GANGA vs KALAISELVI(DIED)
- Court
- Madras High Court
2026:MHC:3701
S.A. No. 341 of 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 12-06-2026
PRONOUNCED ON : 08-09-2026
CORAM:
THE HON'BLE MR.JUSTICE R.SAKTHIVEL
S.A. No. 341 of 2008
1. Ganga
D/o. Rajagopal Chetty
Vishamangalam Post
Tirupattur Taluk,
Vellore District.
2. Subburu
S/o. Kulan @ Munian,
Jammanapudur Post
Tirupattur Taluk.
…Appellants / Respondents /
Defendants
-versus-
1. Kalaiselvi(died)
D/o. Veerappan Chetty
W/o. Ramalingam
1/7 B, Gandhi Road
Annaikattu, Vellore District.
st
… 1 Respondent / Appellant /
nd
2 Plaintiff
2. Ramalingam
S/o Narayanachetty,
1/7b, Gandhi Road, Anaikattu Post,
Vellore District.
3. S.Anandhi@ Dhayananthi,
W/o Sivakumar @ Sathish
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D.No.1/35 , Nethaji Nagar,
Karagur, Sirampatti Post,
Palaikodu Taluk, Dharmapuri
District.
4. Devi @ Sridevi
D/o Ramalingam,
1/7b, Gandhi Road,
Anaikattu Post,
Vellore District.
5. Vinodhini
D/o Ramalingam,
1/7b, Gandhi Road,
Anaikattu Post, Vellore District.
… Respondents 2 to 5 /
Legal representatives
st
of deceased 1 Respondent
Note: Sole respondent namely
Kalaiselvi died, recorded vide this
Court's Order Dated June 5, 2026 made
in S.A. No.341 of 2008. Respondents
No.2 to 5 are brought on record as legal
representatives of the deceased sole
respondent namely Kalaiselvi vide this
Court's Order dated July16, 2021 made
in M.P. No.1 to 3 of 2011 in S.A.
No.341 of 2008.
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated
November 28, 2007 in A.S. No.19 of 2007 on the file of the Sub Court,
Tirupattur, Vellore, in reversing the Judgment and Decree dated April 11,
2005 in O.S. No.161 of 1997 on the file of the District Munsif Court,
Tirupattur.
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For Appellants : Mrs.V.Srimathi
Respondent No.1 :
Died (steps taken)
For Respondents :
2 to 5
Mr.R.Lakshmi Narasimhan
for Mr.P.Chandrasekar
*
J U D G M E N T
Feeling aggrieved by the Judgment and Decree dated November 28,
2007 passed by 'the Sub Court, Tirupattur, Vellore' ['First Appellate Court'
for convenience] in A.S. No.19 of 2007, reversing the Judgment and
Decree dated April 11, 2005 passed in O.S. No.161 of 1997 on the file of
'the District Munsif Court, Tirupattur' ['Trial Court' for convenience], the
defendants in the Original Suit who are the respondents in the Appeal Suit,
have come up with this Second Appeal.
2. For the sake of convenience, the parties will hereinafter be
referred to as per their array in the Original Suit.
PLAINTIFFS' CASE:
3. Case of the plaintiffs is that an extent of 2 Acres 50 Cents in
Survey No.368/7 in A.K.Mottur Village, Tirupattur Taluk is the suit
property. According to the plaintiffs, the suit property originally belonged
to Arunachala Chetty, as his ancestral entitlement. Said Arunachala Chetty
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voluntarily executed a Will dated November 10, 1953 in favour of his wife
- Unnamalaiammal, creating life interest to her without any power of
alienation with vested remainder to his son - Veerappa for absolute
enjoyment. The testator - Arunachala Chetty passed away in the year 1953
and the said Will came into effect. Life estate holder - Unnamalaiammal
and the remainderman - Veerappa, jointly executed Settlement Deed dated
February 26, 1975 in favour of first defendant - Ganga.
3.1. Contention of the plaintiffs is that Unnamalaiammal and Veerappa
had no right to execute the Settlement Deed, for as per the terms of the
Will, the said Unnamalaiammal shall enjoy the suit properties without any
power of alienation for life and thereafter the properties shall devolve
upon her son - Veerappa, and moreover the Settlement Deed was a nominal
document which was not acted upon. Veerappa was alone in possession
and enjoyment of the suit property and passed away in the year 1986
leaving behind, his wife - Rathinammal and daughter - Kalaiselvi
[plaintiffs] as his legal heirs to succeed his estate. The defendants have no
right, title or interest over the suit property. The defendants with an
intention to grab the suit property attempted to trespass and take forcible
possession on December 10, 1996. Hence the plaintiffs have filed the
present Suit for declaration and injunction against the defendants.
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CASE OF THE FIRST DEFENDANT:
4. The first defendant filed a written statement denying certain plaint
averments. The first defendant admitted the plaint averments which are set
out in brief hereinabove in Paragraph No.3, except for the averment that
the suit property is ancestral property of Arunachala Chetty. The case of
first defendant is that she is none other than the wife of Veerappa. The
Settlement Deed executed in her favour was acted upon. Pursuantly, she
executed a Sale Deed in favour of the second defendant on September 25,
1996. On and after the sale, the second defendant is in possession and
enjoyment of the suit property. The plaintiffs have no right and were never
in possession and enjoyment thereof. Further, the first defendant contended
that the Court Fee paid by the plaintiffs is incorrect. Accordingly, the first
defendant prayed to dismiss the Original Suit.
CASE OF THE SECOND DEFENDANT:
5. The second defendant filed a written statement reiterating the
contentions made by the first defendant and sought for dismissal of the
Original Suit.
