BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 27/01/2010 CORAM THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI A.S.No.372 of 1992 and M.P.Nos.1 to 3 of 2009 V.Rajam ...Appellant Vs. 1.R.Thirugnanasambandam 2.R.Thirunavukkarasu 3.R.Sundaramurthy 4.V.Rathinavelu(died) 5.M.R.Vasavambal alias Ammaniammal(died) 6.R.Vigneshkumari 7.R.Kanagavalli 8.R.Saraswathi 9.P.Valliammal 10.R.Valliappan 11.R.Saravanan 12.R.Karthikeyan 13.R.Kanagalakshmi 14.S.Ranganayaki (RR6 to 13 are brought on record as Lrs of the deceased 4th respondent) (R14 brought on record as LR of the deceased 5th respondent) ...Respondents PRAYER This appeal filed under Section 96 of The Civil Procedure Code against the Judgment and Decree dated 28th August 1990, passed in O.S.No.471 of 1987 on the file of the Court of the Second Additional Subordinate Judge, Madurai. !For Appellant ... Mr.T.M.Hariharan ^For Respondents 1 to 3 ... Mr.R.Subramanian For Respondent No.4 ... No appearance :JUDGMENT
The Plaintiffs are the appellants. The appeal is preferred against
the judgment and decree in O.S.No.471 of 1987, passed by the II Additional
Subordinate Judge, Madurai, dated 28.08.1990. The suit was filed for declaration
that the plaintiff and the 4th defendant are entitled to the suit property.
2.The brief facts of the case is as follows:-
The suit property and some other properties originally belonged to
one Ammani Ammal, after her death, it devolved upon his son Pitchai Pillai @
Rengasamy Pillai who had two wives. Through the first wife, he had a son
Muthukrishnan and through the second wife, he had three daughters namely
Vasavambal @ Ammani Ammal, Kanagasabai @ Kanagarathinam and Ramalakshmi Ammal.
After the death of Pitchai Pillai @ Rengasamy Pillai the property devolved upon
Muthukrishnan. Muthukrishnan died in the year 1920, leaving behind his wife
Angalammal and minor daughters and they were enjoying the property. She executed
a release deed dated 5.8.1921 in favor of the three daughters of Velammal,
namely, Vasavamabl @ Ammani Ammal, Kanagasabai @ Kanagarathinam and Ramalakshmi
Ammal. The three sisters were in possession and enjoyment of the property. The
three sisters entered into a partition in the year 1939 and executed a partition
deed dated 26.1.1939. Under the deed of partition, Vasavambal @ Amaniammal was
allotted ‘A’ Schedule property. Kanagammal @ Kanarathiram was allotted ‘B’
Schedule property and ‘C’ schedule property was allotted to Ramalakshmi. The
said Vasavambal @ Ammaniammal is the 5th defendant. The plaintiff is the
daughter of Kanagammbal @ Kanagarathiam and the 4th defendant is the son of
Kanagammbal @ Kanagarathiam.
3.The said Ramalakshmi executed a Will in favour of the children of
Kanagammal @ Kanarathinam and the daughter of Vasavammbal, bequeathing her
property. As per the said Will dated 11.12.1950 the door No.14,15,16 and 17 of
North Chithirai Street was bequeathed. The plaintiff and the 4th defendant and
also the another sister of plaintiff, Saroja, died un-married. Door No.14 was
bequeathed to Renganayagi daughter of the 5th defendant. After the death of the
said Saroja the plaintiff and the 4th defendant entered into a partition on
14.08.1957 and door No.15 was allotted to the plaintiff the door No.16 and 17
was allotted to the 4th defendant. The defendant Kanagasabai @ Kanagarathinam
executed a settlement deed dated 01.12.1950 in favour of the 5th defendant in
relation to the suit property in exchange of the door No.132 of the West Masi
Street, Madurai. Originally the door No.13 was divided between the 5th defendant
and Kanagasabai @ Kanagarathinam. Northern portion was given to Kanagasabai @
Kanagarathinam and the southern portion was given to 5th defendant. Therefore,
Kanagasabai @ Kanagarathinam settled her share in favour of the 5th defendant.
