Madras High Court
C.Kanagaraj (Died) vs Balambigai Nachiyar on 10 March, 2021
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.
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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
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
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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
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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
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.
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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.
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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
