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2017 DIGILAW 1084 (MAD)

S. Prema v. N. Chokkalingam

2017-04-17

M.S.RAMESH, R.SUBBIAH

body2017
JUDGMENT : R. SUBBIAH, J. 1. This appeal has been filed as against the judgment and decree dated 08.03.2011 in O.S. No. 758 of 2008 passed by the learned Additional District Judge, (FTC-III), Coimbatore, dismissing the suit filed by the appellants herein for partition of the suit schedule property into five equal shares and to allot 1/5th share to each of the appellants/plaintiffs. 2. The appellants herein are the plaintiffs and the respondents herein are the defendants before the Trial Court. For easy reference, hereinafter the parties will be referred to as per their rankings in the suit. 3. The facts, which gave rise to the present appeal, are as follows:- 3.1. The entire suit schedule property belonged to one late K. Natarajan, who died on 03.04.2004 intestate leaving behind his wife Mangalambal, three daughters and two sons, as his legal heirs. The appellants/plaintiffs are the daughters and the defendants 1 & 2 are the sons of the said Natarajan. Another daughter of the said Natarajan viz. Vasantha died on 13.04.2008. The defendants 3 & 4 are the sons of the said deceased daughter Vasantha. 3.2. The suit schedule property was purchased by the said Natarajan through a Sale Deed dated 21.08.1957 registered as Doc. No. 3689/1957 executed by one Chinnappa Konar, S/o Krishnan Konar. The 2nd plaintiff Meenakshi was married to one S.A. Krishnasamy on 05.09.1981 and lived with him only for one week and thereafter, she separated from her husband due to her ill health and got divorce on 03.01.1983 in H.M.O.P. No. 96 of 1982 before the learned Principal Sub-Judge, Coimbatore. Thereafter, she was living in the suit schedule property along with her parents. After the death of her parents, the 2nd plaintiff is living in the suit schedule property along with her sister, the 1st plaintiff. After the death of the plaintiffs' father late K. Natarajan, the 1st plaintiff came to the suit schedule property to look after her aged mother Mangalambal and the 2nd plaintiff. The plaintiffs' mother Mangalambal died on 20.10.2004 and thereafter, the plaintiffs and the defendants 1 & 2 are in joint possession and enjoyment of the suit schedule property. 3.3. After the death of the plaintiffs' father late K. Natarajan, the 1st plaintiff came to the suit schedule property to look after her aged mother Mangalambal and the 2nd plaintiff. The plaintiffs' mother Mangalambal died on 20.10.2004 and thereafter, the plaintiffs and the defendants 1 & 2 are in joint possession and enjoyment of the suit schedule property. 3.3. It is further case of the plaintiffs that during the life time of their father Natarajan, on 25.06.1969, he had executed a Settlement Deed in favour of his wife Mangalambal and the defendants 1 & 2, in respect of the suit schedule property. According to the plaintiffs, the said Settlement Deed is a conditional settlement and as per the conditions mentioned in the Settlement Deed, the settles viz. the wife and sons D1 & D2 had to take care of him (Natarajan) till the end of his life. Since the defendants 1 & 2 failed to comply with the said condition, subsequently the father Natarajan cancelled the settlement deed on 22.02.1998. After the cancellation of the Settlement Deed, the plaintiffs' father Natarajan had sold Item 2 in the Settlement Deed on his own and now, after the death of their father Natarajan, the plaintiffs approached the defendants for partition of the suit schedule property; but, the defendants 1 & 2 refused to effect partition. Hence, the plaintiffs left with no other alternative filed the present suit claiming 1/5th share in the suit schedule property. 4. Before the Trial Court, the case of the plaintiffs was resisted by the defendants 1 & 2, by filing written statement, denying all the allegations made in the plaint. It is the specific defence of the defendants 1 & 2 that the suit property is the separate property of the father Natarajan. On 25.06.1969, when the defendants 1 & 2 were 25 & 23 years old, their father Natarajan voluntarily on his own executed a Settlement Deed. The said Settlement Deed was also registered. Under the deed of settlement, the mother Mangalambal was given right of enjoyment of the income from the property for life and after her life, the properties shall vest in the defendants 1 & 2 absolutely. Pursuant to the said settlement deed, possession was also handed over to the settlees. The said Settlement Deed was also registered. Under the deed of settlement, the mother Mangalambal was given right of enjoyment of the income from the property for life and after her life, the properties shall vest in the defendants 1 & 2 absolutely. Pursuant to the said