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2008 DIGILAW 2140 (MAD)

K. J. Vaduvambal v. C. N. Uma Devi

2008-06-30

G.RAJASURIA

body2008
JUDGMENT G. RAJASURIA, J. 1. This appeal is focussed as against the judgment and decree dated 20.2.1992 made in O.S. No. 3463 of 1985 on the file of the learned IV Assistant Judge, City Civil Court, Madras. For convenience sake, the parties are referred to here under according to the litigative status before the trial Court. 2. Broadly but briefly, narratively but precisely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus: The suit property, which is a plot and the house standing thereon was originally purchased during the year 1928 by the plaintiffs paternal grand father, viz., C.S. Subramania Achary and he made improvements in the suit property also. When he was 71 years old, he thought it necessary to make some provisions for his grand children; whereupon he executed the Exhibit A-1 Settlement Deed dated 9.2.1967 granting life estate in favour of his son, the first plaintiff Nagabushanam and absolute interest in favour of a his children and also reserving life estate in favour of himself and his wife Sovadambal Ammal; as on the date of emergence of Exhibit A-1, the children of Nagabushanam-the first plaintiff, were minors. It so happened that during the year 1974, the said Subramania Achari without any valid reason and without necessity to benefit the minor children of Nagabushanam including the plaintiff herein in contravention to Section 8 of the Hindu Minority and Guardianship Act sold away the suit property in favour of one Rajabather Chettiar, the father of the fourth defendant on 18.1.1974 as per Exhibit A-2 The said sale deed is invalid. The plaintiff was born on 19.6.1963 and hence after attaining majority, but within three years from the date of majority, she has filed the suit seeking partition of her 1/3 rd share in-the suit property and also for profits. 3. Per contra, impugning and denying, challenging and gain saying the allegations/averments in the plaint, the first defendant tiled the written statement, the nitty gritty of it would run thus: Since the Settlor was alive, he wanted the property to be sold for the benefit of the minors and the first defendant could not go against the wish of the Settlor; thereupon, Exhibit A-2 emerged. The said sale was for family necessity only. Accordingly, he prayed for the dismissal of the suit. 4. The said sale was for family necessity only. Accordingly, he prayed for the dismissal of the suit. 4. The second defendant, the son of the first defendant filed the written statement with the averments thus: There was no family necessity to sell the suit property and Exhibit A-2 emerged illegally. D2 simply signed as mandated by his grand father and father. The said Exhibit A-2 is a void document and not binding on D2. 5. The quintessence of the case of the third defendant as found set out in the written statement would run thus: Supporting the averments in the plaint, the third defendant filed the written statement. D3 also claimed relief on par with the relief claimed by the plaintiff. 6. On the contrary, the fourth defendant filed the written statement, the pith and marrow of it would run thus: C.S. Subramania Achary, who purchased the suit property during the year 1928, settled the said property as per Exhibit A-1 in accordance with the terms and conditions set out therein. Subsequently, the Settlor, due to impecunious and penurious circumstances and his difficulties in meeting the expenses, relating to the marriage of the second defendant as arranged by the first defendant and out of necessity, sold the suit property as per Exhibit A-1, wherein the Settlor, his son and grand children are parties. In Exhibit A-1, the sale consideration contemplated was Rs. 30,000/- and out of which, Rs. 20,000/- was retained by the fattier of D4 for paying the same to the then two minors, viz., Uma Devi and Nagalakshmi, after they attain majority. The father of D4 has also been paying the monthly interest of Rs. 200/- regularly till 1961. Subsequently, D1 refused to receive the interest and also the principal sum of Rs. 20,000/- and D4 being the daughter of Rajabather Chettiar, the purchaser under Exhibit A-1, is entitled to the suit property. It is D1 who engineered the suit. The property was sold for family necessity of the vendors arid for their benefit. Moreover, D1, being the father of the plaintiff when alive a d also having life interest as per Exhibit A-1, even before his death, the suit for partition and for setting aside the sale deed Exhibit A-2 filed by the plaintiff, is untenable. Accordingly, D4 prayed for the dismissal of the suit. 7. The trial Court framed the relevant issues. Moreover, D1, being the father of the plaintiff when alive a d also having life interest as per Exhibit A-1, even before his death, the suit for partition and for setting aside the sale deed Exhibit A-2 filed by the plaintiff, is untenable. Accordingly, D4 prayed for the dismissal of the suit. 7. The trial Court framed the relevant issues. During trial, the plaintiff examined herself as P.W.1 along with P.W.2 and Exhibits A-1 to A-5 were marked. The third defendant examined herself as D.W.1 along with D.W.2 and Exhibit B-1 was marked. The trial Court ultimately decreed the suit for partition allotting 1/3rd share in favour of the plaintiff and 1/3rd share each in favour of the second and third defendants. Accordingly, the preliminary decree was passed. 