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2025 DIGILAW 606 (MAD)

R. Raghupathy v. Dhanalakshmi

2025-01-28

R.N.MANJULA

body2025
JUDGMENT : (R.N. MANJULA, J.) The appellant in both the appeals is the first defendant. The respondents 1 to 5 as plaintiffs have filed the suit for claiming partition of their 1/3 share in the suit property and the same was partly decreed by the trial Court by allowing 1/8 share to the plaintiffs and the shares of the first defendant has been determined as 5/8. Aggrieved over the said judgment and preliminary decree passed by the trial court, both the plaintiffs and the first defendant preferred the first appeals in A.S.Nos.25 & 15 of 2008 respectively. The first appeal preferred by the plaintiffs in A.S.No.25 of 2008 has been allowed by modifying the share of the plaintiff from 1/8 to 1/3 and the other appeal preferred by the first defendant in A.S.No.15 of 2008 was dismissed. However, the plaintiff's share has been determined as 1/3. Aggrieved by both the orders passed in both the appeals, the first defendant has preferred these appeals. 2. The averments made in the plaint filed by the plaintiff in brief: The suit property was originally belonged to one Nagammal as a self acquired property and her husband died intestate. The defendants 1 to 3 and one Gopalsamy are the legal heirs of the deceased Nagammal and her husband. Gopalsamy died in the year 1995. The first plaintiff is the wife of the deceased Gopalsamy. The second and third plaintiffs are the sons of the deceased Gopalsamy. The third defendant had relinquished his share in the suit property and hence, the defendants 1 and 2 and Gopalsamy would get 1/3 share each in the suit property. But, so far partition has not been effected. Hence, the plaintiffs have filed the suit for claiming partition of their 1/3 share in the suit property. 3. The first respondent resisted the suit by filing the written statement which is given in brief as under: The original owner Nagammal was in enjoyment of the property till her lifetime. During her lifetime, on 05.02.1991 Nagammal had executed a Will and bequeathed the suit property in favour of the first defendant. Nagammal died on 12.06.1992 and thereafter, the Will came into effect. So the property absolutely belongs to the first defendant and no other person has got any share over the same. 4. On the basis of the above pleadings, the trial Court has framed the following issues: 5. Nagammal died on 12.06.1992 and thereafter, the Will came into effect. So the property absolutely belongs to the first defendant and no other person has got any share over the same. 4. On the basis of the above pleadings, the trial Court has framed the following issues: 5. During the course of trial one witness was examined as P.W.1 and Exs.A1 to A5 were marked. On the side of the defendants four witnesses were examined as D.W.1 to D.W.4 and Exs.B1 to B6 were marked. 6. At the conclusion of trial and on considering the evidence available on record, the trial Court had decreed the suit by determining the share as 1/8 and the share of the first defendant as 5/8. Both the first defendant and the plaintiffs have preferred first appeal in A.S.Nos.25 and 15 of 2008 respectively. The first appellate Court dismissed the appeal filed by the first defendant in A.S.No.15/2008 and allowed the first appeal filed by the plaintiffs in A.S.No.25 of 2008 and modified the share of the plaintiffs as 1/3. Now the first defendant has filed these Second Appeals by challenging the judgment passed in both appeals in A.S.No.25 & 15 of 2008. 7. Mr.S.Parthasarathy, the learned counsel for the appellant / first defendant, submitted that the appellant's mother Nagammal had executed Ex.B1-Will dated 05.12.1991 and through which the whole of the property has been bequeathed to him and he had acquired the absolute title over the same subsequent to the death of the testator Nagammal; even according to the plaintiffs there is a settlement deed executed by Nagammal on 27.01.1980 in favour of her husband and the first defendant in respect of the suit property and hence, the first defendant is entitled to 5/8 share in the suit property and the first appellate Court had ignored the above fact and had proceeded to allot 1/3 share to the plaintiffs and the first defendant which is not correct. 8. 8. Mr.N.Sudharsan, the learned counsel for the respondents / plaintiffs submitted that the original owner Nagammal had already executed the Will on 22.03.1978 and cancelled it on 23.01.1980; thereafter she had executed a settlement deed dated 27.01.1980 and the said settlement deed has been cancelled on 06.03.1981; the genuineness of the Will dated 05.12.1991 is not proved and hence, the suit property has to be presumed as the property for which there is no testamentary arrangement has been made by its owner. 