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TRIAL COURT:
6. Based on the above pleadings, the Trial Court framed the
following issues on August 12, 1997:
" 1. Whether the gift settlement deed executed by
Unnamalaiammalal and Veerappa Chetty in favour of
st
1 defendant is valid?
2. Whether the plaintiffs are entitled to the relief of
declaration as sought by them ?
3. Whether the plaintiffs are in possession and enjoyment
of the suit properties?
4. Whether the plaintiffs are entitled to get the relief of the
permanent injunction as prayed ?
5. Whether the suit has no cause of action ?
6. Whether the valuation of the plaint and Court fee paid
there on by the plaintiffs are correct?
7. To what reliefs the plaintiffs are entitled to? "
7. At trial, on the side of the plaintiffs, the second plaintiff was
examined as P.W.1 and one Ramalingam was examined as P.W.2 and Ex-
A.1 to Ex-A.5 were marked. On the side of the defendant, the first
defendant was examined as D.W.1 and one Arumugam, one Natarajan and
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one Perumal were examined as D.W.2 , D.W.3 and D.W.4 respectively and
Ex-B.1 to Ex-B.39 were marked.
8. The Trial Court found that Ex-B.2 - Gift Settlement Deed
executed by Veerappa in favour of first defendant is valid. The plaintiffs
are not in possession and enjoyment of the suit property. Consequently
concluded that the plaintiffs are not entitled to the relief of declaration and
permanent injunction. Accordingly, the Trial Court dismissed the Suit.
FIRST APPEAL:
9. Feeling aggrieved, the plaintiffs preferred an appeal in A.S. No.19
of 2007 before the First Appellate Court, which after hearing both sides,
allowed the Appeal by setting aside the Judgment and Decree passed by
the Trial Court in O.S. No.161 of 1997 and decreed the Suit as prayed for.
The First Appellate Court found that only after demise of
Unnamalaiammal, Veerappa would acquire rights over the suit property
under Ex-A.1 - Suit Will. Ex-B.2 - Gift Settlement Deed was made in
contravention of the terms and conditions of Ex-A.1 - Suit Will and hence
not valid. After the demise of Veerappa, the plaintiffs are alone his legal
heirs. The marriage between Veerappa and the first defendant is invalid in
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the eyes of law. Upon arriving at these findings, the Appeal Suit was
allowed.
SECOND APPEAL:
10. Feeling aggrieved by the Judgment and Decree passed by the
First Appellate Court, the defendants, who were respondents in the Appeal
Suit, have preferred this Second Appeal, which was admitted on March 12,
2008 on the following Substantial Questions of Law:
" (a) When the Unnamalai ammal gains full ownership
to the suit property pursuant to Section 14(1) is
the lower appellate Court right in concluding that
she has no right to execute settlement deed?
(b) Whether the Court below is right in concluding
that the marriage between the first appellant and
Veerapa Chetty was not established even after
production of Exhibit B.1 and marriage was
accepted by the plaintiff herself ? "
ARGUMENTS :
11. Ms. V.Srimathi, learned Counsel appearing for the appellants,
submitted that the suit property was the separate and self-acquired property
of Arunachala Chetty. He executed Ex-A.1 - Will dated November 10,
1953 and passed away in the same year. After the demise of Arunachala
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Chetty, the Will came into force and was acted upon. As per the Will,
Unnamalaiammal was put in possession and enjoyment of the suit property
as a life estate holder. According to the terms of the Will, Unnamalaiammal
was entitled to enjoy the property without any power of alienation for her
lifetime, and after her demise, the property was to vest with Veerappa.
During the lifetime of Unnamalaiammal, the life estate holder and the
remainderman, jointly executed Ex-B.2 - Gift Settlement Deed dated
February 26, 1975, in respect of the suit property and some other
properties, in favour of the first defendant, who is the second wife of the
remainderman - Veerappa. Even otherwise, with the commencement of the
Hindu Succession Act, 1956, Unnamalaiammal's limited life estate
blossoms into absolute estate. Hence, Ex-B.2 - Gift Settlement Deed is
perfectly valid. Further, possession was handed over under Ex-B.2.
Revenue records were also pursuantly mutated in favour of first defendant.
In these circumstances, first defendant under Ex-B.3 - Sale Deed dated
September 25, 1996 sold the suit property in favour of the second
defendant. The First Appellate Court, without considering the correct legal
position, erroneously allowed the Appeal Suit and decreed the Suit.
Accordingly, she prayed that the Second Appeal be allowed, the Judgment
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and Decree of the First Appellate Court be set aside and the Judgement and
Decree of the Trial Court be restored.
12. Per contra , Mr. R.Lakshmi Narasimhan, learned Counsel
appearing for respondents 2 to 5, assisted by Mr. P.Chandrasekar,
contended that under Ex-A.1 - Suit Will, the life estate holder -
Unnamalaiammal had no power of alienation, and further, only after her
lifetime, the remainderman - Veerappa would acquire rights over the suit
property. In these circumstances, neither Unnamalaiammal nor Veerappa
nor them jointly had any right to execute any deed or alienate the suit
property. Accordingly, the alleged Gift Settlement Deed executed by
Unnamalaiammal and Veerappa jointly in favour of the first defendant -
Ganga, is void ab initio. Further, in view of the terms contained in Ex-A.1 -
Suit Will, Section 14(2) of the Hindu Succession Act, 1956 would alone be
applicable and not Section 14 (1) thereof, which means the limited life
estate under Ex-A.1 in favour of Unnamalaiammal cannot be enlarged into
absolute estate. It was further contended that Ex-B.2 - Gift Settlement
Deed was executed only with a view to defeat and defraud the rights of the
plaintiffs. Therefore, the First Appellate Court, after considering the facts
and circumstances of the case, rightly allowed the Appeal and decreed the
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Suit. Accordingly, he prayed to dismiss the Second Appeal and sustain the
Judgment and Decree of the First Appellate Court.
