Madras High Court
K.Ramu (Died On 12.10.2010) vs K.Varadaraj @ Varadan (Deceased) on 5 June, 2023
A.S.No.539 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.06.2023
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.539 of 2012
1. K.Ramu (died on 12.10.2010)
2. R.Harikrishnan .. Appellants
Versus
1. K.Varadaraj @ Varadan (deceased)
2. P.Devaki
3. K.Selvamani
4. P.Sarojini
5. V.Dhanapal
6. D.Venkatesan
7. D.Natarajan
(Defendants 4 and 5 already on record, recorded
as L.Rs of the deceased 1st defendant, as per order
dated 08.04.2010 on memo) .. Respondents
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code to set
aside the judgment and decree of the learned V Additional Judge, City Civil
Court, Chennai, dated 23.08.2011 in O.S.No.9531 of 2010 (transferred
C.S.No.262 of 2007 from the file of Original Side of the High Court,
Chennai), dismissing the plaintiffs' claim for partition and separate
possession of plaintiffs' half share in the plaint / decree mentioned schedule
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of properties and consequently, to pass a preliminary decree for partition
and separate possession as prayed for in the plaint.
For Appellants : No Appearance
For Respondents : Mr.P.Amarnath, for RR-6 and 7
JUDGMENT
This Appeal Suit is directed against the judgment and decree, dated
23.08.2011 passed by the learned V Additional Judge, City Civil Court at
Chennai in O.S.No.9531 of 2010, thereby, dismissing the suit for partition
filed by the plaintiffs.
2. The case of the plaintiffs is that the first plaintiff's father late
Krishnasamy Chettiar, was the absolute owner of the suit schedule property,
which is self- acquired house property, bearing old Door No.2, New Door
No.5, Singara Garden, 7th Street, Old Washermanpet, Chennai - 600 021.
The first plaintiff's father married one Peria Angammal through which the
first plaintiff was born. However, even during the validity and subsistence
of the said marriage, he went into an extra-marital illegitimate relationship
with one Chinna Angammal and the defendants 1 to 3 are the children of the
said Chinna Angammal. Upon the death of the first plaintiff's father, the
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A.S.No.539 of 2012
suit schedule property is liable to be partitioned and the first plaintiff is
entitled to half share and hence the suit.
3. The defendants 2, 6 and 7 resisted the suit by filing the written
statements admitting the above said relationship between the parties,
however, it was submitted that the property is self-acquired property of
Krishnasamy Chettiar. By a registered deed of settlement, dated 02.09.1952,
the property was settled by him in favour of Chinna Angammal and their
children, the defendants 1 to 3, reserving life estate to himself. Since the
father of the first plaintiff died in the year 1964 and since the said Chinna
Angammal also pre-deceased him, the defendants 1 to 3 are the owners of
property. In fact, dispute arose among them, on account of which, a
partition suit was filed, in which, ultimately, a compromise decree was
recorded in the Appeal Suit. Therefore, the first plaintiff can have no
manner, right, title or interest over the suit schedule property.
4. On the strength of the said pleadings, the Trial Court has framed
the following issues:-
1) Whether the alleged Settlement Deed
executed by the Krishnasamy Chettiar on
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A.S.No.539 of 2012
02.09.1952 in respect of the plaint schedule
property is a Will or Settlement as per law?
2) Whether the alleged Settlement is the
Will, it is enforceable without being probated?
3) Whether the plaintiff is entitled to 1/2
shares in the suit property as claimed by him?
4) Whether out of Court Settlement,
recorded, wherein the 2nd defendant is a party is
binding on her?
5) To what relief the parties are entitled?
5. On the said issues, the parties let in evidence. The first plaintiff
examined himself as P.W.1 and the second plaintiff was examined as P.W.2.
Exs.A-1 to A-16 were marked on behalf of the plaintiffs. The second
defendant was examined as D.W.1 and the sixth defendant was examined as
D.W.2. Exs.B-1 to B-4 were marked on behalf of the defendants.
6. The Trial Court, thereafter, proceeded to consider the case of the
parties and considered the contention of the plaintiffs that the said
settlement deed, which is marked as Ex.B-1, dated 02.09.1952, cannot be
termed as settlement deed, but, only as a Will. It is the contention of the
plaintiffs that since one of the persons to whom the bequeath is made
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A.S.No.539 of 2012
namely, Chinna Angammal, pre-deceased the testator, the entire Will
became invalid and therefore, the property is available for partition among
the first plaintiff and the defendants 1 to 3. The Trial Court found that there
is no question of considering Ex.B-1 as a Will as the recital clearly transfers
the right in presenti, while, the executant reserved life estate alone to him.
