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IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved On:25.01.2017

Pronounced On:13.02.2017

CORAM

THE HON'BLE DR. JUSTICE G. JAYACHANDRAN

SECOND APPEAL No.1251 of 1996

Jayaram Naidu

.. Appellant

/versus/

1.Vasanthi Kumari

2.Arumugam

3.Ramalingam

4.Anjalai Ammal

5.Jayaram Naidu

6.Sarangapani Naidu

7.Hemampujam

8.Latha

9.Ravi

10.Minor Murali

11.Minor Sampath

(Minor respondents 10 and 11

represented by guardian mother

the 7^th respondent Hemampujam)

12.Lakshmi

..Respondents

Prayer:

Second Appeal filed under Section 100 of the Civil Procedure

Code against the judgment and decree dated 11.10.1995 in A.S.No.5 of

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1993, on the file of the District Judge, South Arcot affirming the judgment

and decree dated 16.09.1992 in O.S.No.338 of 1989 on the file of the

District Munsif, Cuddalore.

For Appellant

:Mr.R.Gururaj

For Respondents :Mrs.A.Nilaphar for

Mr.R.Subramanian for R1

R2,3,4,6,8,9 and 12-NDW

R7,10,11- No appearance

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J U D G M E N T

The appellant herein is the first defendant in the suit, who lost

before both the Courts below. The suit was laid for declaration of title,

recovery of possession and mesne profits on the premise that, the

plaintiff's mother and the first defendant are daughter and son of Gopal

Naidu. On the eve of the marriage of the plaintiff with the first defendant,

the suit properties were settled in favour of the plaintiff on 24.06.1970 by

Gopal Naidu as prenuptial settlement. Thereafter, the marriage was

solemnised on 15.07.1970. After few years of marriage, misunderstanding

surfaced between the plaintiff and the first defendant resulting in their

separation. The first defendant continued to manage the suit properties

and her status as wife of the first defendant never ceased though a

document purported to be deed of revocation of settlement deed was

obtained from her by fraudulent means and the same does not bind her.

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Other defendants are persons claiming themselves as purchasers or

intending purchasers of the suit properties from the first defendant.

Therefore, they are arrayed as defendants.

2. The defendants contested the suit on the premise that the

settlement deed executed by Gopal Naidu on 14.06.1970 is not a valid

settlement. The properties are the ancestral properties of Gopal Naidu.

Even if the settlement is valid, the bequest under the settlement was

jointly for the plaintiff, first defendant and their children. The plaintiff

never lived with the first defendant and the children born to the plaintiff

was not through the first defendant. They were born for one Veeraiyan,

with whom the plaintiff had illegal intimacy. The settlement deed was

never accepted or acted upon. In the panchayat held at the village, the

plaintiff released her rights under the settlement deed and also a deed of

divorce was executed on 24.08.1976. Since then the first defendant

enjoying the suit properties absolutely and had alienated several of the

suit items to third parties and also had entered into agreements for sale

with few others, who are arrayed as defendants. The alleged marriage

with the plaintiff itself is not valid, since both of them fall within the

prohibited relationship of consanguinity.

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3. The trial Court held in favour of the plaintiff and allowed the suit

and the same was confirmed by the first appellate Court in the appeal filed

by the first defendant. Aggrieved by the concurrent finding, the second

appeal is preferred by the first defendant.

4. At the time of admission this Court has formulated the following

Substantial Question of Law for consideration:

“Whether the admitted possession of the defendant

in respect of the suit property under a document releasing

the plaintiff's right, though not registered, will prima facie

show the adverse interest against her by the person in

possession of the property?”

5. The learned counsel appering for the appellant straneously

submitted that