12.1. In support of his submissions on the question of applicability of
Section 14 (1) of the Hindu Succession Act, 1956, he relied upon the
following Judgments:
(i) Mangal Singh -vs- Smt. Rattno, reported in AIR 1967 SCC
1786;
(ii) Seth Badri Prasad -vs- Kanso Devi, reported in (1969) 2 SCC
586;
(iii) MST. Karmi -vs- Amru, reported in (1972) 4 SCC 86;
(iv) V. Tulasamma -vs- Sesha Reddy, reported in (1977) 3 SCC 99;
(v) Gulwant Kaur -vs- Mohinder Singh, reported in (1987) 3 SCC
674;
(vi) Jaswant Kaur -vs- Major Harpal Singh, reported in (1989) 3
SCC 572;
(vii) Thota Sesharathamma -vs- Thota Manikyamma, reported in
(1991) 4 SCC 312;
(viii) Bhura -vs- Kashi Ram, reported in (1994) 2 SCC 111;
(ix) Gumpha -vs- Jaibai, reported in (1994) 2 SCC 511;
(x) Nazar Singh -vs- Jagjit Kaur, reported in (1996) 1 SCC 35;
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(xi) C. Masilamani Mudaliar -vs- Idol of Sri Swaminathaswami
Thirukoil, reported in (1996) 8 SCC 525;
(xii) Bhoomireddy Chenna Reddy -vs- Bhoospalli Pedda Verrappa,
reported in (1997) 10 SCC 673;
(xiii) Raghubar Singh -vs- Gulab Singh, reported in (1998) 6 SCC
314;
(xiv) Balwant Kaur -vs- Chanan Singh, reported in (2000) 6 SCC
310;
(xv) Shankuntla Devi -vs- Kamla, reported in (2005) 5 SCC 390;
(xvi) Sadhu Singh -vs- Gurdwara Sahib Narike, reported in (2006) 8
SCC 75;
(xvii) Sharad Subramanyan -vs- Soumi Mazumdar, reported in (2006)
8 SCC 91;
(xviii) Santhosh -vs- Saraswathibai, reported in (2008) 1 SCC 465;
(xix) Gaddam Ramakrishnareddy -vs- Gaddam Ramireddy, reported
in (2010) 9 SCC 602;
(xx) Jagan Singh -vs- Dhanwanti, reported in (2012) 2 SCC 628;
(xxi) Shivdev Kaur -vs- R.S. Grewal, reported in (2013) 4 SCC 636;
(xxii) Jupudy Pardha Sarathy -vs- Pentapati Rama Krishna, reported
in (2016) 2 SCC 56;
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(xxiii) Ranvir Dewan -vs- Rashmi Khanna, reported in (2018) 12 SCC
1;
(xxiv) V. Kalyanaswamy -vs- L. Bakthavatsalam, reported in (2021)
16 SCC 543;
(xxv) Jogi Ram -vs- Suresh Kumar, reported in (2022) 4 SCC 274;
(xxvi) Munni Devi Alias Nathi Devi -vs- Rajendra Alias Lallu Lal,
reported in (2022) 17 SCC 434;
(xxvii) Tej Bhan -vs- Ram Kishan, reported in 2024 SCC OnLine SC
3661.
DISCUSSION:
13. Heard on either side. Perused the evidence available on record
in light of the Substantial Questions of Law framed.
14. For better appreciation, the following chart showing the
relationship between the parties may be referred to:
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14.1. It is to be noted that the relationships between Veerappa on one
hand and the first defendant & her children on the other, is not an admitted
one. Similarly, the sale of suit property by first defendant in favour of
second defendant is also not an admitted one. Rest of the relationships
shown in the chart are all admitted by the parties on either side.
