thedaughter of Dadabai Ammal was also entitled to a share and thatthe release deed dated 31.5.1979 in favour of Dada Bai Ammal and https://hcservices.ecourts.gov.in/hcservices/ the settlement deed by her were invalid. (This finding wasobviously on the supposition that in the settlement deed dated2.4.1932 restrictions had been imposed on the rights of the heirsof Munuswami Naidu). It was further held that the plaintiff didnot get a valid title.

Learned single Judge by referring extensively to theterms of settlement dated 2.4.1932 came to the conclusion that inview of Section 10 of the Transfer of Property Act, the conditionin the deed of settlement to the effect that after the death of Munuswami Naidu his heirs will also have life estate and had noright to alienate was void. On that basis, it was held that afterthe death of Munuswami Naidu, his surviving heirs succeeded to theproperty and subsequently by virtue of the release deed, DadabaiAmmal alone became the owner and therefore she could execute thedeed of settlement in favour of her sons and accordingly the saledeed in favour of the plaintiffs was valid.

Learned Senior Counsel appearing for the defendants /appellants submitted that in view of Section 14 of the Transfer of Property Act, it should be held that the deed of settlement Ex.A-1was hit by the principles relating to the Rule against perpetuityand as such the document was void and the plaintiffs did not getany right.

Learned counsel appearing for the plaintiffs /respondents, on the other hand, has submitted that the learnedsingle Judge has rightly applied the principle of Section 10 ofthe Transfer of Property Act and therefore has rightly observedthat the condition contained in the subsequent clause creatingembargo on alienation of the property by the subsequent heirs mustbe taken to be void.

After carefully considering the submission made bythe learned Senior Counsel for the appellants, we do not think thecontention raised can come to the aid of the appellants. If the contention of the appellants to the effect that thedeed of settlement is hit by the Rule against perpetuity isaccepted and the transfer is held to be inoperative, on the deathof K. Munuswamy Naidu, who admittedly received a life estate, theproperty would be inherited either by the heirs of the originalowner or those of K. Munuswamy Naidu. There is no dispute thatthe said Swami Naidu had only one daughter, namely, the wife of K.Munuswami Naidu. In other words, the heirs of K. Munuswami Naiduwere also the successors of the last absolute owner, namely, SwamiNaidu. Obviously during the lifetime of Dadabai Ammal, who wasthe daughter of K. Munuswami Naidu, Defendant No.1, the daughterof Dadabai Ammal, has no independent right and could not haveinherited either as heir of Swami Naidu or heir of MunuswamiNaidu. Since all other heirs had executed a registered deed ofrelease in favour of Dadabai Ammal, it can be concluded that theproperty ultimately vested with Dadabai Ammal and since DadabaiAmmal along with her sons executed the sale deed, no right can beclaimed by Defendant No.1. It is not the case of Defendant No.1that she was one of the heirs who succeeded to the property either https://hcservices.ecourts.gov.in/hcservices/ on the death of the original owner Swami Naidu or on the death of Munuswami Naidu. Therefore, acceptance of the contention of theappellants regarding applicability of Section 14 of the Transferof Property Act would not come to the aid of the appellants in anymanner.

The alternative submission that a life estate wascreated in perpetuity firstly in respect of Munuswami Naidu andsubsequently in respect of his heirs in perpetuity and, therefore, such heirs, including Dadabai Ammal, had no right to alienate theproperty, cannot be accepted, as such an interpretation would beobviously against the provisions contained in Section 10 of the Transfer of Property Act as has been observed by the learnedsingle Judge. In that case it can be held that life estate wascreated in favour of Munuswamy Naidu and thereafter the propertywas with the successors, but the restriction relating toalienation must be held to be void as has been observed by learnedsingle Judge. Acceptance of such conclusion of the learned singleJudge results in dismissal of the appeal.

Since Defendant No.1 has no independent right andwhatever right she can claim is only through and after the deathof her mother and since her mother herself has executed the saledeed, her contention cannot be accepted unless it is held that themother had only a limited right over the property.

Learned counsel appearing for the respondents hasplaced reliance upon the decision of the Supreme Court reported inAIR 1963 SC 890 (RAMKISHORELAL AND ANOTHER v. KAMALNARAYAN) andAIR 1985 SC 1359 (A. SREENIVASA PAI v. SARASWATHI AMMAL alias G.KAMALA BAI) in support of his submission that all efforts shouldbe made to give effect to the intention of the original settlorand it must be held that the subsequent clause restricting theright of alienation should not be given effect to.

In view of the conclusion reached by us that evenassuming that the appellants' contention regarding applicabilityof Section 14 is correct, the property devolved only upon the verysame legal heirs, it is not necessary to delve further into thisaspect. Therefore, considering the question from any angle, we donot find any scope to interfere with the decision of the learnedsingle Judge and the appeal is liable to be dismissed. Therewould be no order as to costs so far as the present appeal isconcerned. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. https://hcservices.ecourts.gov.in/hcservices/ dpkTo1. The Sub Assistant Registrar, Judicial Department, High Court, Madras.2. The Registrar, City civil Court, Madras.3. The Record-keeper, V.R. Section, High Court, Madras.1 cc to Mr.N.S. Varadachari, Advocate, Sr. 465271 cc to Mr.N. Maninarayanan, Advocate, Sr. 46278 LPA.NO.163/2002GM (CO)kk 26/10