8. Being aggrieved by and dissatisfied with the judgment and the preliminary decree of the trial Court, the appellant/fourth defendant has filed this appeal on the following grounds among others: (a) The judgment and the preliminary decree of the trial Court is against law, weight of evidence and all probabilities of the case. (b) The trial Court failed to consider that Exhibit A-2, the sale deed emerged for meeting the family necessity of the vendors and for maintaining the minor children of D1. (c) The trial Court erroneously held that the sale was not for the welfare of the minor. (d) D2, the son of D1 was a major, at the time of emergence of Exhibit A-2 sale deed. (e) Ignoring the recitals in Exhibit A-2, the trial Court decreed the suit. Accordingly, she prayed for setting aside the judgment and decree of the trial Court and for dismissal of the original suit. 9. Subsequently, C.M.P. No. 389 of 2008 was filed by the appellant seeking permission of this Court under Order 41 Rule 2 of Code of Civil Procedure to raise additional grounds. 10. Heard both sides on this application also and since this Court happens to be the First Appellate Court and the grounds sought to be raised are all law points, challenging the validity of Exhibit A-1 would like to allow the miscellaneous petition and both the sides argued on the additional grounds of appeal also. 10. Heard both sides on this application also and since this Court happens to be the First Appellate Court and the grounds sought to be raised are all law points, challenging the validity of Exhibit A-1 would like to allow the miscellaneous petition and both the sides argued on the additional grounds of appeal also. As such, the additional grounds would run thus: Exhibit A-1 even though was nomenclatured as settlement, was really a Will and it had not come into force during the life time of the Settlor and hence the Settlor had legal competence to alienate the suit property. There is no vesting of right contemplated in Exhibit A-1 in favour of the beneficiaries during the life time of the Settlor. Accordingly, she prayed for setting aside the judgment and the preliminary decree of the trial Court. 11. The points for consideration are as to: (1) Whether Exhibit A-1 in stricto senso a “Will or a “Settlement” capable of creating transfer of interest inter vivos in the immovable property? (2) Whether the suit property was not sold for the welfare of the minors and for family necessity? (3) Whether Exhibit A-2, the sale deed was null and void and not binding on the plaintiff and whether the plaintiff was entitled to partition as prayed for in the plaint and (4) Whether there is any infirmity in the judgment and the preliminary decree of the trial Court? Point Nos. 1 to 3: 12. These points are taken together for discussion as they are inter-woven and inter-linked with one another. The contention of the appellant/P4 is two fold: (i) Exhibit A-1 is only a “Will” and not involving transfer inter vivos ? (ii) Exhibit A-2, the sale deed is a genuine document for the welfare of the sellers and for their family necessities. (iii) Whereas the learned counsel for the plaintiff would contend that Exhibit A-1 is not a “Will” but involves transfer inter vivos and the Settlors reserved their life estate in their favour. 13. The learned counsel for the fourth defendant cited the decision of the Hon’ble Apex Court in Kokilambal and Others v. N. Raman 2005 (3) LW 736 and an excerpt para Nos. 11 to 14 of it, would run thus: “11. Their Lordships also relied upon Halsbury’s Law Of England, 4th Edn., Vol. 13. The learned counsel for the fourth defendant cited the decision of the Hon’ble Apex Court in Kokilambal and Others v. N. Raman 2005 (3) LW 736 and an excerpt para Nos. 11 to 14 of it, would run thus: “11. Their Lordships also relied upon Halsbury’s Law Of England, 4th Edn., Vol. 50, Para 589 at page 395 which reads as under: “It is necessary to construe the Will to find out the intention of the testator. With regard to construction of Wills the law is well settled that intention has to be ascertained from the words used keeping in view the surrounding circumstances, the position of the testator, his family relationship and that the Will must be read as a whole.” 12. Our attention was also invited to a decision of this Court in Namburi Basava Subrahmanyam v. Alapati Hymavathi and Others AIR 1996 SC 2220 : (1996) 9 SCC 388 . In this case also the question was whether the document is a will or settlement. Their Lordships held that the nomenclature of the document is not conclusive one. It was observed as follows: “The nomenclature of the document is not conclusive. The recitals in the document as a whole and the intention of the executant and acknowledgment thereof by (he parties are conclusive. The Court has to find whether the document confers any interest in the property in praesenti so as to take effect intra vivos and whether an irrevocable interest thereby, is created in favour of the recipient under the document or whether the executant intended to transfer the interest in the property