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2010 DIGILAW 984 (MAD)

Nagarajan v. Selvam

2010-03-04

G.M.AKBAR ALI

body2010
Judgment :- COMMON JUDGMENT: The appeals are preferred against the judgment and decree dated 27.03.1995 in O.S.No.196 of 1998 on the file of the III Additional Subordinate Judge, Madurai. The first and second defendants are the appellants. 2. The brief facts of the cases are as follows: The suit properties originally belonged to Gurusamy Naidu and his wife Balammal. Gurusamy Naidu had a son named Chinnaiya Naidu. The said Chinnaiya Naidu was leading an immoral life which prompted his parents to execute a Will dated 27.04.1952 in respect of the suit properties and other properties in favour of their grandson Govindarajulu. Under the said Will the said Govindarajulu is to enjoy the property for his life time without the power of alienation and the vested remainder is given in favour of the plaintiffs and the defendants 3 and 4 who are the great grandchildren of the testator. While Govindarajulu and his father Chinnainaidu were alive, dispute arose between them which culminated in filing a suit in O.S.No.191 of 1960. The genuineness of the Will was disputed and ultimately, it was held that the Will is true, valid and binding. Chinnaiya Naidu preferred an appeal in A.S.No.11 of 1962. The genuineness of the Will was upheld in the appeal. Govindarajulu became entitled to the properties as limited owner and he died on 01.06.1983 and he was also leading an immoral life and was not looking after the minor plaintiffs and the defendants 3 and 4. He had incurred number of debts. They are Avyavakariha debts and not for the benefits for the minors or the family. One Indhia Bai Ammal has filed a suit against the said Govindarajulu and obtained a decree. In pursuant to the decree, the properties were brought for sale and the first defendant has purchased Item No.1 and the second defendant has purchased Item No.2. The said sales are null and void. The alleged court auction is void. The plaintiffs came to know about the alleged sale only in the year 1980. The possession of the properties were with the plaintiffs' father and thereafter, it continues to be with the plaintiffs. Since the defendants are claiming right over the properties under invalid documents, the plaintiffs are constrained to file the suit for declaration and consequential injunction. 3. The suit was resisted by the defendants separately. The possession of the properties were with the plaintiffs' father and thereafter, it continues to be with the plaintiffs. Since the defendants are claiming right over the properties under invalid documents, the plaintiffs are constrained to file the suit for declaration and consequential injunction. 3. The suit was resisted by the defendants separately. The first defendant would state that the properties belonged to Balammal and not to Gurusamy Naidu and the Will was denied. It is stated that the plaintiffs and the defendants 3 and 4 filed a suit against their father Govindarajulu through their mother in O.S.No.154 of 1974. One Indhia Bai Ammal was the second defendant. The suit was filed for an injunction restraining the defendants from executing the decree in O.S.No.549 of 1970. Govindarajulu had borrowed amounts from the said Indhia Bai Ammal on a mortgage and a suit was filed in O.S.No.549 of 1970 and a decree was passed. Challenging the execution proceedings the said suit in O.S.No.154 of 1974 was filed and the same was dismissed holding that Govindarajulu was within his rights to mortgage the property. The property was sold in a court auction and the auction purchaser took delivery and the plaintiffs are bound by the said sale. The court auction purchaser sold the portion of the first item to J.S.Krishnan under a sale deed dated 26.11.1982 and another portion to J.S.K.Nagarajan under a sale deed dated 22.12.1982. The purchaser sold the portions to the first defendant under two sale deeds dated 20.09.1984 and the remaining portion was also sold by the auction purchaser to this defendant under a sale deed dated 14.09.1984 and thus the first item of the property was sold to this defendant and this defendant is the bona fide purchaser for valid consideration. The first defendant is a Trustee of a Pharmacy Collage called K.M.Pharmacy College and the college is situate in the first item of the property and the plaintiffs are not entitled for any relief. The defendant has raised construction and has invested heavy amount in the college. The plaintiffs are estopped by the principle res judicata in claiming the title. 