Gift of properties.

JUDGMENT:-‘The defendant, who failed in both the Courts below, is the appellant. One Veerappa Mudaliar had two daughters, Amirthammal and Ammaniammal and one son, Nagarathna Mudaliar. Shanmugam alias Arumugam, who is stated to have died in 1957, and Thillaikannu Ammal are the son and daughter of Amirthammal. The appellant is the son of the said Shanmugam alias Arumugam. Thillaikannu Ammal, the daughter of Amirthammal, had been married to her maternal uncle Nagarathna Mudaliar. Panduranga Mudaliar, the respondent herein, is the grandson of Ammaniammal by her son Krishnaswami Mudaliar. The suit properties, which are a house with a well, 74 cents of wet land and an oil engine, admittedly belonged originally to Nagarathna Mudaliar. Nagarathna Mudaliar had executed the settlement deed, Exhibit A-1, dated 9th April, 1963, in favour of his wife Thillaikannu who died after him on 2nd May, 1955. The respondent claimed title to the suit properties as the heir of his paternal aunt Thillaikannu, on the basis that she had become absolutely entitled to Nagarathna Mudaliars properties under the the settlement deed, Exhibit A-1. Exhibit A-1 was registered compulsorily on 28th January, 1964, as Nagarathna Mudaliar appears to have denied its execution. The respondent filed the suit for declaration of his title to the suit properties and for an injunction restraining the appellant from interfering with his possession or alternatively for recovery of possession of the properties.

2. The appellant set up another settlement deed, Exhibit B-6, dated 11th April 1963, as having been executed in his favour by Nagarathna Mudaliar in respect of the suit properties and contended that he had become entitled to the suit properties by virtue of that settlement deed. In the alternative he contended that under the settlement deed, Exhibit A-1 itself, he had become entitled to the suit properties which had remained undisposed of by Thillaikannu Ammal prior to her death, on the ground that Nagarathna Mudaliar had conferred an absolute estate on him under Exhibit A-1 on such of his properties as remained undisposed of by Thillaikannu Ammal, the settlee under Exhibit A-1.

3. The Courts below found that Exhibit B-6 was not genuine and they upheld Exhibit A-1 and decreed the suit for declaration and possession, holding that the respondent became entitled to the suit properties under the settlement deed, Exhibit A-1, as they had not been disposed of by Thillaikannu Ammal during her lifetime. Hence this second appeal.

4. The only question arising for consideration in this second appeal is whether Thillaikannu Ammal had an absolute estate in the properties mentioned in the settlement deed. Exhibit A-1, and the clause in Exhibit A-1 providing for the respondent becoming absolutely entitled to such of the properties mentioned in the settlement deed, Exhibit A-1, as remained undisposed of by Thillaikannu Ammal during her lifetime, is a repugnant clause which does not affect the absolute estate of Thillaikannu Ammal. The answer to this question has to be found in the proper interpretation of this irrevocable settlement deed, Exhibit A-1, which reads thus:

5. The settlement deed provides that Thillaikannu Ammal should enjoy the properties with absolute rights over them as she was the wife and only heir of the settlor Nagarathna Mudaliar and they had no issues and he desired that she should lead a comfortable life after his death. There is a further clause in the settlement deed to the effect that the respondent should perform the ceremonies of Nagarathna Mudaliar and Thillaikannu Ammal and take such of the properties as remained in the possession of Thillaikannu Ammal at the time of her death, with absolute rights. The learned counsel for the appellant submits that this clause providing for the respondent taking absolutely such of the properties covered by the settlement deed in Exhibit A-1 as were undisposed of at the time of Thillaikannu Ammal’s death is repugnant to the earl

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