Deed executed is a will.

1. This suit has been filed for a declaration that the plaintiff alone is entitled to the xh share in the schedule mentioned property and that the Deed of Settlement dated 19.11.1979 in favour of the 1st defendant is void in law, for permanent injunction restraining the 1st defendant or his agents from collecting any rentals from the suit property from the 8th defendant or any other tenant, for rendition of accounts in respect of xh share rental collections and pay over xh share from the date of death of P.S. Sivabhushanammal viz. 13.4.1994 to the plaintiff and for costs.

2. The plaint averments are as follows:-

The suit property originally belonged to T.K.T. Nayagammal absolutely and she had two daughters viz. Sivabhushanammal and M. Kokilambal. Nayagammal executed a settlement deed dated 9.8.1940 in respect of the suit property. As per the Settlement deed, she reserved for herself the right to enjoy the suit property during her life time without any powers of alienation and after her life time, her two daughters shall take the suit property absolutely with full powers of alienation and after their life time, their respective sons and daughters shall take absolutely the share which devolves on the two daughters. Though the document is styled as a deed of settlement, it is only a Will. The clause in the settlement deed giving right to the sons and daughters of the two daughters alone would prevail and hence the plaintiff as the only legal heir of Sivabhushanammal, the first daughter of Nayagammal would be entitled to her share absolutely after the death of Sivabhushanammal. Nayagammal intended to give only a life estate to her two daughters and absolute rights in favour of their sons and daughters. Nayagammal died on 27.12.1989 and her second daughter M. Kokilambal also died on 21.10.1985. Sivabhushanammal died on 13.4.1994. The legal heirs of Kokilambal viz. defendants 2 to 7 on the death of Nayagammal would be entitled to 1?2 share in the suit property. Sivabhushanammal had only a life estate and whileso, she executed a deed of settlement dated 19.11.1979 at the instigation of her husband and father of th e plaintiff P.L. Shanmugasundaram settling her right, title and interest over the suit property in favour of the 1st defendant, who is her grandson and son of the plaintiff. The said settlement deed is void in law since the settler herself did not have the right to make an absolute settlement. Even assuming that the settler had an absolute interest over share of the suit property, the interest was only a contingent interest and the same becomes vested interest only on the death of Nayagammal. On the date of death of Nayagammal, Sivabhushanammal’s right becomes absolute right. Even assuming she had an absolute interest, the right becomes vested right only on 27.12.1989, the date of death of Nayagammal. Therefore, the settlement deed dated 19.11.1979 is not valid and the 1st defendant cannot lay any claim to 1?2 share of the suit property. The 1st defendant has been collecting the rents from the suit property after the death of Sivabhushanammal. Defendants 2 to 7 filed a suit in C.S.No.1324 of 1991 for partition and the same is pending before this Court. The plaintiff and the first defendant were impleaded in the said suit as legal representatives of Sivabhushanammal. The 8th defendant is the tenant in respect of the premises and RCOP 122 of 1991 filed by the defendants 2 to 7 for fixation of fair rent is pending. The first defendant has been paying of the rental income to defendants 2 to 7 and appropriating the other 1?2 of the rental income unauthorisedly. The first defendant cannot seek any rig ht in the property under the said settlement, as the settlement itself could not have been executed by Sivabhushanammal. Hence the suit.

3. The first defendant in his written statement contended that the allegations in para 4, 7 and 8 of the plaint are denied. The plaintiff who is none other than his father was through o