settlement deed, possession was also handed over to the settlees. The mother Mangalambal was given a right of enjoyment of the rental income of the godown portion in the groundfloor of the suit property. Under the said Settlement Deed, father Natarajan did not retain any interest in the property and the settlement was an unconditional one and the possession of the property was delivered to the mother on the date of settlement itself. Original settlement deed and parent deed were already given to the mother. The settlement is an irrevocable one and the settlement deed was never questioned for a long period of 17 years by the plaintiffs. According to the defendants 1 & 2, the plaintiffs are not entitled to any share in the suit property. Thus, the defendants sought for dismissal of the suit. 5. On the above pleading, the trial Court has framed the following issues: 1. Whether the plaintiffs are entitled to 1/5 share each, in the suit property? 2. Whether the plaintiffs are entitled to preliminary decree as prayed for? 3. Whether the plaintiffs are entitled to permanent injunction against the 1st and 2nd defendants as prayed for restraining them from alienating the suit property? 4. Whether the plaintiffs are entitled to permanent injunction against the 1st and the 2nd defendants as prayed for restraining them from disturbing the peaceful possession and enjoyment of the suit property? 6. Before the Trial Court, the plaintiffs examined themselves as PW-1 & PW-2 respectively, besides examining two others witnesses as PW-3 & PW-4 and marked 25 documents as Ex.A.1 to Ex.A.25. On the side of the defendants, the 2nd defendant examined himself as DW-1 and marked 17 documents as Ex.B.1 to Ex.B.17. 7. After considering the evidence both oral and document, the Trial Court has dismissed the suit on the finding that the plaintiffs failed to prove their case. Aggrieved over the same, the present appeal has been filed by the plaintiffs. 8. We have heard the learned counsel appearing on either side and carefully perused the materials available on record. 9. 7. After considering the evidence both oral and document, the Trial Court has dismissed the suit on the finding that the plaintiffs failed to prove their case. Aggrieved over the same, the present appeal has been filed by the plaintiffs. 8. We have heard the learned counsel appearing on either side and carefully perused the materials available on record. 9. It is the main contention of the learned senior counsel appearing for the appellants/ plaintiffs that under the Settlement Deed dated 25.06.1969, a condition was imposed on the defendants 1 & 2 that they have to take care of their father Natarajan till the end of his life. Since they failed to comply with the said condition, on 22.08.1988 their father Natarajan cancelled the Settlement Deed dated 25.06.1969. Since the Settlement Deed executed by their father Natarajan was cancelled subsequently, the appellants/plaintiffs are entitled for 1/5th share in the suit schedule property. But, without considering this aspect in a proper perspective, the Trial Court has dismissed the suit. 10. In view of the above submission made by the learned senior counsel appearing for the appellants/plaintiffs, it would be appropriate to extract the relevant portion in the Settlement Deed dated 25.06.1969 (marked as Ex.A.7), which reads as follows:- xxx xxx xxx xxx xxx 11. On a perusal of the above portion in the settlement deed, we find that absolutely no condition was imposed on the respondents/defendants. The condition that was referred to by the learned senior counsel for the appellants/plaintiffs is only a pious obligation on the part of the defendants 1 & 2. Therefore, the Trial Court by considering this aspect properly, by relying upon the judgment reported in 2004 SC 2665 (F.M. Devaru Ganapathi Bhat vs. Prabhakar Ganapati Bhat), has come to the conclusion that the condition imposed in the Settlement Deed-Ex.A.7 is only a wish of the donor and it is neither conditional nor a condition precedent in nature. Thus, the Trial Court has rightly held that the plaintiffs cannot have any claim in the suit schedule property. We do not find any infirmity in the reasoning assigned by the Trial Court for dismissing the suit. Therefore, there is no need for reversing the judgment of the Trial Court in the present appeal. The appeal is devoid of any merit and the same is liable to be dismissed. 12. In fine, the appeal is dismissed. We do not find any infirmity in the reasoning assigned by the Trial Court for dismissing the suit. Therefore, there is no need for reversing the judgment of the Trial Court in the present appeal. The appeal is devoid of any merit and the same is liable to be dismissed. 12. In fine, the appeal is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs.