A settlement deed favoring non-coparceners is void under Hindu law, yet a sale by the Kartha for family necessity remains binding on all heirs.

BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT DATED: 16.07.2024 CORAM THE HONOURABLE MR. JUSTICE S.SOUNTHAR S.A.No.492 of 2001 Narayanan alias Arumugam ... Appellant Vs

1.Uma

2.Rajamanikkam Pillai (Died)

3.Kalyani Ammal (Died) 4.Piramanayagam (Died)

5.Chithiraivadivu alias Shanmugam

6.Subbiah (Died)

7.Piramu

8.Rajalakshmi

9.Minor Muthushanmugam

10.Minor Rajanarayanan ... Respondents (R8 to R10 are brought on record as LR of the deceased 6^th respondent vide order of Court dated 12.09.2003 made in C.M.P.Nos.16361 to 16363/2001.

Minors R9 & R10 are represented by mother Rajalakshmi, 8^th respondent)

(Memo dated 12.06.2023 in USR No.18490 is recorded as R3 died and sole appellant, R5 &

R7 to R10, who are already on record as LRs of the deceased R3, vide Court order dated 15.04.2024) (Memo dated 19.06.2023 presented before the Court on 15.04.2024 is recorded as R4 died and sole appellant, R5 & R7 to R10, who are already on record are recorded as LRs of the deceased R4, vide Court order dated 15.04.2024)

(2^nd respondent died and respondents 5 and 7 to 10, who are already on record are recorded as LRs of the deceased

2^nd respondent vide Court order dated 15.04.2024)

PRAYER: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree passed in A.S.No.28 of 1997 dated 13.12.1999 on the file of the Sub-Court, Ambasamudram confirming the judgment and decree passed in O.S.No.399 of 1989 dated 30.09.1996 on the file of the District Munsif Court, Ambasamudram.

For Appellant : Mr.V.Meenakshisundaram for Mr.D.Nallathambi For Respondents : Mr.Alex Benny Hook for M/s.D.Sathiyasri for R1 No Appearance for R5, R7 & R8 R2 to R4 & R6 died

JUDGMENT

The unsuccessful plaintiff in a suit for declaration and recovery of possession is the appellant. The suit was dismissed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court.

Aggrieved by the concurrent findings, the plaintiff is before this Court.

The averments found in the plaint:

2. According to the appellant/plaintiff, the suit property belonged to the second defendant. The third defendant is the wife of the second defendant. The plaintiff and defendants 4 to 7 are the children of defendants 2 and 3. The first defendant is the purchaser of the suit second schedule property from the second defendant. Since defendants 4 to 7 failed to co-operate with the plaintiff, the suit was filed by the plaintiff by arraying them as defendants. The entire suit property was shown as “first schedule” and the portion of the property purchased by the first defendant was shown as “second schedule”. The second defendant executed a settlement deed on 13.03.1963 in respect of the entire suit property viz., first schedule. As per the terms of the settlement, defendants 2 and 3 should enjoy the property for life time without any power of alienation and thereafter, the property should go to their legal heirs. On the basis of the said pleadings, the plaintiff sought for declaration that the sale deed executed by second defendant in favour of first defendant on 10.11.1975 would not be binding on the plaintiff and defendants 4 to 7, after the life time of defendants 2 and 3 and also for a consequential relief of recovery of possession of the suit property in favour of the plaintiff and defendants 4 to 7 after the life time of defendants 2 and 3.

The averments found in the written statement of the first defendant: 3. The first defendant filed a written statement and resisted the suit on the ground that the suit property was ancestral property of second defendant and he got the same under a partition deed dated 05.04.1958. The first defendant also claimed that the second defendant had no right to execute the settlement deed in respect of ancestral properties and hence, the settlement deed relied on by the plaintiff was not valid. It was also pleaded by the first defendant that the suit property (second schedule) was sold to the first defendant by second defendant for family necessity on 1