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2020 Supreme(Mad) 1002
IN THE HIGH COURT OF MADRAS AT MADURAI BENCH
N. Sathish Kumar, J.
Thirugnanasambandamoorthy – Appellant
Versus
Sithalakshmi Ammal and Ors. – Respondents
S.A. No. 795 of 1993, S.A. (MD) No. 447 of 2008, M.P. (MD) No. 1 of 2008, C.R.P. (PD)(MD) No. 1299 of 2016 and C.M.P. (MD) No. 6217 of 2016
Decided On : 24-01-2020
Advocate Appeared:
For the Appellant : M.V. Venkataseshan
For the Respondent: S. Subbiah, Senior Counsel, A.N. Ramanathan and R. Gowri Shankar
Headnote:
Recovery of Possession – Decree – Interlocutory – Suit properties comprised in both suits originally owned by one T.M. Anna Pillai daughters plaintiff in [originally, numbered file of learned Subordinate Judge, Thanjavur] is grandson of said T.M. Anna Pillai and son of one of daughters – Suit was filed by grandson, on the basis of settlement deed for recovery of possession of properties more fully mentioned in fourth item in settlement deed – Held, Courts below and first appellate Court finding that document is a Will is set aside, which is subject matter of above suit for recovery of possession of fourth item mentioned in settlement – Court has held that fourth item is also liable for partition by all daughters of plaintiff is not entitled to recovery of possession and suit filed for recovery of possession is dismissed and finding of Trial Court and first Appellate Court that document in question is not a settlement and a Will alone is set aside liberty to seek amendment to correct preliminary decree and also file a necessary application for final decree proceedings including above fourth item mentioned in settlement deed for dividing property as per their entitlement and each daughter is entitled to one fifth share any of the daughters died legal heirs together are entitled to respective shares of their mothers – Appeal stands allowed.
JUDGMENT :
N. Sathish Kumar, J.
1. The Second Appeal in S.A. No. 795 of 1993 is filed against the concurrent finding of the Courts below, decreeing the suit filed for recovery of possession and for past profits.
2. The Second Appeal in S.A.(MD) No. 447 of 2008 is filed as against the concurrent finding of the Courts below against the decree and judgment passed for granting partition.
3. The revision in C.R.P.(PD)(MD) No. 1299 of 2016 is filed to strike off the interlocutory application filed in I.A. No. 271 of 2011 in O.S. No. 128 of 1981 on the file of the District Munsif Court, Thiruvaiyaru.
4. Since the parties in both the appeals and the revision are one and the same and the issue relates to the settlement deed dated 26.02.1972, this Court is of the view that in order to give quietus to the litigation, both the appeals and the revision are being disposed of in this common judgment.
5. The brief facts leading to the filing of both the suits and the revision are as follows:
The suit properties comprised in both the suits originally owned by one T.M. Anna Pillai. He had five daughters, namely Kalyanasundari Ammal, Vimala Devi, Senthilkumari, Parimala Gandhi and Pankajavalli. The plaintiff in O.S. No. 128 of 1981 [originally, numbered as O.S. No. 171 of 1978 on the file of the learned Subordinate Judge, Thanjavur] is the grandson of the said T.M. Anna Pillai and son of one of the daughters, namely Kalyanasundari Ammal. The suit in O.S. No. 128 of 1981 was filed by the grandson, on the basis of the settlement deed dated 26.02.1972 for recovery of possession of the properties more fully mentioned in the fourth item in the settlement deed. It is stated in the plaint in O.S. No. 128 of 1981 that the property was settled in favour of the grandson. Subsequently, settlement deed was cancelled by T.M. Anna Pillai. Therefore, he has filed a suit challenging the said cancellation.
6. The above suit was resisted by the other legal heirs mainly on the ground that the deed referred as a settlement is not a settlement deed, but, it is only a Will. The same is also revoked by T.M. Anna Pillai. Therefore, the suit has to be dismissed.
7. On the side of the plaintiff, P.W. 1 and P.W. 2 were examined and Exs. A.1 to A.3 were marked. On the side of the defendants, D.W. 1 and D.W. 2 were examined and Exs. B.1 to B.15 were marked.
8. The Trial Court has held that the settlement deed dated 26.02.1972 is only a Will and not a settlement. The first Appellate Court has also confirmed the finding of the Trial Court, as against which, the present Second Appeal in S.A. No. 795 of 1993 came to be filed.
9. While admitting the Second Appeal, the following substantial question of law was framed:
"Whether the revocation of the deed Exhibit A.8 is enforceable under law, where the settlor under Exhibit A1 binds himself by a voluntary deed and does not reserve a liberty to himself with a power to revoke the said deed?".
10. It is also relevant to note that the suit in O.S. No. 106 of 1992, which was the subject matter of S.A. (MD) No. 447 of 2008, was filed by the mother of the plaintiff in O.S. No. 128 of 1981 as against her sisters and mother, claiming partition in respect of item Nos. 1 to 3 more fully mentioned in the settlement deed. The suit was contested by the first and second defendants therein.
11. On the side of the plaintiff, the plaintiff herself was examined as P.W. 1 and Exs. A.1 to A.7 were marked. On the side of the defendants, D.W. 1 was examined and Ex. B.1 was marked.
12. The said suit was decreed by passing a preliminary decree. On appeal, the first Appellate Court has also confirmed the decree and judgment of the Trial Court, as against which, the present Second Appeal in S.A.(MD) No. 447 of 2008 is filed.
13. While admitting the Second Appeal, the following substantial question of law was framed:
"Whether the judgment and decree of the Court below is perverse on account of its misconstruction of document in Ex. A.1?"
14. Subsequently, this Court, by order
