Back
2009 Supreme(Mad) 3502
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. JAICHANDREN
Achammal
Versus
Rajamanickam Karthikeyan(died)rep. by his L.Rs. & Others
S.A.No.817 of 1995
Decided on : 02-09-2009
For the Petitioner:A. SathyaBama, Advocate.
For the Respondent:K. Chandramouli, Senior counsel, A. Muthukumar, Advocate.
The central legal point established in the judgment is the interpretation of the Indian Succession Act, 1925, regarding the validity of a Will, absolute rights in properties, and the validity of a sale deed.
Headnote:
Will - Property Dispute - Indian Succession Act, 1925, Sections 10, 11, 138 - The court discussed the validity of the Will, the absolute rights of the second defendant in the properties, and the validity of the sale deed. It held that the condition in the Will restraining alienation was void, and the second defendant had absolute rights in the properties. The sale deed was found to be valid, and the plaintiff obtained absolute rights in the suit properties.
Fact of the Case:
The plaintiff filed a suit for declaration of title and permanent injunction regarding a property. The first defendant, as the adoptive mother, had sold a portion of the property to a third party. The second defendant, after attaining majority, sold the remaining portion to the plaintiff. The defendants contested the suit, denying the claims made by the plaintiff.
Finding of the Court:
The trial Court decreed the suit in favor of the plaintiff, declaring the plaintiff as the true owner of the suit properties and directing the defendants to hand over possession. The first appellate Court confirmed the trial Court's findings. The second appeal was dismissed, confirming the judgment and decree of the lower Courts.
Issues: Validity of the Will, absolute rights of the second defendant, validity of the sale deed, entitlement to reliefs, and the reliefs the parties are entitled to.
Ratio Decidendi: The court held that the condition in the Will restraining alienation was void, and the second defendant had absolute rights in the properties. It also found the sale deed to be valid, granting the plaintiff absolute rights in the suit properties.
Final Decision: The second appeal was dismissed, confirming the judgment and decree of the lower Courts.
Key Points: - The Will dated 22.1971 executed by Rethina Koundar is valid, and the condition restraining alienation is void (!) (!) (!) . - The second defendant has absolute rights in the properties bequeathed under the Will, as the condition restraining alienation cannot be enforced (!) (!) (!) . - The sale deed dated 9.1987 is valid, and the plaintiff obtained absolute rights in the suit properties through this sale (!) (!) (!) . - The second defendant, having absolute rights, could validly sell the properties to the plaintiff, and such sale is not invalid due to his death (!) (!) . - The trial and appellate courts found sufficient evidence of adoption and validity of the Will, dismissing the second appeal (!) (!) .
What is the validity of the Will dated 22.1971 executed by Rethina Koundar?
What are the absolute rights of the second defendant in the properties bequeathed under the Will?
Is the sale deed dated 9.1987 executed by the second defendant valid?
This second appeal has been filed against the judgment and decree, dated 13. 1995, made in A.S.No.46 of 1993, on the file of the Sub Court, Nagapattinam, confirming the judgment and decree, dated 17. 1992, made in O.S.No.244 of 1988, on the file of the District Munsif Court, Nagapattinam.
2. The first defendant in the suit in O.S.No.244 of 1988 is the appellant in the present second appeal. The plaintiff in the suit, who is the first respondent herein, had filed the suit on the file of the District Munsif Court, praying for declaration of title and for permanent injunction, in respect of the suit schedule property.
3. The plaintiff in the suit in O.S.No.244 of 1988, had stated that, out of the total extent of 1.33 acres, in R.S.No.65/4, in No.137, Vilunthamavadi village, in Nagapattinam, an extent of 67 cents, on the western portion of the land, had originally, belonged to Rethina Koundar, the husband of the first defendant and adoptive father of the second defendant. Rethina Koundar, while in a sound and disposing state of mind and bodily health, had bequeathed all his properties, including the 67 cents in the suit properties, under a Will, dated 22. 1971. The Will has been duly attested, in accordance with law and it has been registered in the office of the Sub Registrar, Thirupundi, as document No.71, in Book 3 of the year 1971.
4. It has been further stated that, as per the Will of Rethina Koundar, the entire extent of 67 cents in the suit properties had been given to his adopted son, who is the second defendant in the suit. After the death of Rethina Koundar, the second defendant had succeeded to the entire properties, in accordance with the Will. Thus, the second defendant had got into possession of the land with an extent of 67 cents, in R.S.No.65/4. The patta had also been transferred in his name and he has also been paying the land revenue to the Government.
5. It has been further stated that the second defendant was a minor on the date of the death of the adoptive father, Rethina Koundar. Therefore, the first defendant, being the adoptive mother, was in possession and enjoyment of the properties given to the second defendant by Rethina Koundar, by his Will, dated 22. 1971. The first defendant, as the adoptive mother of the second defendant and as his guardian, had sold an extent of 7 cents, on the western portion, in the suit survey number, to one Mariyappan.
6. After attaining majority, the second defendant, as the absolute owner of the entire 60 cents, had sold the said properties to the plaintiff, under a sale deed, dated 9. 1987, for a consideration of Rs.14,000/-. The second defendant had received the entire sale consideration and had discharged the loan amounts incurred by him for his family expenses and at the time of his marriage.
7. It has been further submitted that, immediately after the execution of the sale deed, the second defendant had put the plaintiff in possession of the 60 cents of land. Thereafter, the plaintiff had also got the patta transferred in his name, in patta No.855.
8. It has been further stated that, in the Will, dated 22. 1971, executed by Rethina Koundar, the properties, set out in the B schedule of the Will, had been given to the second defendant. The Testator, Rethina Koundar, had added a condition in the Will, in respect of the properties given to the second defendant. Accordingly, the second defendant and his heirs should enjoy the properties, without the power of alienation.
9. The plaintiff had stated that the said condition is void, as it imposes an absolute restraint on alienation and as the second defendant had taken the properties given to him under the Will, absolutely. Therefore, the sale of the suit properties by the second defendant, in favour of the plaintiff, is perfectly valid. On the wrong advice of certain persons, the defendants were attempting to dispossess the plaintiff from the suit properties, without initiating legal steps to set aside th