4. The second defendant has also filed his written statement on the same line of defence denying the title of the plaintiffs. 5. The defendant has raised construction and has invested heavy amount in the college. The plaintiffs are estopped by the principle res judicata in claiming the title. 4. The second defendant has also filed his written statement on the same line of defence denying the title of the plaintiffs. 5. The learned III Additional Sub Judge, framed triable issues and on elaborate discussion decreed the suit as prayed for declaring that the plaintiffs and the 3 and 4th defendants are entitled for the suit property. Aggrieved by which, the first and second defendants have filed these two appeals on various grounds. 6. Mr. S. Parthasarathy, learned Senior Counsel for the appellant submitted that the trial court is not right in holding that the father of the plaintiffs had only a life interest and he had no right to encumber the suit property. The learned counsel pointed out that the judgment rendered in O.S. NO. 549 of 1970 is binding on the plaintiff and the court below is wrong in holding that the encumbrance created by the father of the plaintiff was valid only till his life time. The learned counsel pointed out that the defendants have purchased the property from the court action purchaser and has taken possession of property and the plaintiffs cannot claim any right in the suit property. 7. On the contrary, Mr. V. Nagendran, learned counsel for the respondents 1 to 3 would submit that the suit property originally belong to one Gurusamy Naidu and his wife Balambal and they have bequeathed the property to the father of the plaintiff namely Govindarajulu to be enjoyed by him for his life time under a Will, dated 27.4.1952. The vested remainder was given to the plaintiffs and the defendants 3 and 4.The learned counsel pointed out that Chinnaiya Naidu the son of Gurusamy challenged the Will in an earlier proceeding and the courts have accepted the genuineness of the will. The learned counsel pointed out that Govindarajulu Naidu had encumbered the property though he had no right to alienate, and such encumbrance is not binding on the minor children. The learned counsel pointed out that the auction sale in pursuant to the decree obtained against the said Govindarajulu is not binding on the plaintiff and therefore, the trial court is right in holding that the plaintiffs are entitled to the property. 8. The learned counsel pointed out that the auction sale in pursuant to the decree obtained against the said Govindarajulu is not binding on the plaintiff and therefore, the trial court is right in holding that the plaintiffs are entitled to the property. 8. The relevant admitted facts which are necessary to understand the background of the case in these appeals is as follows: 9. The suit property originally belong to one Gurusamy Naidu and his wife Balammal. They had a son named Chinnaiya Naidu. The relationship between Chinnaiya Naidu and his parents was not good. Gurusamy Naidu executed a Will, dated 24.7.1952, under Ex.A.5. Under this Will Gurusamy Naidu and his wife Balammal had bequeathed their properties in favour of their grandson Govindarajulu, the only son of ChinnaiyaNaidu for his life time and to enjoy the property without any alienation and to the male children to be born to the said Govindarajulu. The recital in the will reads as follows: 10. Even during the life time of Gurusamy Naidu the dispute arose between his son and grandson. The grandson Govindaraju had filed the suit in O.S. No.191 of 1960 before the District Munsif Court, Madurai. It is a suit for permanent injunction against his father Chinnaiya Naidu. The plaintiff Govindarajulu claimed title and possession through the Will dated 24.7.1952. Gurusamy naidu one of the executent and another attesting witness spoke about the Will and the court accepted the execution and genuineness of the Will. However the suit was dismissed on the simple ground that only after the life time of he executent the legatee gets the possession and therefore, the suit was dismissed. ChinnaiyaNaidu preferred an appeal in A.S. NO. 11 of 1962. The appellate court had upheld the Will. Ex.A.1 and A.2 are the judgments delivered by the trial court and as well as by the Appellate Court. 