15. Arunachala Chetty executed Ex-A.1 - Will dated November 10,
1953. He thereby bequeathed the suit property and some more properties
absolutely in favour of his son - Veerappa as vested remainder with life
estate in favour of his wife - Unnamalaiammal without any power of
alienation. Further, some maintenance provisions have been made in
favour of his wife - Unnamalaiammal. He thereby also made some
provisions in favour of his two daughters which are not relevant to decide
the present matter. Ex-A.1 - Will is admitted by either side, however, while
the plaintiffs contend that the suit property is Arunachala Chetty's ancestral
property, the defendant has not admitted the same. At the same time, the
defendants have not specifically denied it. While so, both, P.W.1 / second
plaintiff and D.W.1 / first defendant have in their evidence admitted that
the suit property is separate and self-acquired property of Arunachala
Chetty. Further, there is intrinsic evidence available in Ex-A.1 - Will to
show that the suit property is the testator's self-acquired property. Further,
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there is no contra evidence available on record to show otherwise. Hence,
this Court finds the suit property as separate and self-acquired property of
Arunachala Chetty and hence, he is entitled to execute Will in respect of
the same. As admitted by either side, Ex-A.1 - Will executed by
Arunachala Chetty in respect of his self-acquired properties including the
suit property is perfectly valid. The scenario would have been different in
case of ancestral properties. Ex-A.1 - Will having been executed and
having come into effect before the commencement of the Hindu
Succession Act, 1956, had it been in respect of ancestral properties, would
have been valid subject to certain conditions. Be that as it may, as the
properties covered under Ex-A.1 are separate and self-acquired properties
of the testator, no doubt that Ex-A.1 is perfectly valid. Relevant extract
from the evidence of P.W.1 and D.W.1 and from Ex-A.1 - Will, can be
found hereunder:
Relevant portion from P.W.1's evidence:
'' /// y; vd; jhj;jh ,we;Jnghdhh;//// vd; jhj;jh mUzhry
1953
brl;oahUf;F mth; rk;ghjpj;jjd; \yk; tHf;F brhj;J
ghj;jpag;gl;lJ//// mUzhry brl;oahUf;F tHf;F brhj;J jtpu
ntW ,ju brhj;Jf;fSk; ,Ue;jd vd;why; rhpjhd;/ uh$ghisak;
kw;Wk; ,ju ,l';fspYk; me;j brhj;J cs;sJ/ midj;J brhj;Jk;
mUzhrybrl;o rk;ghjpj;j Rahh;$pj brhj;jhFk; . . . ''
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Relevant portion from D.W.1's evidence:
'' . . . ,e;j brhj;Jk;/ ,ju brhj;Jk; Mjpapy; vd; khkdhh;
mUzhry brl;oahh; vd;gtUf;F ghj;jpag;gl;lJ. . . 1953k; tUlk;
fhh;j;jpif khjk; mUzhry brl;oahh; ,we;Jnghdhh;/ ''
Relevant extract from Ex-A.1 - Will:
''. . . vdf;F jw;rkak; 77 tajhfpwJ vdf;F ,U
kidtpfs; ,Uf;fpwhh;fs; xU kidtpahfpa Kj;jk;khs; vd;gts;
$Ptdhk;rk; bgj;Jf;bfhz;Lk; nkw;goahs; FkhuDkhfpa
$lag;gbrl;o vd;gtd; vd;Dld; tpah$;$pak; bjhlh;e;J nfhh;l;L
\yk; brhj;Jf;fis gphptpid bra;Jbfhz;L Rkhh; gj;J
tUlfhykhf FLk;gj;ij tpl;L jdpikapy; ,Ue;J tUfpwhd;/
jw;rkak; vd; FLk;gj;jpy; vd; kidtp cz;zhkiy mk;khs; (1)
nkw;goahh; Fkhud; tPug;g brl;o (2) ,th;fs; ,Uf;fpwhh;fs/;
jtput[k; vd; Fkhh;j;jpfSk; v.s. mz;zhkiy brl;o kidtp
Q ;
j rk;khs;(3) fpU#;zbrl;o kidtpa[k; vd; fdp#;l
Fkhh;j;jpa[khd rk;g{h;zk;khs; (4) ,th;fs; ,Uf;fpwhh;fs/; rpy
ehshf vd; jpnufk; ehSf;F ehs; gytPdg;gl;L ,dp mjpf ehs;
gpd;g[j;jpUg;ngd; vd;fpw ek;gpf;if vdf;F ,y;yhky; ,Ug;gjhYk;
vd; gphpaj;Jf;Fl;gl;lth;fSf;F xUtpj Vw;ghL bra;a ntqbkd;fpw
mth ,Ug;gjhYk; vd;dhy; rpWgpuhak; Jl';fp ey;y g{!;jpjpfis
rk;ghjpj;J FLk;gj;Jf;F jPh;f;f Mjut[k; bra;jpUg;gjhy;
mg;ngh;f;bfhj;jbrhj;Jf;fs; vd; Ma[Rf;Fk; gpd; vd;
gphpaj;Jf;Fl;gl;lth;fSf;F tpdpnahfk; bra;ag;gl;L mile;Jtu
ntqbkd;fpw gphpaj;ij Kd;dpl;Lk; ,t;tpjk; bra;tjpy; nkw;go
vd; Fkhudhd 2yf;fpkpl;l tPug;gbrl;o vd;gtd; FLk;gj;jpy;
mjpfkha; <LglhkYk; FLk;g ed;ikia cj;njrpj;Jk;
brhj;JghJfhg;ig cj;njrpj;Jk; mtDf;F brhj;Jf;fis
vnjr;irahf bfhLj;jhy; ,g;nghnj tPz;tpuak; bra;JtpLthd;
vd;fpw jpl;lkhd kdJld; mt;tpjk; brhj;Jf;fis mtDf;F
bfhLj;Jtpl vdf;F ,#;lkpy;yhky; ,Ug;gjhYk; mtDila
gpw;fhy ed;ikia cj;njrpj;nj ,t;tpjk;
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jPh;khdpj;Jf;bfhz;lgoahYk; vd; Ma[Rf;Fg;gpd; vd; brhj;Jf;fs;
tp#akhf nkw;go ehy;th;fSf;Fs; vt;tpj
mgpg;gpuhangjKkpy;yhkYk; brhj;ij mile;J mDgtpf;f
ntqbkd;fpw ey;y vz;zj;Jld; fPH;tpthpj;j jpl;l';fSld; ,e;j
capy; rhrdk; vGjpitj;jpUf;fpnwd;/ vd; Ma[Rf;Fg;gpd; fPH; tpthpj;j
brl;oa{y; brhj;Jf;fis nkw;go vd; 3yf;fkpl;l Fkhh;j;jp
j Q ; rk;khSk; 4yf;fkpl;l vd; fdp#;l Fkhh;j;jp
rk;g{h;zk;khs; ,UtUk; rkghfkha; g';fpl;L nkw;go brhj;ij
ifg;gw;wp mtuth;fs; $Ptjpir tiuapy; brhj;Jf;fs; vt;tpj
guhjPdk; tpy;y';fk; bra;ahky; mDgtpj;Jte;J nkw;goahh;fs;
$Ptjpirf;Fgpe;jp j Q ; rk;khs; rk;g{h;zk;khs; ,th;fspd; Fkhuh;fs;
rh;t Rje;jpughj;jpaj;Jld; jhdhjptpf;fpua';fSf;F mh;fkha; Mz;L
mDgtpj;Jf; bfhs;s ntz;oaJ/ moapy; fz;l brl;oa{y; brhj;jpy;
tpthpj;jpUf;Fk; brhj;Jf;fs; nghf vd; trkpUf;Fk; kpFjp M!;jpfs;
mjhtJ FLk;gj;ijtpl;L Vw;fdnt tpyfp $lag;gbrl;o
jd;ghfj;Jf;F gphptpid bra;Jbfhz;lJ nghft[k; kpFjpahUf;Fk;
tp#k';fyk;. ehfuh$k;gl;o. rpj;njhp. kl;ugs;sp. $k;kzg[Jhh;.