only on the demise of the settlor. Those could be gathered from the recitals in the document as a whole. The document in this case described as ‘settlement deed’ was to take effect on the date on which it was executed. The settlor created rights thereunder intended to take effect from that date, the extent of the lands mentioned in the Schedule with the boundaries mentioned there under. A combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. A combined reading of the recitals in the document and also the Schedule would clearly indicate that on the date when the document was executed she had created right title and interest in the property in favour of her second daughter but only on her demise she was to acquire absolute right to enjoyment, alienation etc. In other words, she had created in herself a life interest in the property in praesenti and vested the remainder in favour of her second daughter. It is settled law that the executant while divesting herself of the title to the property could create a life estate for her enjoyment and the property would devolve on the settlee with absolute rights on the settlor’s demise. Thus the document in question could be construed rightly as a settlement deed but not as a Will. The settlor, having divested herself of the right and title thereunder, had, thereafter, no right to bequeath the same property in favour of her first daughter.” 13. In this background, we have to examine the Settlement deeds created by Kokilambai m favour of the deceased Varadan. The recitals of the settlement deeds i.e. A-1 and A-2 as reproduced above, clearly says that since Kokilambai had no son and her husband Manicka Mudaliyar during his life time has bestowed his love and affection on Varadan, the son of his elder sister, and therefore, out of love and affection, she has settled that the income derived from the properties i.e. Door No. 43, Kakkaran Basin Road, shall be enjoyed by herself and Varadan, till her life time and after her demise, it shall be enjoyed by Varadan absolutely. She further authorised him to collect the rental income of the aforesaid house and pay the corporation and land tax, repairs etc. and the remainder rental amount shall be enjoyed by herself and Varadan in moiety. The appellant No. 1 further settled that she would not alienate the property but both of them reserve the right to alienate the property jointly. Therefore, this settlement in no uncertain terms lays down that the properties in question will vest absolutely after the death of the appellant No. 1 and during their life time, both will enjoy the usufructs but Varadan would collect the rental income of the aforesaid property. It is further mentioned that both will have the right to alienate the property in question jointly. It is further mentioned that both will have the right to alienate the property in question jointly. These conditions are very clear. Varadan would have acquired the absolute right over the property after the death of Kokilambal. Even during their life time if the property was to be alienated then the same would be alienated by them jointly meaning thereby that the appellant No. 1 continued to hold the property during her life time and both of them were permitted to enjoy the usufructs of that property. These settlement deeds in our opinion, clearly make out that Varadan was not made absolute owner of the property during the life time of the settlor, Kokilambal. 14. Learned counsel for the respondent has tried to interpret this document that since the appellant No. 1 had already divested her right to alienate the property that should be enough to show that the entire property stood vested in favour of Varadan. Learned counsel for the respondent tried to seek support from a decision in Turlapaty Rajeswara Rao and Another v. Kamarajugadda Rangamma and Others (1949) 1 MLJ 480 (Vol. 96). In that case also it was observed that the wife got the life estate in the properties and the nephews got the vested interest in the same although they are postponed till her death. In this case also, it was held that the fundamental rule of construction of a Will is that in the intention of the testator should be gathered from a reading of the Will as a whole. Learned counsel for the respondent also invited our attention to a decision in the case of P. Ram Mohan v. Lalitha Raghuraman and Others A1R 1976 Mad. 333 : 89 LW 175. In that case, on the facts their Lordships came to the conclusion that where a settlor by a deed of settlement created a life interest in favour of himself, his wife, his foster son, it was held that the two sons of the settlor acquired a vested interest in the property on the date of execution of the deed. Therefore, this depended on the construction of the settlement deed. Therefore, this depended on the construction of the settlement deed. But, in the present case, we have quoted above the recitals in the settlement deeds i.e. A-1 and A-2 and have also interpreted the same that the settlor Kokilambal had not completely divested her right in favour of the deceased Varadan but it was a contingent one that it would vest after her death. Therefore, the intention of the settlor was very clear that the settlement was to come into effect after the death of settlor Kokilambal.” 