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2012 DIGILAW 1113 (MAD)

Ammayee Ammal v. Pachaiyammal

2012-02-29

T.RAJA

body2012
JUDGMENT 1. The present second appeal has been preferred by the unsuccessful first defendant, who is suffering loss at the hands of the plaintiffs/respondents 1 to 3 herein. 2. A brief fact leading to filing of this second appeal, is as follows: (i) The plaintiffs filed the suit for permanent injunction restraining the defendants not to alienate the suit schedule properties. The subject matter of the second appeal is Ex.A.2, the copy of the registered Will dated 15.10.1962 executed by Arumuga Mudaliar giving life estate to his third wife Ammayee Ammal/appellant/first defendant and to his six daughters. (ii) One Arumuga Mudaliar, son of Pachiayappa Mudaliar had three wives namely, Kannayiram Ammal, the first wife, Manickammal, the second wife and Ammayee Ammal, the third wife/appellant/the first defendant. Since, Kannayiram Ammal had no issues, after the death of the first wife, Arumuga Mudaliar married Manickammal, the younger sister of Kannayiram Ammal. Two children were born through the second wife, Manickammal and they are Pachaiyammal, the first respondent/first plaintiff and Annamalai Mudaliar. The said Manickammal also died. After the demise of Manickammal, the second wife, Arumuga Mudaliar married Ammayee Ammal, the appellant/first defendant as third wife. Five daughters were born through Ammayee Ammal, the third wife and they are Santhibai, the second defendant, Gandhiammal, the third defendant Rajeswari, the fourth defendant Sooriyagandhi, the fifth defendant and Vanamayil, the sixth defendant. (iii) While so, Arumuga Mudaliar during his life time made arrangements for partition under Ex.A.1 registered family arrangement deed dated 22.5.1954. As per the partition under Ex.A.1 registered family arrangement deed dated 22.5.1954, he retained 'A' schedule property for himself and allotted 'B' schedule property to his first wife Kannayirammmal and also allotted 'C' schedule property to his only son Annamalai Mudaliar, who was born through his second wife Manicka Ammal. At the intention of his father, Annamalai Mudaliar, who was born through Manickkammal, the second wife of Arumuga Mudaliar, married Rajammal, the second plaintiff, who is the daughter of his sister Pachaiyammal. (iv) After executing Ex.A.1, the registered family arrangement deed dated 22.5.1954, the said Arumuga Mudaliar also purchased several items of properties. For that, the said Arumuga Mudaliar had executed Ex.A.2, copy of the registered Will dated 15.10.1962 giving life estate (without the power of alienation) to his third wife Ammayee Ammal/appellant/first defendant. (iv) After executing Ex.A.1, the registered family arrangement deed dated 22.5.1954, the said Arumuga Mudaliar also purchased several items of properties. For that, the said Arumuga Mudaliar had executed Ex.A.2, copy of the registered Will dated 15.10.1962 giving life estate (without the power of alienation) to his third wife Ammayee Ammal/appellant/first defendant. During her life time, she can only enjoy the property along with six daughters, who were born to Arumuga Mudaliar through his second and third wives. After the lifetime of Ammayee Ammal/appellant/first defendant, the said life estate (without the power of alienation) had been equally given to six daughters of Arumuga Mudaliar who were born through second and third wives namely, Pachaiyammal/first respondent/first plaintiff and Santhibai, Gandhiammal, Rajeswari, Sooriyagandhi and vannamayil/respondents 4 to 8/defendants 2 to 6. The said Annamalai Mudaliar, son of the deceased Arumuga Mudaliar and his wife Rajammal had three daughters namely, Alli, Malli and Santhi/third plaintiff. The said Arumuga Mudaliar died after four years of the execution of the Will, Ex.A.2. The said Annamalai Mudaliar also died intestate in the year 1969 leaving behind his wife Rajammal and his three daughters. The said Alli and Malli also died intestate leaving behind their children namely Murugan, Baby, Latha and Kalpana. (v) As per life estate given to the third wife Ammayee Ammal/appellant/first defendant under Ex.A.2, the registered copy of the Will dated 15.10.1962, she is entitled to enjoy only the income derived from the suit properties along with Pachaiyammal/first respondent/first plaintiff, and Santhibai, Gandhiammal, Rajeswari, Sooriyagandhi and Vannamayil/respondents 4 to 8/defendants 2 to 6 who are all the daughters of second and third wife of the deceased Arumuga Mudaliar. Ammayee Ammal, appellant/first defendant has no right to alienate any of the suit properties and after her life time, the said life estate has to be given to Pachaiyammal/first respondent/first plaintiff, and Santhibai, Gandhiammal, Rajeswari, Sooriyagandhi and vannamayil/respondents 4 to 8/defendants 2 to 6 and the absolute right to deal with the property was given to Annamalai Mudaliar, the legal heir of only son Arumuga Mudaliar. Since the third wife Ammayee Ammal/appellant/first defendant made an attempt to alienate some of the suit properties as against Ex.A.2, the registered copy of the Will dated 15.10.1962, which was executed by her husband Arumuga Mudaliar, the suit was filed by the plaintiffs with limited prayer for permanent injunction not to alienate the suit properties. Since the third wife Ammayee Ammal/appellant/first defendant made an attempt to alienate some of the suit properties as against Ex.A.2, the registered copy of the Will dated 15.10.1962, which was executed by her husband Arumuga Mudaliar, the suit was filed by the plaintiffs with limited prayer for permanent injunction not to alienate the suit properties. (vi) The trial Court after scanning through Ex.A.2 the registered copy of the Will dated 15.10.1962, accepted the case of the respondents 1 to 3/plaintiffs 1 to 3 and found that Ammayee Ammal first respondent/first plaintiff is entitled for life estate and the vested reminder for the second respondent/second plaintiff as per Ex.A.2, the registered copy of the Will dated 15.10.1962 and that the Ammayee Ammal/appellant/first defendant, who is alleged to alienate the suit property has no right to do so. Hence, the trial Court decreed the suit as prayed for. As against the said judgment and decree passed by the trial Court, first appeal was preferred by Ammayee Ammal/appellant/first defendant, the third wife of the deceased Arumuga Mudaliar and the respondents 4 to 8/defendants 2 to 6. The first appellate Court held that there was no infirmity in the finding given by the trial Court that Ammayee Ammal/appellant/first defendant, the third wife of the deceased Arumuga Mudaliar, was bequeathed 'B' schedule property giving life estate to Ammayee Ammal/the appellant/first defendant, and then Pachaiyammal/first respondent/first plaintiff and the respondents 4 to 8/defendants 2 to 6 under Ex.A.2, the registered copy of the Will dated 15.10.1962 and the absolute right to deal with the property was given to the legal heir Annamalai Mudaliar, the only son of Arumuga Mudaliar and hence confirmed the judgment and decree passed by the trial Court. As against the same, the present second appeal has been preferred. 4. Heard Ms.A.Sathya Bama, learned Counsel appearing for Mr.T.R.Rajaraman, learned counsel for the appellant and Mr.K.A.Vimal Kumar, learned counsel appearing for the third respondent. 5. At the time of admission of the above second appeal, the following substantial questions of law were framed. i) Whether the suit as framed for bare injunction without seeking declaration is maintainable, especially when the defendant has disputed the title of the plaintiff? ii) Are the Courts below right in upholding the Will that gives successive life estates, which offend the "Rule against perpetuity" as enumerated under Section 14 of Transfer of Property Act?" 6. i) Whether the suit as framed for bare injunction without seeking declaration is maintainable, especially when the defendant has disputed the title of the plaintiff? ii) Are the Courts below right in upholding the Will that gives successive life estates, which offend the "Rule against perpetuity" as enumerated under Section 14 of Transfer of Property Act?" 6. Ms.A.Sathya Bama, the learned counsel appearing for the appellant has submitted that life estate also includes the right to alienate the property. Consequently, the learned counsel for the appellant has prayed this Court to interfere with the concurrent finding rendered by both the Courts below that Ammayee Ammal/appellant/first defendant, the third wife of the deceased Arumuga Mudaliar can alienate all the suit schedule properties which were bequeathed under Ex.A.2, the copy of the registered Will dated 15.10.1962 without keeping any property to the other legal heirs of her husband, deceased Arumuga Mudaliar. 7. In support of her submission, she has heavily relied upon the decision in CHANDRA NAGESWARAN V. T.R.BALAKRISHNAN AND OTHERS ( 1991 (1) MLJ 378 ) whereinit is held that 'the person having life estate in the property is entitled to enjoy the property during the life time. Such life estate can always be the subject matter of the attachment and sale. Whoever purchases the life estate will be entitled to take possession and enjoy the property till the death'. 8. The learned counsel for the appellant has also relied upon the decision of this Court in MRS.K.RAJESWARI AND OTHERS V. M.V.SHANMUGAM ( 2011 (4) L.W. 164 ). She has also submitted from the above said judgment that it is very clear 'if any life estate interest is given through any Will to unborn person, such right given in favour of unborn person cannot be a legal one. Because those unborn persons are not entitled to get any relief'. There is no quarrel on the settled proposition that the creation of successive life estates in favour of persons not in existence was not permissible in law. 9. Per contra, the learned counsel for the respondents has submitted that the Ammayee Ammal/appellant/first defendant, the third wife of the deceased Arumuga Mudaliar is given life estate to enjoy the suit properties under Ex.A.2, the copy of the registered Will dated 15.10.1962. 9. Per contra, the learned counsel for the respondents has submitted that the Ammayee Ammal/appellant/first defendant, the third wife of the deceased Arumuga Mudaliar is given life estate to enjoy the suit properties under Ex.A.2, the copy of the registered Will dated 15.10.1962. After her life time, the said life estate has to be given to six daughters of Arumuga Mudaliar i.e. Pachaiyammal/first respondent/first plaintiff and the respondents 4 to 8/defendants 2 to 6 and the absolute right to deal with the property is vested with the legal heir Annamalai Mudaliar, the only son of Arumuga Mudaliar. The life estate has given only a limited right to enjoy the property and not to alienate the property. Therefore, Ammayee Ammal/appellant/first defendant has no right to alienate the suit property. Hence, he prayed for dismissal of the second appeal and to confirm the concurrent finding arrived at by both the courts below. 10. In the present case, admittedly, Ammayee Ammal/appellant/first defendant, the third wife of the deceased Arumuga Mudaliar is given life estate through Ex.A.2, the copy of the registered Will dated 15.10.1962. After the demise of said Ammayee Ammal the above said life estate has to be given to Pachaiyammal/first respondent/first plaintiff and respondents 4 to 8/defendants 2 to 6, and the absolute right to deal with the suit property was given to the legal heir Annamalai Mudaliar, the only son of Arumuga Mudaliar, with a specific condition that Ammayee Ammal/appellant/first defendant, the third wife of the deceased Arumuga Mudaliar Ammal has no right to alienate the property except to enjoy the property. 11. In this context, it is worthwhile to refer to a decision in CHANDRA NAGESWARAN V. T.R.BALAKRISHNAN AND OTHERS ( 1991 (1) MLJ 378 ) which makes the issue made clear that if any person has got a life estate in the property, he is entitled to enjoy the property during the course of life time and such life estate can always be the subject matter of attachment and sale. Whoever purchases the life estate, will be entitled to take possession and enjoyment of the property till the death of the person, who got life estate. 12. Whoever purchases the life estate, will be entitled to take possession and enjoyment of the property till the death of the person, who got life estate. 12. Therefore, in this appeal, the life estate given to Ammayee Ammal is limited right to enjoy without right alienate because after her life time, the same has to be given to Pachaiyammal/first respondent/first plaintiff and respondents 4 to 8/defendants 2 to 6, and the absolute right to deal with the suit property was given to the legal heir Annamalai Mudaliar, the only son of Arumuga Mudaliar under Ex.A.2, the copy of the registered Will dated 15.10.1962. Therefore, the above said decision is not applicable to the appellant as it is squarely applicable to the respondent, inasmuch as the limited life estate given during ones life time is not absolute to alienate the same to anyone. 13. However, it was pleaded by the learned counsel for the appellant that when the deceased Arumuga Mudaliar executed Ex.A.2, the registered copy of the Will dated 15.10.1962 giving life estate to Ammayee Ammal, appellant/first defendant, and thereafter, the above said life estate has to be given to Pachaiyammal/first respondent/first plaintiff, and the respondents 4 to 8/defendants 2 to 6, who are all the daughters of third wife Ammayee Ammal/appellant/first defendant and thereafter, the absolute right should reach the legal heir Annamalai Mudaliar, the only son of Arumuga Mudaliar, if the legal heirs were born only at the time of execution of Ex.A.2, the registered copy of the Will dated 15.10.1962. But, in this case, she pleaded that no children were born to Annamalai Mudaliar, therefore, the unborn children of Annamalai Mudaliar have no right to inherit the property as they were not born on the date of execution of Ex.A.2 the copy of the registered Will dated 15.10.1962, hence, the suit cannot be maintainable. 14. This argument is also liable to be rejected for the reason that the suit was filed by the legal heirs like Pachaiyammal/first respondent/first plaintiff, the daughter of Manickammal, second wife of the deceased Arumuga Mudaliar, Rajammal/second respondent/second plaintiff, the daughter of Annamalai and Santhi/the third respondent/third plaintiff daughter of Rajammal. 14. This argument is also liable to be rejected for the reason that the suit was filed by the legal heirs like Pachaiyammal/first respondent/first plaintiff, the daughter of Manickammal, second wife of the deceased Arumuga Mudaliar, Rajammal/second respondent/second plaintiff, the daughter of Annamalai and Santhi/the third respondent/third plaintiff daughter of Rajammal. Therefore, the decision of this Court in MRS.K.RAJESWARI AND OTHERS V. M.V.SHANMUGAM ( 2011 (4) L.W. 164 ) alsowill not be applicable to the present case, as the legal heirs of Annamalai Mudaliar were born before executing Ex.A.2 the copy of the registered Will dated 15.10.1962. Under these circumstances, since both parties have admitted the execution of the Will Ex.A.2, the suit for bare injunction alone is in order. Accordingly, the substantial questions of law are answered against the appellant. 15. In these circumstances, it is not open to the learned counsel for the appellant to say that the prayer made by the respondents 1 to 3/plaintiffs 1 to 3 seeking decree for permanent injunction not to alienate the property should be held as not maintainable in law. Since both the Courts below have considered this issue categorically holding against the appellant/first defendant and the respondents 4 to 8/defendants 2 to 6 that the suit filed by the respondents 1 to 3/plaintiffs 1 to 3 is maintainable, this Court finds no infirmity in the concurrent finding held by both the Courts below and hence, the second appeal is liable to be dismissed. 16. In the result, the second appeal is dismissed confirming the judgment and decree passed by both the Courts below. There is no order as to costs.