The suit for partition of the ancestral property was dismissed as premature. The court held that a declaration invalidating a settlement deed executed by a life estate holder during her lifetime is not maintainable, and the right to partition only accrues after her death.
No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.10.2017
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.556 of 2013
1.T.Sivaji
S/o.Thilagaraj Nadar
2.T.Ramamurthy,
S/o.Thilagaraj Nadar
3.T.Raghavan,
S/o.Thilagaraj Nadar ... Plaintiffs
..Vs..
1.Pethanachiammal,
W/o.Thilagaraj Nadar,
Door No.179, G.A.Road, Old Vannarapettai,
Chennai-21.
2.T.Vijayakumar,
S/o.Thilagaraj Nadar,
Door No.179, G.A.Road, Old Vannarapettai,
Chennai-21. .. Defendants
Plaint filed Under Order VII Rule 1 of C.P.C r/w Order IV, Rule 1 of Original Side Rule High Court Rules prayed to pass a judgement and decree:-
a)To pass a preliminary decree for partition of the suit schedule property into four equal parts by metes and bounds and allot http://www.judis.nic.in three such shares to the plaintiffs.
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b)To appoint an advocate commissioner to divide the suit property, more fully described in the schedule of the property by metes and bounds and deliver the separate possession of the ¾ share to the plaintiff in respect of the Schedule mentioned property.
c)To declare the settlement deed dated 22nd April 2013
executed in favour of 2nd defendant by the 1st defendant as null and void.
d)Pass such further order as this court deem fit and necessary
to the consequential circumstances, and
e)For costs and thereby render justice.
For Plaintiffs : Sri.K.P.Gopalakrishnan for
Mr.R.Lokeshwaran
For Defendants : M/s.P.Arularasi
JUDGEMENT
The plaintiffs have come forward with the suit for partition to divide
the suit schedule property into four equal shares and for a declaration, that the settlement deed dated 22.4.2013, executed by the first defendant
in favour of the second defendant as null and void and for other reliefs.
http://www.judis.nic.in Tmt.Balammal, the mother of the first defendant and the grandmother of
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the plaintiffs and the second defendant, who had executed a registered settlement deed dated 17.01.1974, providing life estate in favour of her two daughters viz., Pethanachiammal (1st defendant) and Patchaiammal. The said settlement deed provides that the settlor viz., Tmt.Balammal will have life estate and she will be entitled to collect rental income and enjoy the same till her life time. After her death, her two daughters viz., Pethanachiammal and Patchaiammal shall divide the property amongst themselves, and the Eastern portion shall be allotted to Pethanachiammalthe first defendant, and the Western portion shall be allotted to Patchaiammal, the other daughter. The said Settlement Deed further provides that the 2 daughters shall enjoy the property till their life time without any power of alienation and after her life time, the property was taken by the male heirs of the settlees.
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4. The defendants 1 and 2 have filed their written statement
contending that even during the life time of the husband of the first defendant, the Provision Store at Thirumazhisai was handed over to the first plaintiff and he was also paid several amounts by sale of gold jewellery as well as ancestral lands. It is also contended by the defendants that the second plaintiff was provided funds for starting a Provision Store and 50 sovereigns of gold jewellery was provided for the marriage of his daughter Rajeswari, apart from incurring expenses of Rs.5,00,000/(Rupees Five Lakhs Only) for the said marriage. The third plaintiff had forcibly taken possession of the house property at Peraiyur Village, Ramnad District. By mortgaging the same, he had borrowed money from the local people. In view of the default committed, the property has been taken over by the creditors. It is also submitted by the defendants that they alone had improved the property, by spending a sum of Rs.9,00,000/(Rupees Nine Lakhs Only).
no right to claim any share on the property, till the life time of the first defendant and therefore, the suit itself is pre-mature. The execution of the settlement deed dated 22.04.2013 was admitted by the defendants, http://www.judis.nic.in and the first defendant would claim that she had executed the settlement,
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since the second defendant alone has been looking after her, in her old age.
issues:
dated 17.01.1974 executed by the first defendant in favour of the second defendant, is genuine, true and valid?
“1.Whether the registered settlement deed
dated 22.04.2013 executed by the first defendant in favour of the second defendant is genuine, true and valid?”
http://www.judis.nic.in Exs.P-1 to 5 were marked , and the first defendant was examined as D.W.1
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and Exs.D-1 to D.4 were marked.
Isuse No.1:-
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settlement deed executed by the first defendant. It is true that the settlement deed executed by Tmt.Balammal in favour of the first defendant provides only life estate in her favour and so the first defendant cannot alienate or encumber the property even during her life time, and the settlement deed executed by the first defendant on 22.04.2013 is derogation of such interdict imposed on her in the parent document viz., the settlement deed dated 17.01.1974. However, in view of the settled possession of law that the alienation made by the life estate holder is valid till her life time, the plaintiffs cannot be favoured with a declaration that the settlement deed executed by the first defendant on 22.04.2013 is null and void, even during the life time of the first defendant. The first issue is answered against the plaintiffs.
Issue No.2 :-
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first defendant if they are so advised. In the result, the suit is dismissed. Considering the circumstances and the relationship between the parties,
there will be no order as to costs in this suit.
20.10.2017
Index: Yes/No
Internet:Yes/No
Speaking Order/Non-speaking Order
KP
List of the witnesses marked on the side of the plaintiffs:
PW-1 T.Sivaji 1 st Plaintiff.
List of Exhibits marked on the side of the Plaintiffs:
Ex.P-1 The certified copy of the settlement deed dated
17.01.1974 executed by Balammal.
Ex.P-2 The photocopy of the legal notice dated 25.03.2013
from the plaintiffs counsel to the 2 nd defendant.
Ex.P-3 The photocopy of the reply notice from the second
defendant dated 03.14.2013 to the plaintiff.
Ex.P-4 The photocopy of the rejoinder notice from the
plaintiffs counsel dated 12.04.2013
to the 2 nd defendant.
Ex.P-5 The certified copy of the settlement deed dated
22.04.2013 executed by the 1 st defendant in favour of
the 2 nd defendant.
List of witnesses marked on the side of the defendants:
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D.W-1 Pethanachiammal 1st defendant.
List of Exhibits marked on the side of the Defendants:
Ex.D-1 The xerox copy of the no objection letter dated
20.05.1997 given by 1 st defendant to the commercial
tax department.
Ex.D-2 The notice dated 26.05.1997 sent by 2 nd defendant to
CTO.
Ex.D-3 The xerox copies of three kissan vikas pathras dated
(Series) 29.05.1996 each for Rs.1,060/- transferred to CTO,
Washermanpet.
Ex.D-4 The xerox copy of the certificate of registration
issued to Vijay Traders by CTO.
20.10.2017
KP
R.SUBRAMANIAM.J,
KP
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C.S.No.556 of 2013
20.10.2017
2 issues framed by the court
Whether the life estate holder is competent to execute a settlement deed settling the entire property in favour of another person during her lifetime?
Whether the plaintiffs are entitled to the relief of partition and separate possession while the life estate holder is alive?
T.Sivaji
T.Ramamurthy
T.Raghavan
Pethanachiammal
T.Vijayakumar
R. Subramaniam
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