9. Admittedly on the basis of the above submission, I feel for the purpose of both the appeals, the following substantial questions of law can be framed: “ i)Whether the courts below is right in coming to the conclusion that the Will is not valid and the settlement deed is not acted upon when there is no such pleadings ? ii) Whether the Court below is right in coming to the conclusion that the plaintiff is entitled to the partition when the execution of the Will and revocation of the settlement was not challenged ?” 10. Even though the first defendant has claimed the absolute title in entire extent of the suit property, the plaintiffs have denied the same. In fact the settlement deed dated 27.01.1980 has been produced by the plaintiffs as Ex.A5. It is the contention of the plaintiffs that the settlement deed was subsequently cancelled by virtue of another cancellation of settlement deed dated 06.03.1981. The alleged cancellation of settlement deed dated 06.03.1981 has not been produced before the Court. As per the recitals of Ex.A5, the settlement is an irrevocable settlement and the same would come into effect immediately after the settlement. Under such circumstances, the fact that the settlement deed has been cancelled by virtue of the cancellation deed dated 06.03.1981 cannot be considered in favour of the plaintiffs. 11. The original owner of the suit property has executed a settlement deed dated 27.01.1980 and it is available as Ex.A5. According to the said settlement deed the deceased Nagammal had bequeathed her property to both her husband and the first defendant, the first defendant would acquire half share in the suit property. After the demise of his father, the first defendant along with the second defendant and the plaintiffs are entitled to 1/4 share out of 1/2 share which is equivalent to 5/8. After the demise of his father, the first defendant along with the second defendant and the plaintiffs are entitled to 1/4 share out of 1/2 share which is equivalent to 5/8. As the first defendant has already been given with half share in the suit property by virtue of the settlement deed dated 27.01.1980, the whole of his share including the share he would inherit from his father's share, would be 5/8. The remaining share would be 3/8 and which is available to the rest of the legal heirs namely the plaintiffs, D2 and D3. Despite the third defendant is said to have relinquished his title in the family property, he has not come forward to say so. In such case the plaintiffs would also become entitled to 1/8 share in the suit property. 12. Having executed the settlement deed and allotted the suit property, the first defendant's mother Nagammal cannot once again execute a Will in respect of the suit property. Even if any such Will has been executed by Nagammal it will not create any right in favour of any of the parties for whom it is bequeathed. Hence, the first defendant's claims that he has been given with the whole of the suit property in pursuant to the Will executed by his mother, will not have any legs to stand. Even though the trial Court has rightly alloted the share of the first defendant as 5/3 and determined the share of the plaintiffs as 1/8, the first appellate Court without appreciating the evidence in true letter and spirit, has chosen to ignore the settlement deed as well as the Will and had proceeded to allot 1/3 share to each of the plaintiffs, D2 and D3. 13. So far as the claim for cancellation of settlement deed is concerned the settlor himself has stated in the earlier settlement deed executed in favour of the first defendant and his father that the settlement itself is irrevocable. Under such circumstances, the executant cannot claim that the settlement is revocable. In view of the reasons stated above, I feel it is appropriate to restore the judgment of the trial Court by setting aside the judgment of the first appellate Court passed in both the first appeals. 14. Under such circumstances, the executant cannot claim that the settlement is revocable. In view of the reasons stated above, I feel it is appropriate to restore the judgment of the trial Court by setting aside the judgment of the first appellate Court passed in both the first appeals. 14. In the result, the Second Appeals are allowed and the judgment and decree dated 24.08.2012 made in A.S.Nos.15 & 25 of 2008 passed by the learned District and Sessions Judge, Tiruvarur, is hereby set aside and the judgment and decree dated 05.12.2007 made in O.S.No.40 of 2006 on the file of the Subordinate Judge, Mannargudi, is hereby confirmed. No costs. Connected miscellaneous petitions are closed.