nkhl;^h;. Fhprpyhg;gl;L. gs;sbts;sp. Tlg;gl;L. uh$ghisak;.
Kj;jk;gl;o g[Jhh;. FUkhk;gs;sp. g[Dfd;tyir.
Q ; Q ;
bgUkhg;gl;L ,d;Dk; vy;yh fpuhk';fspy; ,Uf;Fk; e ir g[ ir
njhg;g[ tifauh rfy M!;jpfisa[k; tPL fhyp $hfh rfyj;ija[k;
vd; Ma[Rf;Fg;gpd; nkw;go vd;ghhpahs; 1-yf;fkpl;l
cz;zhkiyak;khs; ifg;gw;wp brhj;Jf;fis vt;tpj guhjPdk;
tpy;y';fk; bra;ahky; mDgtpj;J te;Jk; nkw;go vd; Fkhud;
tPug;gbrl;oahd; rk;ul;riz Kjypaitfisa[k; FLk;gj;jpnyna
bra;Jbfhz;L tuntz;oaJ nkw;go vd; ghhpahs; cz;zhkiy
mk;khs; Ma[Rf;Fg;gpe;jp ,t;tpjk; Fwpg;gpl;l rfy !;jhtu
brhj;Jf;fisa[k; nkw;go vd; Fkhud; tPug;gbrl;o ifg;gw;wp
rh;tRje;jpu ghj;jpaj;Jld; Mz;lDgtpj;Jf; bfhs;s
ntz;oaJ ,t;tpjk; eph;zapj;jgo nkw;go vd; ghhpahs;
cz;zhkiy mk;khns vdf;F btspahuhy; tuntz;oa rfy
tpjkhd ghf;fpfisa[k; g[nuhnehl;L. mlkhdk;. ofphp Kjypa
rfytpj ghf;fpfisa[k; tR{ypf;f vdf;F thhprhf ,Ue;J tR{ypj;J
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jd; ,@#;lk; nghy; mile;Jbfhs;s ntz;oaJ ,t;tpjk; mila[k;
buhf;fk; tifahuf;fisa[k; rfy $';fk
brhj;Jf;fisa[k; ,Uk;g[ bgl;oiaa[k; nkw;go cz;zhkiy
mk;khs; $Ptjpirf;Fg; gpe;jp jd;dhy; brytHpf;fg;gl;lJ nghf
kpFjpaha; ,Uf;fg;gl;litfis nkw;go vd; Fkhud; tPug;gbrl;o
rh;tRje;jpukha; mDgtpj;Jf;bfhs;s ntz;oaJ/ nfhh;l;L \yk;
jPh;g;ghizgo ehd; vd; ,uz;lhtJ ghhpahs; Kj;jk;khSf;F
khjk; xd;Wf;F +.25.00 ,Ugj;ije;J +gha; bfhLj;J tUtJnghy;
vd; Ma[Rf;Fg;gpd; nkw;go vd;ghhpahs; cz;zhkiy mk;khs;
brYj;jpf;bfhz;Lk;. nkw;go cz;zhkiy mk;khs;
$Ptjpirf;Fg;gpd; vd; Fkhud; tPug;gbrl;oa[k; bfhLj;J
tuntz;oaJ/ vd; Ma[Rf;Fg;gpd; vdf;F bra;a ntz;oa
cj;jufphpia vd; Fkhudhd tPug;gbrl;ona bra;a ntz;oaJ/
,e;j capy;rhrdkhdJ Kf;fpakhf vd; brhj;Jf;fs; tPz;tpuak;
bra;ag;gl;L nghfhkhy; ,Uf;Fk; epkpj;jk; ey;y vz;zj;Jld; vd;
Fkhh;j;jpfSf;Fk; xUtpj Vw;ghL bra;antz;Lbkd;W ,Uf;Fk;
gphpaj;ij Kd;dpl;Lk; vd;dhy; vGjp itf;fg;gl;oUg;gjhy; nky;
fz;l #uj;Jg;gona vd; Ma[Rf;Fg;gpd; mKYf;F tuntz;oaJ/
vd; Ma[Sf;Fg;gpd; ,e;j rhrdj;jpy; Vw;gLk;
ghj;jpag;ghj;jpa!;jh;fisj; jtpw ,ju vg;ngh;gl;lth;fSf;Fk;
vt;tpj ghj;jpaKk; Jlh;r;rpa[k; fpilahJ/ ,e;j capy; rh!dj;ij vd;
$Ptjirapy; uj;J bra;a[k; ghj;jpaKk; khw;wt[k; vdf;F mjpfhuk;
cz;L ,e;jg;go vd;kdr;rk;kjpapy; vGjp itj;j capy; rhrdk/; ”
[Emphasis supplied]
16. This Court shall now look into the intention of the testator
behind the execution of Ex-A.1 - Will using armchair rule. From the
recitals contained in Ex-A.1, it could be seen that the testator wanted to
bequeath majority of his self-acquired properties in favour of his son -
Veerappa. However, Veerappa was very young and was not very much
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involved in the family and its affairs. It appears that he was not a very
responsible person at that time in the opinion of the testator. Apprehending
that Veerappa may unnecessarily alienate and lose the properties if
bequeathed absolutely at a young age, the testator decided to create life
interest in favour of his wife - Unnamalaiammal without any power of
alienation with vested remainder in favour of Veerappa for absolute
enjoyment. So, the intention of the testator to eventually handover his self-
acquired properties including the suit property in favour of his son -
Veerappa absolutely is clear. Besides this, the testator had given some
properties as life estate to his two daughters with vested remainder to their
children, and he had also made abundant absolute maintenance provisions,
including jewels, cash, decree amount, promissory note debts , etc., in
favour of his wife - Unnamalaiammal. This shows that the primary
intention behind the life estate in favour of Unnamalaiammal is not
maintenance, but to protect his self-acquired properties and safely
