This second appeal has been filed against the judgment and decree, dated 13.3.1995, made in A.S.No.46 of 1993, on the file of the Sub Court, Nagapattinam, confirming the judgment and decree, dated 15.7.1992, made in O.S.No.244 of 1988, on the file of the District Munsif Court, Nagapattinam.
2. The first defendant in the suit in O.S.No.244 of 1988, is the appellant in the present second appeal. The plaintiff in the suit, who is the first respondent herein, had filed the suit on the file of the District Munsif Court, praying for declaration of title and for permanent injunction, in respect of the suit schedule property.
3. The plaintiff in the suit in O.S.No.244 of 1988, had stated that, out of the total extent of 1.33 acres, in R.S.No.65/4, in No.137, Vilunthamavadi village, in Nagapattinam, an extent of 67 cents, on the western portion of the land, had originally, belonged to Rethina Koundar, the husband of the first defendant and adoptive father of the second defendant. Rethina Koundar, while in a sound and disposing state of mind and bodily health, had bequeathed all his properties, including the 67 cents in the suit properties, under a Will, dated 25.2.1971. The Will has been duly attested, in accordance with law and it has been registered in the office of the Sub Registrar, Thirupundi, as document No.71, in Book 3 of the year 1971.
4. It has been further stated that, as per the Will of Rethina Koundar, the entire extent of 67 cents in the suit properties had been given to his adopted son, who is the second defendant in the suit. After the death of Rethina Koundar, the second defendant had succeeded to the entire properties, in accordance with the Will. Thus, the second defendant had got into possession of the land with an extent of 67 cents, in R.S.No.65/4. The patta had also been transferred in his name and he has also been paying the land revenue to the Government.
5. It has been further stated that the second defendant was a minor on the date of the death of the adoptive father, Rethina Koundar. Therefore, the first defendant, being the adoptive mother, was in possession and enjoyment of the properties given to the second defendant by Rethina Koundar, by his Will, dated 25.2.1971. The first defendant, as the adoptive mother of the second defendant and as his guardian, had sold an extent of 7 cents, on the western portion, in the suit survey number, to one Mariyappan.
6. After attaining majority, the second defendant, as the absolute owner of the entire 60 cents, had sold the said properties to the plaintiff, under a sale deed, dated 10.9.1987, for a consideration of Rs.14,000/-. The second defendant had received the entire sale consideration and had discharged the loan amounts incurred by him for his family expenses and at the time of his marriage.
7. It has been further submitted that, immediately after the execution of the sale deed, the second defendant had put the plaintiff in possession of the 60 cents of land. Thereafter, the plaintiff had also got the patta transferred in his name, in patta No.855.
8. It has been further stated that, in the Will, dated 25.2.1971, executed by Rethina Koundar, the properties, set out in the B schedule of the Will, had been given to the second defendant. The Testator, Rethina Koundar, had added a condition in the Will, in respect of the properties given to the second defendant. Accordingly, the second defendant and his heirs should enjoy the properties, without the power of alienation.
9. The plaintiff had stated that the said condition is void, as it imposes an absolute restraint on alienation and as the second defendant had taken the properties given to him under the Will, absolutely. Therefore, the sale of the suit properties by the second defendant, in favour of the plaintiff, is perfectly valid. On the wrong advice of certain persons, the defendants were attempting to dispossess the plaintiff from the suit properties, without initiating legal steps to set aside the sale deed and to declare it as null and void.
10. In fact, the first defendant, as the guardian of the second defendant, had sold 7 cents in the western portion of the suit survey number to one Mariyappan. Therefore, the defendants are estopped from contending that the properties given to the second defendant, under the Will of Rethina Koundar, are inalienable. Even otherwise, the title of the plaintiff in the suit properties cannot be questioned by the defendants without having the sale deed, dated 10.9.1987, set aside by a competent Court, in the manner known to law. Since the defendants were attempting to trespass upon the suit properties and as they were compelling the plaintiff to surrender a portion of the suit properties to them, the plaintiff had filed the suit, in O.S.No.244 of 1988, praying for a decree declaring that the plaintiff is the true, lawful and absolute owner of the suit properties and for a permanent injunction restraining the defendants and their men, servants and agents, from, in any manner, interfering with the plaintiff's peaceful possession and enjoyment of the suit property and for an alternative relief directing the defendants to put the plaintiff in possession of the suit properties.