14. In fact, the learned counsel for the respondent/plaintiff cited one another decision of the Hon’ble Apex Court in Namburi Basava Subrahmanyam v. A1apati Hymavathi and Others AIR 1996 SC 2220 : (1996) 9 SCC 388 , which is referred to in the decision cited supra. The learned counsel on both sides in unison would agree to the point that the recitals in Exhibit A-1 would govern the adjudication as to whether Exhibit A-1 is a “Will” or involving transfer inter vivos. 15. The first defendant-Nagabushanam, even though filed the written statement in support of the plaintiffs case has not chosen to appear as a witness. Exhibit B-1 is a note book, which comprises of various stamped endorsements purported to have been made by Nagabushanam-D1 evidencing that on behalf of the plaintiff, he was receiving periodical interest from D4’s father. Exhibit B-1 would in the facts and circumstances of this case, enable the Court to understand that D4’s father was in the habit of paying interest for the amount retained by him. Had really that was not the arrangement, certainly, Nagabushanam, who was under the duty to bring up the plaintiff and the D3, might not have kept quite all along. 16. The learned counsel for the fourth defendant would drew the attention of this Court to page No. 7 of Exhibit A-1, the settlement deed and develop his argument that the versions found set out therein would unambiguously demonstrate that after the life time of the Settlors viz. C.S. Subramania Achari and his wife Sovdambal Ammal, their son Nagabushanam, D1 should take the suit property for his life and the absolute interest shall be with the children born to Nagabushanam. C.S. Subramania Achari and his wife Sovdambal Ammal, their son Nagabushanam, D1 should take the suit property for his life and the absolute interest shall be with the children born to Nagabushanam. According to those recitals, only after the death of the Settlors, the vesting would come into operation and Nagabushanam would get his life estate and his children after the life time of Nagabushanam would get absolute interest in the suit property; the words “have and hold” in page No. 7 of Exhibit A-1 would indicate that under Exhibit A-1 transfer inter vivos of the rights in the immovable property were not intended to take place during the life time of the Settlors. Whereas the learned counsel for the plaintiff would rely on the recitals in page No. 9 of Exhibit A-1 and advance his argument that those recitals would evince and evidence that after reserving life estate in favour of the Settlors, they parted with their right over the suit property during their life time itself and it got vested with the Settlees under Exhibit A-1. Hence, it is just and necessary to extract here under the relevant pages in Exhibit A-1. “That after the life-time of the SETTLORS, the said NAGABUSHANAM, the First Settlee herein shall have and hold the property described in the Schedule hereunder without any powers of alienation, by way of sale, mortgage or gift or otherwise remain in possession enjoy and collect the rent and profits dues in respect thereof and also – effecting necessary repairs thereto from and out of the rents and profits utilising the net proceeds during the remainder of his natural period of life. Then after his lifetime, the SETTLEES 2, 3 and 4 any other issues that may be born to the said NAGABUSHANAM shall have and hold the property described in the Schedule hereunder the value of Rs. 15,000/- and become fully and absolutely entitled thereto either solely or in equal shares or the case may be. Then after his lifetime, the SETTLEES 2, 3 and 4 any other issues that may be born to the said NAGABUSHANAM shall have and hold the property described in the Schedule hereunder the value of Rs. 15,000/- and become fully and absolutely entitled thereto either solely or in equal shares or the case may be. THE SETTLORS do hereby declare that except their right to continue to remain in – possession and enjoyment and collect the rents and profits and subject to their liability to pay the taxes and other public dues to utilise the net collections, receipts and income for the SETTLORS maintenance upkeep and support during the remainder of either of the lives of the SETTLORS the SETTLORS have no other right, or interest, reserved to or in either or all the properties, described in the Schedule and the SETTLEES are entitled to the same as per the terms and conditions attached thereto;” (emphasis supplied) A mere perusal of the recitals in page No. 7 of Exhibit A-1 as set out supra, would make it clear that the Settlors intended that after their life time only the vesting of the rights in the suit property should take effect in favour of the Settlees. The words “have and hold” are having a special connotation of it own. At this juncture, I would like to refer to the Black’s Law Dictionary – Sixth Edition, which would define the term “have” and “have and hold” as under: “Have – Imports ownership, and has been defined to mean “to keep”, “to hold in possession”, “to own.” To bear (children) Have and hold. A common phrase in conveyancing, derived from the habendum et tenendum of the old common law.” 17. It is therefore, clear from the definition that the word “have” in a deed is having the effect of holding a property as