11. After the death of Gurusamy Naidu, Balammal and Chinnaiya Naidu, Govindarajulu Naidu was in possession and enjoyment of the property. He had mortgaged the property by deposit of title deeds and had obtained loan from one IndhiyaBhai. She brought a suit in O.S.549 of 1970 before the Sub Court and obtained a decree. She brought the property for sale in E.P. NO. 272 of 1972. By the time, the plaintiffs and the defendants 3 and 4 were born and they were minors. They filed a suit in O.S.NO. She brought a suit in O.S.549 of 1970 before the Sub Court and obtained a decree. She brought the property for sale in E.P. NO. 272 of 1972. By the time, the plaintiffs and the defendants 3 and 4 were born and they were minors. They filed a suit in O.S.NO. 154 of 1974 before the District Munsif Court, Madurai Taluk at Madurai for an injunction restraining the decree holder not to bring the property for sale as they have vested interest in the suit property through the Will dated, 24.7.1952. 12. On elaborate discussion of law and facts, the learned Sub Judge found that so long as the second defendant (Govindarajulu) is alive he has got a right to be in possession and enjoyment of the suit properties; so under Ex.A.4, what was given to Govindarajulu Naidu is a life estate under Section 6 of Transfer of Property Act, property of any kind may be transferred except an interest in property restricted in its enjoyment to the owner personally. In view of the principle laid down in AIR 1958 Andrapradesh page 658 the restriction of right of alienation imposed on Ex.A.4 is hit by Section 10 of Transfer of Property Act and consequently, void. In the circumstances, the second defendant (Goivindarajulu) was within his right, when he contracted the debt with the first defendant (IndhiyaBhai)and deposited the title deeds with the first defendant by way of security. So the suit properties are liable for sale in pursuance of the decree obtained in O.S. NO. 549 of 1970. However, the court further held that the plaintiffs and the defendants 3 and 4 herein get the right only after the life time of the second defendant. 13. The properties were brought on sale and the decree holder purchased the property and took possession. She sold the properties to on J.S. Krishnan and to one J.S.K. Nagarajan under the sale deeds dated 26.11.82 and 22.2.82 (Ex.A.7 & A.11). The first defendant purchased the properties on 29.8.1984 under Ex.A.11 and on 14.9.1994 under A.12. The second defendant had purchased the second item of the property on 18.6.1980 under Ex.A.7. She sold the properties to on J.S. Krishnan and to one J.S.K. Nagarajan under the sale deeds dated 26.11.82 and 22.2.82 (Ex.A.7 & A.11). The first defendant purchased the properties on 29.8.1984 under Ex.A.11 and on 14.9.1994 under A.12. The second defendant had purchased the second item of the property on 18.6.1980 under Ex.A.7. Now the defendants 1 and 2 are possession and enjoyment of he property and at this stage, the plaintiffs who are the great grand children of Gurusamy Naidu and Balammal filed the present suit for declaration and for injunction in he alternative recovery of possession. 14. The trial court has held that the encumbrance by Govindarajulu had become invalid on his death and the plaintiffs have vested interest in the suit property and had decreed the suit. 15. As stated earlier, the defendants 1 and 2 have preferred two separate appeals and the appellant in A.S. 1206 of 1995 died and his legal representatives were brought on record. They have filed a Memo not pressing the appeal and the same was recorded and the appeal was dismissed as not pressed by this Court by its order dated 5.11.2004. Therefore, A.S. No. 981 of 1995 alone is taken for consideration. 16. The short point to be considered arise in this appeal is whether the life interest given to Govindaraju Naidu under the Will came to an end on his death and the plaintiffs and defendants 3 and 4 become entitled to the property as their vested interest? 17. According to the learned counsel for the plaintiff, the said Govindarajulu was within his right when he contracted the debt and in the earlier suit in O.S. NO. 154 of 1974 it was decided that the suit properties are liable for sale in pursuance of a decree obtained in O.S.NO. 549 of 1970. The learned counsel pointed out that the plaintiff has lost their right under the sale in pursuant to the decree and judgment in O.S. NO. 549 of 1970. The learned counsel also pointed out in O.S. No. 154 of 1974 the restriction imposed under the Will was found void. 18. Indisputably, the Will dated 27.4.1952, marked as Ex.A.5 was proved and accepted in the earlier proceedings. Under the said Will, the