handover the same later to his son - Veerappa, who was young at the time
of Ex-A.1; the intention was only to leave management of his self-acquired
properties in safe hands with his wife - Unnamalaiammal and handover
possession in favour of his son - Veerappa for absolute enjoyment at the
right time when he would have presumably attained more maturity and
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become more responsible. In short, the testator ultimately intended to
absolutely bequeath his self-acquired properties including the suit property
in favour of his son - Veerappa. As the life estate in favour of
Unnamalaiammal in respect of some self-acquired properties was clearly
not intended for the purpose of her maintenance, this Court is of the
considered view that Section 14 (2) of the Hindu Succession Act, 1956 is
applicable and not Section 14 (1) thereof. As Section 14 (1) is not in the
picture, the Substantial Questions of Law No.(a) does not arise at all . The
Judgments relied on by the learned Counsel for the respondents, which are
27 in number, would together show that any interest or right over a
property given to a women under a testament in lieu of her maintenance
would attract Section 14 (1) of the Hindu Succession Act, 1956, but
otherwise, the applicable section would be Section 14 (2). There is no
quarrel with the same. In this case, as stated above, the life estate in favour
of Unnamalaiammal is clearly not intended for her maintenance purposes,
for which there are separate provisions have been made under Ex-A.1 in an
abundant manner. Hence, these case laws would come to aid the plaintiffs'
case. Relevant recitals from Ex-A.1 - Will are as hereunder:
'' ... nkw;go vd;ghhpahs; cz;zhkiy mk;khs;
Ma[Rf;Fg;gpe;jp ,t;tpjk; Fwpg;gpl;l rfy !;jhtu
brhj;Jf;fisa[k; nkw;go vd; Fkhud;
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tPug;gbrl;o ifg;gw;wp rh;tRje;jpu ghj;jpaj;Jld;
Mz;lDgtpj;Jf; bfhs;s ntz;oaJ ,t;tpjk;
eph;zapj;jgo nkw;go vd; ghhpahs;
cz;zhkiy mk;khns vdf;F btspahuhy;
tuntz;oa rfy tpjkhd ghf;fpfisa[k;
g[nuhnehl;L. mlkhdk;. ofphp Kjypa rfytpj
ghf;fpfisa[k; tr{ypf;f vdf;F thhprhf ,Ue;J
tr{ypj;J jd; , # ;lk; nghy; mile;Jbfhs;s
ntz;oaJ ,t;tpjk; mila[k; buhf;fk;
tifahuf;fisa[k; rfy $';fk
brhj;Jf;fisa[k;. ,Uk;g[ bgl;oiaa[k; nkw;go
cz;zhkiy mk;khs; $Ptjpirf;Fg; gpe;jp
jd;dhy; brytjpf;fg;gl;lJ nghf
kpFjpaha; ,Uf;fg;gl;litfis nkw;go vd;
Fkhud; tPug;gbrl;o rh;tRje;jpukha;
mDgtpj;Jf;bfhs;s ntz;oaJ. . . “
17. The next point is with regard to the alleged execution of Ex-B.2
- Gift Settlement Deed. The settlement under Ex-B.2 - Gift Settlement
Deed is not denied by the plaintiffs; in fact, P.W.1 / second plaintiff in her
evidence has specifically admitted the execution of Ex-B.2 - Gift
Settlement Deed. In this regard, it is apposite to extract the evidence of
P.W.1 which reads as follows:
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“ . . .
cz;zhkiy mk;khs; kw;Wk; tPug;gbrl;o
Mfpnahh;. j';fs; capUld; ,Uf;Fk;nghnj ,e;j
tHf;fpd; 1-k; gpujpthjpf;F tHf;F brhj;J Fwpj;J
jhd brl;oy;bkz;l; gj;jpuk; vGjp
;...
itj;Js;shh;fs; vd;why;/ rhpjhd
jhdbrl;oy;bkz;l; vGjpitj;jt[ld; mij
goj;Jg;ghh;j;J me;j jhdgj;jpu mog;gilapy; 1-
k; gpujpthjpf;F vt;tpj ghj;jpaKk;. chpika[k;
tuhJ vd;W tHf;fwp O h; \yk; mwpf;if
bfhLj;njhk;. . . “
18. So its execution was not denied by the plaintiffs, they challenge
only its validity. Further, Ex-B.2 is a certified copy. It was stated by D.W.1
/ first defendant in her evidence that the original was produced in another
case between the parties. The same was not denied by the plaintiffs' side.