owner. Here, the Settlors intended that after their life time, the Settlees subject to the conditions set out in Exhibit A-1 should own the property and among the Settlees Nagabushanam is only a life estate holder. In Page Nos. 7 and 3 also of Exhibit A-1; it is once again found set out that after the life time of Nagabushanam, his children shall “have and hold” the property. In Page Nos. 7 and 3 also of Exhibit A-1; it is once again found set out that after the life time of Nagabushanam, his children shall “have and hold” the property. Put simply, the intention of the Settlors was to the effect that the Settlors should continue to remain as the owners of the suit property and after their death, the property should devolve on their grand children subject to life estate in favour of Nagabushanam. 18. It has to be seen as to whether the subsequent recitals at page No. 10 of Exhibit A-1 to the effect that the Settlors have no other right or interest reserved to or either in all the properties described in the schedule and the Settlees are entitled to the same as per the terms and conditions attached thereto, would have the effect of nullifying or modifying the earlier version in the deed. 19. The learned counsel for the plaintiff would place reliance on the recitals in page No. 10 and stress upon the fact that the Settlor got themselves divested of their rights over the suit property except life estate in their favour and nothing more. If such an argument has to be accepted, then the recitals in Page Nos. 7 and 8 of Exhibit A-1 would be rendered otios. Documents such as “Will”/ Settlement should be read as a whole so as to find the intention of the executant of such documents. In Exhibit A-1, the Settlement Deed, a scheme of action is contemplated, so to say, the testators intended that the Settlees shall have no role during the life time of the Settlors and only after their death, they can “have and hold” the properties, as set out supra. Had the Settlors intended that they should have no right as on the date of the execution of the Settlement and registration of the same, they would have very easily added words such as Settlors had no right of alienation or revocation during the Settlors life time. Had the Settlors intended that they should have no right as on the date of the execution of the Settlement and registration of the same, they would have very easily added words such as Settlors had no right of alienation or revocation during the Settlors life time. Whereas while conferring life estate on the part of Nagabushanam they have specifically added the words Nagabushanam shall “have and hold” the property described in the schedule of the property without any power of alienation by way of sale, mortgage or gift or otherwise, if really, as pleaded by the plaintiffs in the written statement as well as in the deposition that the Settlors after executing the settlement deed got themselves divested of their absolute ownership over the property but reserved their life estate only with them, then, they would have very well added similar words as they used relating to Nagabushanam while conferring life estate on him. But, they have not chosen to do so, in respect of themselves. It is a common or garden principle that while executing an irrevocable statement, the term “irrevocable” would find a place. But, such a term is missing and they never stated that during their life time, they had no power to revoke the settlement as such. Hence, all these facts would go to show that the settlement deed is nothing but a “Will” in stricto sensu. 20. In fact, in the precedent of the Hon’ble Apex Court in Kokilambal and Others v. N. Raman (supra), the nature of the recitals involved in that Settlement Deed was to the effect that one Kokilambal, the Settlor went to the extent of reciting in the Settlement Deed executed by her that as per the Settlement Deed, the Settlor herself and the Settlee Varadan could collect rent from the house property and after paying the tax and meeting the expenses towards repairs, they should share the rental income and in the event of intending to sell the property, both could alienate it jointly. As such, in the Settlement Deed under the consideration of the Hon’ble Apex Court, the Settlee was given various rights such as sharing the income with the Settlor and also joining with the Settlor in selling the property; but, even then, the Hon’ble Apex Court held that the recitals in the Settlement Deed did not have had the effect of transferring the rights inter vivos. But, here, the Settlors have not gone to the extent of conferring such powers on the Settlees but, they retained their absolute right with them and they never also indicated that they had no power of revoking the settlement. Over and above that, there is also one other indication in the settlement that they wanted their grand children alone to enjoy it. 21. Indubitably and incontrovertibly, the Settlors grand children at the relevant time of emergence of Exhibit A-1 were small children. The plaintiff is second in the filial rank whereas his elder brother D2-Sudhakar was little bit elder to her and her younger sister Nagalakshmi was only a month old. Exhibit A-3, the birth Certificate of the plaintiff would show that she was born on 19.6.1963 and D3 was