Decided on November 23,1970

A.M. Natesa Mudaliar Respondents


Ganesan, J. - (1.) THE suit out of which the appeal arises was instituted in forma pauperis by the appellant Saradambal Ammal for a declaration of her title to the suit house and for recovery of possession of the same from the respondent -defendant, Thiru Natesa Mudaliar, with past and future profits.
(2.) IT is not disputed in appeal that the appellant is the legally wedded wife of one Mottayan, that the said Mottayan is still living and that she has two sons out of the said union. She was admittedly living as his permanent concubine, with the respondent in the latter's house from the year 1946; nor is it disputed that, on 16th May, 1951, the respondent settled the house on the appellant by means of a registered settlement, copy of which is Exhibit A -1 and that, subsequently on 5th August, 1960, a rectification deed styled as a release deed (registration copy I Exhibit A -3) was executed in her favour by the respondent as well as Thiru Palaniswami from whom they respondent had purchased the property. It is also seen that the respondent had cancelled the settlement deed by a deed of revocation (registration copy Exhibit A -5) dated 27th March, 19613a after the appellant had left him. The appellant's case in the plaint was that the settlement deed in question was executed by the respondent in her favour out of natural love and affection that the respondent put her in possession of the suit house immediately thereafter, that she had been enjoying the said, house by paying taxes and other public dues and that, subsequently, she built in the rear portion of the backyard by spending her own moneys and that, when she mortgaged the suit house with the Go -operative Urban Bank Limited, Tiruvannamalai, the respondent acknowledged the title by attesting the deed of mortgage. The rectification deed also contains as acknowledgment by the respondent of her title and it was she who paid the consideration to the original owner Palaniswami for the rectification. When misunderstanding arose between her and the respondent in the year 1961, the respondent drove her out of the house as she refused to reconvey the property to him. The deed of revocation is illegal and is of no consequence and she continues to be the owner of the suit property by virtue of the deed of settlement.
(3.) THE suit was resisted by the respondent on various grounds. The settlement deed in question was a sham and nominal document not intended to be and was not in fact acted upon. The respondent continued to be in possession and enjoyment of the house in his own right after the settlement, paying taxes etc. There was no transfer or divestment of title or possession. The suit property is the joint family property belonging to him and his son Jawahar, having been purchased with joint family funds and the settlement deed is therefore invalid. The settlement is illegal, void and opposed to law, public policy and morals, as it was executed in consideration of the adulterous living of the appellant with the respondent and on condition of her agreeing to continue her immoral adulterous life with him till the end of her life. The purpose and object for which the settlement was executed was illegal and opposed to public policy and the transaction is therefore void, unenforceable and a nullity. After the settlement, the respondent effected improvements to the suit house, built the first floor and put up a terraced construction on the vacant portion of the backyard of the house with his own moneys; he had spent more than a sum of Rs. 10,000 towards that purpose. The appellant had no means of her own and the borrowings from the Cooperative Urban Bank Limited, were done by the respondent and the money was taken by him for his own business. It was the appellant who left the house stealthily and was living since then with her paramour Dakshinamoorthy. By way of abundant caution, the respondent had revoked the settlement deed and the appellant has no title to the property. In any event, the appellant is not entitled to recover possession without paying the respondent the sum of Rs. 10,000 spent by him on the improvements and additions to the house.;

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