Madras High Court
C.Kanagaraj (Died) vs Balambigai Nachiyar on 10 March, 2021
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.No.854 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.03.2021
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.854 of 2001
1.C.Kanagaraj (Died)
2.K.Parvathy Kanagaraj
3.K.Chidambararaj ... Appellants
(Appellants 2 and 3 are brought on record as legal representatives
of the deceased Sole appellant as per order of this Court dated
05.09.2007 made in M.P.No.1 of 2007)
Vs.
1.Balambigai Nachiyar
2.Narayana Mudaliar
3.Gomathiammal
4.Pechiammal
5.Shanmughiah Thevar
6.Ulaganatha Thevar
7.Mariammal
8.Gomathi Vellammal
9.Pechiammal
10.Maragatham
11.Minor Sivasubramanian
12.Minor Kuthala Ganesan
13.Minor Nallaiyappan
14.Minor Maheswari
http://www.judis.nic.in15.Madathiammal
1/9
S.A.No.854 of 2001
16.Subramanian
17.Shanmugam
18.Kandasami
19.Arumugam
20.Chockalingam
21.Ramiah ... Respondents
(Minor respondents 11 to 14 through their guardian the seventh
respondent Mariammal)
(Respondents 2 to 21 are not necessary parties. Hence, they are
given up)
PRAYER: Second Appeal is filed under Section 100 of C.P.C.,
against the judgment and decree passed in A.S.No.130 of 1990
dated 28.07.2001 on the file of the learned II Additional District
Judge, Tirunelveli, confirming the judgment and decree passed in
O.S.No.78 of 1983, dated 27.04.1989, on the file of the Sub Court,
Tenkasi.
For Appellants : Mr.V.Meenakshi Sundaram
For R-1 : Mr.J.Barathan
for M/s.T.R.Jeyapalam
R-2 to R-21 : Given up (Vide EA)
R-2 to R-4 : Minors represented by R-7
JUDGMENT
Aggrieved over the concurrent findings of the Courts below in decreeing the suit for declaration and for recovery of possession, the present Second Appeal is filed by the first defendant alone. Though there were 22 defendants in the suit, the only one defendant has filed this appeal, challenging the decree and judgment of the Courts below in decreeing the suit. http://www.judis.nic.in 2/9 S.A.No.854 of 2001
2. The parties are referred to as per their own ranking before the trial Court.
3. The brief facts leading to the filing of the present appeal are as follows:-
3.(1). The appellant appears to have been purchased the first item of property from the parents of the plaintiffs, who have only the life interest over the suit properties.
3.(2). The suit property originally belonged to one Nallamuthu Nachiyar, wife of Sundara Subramaniya Sethurayar.
The plaintiff's father viz., Sivasanakarakumari Andavan Sethurayar was the only son. The said Nallamuthu Nachiyar had executed a settlement deed, dated, 04.03.1942 providing the life interest with a specific condition that the property should not be encumbered to any one till their life time. While the father of the plaintiffs was enjoying the property and after their marriage, the property should be enjoyed by the father and mother of the plaintiffs jointly till their life time. Thereafter, the absolute estate vested with the plaintiffs. The father and mother of the plaintiffs died before 1983. Hence, the plaintiffs became an absolute owner of the entire property http://www.judis.nic.induring their life time. The parents of the plaintiffs have created 3/9 S.A.No.854 of 2001 encumbrance over the suit property and they have alienated all the properties. Hence the suit.
4. The first defendant has taken a defence to the effect that the life estate was restricted only during the life time of the said Nallamuthu Nachiyar. After her death, vested remainder had been given to his son and daughter-in-law. Hence, it is his further contention that in the plaint, it is nowhere stated that the life interest alone is given to the said Siivasankarakumari Andavan Sethurayar. As stated in the plaint, the first defendant has purchased the property in Survey No.47/2, measuring to an extent of 48 cents. He has been in possession of the property and he is perfected the title to the suit property by adverse possession. Hence, he prayed for dismissal of the suit. The other defendants have also filed a written statement. Since other defendants have not filed any appeal, this Court is of the view that the pleadings of the other defendants are not necessary to be extracted.