born on 7.1.1967 and from that it could be understood that as on the date of the emergence of Exhibit A-1, i.e., 19.2.1967, the plaintiff was only about 3% years old and D3 was only one month old child. In such a case, the probabilities are remote that the Settlors had intended that as on the date of the execution of the Settlement Deed itself, such children should be the absolute owners with restrictions of life estates in favour of the Settlors and D1 Nagabushanam. In Exhibit A-1, the Settlors set out thus: “WHEREAS the FIRST and SECOND SETTLOR have two sons, Nagabushanam and Vasu, former being the father of the SETTLEES and Whereas the said Nagabushanam and Vasu are in affluent circumstances, the former doing the Goldsmith business of his own and the later is an Artist and Whereas the FIRST SETTLOR is now in an advanced age, viz., 71 years old, and the SECOND SETTLOR also is aged, and hence the FIRST and SECOND SETTLORS are anxious to make a settlement in respect of the Scheduled property in favour of the SETTLEES who are their grand-children out of natural love and affection in the manner hereinafter provided and subject to the terms and conditions hereinafter contained;” 22. It is therefore, clear that the Settlor never intended that there should be an immediate benefit conferred on Nagabushanam or to his children, for the reason that Nagabushanam was affluent at that time. It is therefore, clear that the Settlor never intended that there should be an immediate benefit conferred on Nagabushanam or to his children, for the reason that Nagabushanam was affluent at that time. If the Settlees were reeling under impecunious or penurious or cash strapped situation at that time, the Settlors might have even intended to part with their ownership so that subject to the life estate, those Settlees could even make alienations and the purchaser would be able to take possession after the death of the Settlors. But here, the recitals in Exhibit A-1 is not having such effect and the Settlors never thought that at the time of executing Exhibit A-1 that the Settlors were in dire need of money. Hence, this is also one of the factors, which could rightly be considered along with the other factors discussed supra. 23. The deposition of P.W.1, the plaintiff remains only as her ipse dixit. The deposition of P.W.2, the sister of D1 in the facts and circumstances of this case would have no probative force as the interpretation of the recitals in Exhibit A-1 are involved In this case and that too, in view of the fact that as against D4, the stranger, it is not uncommon that the close relative of the plaintiff would support the case of the plaintiff blindly. 24. In view of my discussion supra, it is evident that Exhibit A-1 was only a “Will” and not a Settlement in the form of donation inter vivos. It tea trite proposition of law that witnesses might lie, but the circumstances would not do so. Exhibit A-2 emerged during the year 1974, so to say, on 18.1.1974; as per that Sale Deed, the Settlors and the beneficiaries under Exhibit AT are all parties. In fact, at that relevant point of time, D2, became a major. He was 19 years old and the plaintiff, being a minor, aged about 11 years and D3 another minor aged about 7 years, were also arrayed as vendors represented by their father and natural guardian D1. The Settlors and their son Nagabushanam were earlier financially sound, nonetheless, subsequently, their financial status got dwindled and hence they wanted to sell away the properties for meeting their family necessities including the one that D2 should be given in marriage. Hence, they intended to sell the suit property for their family necessity. 25. The Settlors and their son Nagabushanam were earlier financially sound, nonetheless, subsequently, their financial status got dwindled and hence they wanted to sell away the properties for meeting their family necessities including the one that D2 should be given in marriage. Hence, they intended to sell the suit property for their family necessity. 25. The contention on the side of the plaintiff that such sale was not for the welfare of the minors or for the family necessity, is totally untenable. I am at a loss to understand as to how, the plaintiffs grand parents and her father might have thought of defrauding or cheating the plaintiff and D3, who were tender children at the time of executing Exhibit A-2 sale deed. As such, the circumstances, would clearly highlight that the sale under Exhibit A-2 emerged purely for the purpose of meeting the family necessities and for the welfare of bringing up the young family members including the minor. Absolutely, there is no iota or shred of evidence on the side of the plaintiff to show that the plaintiffs grand parents and her father intended to deprive her of any benefit over the property by effecting fictitious or bogus sale in favour of D4’s father. 