11. In the written statement filed on behalf of the first defendant, while denying the claims made by the plaintiff, she had stated that the statement that the first defendant, as the guardian of the second defendant, had sold 7 cents of the land in the suit properties to one Mariyappan, is false. The suit properties belong to the first defendant and the patta is also in her name and she has been paying the kists for the said properties. Further, the suit properties are in the enjoyment of the first defendant. The claims made by the plaintiff that the first defendant had sold 7 cents in the suit properties to one Mariyappan and that the second defendant had sold 60 cents of the land to the plaintiff, by a sale deed, dated 10.9.1987, are false.
12. It has been further stated that the sale deed said to have been executed by the second defendant is void and unsustainable in law. In fact, the first defendant has been in continuous possession and enjoyment of the suit properties. Further, there is no cause of action for the filing of the suit by the plaintiff. Therefore, the suit is to be dismissed with costs.
13. In the additional written statement filed on behalf of the first defendant, it has been stated that the plaintiff has no right in the suit properties. The sale deed, said to have been executed by the second defendant to the plaintiff, is invalid in law. He ought to have filed a separate suit for the alternative relief claimed by him, by paying separate court fee.
14. In the written statement filed on behalf of the second defendant, it has been stated that the suit is a fraudulent one. Since the suit properties have been in the possession and enjoyment of the first defendant, the plaintiff has no right in the said properties. The second defendant has no knowledge of the Will of Rethina Koundar, dated 25.2.1971.
15. The statement of the plaintiff that the first defendant had sold away a portion of the suit properties, is false. The sale deed, dated 10.9.1987, said to have been executed by the second defendant, is a fraudulent document. The claim of the plaintiff that the second defendant had received a sum of Rs.14,000/-, as consideration, for the sale of 60 cents of the suit properties, to the plaintiff, is also false. Further, the claim of the plaintiff that he had taken the possession of the suit properties from the defendants is incorrect. Further, the plaintiff had taken certain signed papers from the second defendant with the intention of misusing them for wrongful purposes.
16. In view of the averments made on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for consideration:
"(i) Whether the Will, dated 25.2.1971, written by Rethina Koundar, is valid?
(ii) Whether the second defendant is entitled to the absolute rights in the properties found in the Will, dated 25.2.1971?
(iii) Whether the sale deed, dated 10.9.1987, is valid? Whether the claim of the second defendant that the sale deed had been written fraudulently without due consideration having been given to the second defendant is true?
(iv) Whether the plaintiff is entitled to the reliefs sought for by him?
(v) What are the reliefs, the parties to the suit are entitled to?"
17. From the evidence of the first defendant, the trial Court had found that she has been taking care of the second defendant from his younger days and that he has been living with her, even though she had denied the claim of the plaintiff that the second defendant is an adopted son of the Rethina Koundar. When the second defendant was enrolled as a student in the School, the names of the first defendant and Rethina Kondar had been given as the parents of the second defendant. The said document had been marked as Exhibit A.6. The marriage invitation of the second defendant has been marked as Exhibit A.5, wherein the names of the first defendant and Rethina Koundar had been shown as the parents of the second defendant. In such circumstances, the trial Court had come to believe that Rethina Koundar had written a Will, marked as Exhibit A.15, dated 25.2.1971, in favour of the second defendant. Thus, the trial Court had come to the conclusion that the Will marked, as Exhibit A.15, is valid and the first defendant had been given the B schedule properties, as shown in the Will.
18. From the recitals of the Will, the trial Court had also come to the conclusion that the second defendant would get absolute rights in the B schedule properties given to him under the Will of Rethina Koundar, dated 25.2.1971. According to the Will, the first defendant was to take care of the B schedule properties, without having the power to alienate the same and to hand over the properties to the second defendant, on his attaining majority. The trial Court had held that the condition that the properties should be enjoyed by the second defendant and his legal heirs, without alienating the same, cannot be held to be valid, in accordance with
Section 138 of the Indian Succession Act, 1925. Once a property is bequeathed, absolutely, a condition imposed restraining alienation would be void. Therefore, the trial Court had come to the conclusion that the second defendant had absolute rights in the B schedule properties, mentioned in the Will, dated 25.2.1971.
