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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. KANNAMMAL, J.
Muthuraman @ Muthulinga Iyyer - Appellant
Versus
Dhanalakshmi @ Jayalakshmi - Respondent
Second Appeal No. 55 of 2019
Decided On : 22-11-2021
Civil Procedure Code, 1908 – Section 100 - Hindu Succession Act - Section 16 - permanent injunction - Settlement Deed - Whether courts are right in declaring Ex.B3 as sham and nominal, even in absence of proper and necessary party, settlee, being arrayed as party - Whether courts below are justified in shifting burden of proof on defendant to prove he had acquired property under Ex.B.3, when it is obligation of plaintiff to prove nature of property - Whether courts below have not rendered a perverse finding especially when Ex.B.1 speaks of 2 Acres and description in Ex.B3 totally varies from it - Held, Defendant has failed to establish his case that he had absolute right over the suit properties while Courts below have categorically held that defendant had only limited his life interest and remainder shall go in favour of the plaintiff - lower appellate Court has gone to extent of even holding that all children who were born to defendant are entitled to suit properties since admittedly in Ex.A1 Settlement Deed, the intention of executant was very specific that suit properties should ultimately go in favour of children who were born to defendant, while creating life interest in his favour. Therefore, lower appellate Court has observed that though children born through second wife and second marriage was not valid, even being illegitimate children are entitled to property of their father by virtue of section 16 of Hindu Succession Act. This Court also concurred with findings of lower appellate Court that all children born to defendant both legitimate and illegitimate children are entitled to suit properties. Since defendant has not come forward with counter claim that his children born through his second wife, are also entitled by virtue of Settlement, Court below, in absence of necessary parties, despite having observed that they are entitled to suit properties, not granted any relief. This Court, while concurring with findings of Courts below, is of view that all the children who were born to the defendant including the plaintiff are entitled to suit properties - Second Appeal dismissed.
JUDGMENT :
(Prayer: This second appeal is filed under Section 100 of CPC against the judgment and decree dated 03.08.2018 made in A.S.No.90 of 2016 by the learned Additional Subordinate Judge, Villupuram, confirming the judgment and decree dated 07.04.2016 made in O.S.No.224 of 2011 by the learned Principal District Munsif, Tirukoilur.)
1. This Second Appeal has been filed by the sole defendant, who had suffered a declaratory decree in favour of the respondent herein in O.S.No.224 of 2011 on the file of the learned Principal District Munsif, Tirukoilur, declaring that the settlement deed alleged to have been executed by the defendant in favour of his son - Subash on 16.12.2009 in respect of the suit 2nd item of the properties and registered as Doc.No.2044/2009 on the file of Sub Registrar, Anniyur, as sham and nominal and ab initio void and restraining the defendant his men or agents from alienating or encumbering the suit properties to any third parties which came to be confirmed in Appeal Suit in A.S.No.90 of 2016 by the Additional Subordinate Judge, Villupuram, Villupuram District by Judgment and decree dated 03.08.2018.
2. The respondent is the plaintiff in the suit. The suit was filed by the respondent for declaration declaring that the settlement deed dated 16.12.2009 alleged to have been executed by the 2nd defendant in favour of his son and registered as Doc.No.2044/2009 on the file of the Sub Registrar, Anniyur, in respect of the 2nd item of suit properties as sham and nominal and ab initio void and for permanent injunction restraining the defendant his men or agents from alienating or encumbering the schedule mentioned properties to any third parties pleading that the suit properties were originally belonged to one Gopalasamy Iyyer, Son of Sambasiva Iyyer. The defendant is the father of the plaintiff. The father of the defendant while he was alive executed a settlement deed on 04.02.1949 bequeathing the suit properties in favour of the defendant with limited life interest and the remainder interest to the heirs, if any, born to the defendant in the future. The defendant got married Tmt.Kantha @ Lakshmi and through their wedlock, they were blessed with a female child, the plaintiff, on 05.07.1969. The plaintiff is the only heir to the defendant born through the said wedlock and as per the settlement deed, the plaintiff is entitled to receive the suit properties as remainder. But the defendant did not chose to respect the terms of the settlement deed and had started trying to encumber the suit properties for his lavish expenditure. The plaintiff also came to know through some of the local people of the village that some third parties were trying to purchase the suit properties from the defendant. Therefore, the plaintiff had caused a legal notice on 06.04.2011 calling upon the defendant to restrain himself from alienating the suit properties and also making a demand for handing over of vacant possession of the suit properties to the plaintiff. On receiving notice, though the defendant admitted the settlement deed in his reply, created a settlement deed on 05.08.2011 in favour of one Subash. The said settlement deed is only a sham and nominal and would not bind on the plaintiff and her right over the suit properties. The suit properties are in possession of the defendant. The defendant used to cultivate the suit land by raising sugar cane and paddy and derive income of Rs.75,000/-. Since the defendant violated the terms of the settlement deed, he lost the right to remain in possession of the suit properties as life interest holder. The plaintiff being vested remainder is entitled to protect her rights and therefore, the suit.
3. The appellant, who is the sole defendant in the suit, filed written statement in the suit inter alia contending that his paternal grand father - Thambusamy Vathiyar, was heavily indebted and in order to avoid from the pressing debts, he had conveyed the suit properties to his brother’s son - Gopalas
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