26. The learned counsel for the plaintiff would argue that the very fact that under the sale deed, D4’s father retained out of the total consideration of Rs. 30,000/- to the tune of Rs. 20,000/- at the rate of Rs. 10,000/- in favour of each of the then minors, viz., the plaintiff and D3 respectively would speak volumes that such sale was not effected for the welfare of the minors. Such an argument is neither here nor there. At the time of emergence of Exhibit A-2, the plaintiff was 11 years old and D3 was 7 years old and they were living with Nagabushanam and in such a case, it is not known as to how, such an argument could be put forth that the benefit derived by the grand parents of the plaintiffs and her father did not percolate to her. In fact, the minors’ rights were doubly secured. Over and above, Nagabushanam had the task of bringing up the plaintiff and D3, de hors the remaining part of the sale consideration, which was retained by the vendee- namely, D4’s father. 27. In fact, the minors’ rights were doubly secured. Over and above, Nagabushanam had the task of bringing up the plaintiff and D3, de hors the remaining part of the sale consideration, which was retained by the vendee- namely, D4’s father. 27. At this juncture, I would like to highlight the unassailable facts that till date, neither D4’s father Rajabather Chettiar, the vendee in Exhibit A-2 nor D4 paid the remaining part of the sale consideration retained by D4’s father under Exhibit A-2 to the minors after they having attained majority. 28. There is also one other blatant fact, which cannot be lost sight of. The fourth defendant, at the most would be preferred to pay Rs. 10,000/- (Rupees ten thousand only) to the plaintiff as contemplated under Exhibit A-2. But, according to the plaintiff, it would be a mere pittance taking into consideration the present day value of the property. The time gap between the emergence of Exhibit A-2 and the attaining of majority by the plaintiff was enormous and significant and in the meanwhile, there were enormous and Himalayan escalation in the value of property and the value of Rs. 10,000/- got minimised to the maximum. 29. It would not be too difficult, for this Court to visualise in this factual matrix that those factors actually, actuated and accentuated propelled and impelled, the plaintiff to file the suit for partition instead of filing straightaway a suit for recovery of the amount due towards her with necessary additions to it. On the one hand, D4 would be interested in parting with the pittance, i.e., Rs. 10,000/-, on the contrary, the plaintiff would be expecting huge sum on par with the present day market value, representing her share. Hence, all these ulterior ideas and thoughts paved the way for the plaintiff to file the suit for partition, which in my opinion, was not the correct approach. The plaintiff should have straightaway filed a suit for recovery of the said sum by praying for necessary additions to it which the Courts are expected to consider, taking into consideration the change of circumstances and the increase in the value of the properties, etc., over which at present, I do not express any view conclusively. 30. The plaintiff should have straightaway filed a suit for recovery of the said sum by praying for necessary additions to it which the Courts are expected to consider, taking into consideration the change of circumstances and the increase in the value of the properties, etc., over which at present, I do not express any view conclusively. 30. A fortiori, the original suit filed by the plaintiff is nothing but an attempt to bring about a compromise between the plaintiff and the fourth defendant so as to make D4 to part with a sizeable amount over and above, the pittance, i.e. Rs. 10,000/- (Rupees ten thousand only). The trial Court without adverting to the aforesaid salient features involved in this case, simply carried away by the point that the sale was not for the benefit of the minors. It is not known as to how such a finding could be arrived at by the trial Court when the plaintiff was under the custody of D1, who brought her up and looked after her welfare. 31. There is also one other point, which the trial Court failed to take note of. It is not known as to how, the plaintiff was justified in filing a suit for partition during the life time of D1, who is having as per Exhibit A-1, life interest over the entire property. D2 was also a signatory to Exhibit A-2, even then, D2 was also allotted 1/3rd share without any rhyme or reason by the lower Court. As such, the judgment of the trial Court is liable to be set aside. 32. Hence, in these circumstances, the Point No.1 is decided to the effect that Exhibit A-1 is a “Will” and not a Settlement involving donation inter vivos. Point No.2 is decided to the effect de hors such finding that Exhibit A-1 is a “Will” yet Exhibit A-2 is a genuine document, which emerged for the family necessity and for the welfare of the minors only. Point No.3: 33. Point No.2 is decided to the effect de hors such finding that Exhibit A-1 is a “Will” yet Exhibit A-2 is a genuine document, which emerged for the family necessity and for the welfare of the minors only. Point No.3: 33. In view of the reasons set out supra, the judgment and decree of the trial Court is set aside and the original suit is dismissed with a direction that the plaintiff as well as D3 is at liberty to file a fresh suit, within a period of one year from this date seeking recovery of the amount due towards them with necessary additions, as that may be permissible and applicable under the law. 34. With the above direction, this appeal is allowed. However, there shall be no order as to costs.