A settlement deed can create a contingent interest in favour of an unborn child.

S.A.No.455 of 2017

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.12.2023

CORAM

THE HONOURABLE MR. JUSTICE S.SOUNTHAR

S.A.No.455 of 2017

and

CMP.No.11412 of 2017

Latvian Evangelical Lutheran Church

Rep.by its Vice President

Kazhuthur Village

Tittakudic Taluk

...Appellant

Vs.

Chitra

... Respondent

Prayer: Second Appeal filed under Section 100 of the Code of Civil

Procedure, aggrieved by the judgment and decree dated 15.12.2015 made in

A.S.No.4 of 2015 on the file of the Additional Sub-Judge, Viruthachalam,

reversing the judgment and decree dated 17.12.2014 made in OS.No.171 of

2003 on the file of the District Munsif Cum Judicial Magistrate, Tittakudi.

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S.A.No.455 of 2017

For Appellant : Mr.J.R.K.Bhavanandam

for Mr.R.Mubarak Basha

For Respondent

: Mrs.Hema Sampath

Senior Counsel

for Mrs.R.Meenal

JUDGMENT

The defendant in the suit is the appellant. The respondent herein

filed a suit for declaration of title, recovery of possession of vacant site and

mandatory injunction to remove the superstructure found in the suit property.

The suit was dismissed by the trial Court. Aggrieved by the same, the

appellant preferred an appeal in A.S.No.4 of 2015 on the file of the Additional

Sub-Court, Viruthachalam. The First Appellate Court reversed the findings of

the trial Court and allowed the appeal granting decree as prayed for. Aggrieved

by the same, the defendant is before this Court.

2. According to the respondent/plaintiff, the suit property

originally belonged to the father of the plaintiff Ramanathan. He executed a

settlement deed on 04.07.1977 in favour of the plaintiff's mother

Marudhambal. The said settlement deed was executed at the time of

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S.A.No.455 of 2017

Ramanathan marrying with Marudhambal. Since Ramanathan's wife

Marudhambal was minor at that point of time, in the settlement deed

Marudhambal was represented by her father Periyasamy. On the date of

settlement deed the possession of suit property and other properties were

handed over to Periyasamy on behalf of Marudhambal. As per the terms of

settlement, the suit property was settled in favour of unborn children of

Marudhambal and Ramanathan with life estate in favour of Marudhambal.

Being the daughter of Marudhambal the plaintiff was entitled to the suit

property under the terms of settlement deed. It was also stated in the

settlement deed that during the life time of Marudhambal, she was not entitled

to alienate the property to the third parties. Violating the terms of settlement

the settlor namely Ramanathan sold the property in favour of the third parties

and now the defendant had been in possession and enjoyment of the suit

property. It was claimed that the plaintiff was born on 03.06.1983 and the suit

was filed within three years from the date of attaining majority.

3. The appellant/defendant filed a written statement raising a plea

that the settlement deed dated 04.07.1977 executed by Ramanathan was not

acted upon and the possession was not given to Marudhambal or her father

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S.A.No.455 of 2017

Periyasamy. The appellant also disputed the paternity of the plaintiff. In the

additional written statement it was pleaded by the appellant that document

dated 04.07.1977 was only a Will not settlement and therefore, during his lift

time Ramanathan was entitled to alienate as per his wish.

4. The appellant/defendant also raised a plea of non joinder of

necessary party viz., Ramanathan and Marudhambal. It was also averred by

the appellant that Ramanathan sold the suit property to one Samikannu on

29.08.1980 and from that person the appellant purchased the property under

documents dated 18.02.1986, 11.08.1987 and 19.09.1990. After purchase the

appellant had put up a church,