19. With regard to the third issue, the trial Court had found that the sale deed, dated 10.9.1987, is valid in law. The sale deed, dated 10.9.1987, is a registered document and the second defendant had clearly stated the reasons for the sale of a portion of the B schedule properties, which had been got by way of a Will written by Rathina koundar in his favour. Since sufficient evidence had not been shown by the defendants to show that the sale deed, dated 10.9.1987, marked as Exhibit A.1, is invalid, the trial Court had come to the conclusion that the plaintiff had obtained the suit properties by way of the said sale deed. However, it had been found that the possession of the suit properties has been with the first defendant, as admitted by the plaintiff. In such circumstances, the trial Court had decreed the suit declaring the title of the plaintiff in the suit properties and by directing the defendants to hand over the possession of the suit properties to the plaintiff.
20. Aggrieved by the judgment and decree of the trial Court, dated 15.7.1992, made in O.S.No.244 of 1988, the first defendant had filed an appeal in A.S.No.46 of 1993, on the file of the Subordinate Court, Nagapattinam. The Subordinate Court, Nagapattinam, had framed the following points for consideration:
"(i) Whether the Will written by Rethina koundar, on 25.2.1971, is valid in law?
(ii) Whether Karthikeyan is the adopted son of Rethina koundar, and the appellant in the appeal?
(iii) Whether the first respondent is entitled to the reliefs sought for in the plaint?
(iv) What are the reliefs the appellant is entitled to?"
21. From the evidence available, the first appellate Court had found that the Will written by Rethina koundar, in favour of the second defendant, is valid and that the second defendant is the adoptive son of the first defendant, namely, Achammal, and Rethina Koundar. Therefore, the plaintiff had got the suit property by way of the sale deed, marked as Exhibit A.1. Since the possession of the suit properties has been with the first defendant, who is the appellant in the first appeal, the first appellate Court had confirmed the findings of the trial Court by dismissing the first appeal, by its judgment and decree, dated 13.3.1995.
22. Aggrieved by the concurrent findings of the Courts below, the first defendant in the suit had filed the present second appeal before this Court.
23. This Court had admitted the second appeal on the following substantial question of law:
"Whether the bequest under Exhibit A.15 is hit by the rule of perpetuity?"
24. It has been contended on behalf of the appellant that the lower appellate Court had erred in holding that the second respondent is the adopted son of the deceased Rathna Koundar, without sufficient proof of such adoption in the manner known to law. The alleged Will, dated 25.2.1971, was neither true nor genuine, since the due execution of the Will had not been proved by the plaintiff. The first appellate Court had misconstrued the contents of the alleged Will to hold that the second defendant was entitled to the suit properties, absolutely. The lower appellate Court had also failed to see that, as per the provisions of the Indian succession Act, 1925, the bequest to the second defendant was hit by the rule of perpetuity and therefore, it is void. Since the Testator had not given an absolute estate to the second defendant, the plaintiff cannot claim absolute right in the suit properties.
25. The learned counsel appearing for the appellant had also submitted that it is for the plaintiff to have proved that the adoption of the second defendant by Rethina Koundar and the first defendant, was in accordance with law. Though Rethina koundar, the father of the second defendant, was alive at the time of the filing of the suit, he had not been examined. Since the second defendant was only a holder of a life estate, he could not have alienated the suit properties in favour of the plaintiff. In support of the said contentions, the learned counsel had relied on the decision of this Court in CHANDRA NAGESWARAN Vs. T.R.BALAKRISHNAN & OTHERS (1991) 1 MLJ 378 .
26. It was also contended that since the second defendant had died, the sale executed by him is not valid after his death. In support of such a contention the learned counsel had relied on the decision, reported in UMA DEVI NAMBIAR Vs. T.C.SITHAN (DEAD) (2004) 2 CTC 287.