Further, Ex-B.2 was marked without any objection. Since the execution of
Ex-B.2 - Gift Settlement Deed is admitted on either side and it has been
acted upon as this Court is to elaborate infra , this Court finds no necessity
for examination of the attesting witnesses under Section 68 of the Indian
Evidence Act, 1872 to prove the execution of Ex-B.2. Therefore, this
Court holds that the execution of Ex-B.2 - Gift Settlement Deed is proved.
Moreover, as this Court is to elaborate infra , the suit property would be
separate property in the hands of Veerappa. Hence, he is the competent
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person to challenge Ex-B.2 - Gift Settlement Deed if at all he has any
grievance or contention. There is nothing available on record to show that
Veerappa challenged the same during his lifetime. Veerappa passed away
in 1986. In these circumstances, the plaintiffs cannot question the same.
19. The next point to be decided is whether Ex-B.2 - Gift Settlement
Deed executed by remainderman - Veerappa and the life estate holder -
Unnamalaiammal, jointly in favour of first defendant - Ganga is valid or
not. To decide the same, first the character of the self-acquired properties
of Arunachala Chetty including the suit property as it would be in the
hands of Veerappa needs to be ascertained. At this point, it is pertinent to
cite the Judgment of Hon'ble Supreme Court in C.N.Arunachala Mudaliar
-vs- C.A.Muruganatha Mudaliar reported in AIR 1953 SC 495 [Coram
Strength =2], wherein Paragraph No.16 reads thus:
" 16. As the law is accepted and well settled that
a Mitakshara father has complete powers of
disposition over his self-acquired property, it must
follow as a necessary consequence that the father is
quite competent to provide expressly, when he makes a
gift, either that the donee would take it exclusively for
himself or that the gift would be for the benefit of his
branch of the family. If there are express provisions to
that effect either in the deed of gift or a will, no
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difficulty is likely to arise and the interest which the
son would take in such property would depend upon
the terms of the grant. If, however, there are no clear
words describing the kind of interest which the donee
is to take, the question would be one of construction
and the court would have to collect the intention of the
donor from the language of the document taken along
with the surrounding circumstances in accordance
with the well-known canons of construction. Stress
would certainly have to be laid on the substance of the
disposition and not on its were form. The material
question which the court would have to decide in such
cases is, whether taking the document and all the
relevant facts into consideration, it could be said that
the donor intended to confer a bounty upon his son
exclusively for his benefit and capable of being dealt
with by him at his pleasure or that the apparent, gift
was an integral part of a scheme for partition and
what was given to the son was really the share of the
property which would normally be allotted to him and
in his branch of the family on partition. In other
words, the question would be whether the grantor
really wanted to make a gift of his properties or to
partition the same. As it is open to the father to make a
gift or partition of his properties as he himself
chooses, there is, strictly speaking, no presumption
that he intended either the one or the other. "
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20. As it flows from the afore-cited Judgment of Hon'ble Supreme
Court, the nature of properties bequeathed under a Will in the hands of the
beneficiary thereunder depends on the intention of the testator. Thus, if
bequeath is intended for absolute enjoyment of the beneficiary, then it
would be separate property in the hands of the beneficiary; on the other
hand, if the intention is to partition the property or leave the property for
the benefit of not just the beneficiary but his branch as well, then the
property would be in the nature of joint family property in the hands of the
beneficiary. Coming to the facts of instant case, as elaborated above,
though life interest was granted, ultimate intention of the testator was to
bequeath majority of his self-acquired properties absolutely in favour of
his son - Veerappa in his individual capacity. It is clear that the bequeath
was not in his capacity of the head of the family. Therefore, the suit
property along with the other properties covered under Ex-A.1 - Will
would be separate property in the hands of Veerappa. In this regard,
reference may also be made to Judgment of Hon'ble Supreme Court in
M.P. Peria Karuppan Chettiar -vs- CIT , reported in (1975) 3 SCC 439 .
Relevant extract reads as hereunder:
" 12.Mr Desai further pointed out that the gift
was stated to be in favour of the donees and “their
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respective heirs, executors, administrators and
assignees” which, according to him, indicated that
really the object of the bounty were the sons as heads
of their respective families. We are unable to agree. It
is clear from the deeds that the donor's desire was to
transfer the properties to the three sons whom he
named and described as donees. It was not stated that
the donees would take the property as heads of their
family units. The use of the words “heirs, executors,
administrators and assignees” in the context in which
they appear, in our opinion, indicate on the contrary
that the gift was to the sons absolutely, the property
gifted being both heritable and alienable. There is
nothing in the two documents to suggest that the
interest transferred to the sons was limited in any way.
