Principle underlined in section 13 of the Transfer of Property Act, 1882.

The Plaintiff is the appellant, who has filed the suit O.S. No. 229 of 1987 before the Principal District Munsif Court, Gobichettipalayam for the relief of Declaration and for permanent injunction. The suit was decreed as prayed for. On appeal by the respondents before the Sub-court, Gobichettipalayam, the Decree and Judgment passed by the trial court was set aside, hence this second appeal.

2. The case of the appellant is as follows:-

The appellant and the respondents are sons of Thavasi Nadar. The said Thavasi Nadar had three wife. The appellant was born through the second wife and the respondents are the sons born through the third wife. The appellant's grand father namely Veerappa Nadar had executed a settlement deed dated 26-03-1949 thereby settled the property to the Plaintiff and appointed Thavasi Nadar as guardian. The said Thavasi Nadar discharged himself from the guardianship in the year 1968 as the appellant had attained majority. Ever since 1968, the appellant is in exclusive possession and enjoyment of the suit property by paying taxes and charges to the authorities. The respondents were born only after 1968. After 1968, partitions were took place between the appellant and respondents excluding the suit property. Except the appellant, nobody has any right over the suit property. The respondents attempted to evict the appellant by illegal means, hence the suit has been filed.

3. The case of the respondents is as follows:-

The respondents are entitled to equal share on par with the appellant as per the settlement deed dated 26-03-1949 since the settlor has categorically stated that the appellant and grand son to be born to Thavasi Nadar are entitled to equal share in the property. The respondents are co-owners of the suit property and they are in joint possession and enjoyment of the suit property. During 1973-1974, some of the properties covered in the said settlement deed were jointly sold by the appellant and respondents. On 07-10-1968, the appellant and 1st respondent have partitioned the property comprised in Survey No.255/A. After ten years, the appellant and respondents entered into oral partition of the suit property in the presence of Panchayatars. Consequently, the respondents have been in possession and enjoyment of 2/3rd share in the suit property. The plea of adverse possession set up by the appellant is not correct.

4. Before the trial court, the appellant marked Exs. A1 to A21 and examined himself as PW1 and one Makaliappan as PW2. The respondents have marked Exs. B1 to B5 and the first respondent examined himself as DW1 and one Krishnan and Palanisamy Gounder as DW2 and DW3 respectively.

5. The trial court found that at the time when the settlement deed was executed, the mother of the respondents was not married to Thavasi Nadar and the respondents have born subsequently. The appellant was only grand son at the time of execution of the settlement deed. As per the settlement deed, the property devolves on the grand son or sons born through the second wife of Thavasi Nadar, hence the respondents are not entitled to any share in the suit property and decreed the suit as prayed for.

6. On appeal by the respondents, the First Appellate Court reversed the finding of the trial court holding that the trial court misconstrued the conditions contained under Ex.A1 and all sons born through Thavasi Nadar are entitled to the suit property.

7. This second appeal has been admitted on the below mentioned substantial questions of law:-

i) Whether the judgment of the lower Appellate Court is correct in holding that as per the settlement the respondents have got title over the property?

ii) Whether the respondents are entitled to claim any share over the property on the basis of settlement Ex.A1 when they have not born at the time of the settlement deed?

iii) Can the settlement be made in favour of an unborn person?

8. Mr. Selvaraju, learned counsel appearing for the appellant submitted that the first Appellate Court o