5. Based on the above pleadings, the trial Court has framed the following issues:-
“1. Whether the settlement deed dated 04.03.1942 was executed by Nallamuthu Nachiyar?
2. Whether the 1st defendant has http://www.judis.nic.in perfected his title to the suit property by 4/9 S.A.No.854 of 2001 adverse possession?
3. Whether Sethu Rayar died on 25.01.1983 is true?
4. Whether the plaintiffs entitled?”
6. During trial, on the side of the plaintiff, P.W.1 was examined and Ex.A.1 and Ex.A.2 were marked. On the side of the defendants, D.W.1 to D.W.3 were examined and Ex.B.1 to Ex.B.16 were marked.
7. The trial Court decreed the suit and the First Appellate Court has also confirmed the findings of the trial Court. As against which, the present Second Appeal has been filed.
8. While admitting the Second Appeal, the following Substantial Question of law has been framed by this Court:-
“Whether the interpretation placed on Ex.A.1 by the two Courts below could be sustained as the two Court have misread the terms of disposition contained in Ex.A.1?”
9. The learned counsel appearing for the appellants would contend that the entire appeal would depend upon Ex.A.1- settlement deed and its interpretation. Hence, it is his further contention that if recitals in the settlement deed read http://www.judis.nic.inharmoniously, the same only lead the inference that the document 5/9 S.A.No.854 of 2001 is not restricted to life interest. It is his further contention that the trial Court came to the conclusion that if the Court comes to the conclusion that documents are not continued to life interest then the appellants have case, otherwise they have no case. In respect of the other aspects, he has fairly submitted that the appellants are not canvassing other grounds of appeal.
10. Heard both sides.
11. In the light of the above submissions, now, on a perusal of the documents, as rightly pointed out by the learned counsel appearing for the appellants, the facts as narrated by both sides are not in dispute. The entire issue revolves around the interpretation of Ex.A.1-settlement deed. The intention of the settlor had to be gathered from the documents itself. The documents have to be read entirety to find out the intention. On a perusal of Ex.A.1-settlement deed executed by one Nallamuthu Nachiyar in favour of her son, which is marked as Ex.A.1, there is no hesitation in the mind of the Court to conclude that the settlor had an intention to give only the life interest to the plaintiffs' father and mother.
12. It is seen from Ex.A.1-settlement deed, the life interest was subjected to various conditions from clause-1 to 5. http://www.judis.nic.inThe harmonious reading of the entire recitals makes it very clear 6/9 S.A.No.854 of 2001 that the life interest was also retained by settlor besides life estate given to the settlee. Further, there is a specific condition in the settlement deed that no one can encumber the property. The third condition also makes it very clear that the settlee and his wife shall enjoy the property during their life time and thereafter the property absolutely vest with their grand children only. The very restriction imposes in the documents makes it clear that this document is nothing but restricted to life interest alone.
13. Therefore, merely because, only one word written vested interest in the first condition which cannot be construed to mean that the property is absolutely vested with the settlee. Further, condition in the document makes it very clear that the intention of the settlor was to retain the life interest on his behalf but also the life interest restricted to his son and daughter-in-law and the vested remainder to his grand children. By harmonious construction the document, this Court is of the view that the Courts below had rightly intercepted the document and arrived at a right conclusion. In the document of transfer when interest alone is restricted, its enjoyment and such interest cannot be transferred as per Section 6 of the Transfer of Property Act. Such view of the matter, I do not find any merit in the Second Appeal. Accordingly, the substantial question of law is answered against the appellants. http://www.judis.nic.in 7/9 S.A.No.854 of 2001
14. With the above observations, the Second Appeal stands dismissed. No costs.
10.03.2021
Index : Yes/No
Internet : Yes/No
tsg
To
1.The District Judge,
Pasupon Muthuramalinga Thevar District, Sivagangai,
2.The District Munsif, Sivagangai.
3.The Section Officer, V.R. Section, Madurai Bench of Madras High Court, Madurai.
N.SATHISH KUMAR,J.
http://www.judis.nic.in 8/9 S.A.No.854 of 2001 tsg Judgment made in S.A.No.854 of 2001 Dated :
10.03.2021 http://www.judis.nic.in 9/9