SUNDARARAJ Vs. R MANOHARAN

JUDGEMENT

(1.) The second defendant, who lost in both the courts below, is the appellant.

(2.) The case in brief is as follows:- The plaintiff filed a suit for declaration and directing defendants 1 to 5 to deliver possession of the property and also future mesne profits. The schedule mentioned properties originally belonged to one Chinnammal by virtue of a registered conveyance deed dated 27.05.1947 executed by Kumarasamy Chettiar. She was in actual possession and enjoyment of the properties and defendants 6 to 11 are tenants in a portion of the properties. The first defendant is the only son while defendants 3 to 5 are her daughters. The 2nd defendant is the son of the 1st defendant. The 1st defendant was given the ancestral house and it was sold by him. The fourth defendant was given a house in Salem, where she is living. Defendants 3 and 5 were left over without any property and Chinnammal out of her own free will and volition, executed a registered Will on 26.10.1977 giving the suit property to the plaintiff absolutely after her lifetime. There is a provision in the Will that the plaintiff is to pay a sum of Rs.6,000/= to the 3rd defendant. Later on a second thought Chinnammal wanted to execute a settlement deed in favour of the plaintiff and she cancelled the Will dated 26.10.1977 by the subsequent document dated 24.11.1977. On 24.11.1977 Chinnammal executed a registered settlement deed in favour of the plaintiff and he was looking after her in the old age. She had directed the plaintiff to take possession of the property after her lifetime. After taking possession, he has to pay Rs.6000/= to the 3rd defendant. Chinnammal also handed over the original documents with the plaintiff. The income tax authorities also levied a gift tax of Rs.500/= and it was paid on 18.02.1981. Chinnammal was seriously ill due to a road accident in July 1983 and the plaintiff admitted her in the hospital and taking care of her. In spite of the best efforts, due to the fracture of the bone, the doctors had given up the hope and she was brought to the house in a hopeless condition. Defendants 1 to 3 came temporarily to live with her. Fifteen days later the 1st defendant picked up quarrel with the plaintiff and his mother and sent them away from the house. Defendants 1 to 3 were in actual and effective control of her till her death on 10.11.1983. Most of the time she was unconscious and defendants 1 and 2 seem to have fabricated a Will said to have been executed by Chinnammal. She could not have executed any Will after the execution of the settleme4nt deed. After the death of Chinnammal, the plaintiff applied to the Municipality and got the property tax, water tax and electricity bills transferred in his favour. Hence the suit. Defendants 1, 2 and 4 filed a written statement and denied the various averments. They have already filed a suit in O.S.No.487 of 1983. The settlement deed dated 24.11.1977 was brought about by fraud, misrepresentation and deception. They were visiting the suit property when she was progressing after discharge from the hospital. Chinnammal was in a conscious state and was having good health. The execution of the Will dated 31.08.1983 is true. The plaintiff has no right in the property and the suit is also barred by limitation. The 3rd defendant filed a separate written statement. Admittedly Chinnammal out of free will and volition executed the registered Will on 26.10.1977 giving the suit prope4rty to the plaintiff absolutely. It is also true that on 24.11.1977 she executed the registered settlement deed in favour of the plaintiff with some conditions. It is also correct to state that Chinnammal was seriously ill due to the road accident in July and taking advantage of her hopeless condition, defendants 1 and 2 managed to get a fabricated document. A provision has been made for payment to her in the Will dated 26.10.1977 as well as in the settlement deed dated 24.11.1977. She is entitled to receive Rs.6000/= from the plaintiff. She undertakes to pay the necessary court fee for claiming her share. The plaintiffs in O.S.487 of 1983 filed a suit to set aside the settlement deed dated 24.11.1977. The suit O.S.639 of 1984 has been filed for declaration and recovery of possession. The trial court framed 4 issues and 2 additional issues in O.S.No.487 of 1983 and 6 issues in O.S.No.639 of 1984. Common trial was conducted and evidence recorded in O.S.No.487 of 1983 was treated as evidence in the other suit. The trial court dismissed the suit O.S.No.487 of 1983 and decreed O.S.No.639 of 1984. Aggrieved against this, the 2nd defendant in O.S.No.639 of 1984 preferred A.S.No.50 of 1988 on the file of District Court, Coimbatore and no appeal was filed in respect of dismissal of the suit in O.S.No.487 of 1983. The learned Judge after hearing the parties, dismissed the appeal and confirmed the judgment and decree in O.S.No.639 of 1984 under section 11 of Civil Procedure Code as no appeal has been preferred in the connected suit. Aggrieved against this, the 2nd defendant has come forward with the present second appeal.

(3.) At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Is the learned District Judge right in upholding the validity of the settlement in favor of the plaintiff purported to have been executed by the 1st defendant's grandmother, when the same is not a valid transfer as per the Transfer of Property Act ? (2) Is not the learned District Judge wrong in holding that the Will is not valid as the testator had already bequeathed her right under the settlement deed when the settlement deed itself is not valid and no right of the testator was transferred under this document ?