On taking door No.132 of West Masi Street, Madurai by a settlement deed, the
plaintiff has filed the suit challenging the settlement deed alleged to have
been executed by her mother Kanagasabai @ Kanagarathinam in favour of the 5th
defendant ,who in turn had sold the entire property to one Subulakshmi Ammal and
her husband from whom the defendant Nos.1,2 and 3, and their father Ramakrishnan
Pillai purchased the property. Therefore, the suit is filed by the plaintiff
seeking for a declaration of title to the northern portion of door No.13 of
North Chithirai Street, which is the suit property as allotted to her mother
Kanagasabai @ Kanagarathinam.
4.The suit was resisted by all the defendants. The defendants 1,2
and 3 filed a separate written statement and 4th defendant filed a separate
written statement and 5th defendant filed a separate written statement, the sum
and substance of the defence is that three sisters namely Kanagasabai @
Kanagarathinam, Vasavambal (5th defendant), Ramalakshmi partitioned the property
settled on them by Angalammal in the year 1921 and Kanagasabai @ Kanagarathinam
had settled the present suit property in favour of 5th defendant, who in turn
had sold the property to the predecessor in title of defendants 1,2 and 3.
5.Based on those averments, the trial court found that the suit
property was allotted to the mother of the plaintiff who had executed a
settlement deed in favour of the 5th defendant under Ex.P.1, dated 1.12.1950.
Therefore, the plaintiff is not entitled for the suit property.
6.Aggrieved by the judgment and decree, the plaintiff has preferred
the present appeal on various grounds, more particularly on the ground that the
trial court is wrong in disregarding the earliest document in the year 1921
executed by Angalammal.
7.The point for consideration arise in the present appeal is whether
the plaintiff has any right or title in the suit property which was allotted to
her mother in a partition deed and subsequently transferred to the 5th defendant
by a settlement deed dated 1.12.1950.
8.The learned counsel for the appellant referred to the release deed
dated 5.8.1921 marked as Ex.A1, executed by Angalammal in favour of the three
sisters, and also the partition deed executed between the three sisters dated
26.1.1939 marked as Ex.A2 and submitted that the said Angalammal, wife of
Muthukrishnan, succeeded only to the limited right of the husband’s property and
was not competent to create a absolute right under Ex.A1.
9.The learned counsel for the appellant further submited that Ex.A1
is only a release deed and not a family settlement.The learned counsel also
submitted that, under Ex.A2, which is equal Ex.B-10, what was partitioned
between the sisters was only the life interest of Angalammal and therefore the
plaintiff’s mother Kanagasabai @ Kanagarathinam had no right to transfer the
suit property in favour of 5th defendant under Ex.B1 dated 1.12.1950. The
learned counsel also pointed out that the execution of the settlement deed under
Ex.B-10 is not proved and there is no necessity for the plaintiff’s mother to
execute such settlement deed in favour of 5th defendant.
10.The learned counsel for the appellant submitted that the suit
property belonged to the plaintiff’s mother and on her death, the plaintiff and
her brother, the 4th defendant are entitled to the suit property.
11.On the other hand, the learned counsel for the respondents 1,2
and 3 would submit that, Ex.A1 is not a release deed but a family settlement and
the same had been upheld by the High Court in S.A.No.135 of 1962 under Ex.P.9.
The learned counsel pointed out that in pursuant to the right conferred under
Ex.A1, the three sisters have partitioned the property under Ex.P.10 and were in
possession and enjoyment of their respective shares. The learned counsel
further pointed out that the present plaintiff was given certain properties by
one of the sister Ramalakshmi under Ex.B2 dated 11.12.1950 and the plaintiff had
filed a suit in O.S.No.362 of 1959 and claimed the property.When the matter went
to the High Court in S.A.No.135 of 1962, this Court upheld the validity of
Exs.A1 and A2. stating that Angalammal has given only a limited right and she
has settled the property in favour of three sisters. The learned counsel also
pointed out that under the partition deed, dated 26.01.1939, the sisters had
acquired absolute right over their allotted share and the suit property was
settled in favour of the 5th defendant under Ex.B-1 in exchange of a property
under Ex.B-14, dated 1.12.1950.