27. Per contra, the learned counsel appearing for the respondents had submitted that according to the Will of Rethina Koundar, marked as Exhibit A.15, the first defendant was to take care of the second defendant, who was a minor at the time when the Will was created, till he attains majority.
28. According to
Sections 10 and
11 of the Transfer of Property Act, 1882, once an absolute right is vested in a person in respect of a property, no condition can be imposed restraining the alienation of the property and no restriction can be repugnant to the interest created therein.
29. As per
Section 138 of the Indian Succession Act, 1925, it is made clear that where a fund is bequeathed, absolutely, to or for the benefit of any person, but a Will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the Will had contained no such direction.
30. It has been further contended that in the recitals in the sale deed, dated 17.7.1976, marked as Exhibit A.4, executed by the first defendant in the suit, who is the appellant in the present second appeal, in favour of one Chidambaram vanniar, it has been clearly stated that the property mentioned therein was being sold for herself and on behalf of the minor second defendant.
31. The learned counsel had relied on the decision, reported in RAJRANI SEHGAL Vs. PARSHOTTAM LAL (AIR 1992 DELHI 134), wherein, it had been held that the Court had to read and keep in mind the whole of the document and then determine the dominant intention of the testator and give effect to the same, accordingly. Once the Court is satisfied that the testator wanted to give his entire property to the named legatee, his son in the present case, then all subsequent restrictions would be void as being repugnant to the predominant intent on the passing of the entire state to the heir.
32. In view of the contentions made on behalf of the appellant, as well as the respondents and in view of the reasons stated by the Courts below in coming to its conclusions and on a perusal of the records available, this Court is of the considered view that the appellant in the present second appeal has not shown sufficient cause or reason for this Court to set aside the concurrent findings of the Courts below.
33. Both the trial Court, as well as the first appellate Court, have found sufficient reasons to come to the conclusion that the second defendant was the adopted son of Rethina koundar and the first defendant Achammal, who is the appellant in the present second appeal. It has been found that Rethina Koundar had written a Will, dated 25.2.1971, marked as Exhibit A.15, bequeathing his properties to the first and the second defendants.
34. It has also been found that the first defendant had sold away a portion of the properties by way of a sale deed, dated 17.7.1976, marked as Exhibit A.4. Further, once an absolute right had been vested in the second defendant, in respect of the properties bequeathed to him by way of a Will, dated 25.2.1971, no further condition could have been imposed, as per
Sections 10 and
11 of the Transfer of Property Act, 1882, restraining the alienation of the property or by creating a restriction repugnant to the interest created in such a property. Further,
Section 138 of the Indian Succession Act, 1925, makes it clear that when a Will contains a direction that the property bequeathed, absolutely, should be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the said property as if the Will had contained no such direction.
35. It is also to be noted that the second defendant, who had executed the sale of the suit property in favour of the plaintiff, by way of the sale deed, dated 17.7.1976, marked as Exhibit A.4, is not an appellant in the present second appeal. It is only the first defendant in the suit, in O.S.No.244 of 1988, who is the appellant herein.
36. Both the trial Court, as well as the first appellate Court, had rightly concluded that the adoption of the second defendant by Rethina koundar and his wife Achammal, the first defendant in the suit and the appellant in the present second appeal is true and valid in law. Thereafter, Rethina Koundar had bequeathed a portion of his properties to the second defendant by way of a Will, dated 25.2.1971, marked as Exhibit A.15. The second defendant had sold the properties got by him by way of the Will, dated 25.2.1971, to the plaintiff. Accordingly, the plaintiff has obtained absolute rights in the suit properties.
37. As such, the trial Court by its judgment and decree, dated 15.7.1992, made in O.S.No.244 of 1988, had decreed the suit in favour of the plaintiff. The first appellate Court had confirmed the findings of the trial Court, by its judgment and decree, dated 13.3.1995, made in A.S.No.46 of 1993. In such circumstances, the present second appeal is dismissed, confirming the judgment and decree of the Courts below. No costs.
lan To:
1. The Subordinate Judge, Nagapattinam
2. The District Munsif Court, Nagapattinam