S.A.No.317 of 2003

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 28.04.2023

CORAM

THE HONOURABLE MR.JUSTICE P.VELMURUGAN

S.A.No.317 of 2003

1.C.Peria Perumal Nadar

2.P.Gopalan

... Defendants/Respondent/

Appellants

Vs.

1.C.Sri Raman Nadar @ Kasinadar (died) ... Plaintiff/Appellant/

Respondents

2.Lakshmi Thangam

3.Bagavathi Thangam

4.Kasi Thangam

5.Rajagopal

6.Selvakumar

7.Selvagopal

(Respondents 2 to 7 are brought on record as

Lrs of the deceased sole respondent)

PRAYER: Second Appeal filed under Section 100 of the Civil Procedure

Code, against the judgment and decree, dated 27.11.2002 and made in

A.S.No.54 of 2002 on the file of the Additional District Court, Kanyakumari

at Nagercoil reversing the judgment and decree dated 08.03.2022 and made

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S.A.No.317 of 2003

in O.S.No.578 of 1993, on the file of the Additional District Munsif,

Nagercoil.

For Appellants : Mr.V.Meenakshisundaram

for D.Nallathambi

For R2 to R6

: Mrs.J.Anandhavalli for

K.Sreekumaran Nair

For R7

: Mr.Xavier Rajini

J U D G M E N T

The respondent filed a suit against the appellants in O.S.No.578

of 1993, on the file of the Additional District Munsif, Nagercoil for

declaration and permanent injunction restraining the defendant from

interfering or disturbing the plaintiff's peaceful possession over the plaint

schedule properties.

2. The said suit was dismissed by the trial Court on 08.03.2002.

Aggrieved by the said judgment and decree, the plaintiff filed an appeal in

A.S.No.54 of 2002 before the Principal District Court, Kanyakumari and the

same was made over to the Additional District Court, Kanyakumari District

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S.A.No.317 of 2003

at Nagercoil. The learned first appellate Court allowed the appeal by setting

aside the judgment and decree passed by the Additional District Munsif,

Nagercoil made in O.S.No.578 of 1993.

3. Challenging the said judgment and decree, the defendants in the

suit filed the present second appeal by raising the following substantial

questions of law:-

“i) When the plaintiff having admitted the fact that

the settlor had no property out side Tamil Nadu and the

settlement deed being executed in Kerala, is the learned

Additional District Judge right in holding that the document

is valid in spite of the decision rendered by this Hon'ble Court

in 1988 I MLJ Page 447?

ii) When it is admitted by the plaintiff that the

settlement deed was a conditional one and the settlor having

revoked the same is the suit maintainable without setting

aside the deed of revocation executed by the settlor?

Iii) When the plaintiff himself having impleaded

the second defendant as a lessee of the settlor and having not

produced any document to support the plea that he complied

with the conditions under the settlement, still is the learned

Additional District Judge right in granting a decree for

injunction?

iv) Whether the learned Additional District Judge

right in rejecting the title of the first defendant on the basis of

a Will executed in his favour by Thangammal dated

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S.A.No.317 of 2003

16.07.1986?

v) The plaintiff having not questioned the deed of

revocation executed by Thangammal within a period of 3

years, is not the plaintiff barred from claiming any right under

the settlement deed?”

4. The learned counsel appearing for the appellants would submit

that the deceased first respondent was not in possession of the property and

not entitled to decree for injunction claiming right in possession through the

gift deed relied on by the respondent being a conditional gift and revocable

at the instance of the settlor. The settlee/respondent has not followed the

condition and he has not produced the evidence to show that he has

complied with the conditions mentioned in th