12.Heard the rival contentions and perused all the documents. The
relationship between the parties are admitted and as stated earlier the
devolution of the suit property and other properties from Ammani Ammal to next
generation is also admitted. In the partition suit it was pleaded and proved
that after the death of Ammani Ammal the property devolved upon on her son
Pitchai Pillai @ Rengasamy Pillai, who had two wives. After the death of Pitchai
Pillai @ Rengasamy Pillai the property devolved upon his son Muthukrishnan and
first wife and on his death, his wife one Angalammal who was in possession and
enjoyment. She executed Ex.A1 dated 5.8.1921 document which is only a release
deed and not a settlement deed, in favour of Pitchai Pillai @ Rengasamy
Pillai’s daughters through his second wife who are Vasavambal @ Ammani Ammal,
Kanagasabai @ Kanagarathinam and Ramalakshmi Ammal. The plaintiff is the
daughter of Kangasabai @ Kanagarathinam, the fifth defendant is another
daughter(Now died L.Rs on record), fourth defendant is the son of Kangasabai @
Kanagarathinam (who also died L.Rs on record).
13.It is also admitted that the three sisters entered into
partition under Ex.A2, dated 26.1.1939. One of the sister Ramalakshmi Ammal
executed a Will dated 11.12.1950 under Ex.B2 bequeathing her property in favour
of the children of her two sisters. The plaintiff is one of the beneficiary
under the Will. A suit was also filed under Ex.B7 in O.S.No.362 of 1959 which
ended up in S.A.No.135/1962. Exs.A1 and A2 were upheld and the right of the
plaintiff against her mother and brothers were confirmed. In fact, the suit was
filed only questioning the settlement deed dated 1.12.1950 under Ex.B1, executed
by Kangasabai @ Kanagarathinam who is the mother of the plaintiff in favour of
the fifth defendant. The grievance of the plaintiff seems to be against this
settlement deed, but unnecessarily the validity of Exs.A1 and A2 were questioned
in the suit. The validity of Exs.A1 and A2 were already decided and the
plaintiff is estopped from challenging them.
14.Therefore, the point for consideration is whether Ex.B1 settlement deed
dated 1.12.1950 is valid and acted upon.
15.All the defendants in their written statements and in their
evidence would state that Kangasabai @ Kanagarathinam, the mother of the
plaintiff executed a settlement deed, Ex.B1 on 1.12.1950 transferring the
northern portion given under the partition deed. It is also pleaded and proved
that the fifth defendant had executed a settlement deed under Ex.B-14 on the
same day transferring the property under Door No.132 of West Masi Street in
favour of Kangasabai @ Kanagarathinam. The evidence would show that these two
documents were properly executed, acted upon and the executants of the both
documents have absolute right to effect such transfer and therefore the
plaintiff cannot challenge these two documents and she cannot claim a right in
the suit property. It is also pertinent to note, under the partition, accepted
between the three sisters, the door No.13 of North Chithirai Street was divided
into two portion and the Southern Portion was given to the 5th defendant and the
northern portion was allotted to the plaintiff’s mother Kangasabai @
Kanagarathinam. It is natural that one of the sisters had transferred her
allotted northern share to the other sharer to be enjoyed wholly and in exchange
had received another property. Therefore the settlement deed is for a valid
consideration and the parties have acted upon and the plaintiff cannot have any
right in the property.
16.The point is decided accordingly. The trial court has rightly
dismissed the suit. In that event, I am not inclined to interfere with the
judgment and decree of the trial court and the appeal is liable to be dismissed.
17.In the result, the appeal is dismissed. No costs. Consequently,
connected Miscellaneous Petitions are closed.
am
To
The II Additional Subordinate Judge,
Madurai.