plaintiff's father was given only a right of enjoyment without the power of alienation. However, in the judgment and decree in O.S. NO. 18. Indisputably, the Will dated 27.4.1952, marked as Ex.A.5 was proved and accepted in the earlier proceedings. Under the said Will, the plaintiff's father was given only a right of enjoyment without the power of alienation. However, in the judgment and decree in O.S. NO. 154 of 1974 of it was held that the said Govindarjulu was within his right when he contracted the debt and the suit properties are liable for sale in pursuance of the decree obtained by the decree holder in O.S. No. 549 of 1970. Whether this observation or finding extinguishes the vested interest of the beneficiaries under the Will is to be decided. 19. The Munsif Court in O.S.NO.549 of 1974 held that the condition and restriction imposed under the Will was void under Section 10 of the Transfer of Property Act. Section 10 of the Act reads as follows: "TAMIL. ..." "10. Condition restraining alienation: Whether property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein" But this restriction is not applicable to the family settlements and bequeaths. 20. Transfer for the benefit of unborn person is not opposed to Hindu Law. Section 13 of the Transfer of Property Act deals with such transfer for the benefit of unborn person. The plaintiffs were not born at the time of execution of Ex.A.5 Will. But the absolute right was given to the plaintiffs and defendants 3 and 4 through their father Govindarajulu. Such vested interest devolves upon the unborn children on their birth. Section 13, 19 and 20 of Transfer of Property Act reads as follows: 13. The plaintiffs were not born at the time of execution of Ex.A.5 Will. But the absolute right was given to the plaintiffs and defendants 3 and 4 through their father Govindarajulu. Such vested interest devolves upon the unborn children on their birth. Section 13, 19 and 20 of Transfer of Property Act reads as follows: 13. Transfer for benefit of unborn person: Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property. 19. Vested interest: Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of a event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer. A vested interest is not defeated by the death of the transferee before the obtains possession. 20. When unborn person acquires vested interest on transfer for the benefit: Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth. 21. The transfer in favour of unborn person is valid provided that the transfer is effected through a living person. Such transfer becomes a vested interest under Section 19 of the Act and the unborn person acquires vested interest upon his birth. His entitlement is postponed till the life time of the transferee who is given a life interest. On the death of the transferee the interest is vested with the persons in whose favour the bequeath was made. The only exception is that such transfer shall not take effect unless it extends to the whole of the remaining interest of the transferrer in the property. The another restriction is the rule against perpetuity under Section 14 of the Transfer of Property Act. The only exception is that such transfer shall not take effect unless it extends to the whole of the remaining interest of the transferrer in the property. The another restriction is the rule against perpetuity under Section 14 of the Transfer of Property Act. Under the Will, life interest was created for the executant and thereafter, a life interest was created to Govindarajulu and thereafter the absolute transfer was created to the male unborn children of the life interest holder. The testators, namely, Gurusamy and Ballammal died and Govindarajulu died on 1.6.1983. On his death, his children have become majors except the third plaintiff. Therefore, the debt contracted by the said Govindarajulu and the encumbrance created on the bequeathed property came to an end on the death of Govindarajulu and the plaintiffs and the defendants 3 and 4 acquire title as per the terms of the Will. 22. Whatever have been sold in the court auction sale is only the life interest of the said Govindarajulu and the encumbrance will not extinguish the rights of the plaintiffs and the defendants 3 and 4. Simply because the sale was by such court auction, the rights were not extinguished. 23. For the reasons stated above, the point is decided in favour of the respondents and in that event the appeals shall fail. In the result, the appeals are dismissed. No costs.