The surrounding circumstances also do not support
Mr Desai's contention. …"
21. So, the suit property would be separate property in the hands of
Veerappa. It is settled legal position that life estate holder and the
remainderman / vested remainder holder, in the absence of any other
interest / right holders, can together alienate the property covered under
Will. This settled legal principle could be derived from the doctrine of
estoppel. It could also be derived from the doctrine of feeding the grant by
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estoppel under Section 43 of the Transfer of Property Act, 1882, as per
which, though Veerappa being the remainderman / vested remainder holder
was yet to acquire title over the properties covered under Ex-B.2 - Gift
Settlement Deed including the suit property, the latter absolute title he
acquired upon the demise of the life estate holder - Unnamalaiammal
would operate to fulfill the transfer made by him under Ex-B.2. For ready
reference, Section 43 of the Transfer of Property Act, 1882 is extracted
hereunder:
"43. Transfer by unauthorised person who
subsequently acquires interest in property
transferred. - Where a person fraudulently or
erroneously represents that he is authorised to
transfer certain immovable property and professes to
transfer such property for consideration, such transfer
shall, at the option of the transferee, operate on any
interest which the transferor may acquire in such
property at any time during which the contract of
transfer subsists. Nothing in this section shall impair
the right of transferees in good faith for consideration
without notice of the existence of the said option.
Illustration
A, a Hindu who has separated from his father B,
sells to C three fields, X, Y and Z, representing that A
is authorised to transfer the same. Of these fields Z
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does not belong to A, it having been retained by B on
the partition; but on B's dying A as heir obtains Z.C,
not having rescinded the contract of sale, may require
A to deliver Z to him. "
22. Besides, as stated supra , the intention of the testator was to
handover his self-acquired properties in the hands of his son - Veerappa
absolutely, who was very young then, at the right time when he would have
presumably become more mature and responsible. At the time of Ex-B.2 -
Gift Settlement Deed, which was executed on February 26, 1975, Veerappa
was grown up, aged about 50 Years and married twice and his mother -
Unnamalaiammal attained old age. Hence, this Court is of the view that
Ex-B.2 - Gift Settlement Deed is not contrary to the intention of the
testator.
23. As regards the marriage between Veerappa and the first
defendant - Ganga, Ex-B.1 - Marriage Invitation shows that Veerappa
married the first defendant on February 11, 1973. Further, the recitals
contained in Ex-B.2 - Gift Settlement Deed, would show that the first
defendant is the second wife of Veerappa and daughter-in-law of
Unnamalaiammal. Ex-B.24 to Ex-B.26, which are birth certificates of the
three children of the first defendant, shows the father's name as Veerappa
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and mother's name as Ganga. Further, there are abundant evidence
available on record to show that the first defendant is the second wife of
Veerappa. There is Ex-B.4 - UDR Patta (original) issued in 1985 in respect
of the properties covered under Ex-B.2 including suit property, in favour of
first defendant referring to her as the wife of Veerappa. There are Ex-B.5 -
Patta Pass Book issued under the Tamil Nadu Patta Passbook Act, 1983
[Tamil Nadu Act 4 of 1986] and Ex-B.6 - Chitta which also similarly
stands in the name of first defendant as the wife of Veerappa. There are Ex-
B.8 to Ex-B.10, which are cultivation adangal records for Fasli Year 1396 -
1405, standing in the name of first defendant. Similarly, kist receipts in
Ex-B.13 to Ex-B.23 also stands in her name referring to her as wife of
Veerappa. These documents show that Ex-B.2 - Gift Settlement Deed was
acted upon and pursuantly she got into the possession of the suit property
and other properties covered thereunder. Further, even the plaintiffs have
only been evasive about the marriage between Veerappa and the first
defendant; they have not specifically denied the same. In these
circumstances, this Court is of the view that the marriage is proved.
Whether it is valid or not is a different question; it may be a void one.
Since the marriage is proved as stated above, Ex-B.2 - Gift Settlement
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Deed could be executed in favour of first defendant. Substantial Question
of Law No.(b) is answered accordingly in favour of the first defendant.
24. In these circumstances, this Court is of the view that Ex-B.2 -
Gift Settlement Deed executed by Veerappa in favour of his second wife /
first defendant in respect of the suit property and some more properties is
perfectly valid.
25. On the strength of Ex-B.2 - Gift Settlement Deed, first defendant
executed Ex-B.3 - Sale Deed dated September 25, 1996 in favour of the
second defendant. While Ex-B.3 is a certified copy, its original has been
marked as Ex-B.38. As Ex-B.2 - Gift Settlement Deed is perfectly valid,
the first defendant has every right to dispose of the property covered
thereunder including the suit property as per her desire. Hence, Ex-B.3 =
Ex-B.38 - Sale Deed in favour of second defendant is also perfectly valid.
Pursuantly, revenue records have been mutated in the name of second
defendant and they have been let in as evidence. These documentary
evidence prove possession and enjoyment of second defendant over the
suit property. Moreover, P.W.1 / second plaintiff in her evidence has
admitted the possession of second defendant over the suit property. In such
a scenario, the Suit as framed would not be maintainable.
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26. In view of the foregoing narrative, this Court finds that the
decision of the Trial Court in dismissing the Suit is correct. The First
Appellate Court failed to appreciate the settled legal position that life estate
holder and the remainderman / vested remainder can together validly
alienate the property covered under the Will, in the absence of interests and
rights of any other person, in the right perspective and erred in reversing
the Trial Court's decision. The Judgment and Decree of the First Appellate
Court are liable to be set aside and the Judgment and Decree of the Trial
Court are to be restored.
CONCLUSION:
27. Resultantly, the Second Appeal is allowed. The Judgment and
Decree of the First Appellate Court are set aside. The Judgment and Decree
of the Trial Court are restored. In view of the facts and circumstances of
this case, there shall be no order as to costs.
08-09-2026
Index : Yes
Speaking/Non-speaking order : Yes
Neutral Citation : Yes
JRS/GVN
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R.SAKTHIVEL J.
JRS/GVN
PRE-DELIVERY JUDGMENT MADE IN
S.A. No. 341 of 2008
08-09-2026
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