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High Court of Judicature at Madras
M. VENUGOPAL, j.
Kaliappan (Died) & Others
Versus
A.K. Somasundaram (Died) & Others
S.A.No.1597 of 1997
Decided On : 08-08-2012
TRANSFER OF PROPERTY ACT - SECTION 13 - SECTION 10 - SECTION 11 - SECTION 14 - INDIAN SUCCESSION ACT - SECTION 113 - SECTION 114 - SECTION 115 - SPECIFIC RELIEF ACT - SECTION 33 - HINDU SUCCESSION ACT - SECTION 14 - RULE AGAINST PERPETUITY - VESTED REMAINDER - LIFE INTEREST - SALE DEED - WILL - TRANSFER OF PROPERTY - LIFE ESTATE - ABSOLUTE INTEREST - RESTRAINT ON ALIENATION - VOID CONDITION - UNBORN PERSON - PERPETUITY - REMAINDER - LIFE TENANT - BONA FIDE PURCHASER - IMPROVEMENTS - LIMITATION - SUCCESSION - MAINTENANCE - ABSOLUTE OWNERSHIP - RIGHT TO TRANSFER - RIGHT TO ENJOYMENT - PARTIAL RESTRAINT ON ALIENATION - FAMILY ARRANGEMENT - COMPROMISE OF DISPUTED CLAIMS - PARTITION - QUALIFIED RESTRAINTS ON ALIENATION - VOID RESTRAINTS ON ALIENATION - REPUGNANCY - VESTING - RULE AGAINST PERPETUITIES - VOID BEQUEST - FRACTIONAL INTEREST - REMAINING INTEREST - LIFE INTEREST HOLDER - SALE BY LIFE INTEREST HOLDER - RECOVERY OF POSSESSION - DEFECTIVE TITLE - BONA FIDE PURCHASERS FOR VALUE WITHOUT NOTICE - EQUITY RELIEF.
Fact of the Case:
The Appellants/Defendants 1 to 3 preferred the instant Second Appeal as against the Judgment and Decree dated 08.11.1996 in A.S.No.124 of 1995 passed by the Learned Subordinate Judge, Gobichettipalayam, in confirming the Judgment and Decree dated 25.11.1993 in O.S.No.155 of 1992 passed by the Learned District Munsif, Gobichettipalayam. During the pendency of the Second Appeal, the 1st Appellant/1st Defendant expired on 29.06.2001. Upon his death, the Appellants 4 and 5 have been brought on record as Legal Representatives of the deceased 1st Appellant. Likewise, during the pendency of the Second Appeal, 1st Respondent/1st Plaintiff died on 20.09.2010 and the 4th Respondent has been arrayed as his Legal Representative.
Finding of the Court:
The Appellants/Defendants are entitled to hold and enjoy the properties as per the Sale Deeds till the life-time of Pavakkal. Further, it is held by this Court that till the life-time of Respondents/Plaintiffs' mother Pavakkal, they cannot claim the recovery of possession in respect of the suit properties from the Appellants/Defendants because of the fact that Pavakkal during her life-time having conveyed the suit properties, the Respondents/ Plaintiffs cannot seek recovery of possession in view of the fact that as vested remainders they are to wait till the exclusion of life interest holder viz., Pavakkal or her demise. The Appellants/Defendants are directed to agitate their rights, if any, as per Section 51 of The Transfer of Property Act, 1882 (relating to improvements etc.) by means of separate legal proceedings before the competent forum in the manner known to law, if they so desired and advised.
Issues: 1. Whether in law the courts below are right in omitting to note that Exhibit A-1 itself is void for the reason that vested reminder cannot be created in perpetuity and therefore it offends Section 13 of the Transfer of Property Act? 2. Whether in law the courts below are right in omitting to note that when the respondents have claimed interest in the property only after the life of Pavakkal whether the decree for recovery of possession can be granted when the life interest holder is still alive? 3. Whether in law the courts below are right in overlooking that the recitals in Exhibit A-1 conferring rights to unborn male descendants of Ponnammal in perpetuity are repugnant to Sections 113, 114 and 115 of Indian Succession Act? 4. Whether in law the Courts below did not err in overlooking that the appellants are bona fide purchasers for value without notice who have improved the property and who are entitled to equity under Section 33 of the Specific Relief Act?