In that view of the matter, since the property, being the self-acquired
property, being dealt with and settled by the father of the first plaintiff and
the defendants 1 to 3, the Trial Court held that it is no longer available for
partition. Among the co-sharers, already a suit for partition has been filed
which ended in a compromise decree. Holding thus, the present suit was
dismissed. Aggrieved by the same, the present Appeal Suit is filed before
this Court.
7. Perused the memorandum of grounds of Appeal Suit filed on behalf
of the appellant and heard Mr.P.Amarnath, learned Counsel appearing on
behalf of the respondents 6 and 7.
8. On a perusal of the memorandum of grounds of appeal, it is seen
that the contention of the appellants is that the Trial Court failed to
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A.S.No.539 of 2012
appreciate the fact that the defendants 1 to 3 are only the illegitimate
children born through an invalid marriage and ought not to have held that
the property will belong to them. It is further contended that the settlement
deed under Ex.B-1 is only a Will and as per several judgments of the
Hon'ble Supreme Court of India as well as this Court, once it is treated as
Will, it is not admissible in evidence unless it is probated and therefore, the
Trial Court ought not to have relied upon the same and ought to have
decreed the suit.
9. Per contra, Mr.P.Amarnath, learned Counsel appearing on behalf
of the respondents 6 and 7, would submit that Ex.B-1 clearly reads as a
settlement deed and the rights have been transferred in presenti and can
never be termed as a Will. Therefore, the Trial Court has rightly dismissed
the suit.
10. I have considered the rival contentions of the parties and perused
the material records of the case. The point which arises for consideration in
this case is whether Ex.B-1 is a settlement deed or a Will ? It is necessary
to extract the recital of the Ex.B-1 deed as the entire arguments of both the
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A.S.No.539 of 2012
sides rally around the same. The said Ex.B-1, settlement deed reads as
hereunder:-
"You are my second wife. My first wife Periya
Angammal aged about 46 years is living with me.
You have begotten three sons and two daughters.
My first wife Periya Angammal also had begotten
two sons and a daughter. Since, I feel ill and I
am bed ridden and on the advise of the Doctors, I
decided to settle my properties in your favour and
in favour of my first wife out of natural love and
affection. I have decided to write the settlement
in order to avoid the dispute among my children
and the whole aim that my children to be lived
happily and peacefully. Out of self earning I
have acquired schedule mentioned properties and
also acquired the property in Door No.3, Thambu
Chetty Street, Kalmandapam, Royapuram,
Chennai, and I am in peaceful possession and
enjoyment of the same as the absolute owner.
The property 2nd listed above had been
mortgaged for Rs.1,000/- in favour of Mayilai
Hindu Sasvatha Nithi and my sons are made as
party to the mortgage deed and the same will be
redeemed by me. I hereby settle the schedule
mentioned property, namely, house bearing Door
No.5, Singara Garden 7th Street, Old
Washermenpet, Chennai-21 in your and in favour
your children and I am not having the right to
revoke the deed. But, I decided to receive the
rents derived from the suit property. After my
demise, you and your sons, namely, Varadan,
Vasudevan and Thangamani, will become the
absolute owner of the property with the right to
alienate the same as full pledged. Owners"
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A.S.No.539 of 2012
11. A perusal of the above, it would be clear that Ex.B-1 is a
settlement deed. It clearly settles the suit schedule property on the said
Chinna Angammal, the second wife of the said Krishnasamy Chettiar and
her children namely, Varadan, Vasudevan and Thangamani. It only
reserves the right to receive rents till the life time of the Donor. Therefore,
there can be absolutely no doubt whatsoever about the construction of the
above document that it transfers the right in presenti and is in the form of a
gift and therefore, absolutely, no exception whatsoever can be taken to the
findings of the Trial Court in holding that the property is not available for
partition and that it has been dealt with by the original owner thereof
namely, the father of the first plaintiff and the defendants 1 to 3,
Krishnasamy Chettiar, during his life time itself and is not available for
partition.
12. Accordingly, this Appeal Suit in A.S.No.539 of 2012 fails and is
dismissed. There shall be no order as to costs.
05.06.2023
Index : yes
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A.S.No.539 of 2012
Speaking order
Neutral Citation : yes
grs
To
The V Additional Judge,
City Civil Court, Chennai.
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A.S.No.539 of 2012
D.BHARATHA CHAKRAVARTHY, J.,
grs
A.S.No.539 of 2012
05.06.2023
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