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IN THE HIGH COURT OF JUDICATURE AT MADRAS
PUSHPA SATHYANARAYANA, J.
A. Marappan – Petitioner
Versus
T.K. Ramasamy & Another – Respondent
S.A. No. 297 of 2009 & M.P. No. 1 of 2009
Decided on: 28-04-2015
Will - Property Dispute - 1979 Settlement Deed, 2004 Will - [Indian Succession Act, 1925, Section 63, Transfer of Property Act, 1882, Section 123] - The court discussed the validity of the 1979 settlement deed and the 2004 will, emphasizing the requirements for a valid will and the nature of a gift settlement deed. The court held that the settlement deed was valid and the subsequent will was unsustainable, as it was not registered and not proved in the manner known to law.
Fact of the Case:
The plaintiff filed a suit for declaration of title and injunction, claiming possession of a property based on a lease agreement and a subsequent will. The courts below dismissed the suit, and the plaintiff filed a Second Appeal.
Finding of the Court:
The court found that the settlement deed in favor of the first defendant was valid, and the plaintiff's claim under the subsequent will was unsustainable. The plaintiff's possession as a cultivating tenant ended with the death of the landlady, and he could not seek an injunction against the true owner.
Issues: Validity of 1979 settlement deed, authenticity of 2004 will, nature of plaintiff's possession, and entitlement to injunction.
Ratio Decidendi: The court held that the settlement deed was valid and the subsequent will was unsustainable due to lack of registration and failure to prove it in the manner known to law. The plaintiff's claim for injunction against the true owner was dismissed.
Final Decision: The Second Appeal was dismissed, confirming the judgments of the lower courts, with no order as to costs.
1. The plaintiff, who had filed the suit for declaration of title and injunction and lost before the Courts below, has filed the above Second Appeal.
2. The plaintiff is the brother-in-law of the first defendant and the second defendant is the son of the first defendant. The suit property originally belonged to one Muthayammal, mother of the first defendant, who made a bequest of the suit property under a Will dated 02.07.1937. According to the plaintiff, a lease agreement was entered between the said Muthayammal and himself with respect to the suit property and the plaintiff has been in possession of the same. In fact, the plaintiff also has filed O.S.No.386 of 2004 on the file of the District Munsif Court, Bhavani for a relief of damages against the said Muthayammal. The said suit was dismissed and the same was confirmed in S.A.No.317 of 2007. It was further contended by the plaintiff that the said Muthayammal also had executed a Will in his favour on 07.05.2004. The said Muthayammal died on 28.11.2005. As the plaintiff is in possession of the suit property as a lessee, the defendants were trying to disturb his possession. Hence, the suit came to be filed.
3. The suit was resisted by the first defendant by filing the written statement, which was adopted by the second defendant, denying the allegations made in the plaint. The suit property belong to Muthayammal as per Will dated 02.07.1937 and that she died on 28.11.2005 are admitted by both parties. The defendants claimed that the said Muthayammal had executed a settlement deed on 26.07.1979 in favour of the first defendant. In such circumstances, the claim of the plaintiff cannot be correct and that the said Muthayammal could not have executed the Will in favour of the plaintiff and hence prayed for dismissal of the suit.
4. Before the Trial Court, the plaintiff examined himself as PW-1 and two more witnesses were examined as PW-2 and PW-3 and Exhibits A1 to A6 were marked. On the side of the defendants, the first defendant examined himself as DW-1 and Exhibit B1 to B5 were marked.
5. The Courts below, after elaborate consideration of the facts and evidence, had dismissed the suit. Aggrieved by the same, the above appeal has been filed.
6. When the second appeal came up for admission, this Court had only ordered notice to the respondents and though notice was served on the respondents, they have not chosen to appear either in person or through counsel.
7. The contention of the learned counsel for the appellant is that the settlement deed is not correct in view of the recitals in the same, as there was no transfer of interest in praesenti under Exhibit B-1.
8. In this regard, the learned counsel himself had produced the decision reported in MARAPPAN v. T.K.RAMASAMY (2013 (1) MWN(Civil) 98. The said case is between the same parties, wherein this court had occasion to deal with the validity of the settlement deed dated 26.07.1979 in the second appeal in S.A.No.317 of 2007.
9. For easy understanding, the relevant passage as found in para 11 of the judgment is extracted hereunder:
“Admittedly, Muthayammal was the original owner of the suit land. It is also not in dispute that under a Settlement Deed dated 26.7.1979, a certified copy of which has been produced and marked as Ex.A1, the said Muthayammal settled the said property on the Plaintiff, reserving a life estate for her to enjoy the property without the power of alienation till her death. Though the execution of the said Settlement Deed registered as document No.3504/1979 in the office of the District Registrar, Erode is not disputed by the Defendants, they made an attempt to contend that since possession of the suit property was not delivered immediately to settlee under the said document and the settlor had retained a right to enjoy the property till her life time, the said document should be deemed to be a Will and not a gift settlement. Both the Courts below, on proper interpretation of the said document, rejected th
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