Ratio Decidendi: The clause in Ex.A.1-Will '...... grand-sons heir in male line generation after generation are to enjoy the properties without power of alienation', offends rule against perpetuity. Accordingly, the Substantial Questions of Law 1 to 4 are so answered.
Final Decision: The Second Appeal is disposed of, in above terms. The parties are directed to bear their own costs. To that extent, the Judgment and Decree of the trial Court in O.S.No.155 of 1992 dated 25.11.1993 and that of the First Appellate Court in A.S.No.124 of 1995 dated 08.11.1996 stand modified.
1. The Appellants/Defendants 1 to 3 have preferred the instant Second Appeal as against the Judgment and Decree dated 08.11.1996 in A.S.No.124 of 1995 passed by the Learned Subordinate Judge, Gobichettipalayam, in confirming the Judgment and Decree dated 25.11.1993 in O.S.No.155 of 1992 passed by the Learned District Munsif, Gobichettipalayam.
2. During the pendency of the Second Appeal, the 1st Appellant/1st Defendant expired on 29.06.2001. Upon his death, the Appellants 4 and 5 have been brought on record as Legal Representatives of the deceased 1st Appellant.
3. Likewise, during the pendency of the Second Appeal, 1st Respondent/1st Plaintiff died on 20.09.2010 and the 4th Respondent has been arrayed as his Legal Representative.
4. The First Appellate Court viz., the Learned Subordinate Judge, Gobichettipalayam, while passing the Judgment in A.S.No.124 of 1995 [filed by the Defendants as Appellants] on 08.11.1996, has, inter alia, opined that 'based on Exs.A.7 to A.9, the Appellants/Defendants appears to have no manner of legal right in the suit properties. But as per the aforesaid documents, they can enjoy the suit property till the life-time of Pavakkal and further that the Respondents/Plaintiffs based on Ex.A.1 have right in the suit properties and they can also get the suit properties legally only after their mother Pavakkal's death and consequently, confirmed the Judgment and Decree of the trial Court passed in the main Suit, by holding that the Judgment and Decree of the trial Court do not suffer from any defects and dismissed the Appeal with costs.'
5. Before the trial Court, in the main Suit, 1 to 3 issues have been framed for adjudication. On behalf of the Respondents/Plaintiffs, witness P.W.1 has been examined and Exs.A.1 to A.12 have been marked. On the side of the Appellants/Defendants, witness D.W.1 has been examined and no documents have been marked.
6. The trial Court, on an examination of oral and documentary evidence available on record and upon analysis and scrutiny of the same, has granted the relief of declaration and also the recovery of possession to and in favour of the Respondents/Plaintiffs in respect of the suit properties and decreed the suit without costs.
7. At the time of admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law No.1 to 4:
"1. Whether in law the courts below are right in omitting to note that Exhibit A-1 itself is void for the reason that vested reminder cannot be created in perpetuity and therefore it offends Section 13 of the Transfer of Property Act?
2. Whether in law the courts below are right in omitting to note that when the respondents have claimed interest in the property only after the life of Pavakkal whether the decree for recovery of possession can be granted when the life interest holder is still alive?
3. Whether in law the courts below are right in overlooking that the recitals in Exhibit A-1 conferring rights to unborn male descendants of Ponnammal in perpetuity are repugnant to Sections 113, 114 and 115 of Indian Succession Act?
4. Whether in law the Courts below did not err in overlooking that the appellants are bona fide purchasers for value without notice who have improved the property and who are entitled to equity under Section 33 of the Specific Relief Act?"
The Contentions, Discussions and Findings on Substantial Questions of Law No.1 to 4:
8. The Learned Counsel for the Appellants/Defendants contends that the trial Court as well as the First Appellate Court have committed an error in holding that the Sale Deed executed by Pavakkal, the mother of the Respondents/Plaintiffs on 10.05.1984 in favour of the Appellants is not valid.
9. It is the further submission of the Learned Counsel for the Appellants/Defendants that both the Courts below have failed to note that Pavakkal is the absolute owner of the property as per the terms of the Will and that the Sale Deed was attested by the elder brother o
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