N. RAMASWAMY NAICKER AND ORS. Vs. V.G. RAMASWAMY NAICKER AND ORS.
LAWS(MAD)-1977-1-42
HIGH COURT OF MADRAS
Decided on January 12,1977

N. Ramaswamy Naicker And Ors. Appellant
VERSUS
V.G. Ramaswamy Naicker And Ors. Respondents

JUDGEMENT

A. Vardarajan, J. - (1.) The Plaintiffs who succeeded in the trial Court, but lost in the lower appellate Court are the Appellants They are the son, wife and daughter of one Narayanaswamy Naicker who died in 1969. They filed the suit for a declaration that the maintenance deed exhibit A -1, dated 17th February, 1905 executed by Narayanaswamy Naicker in favour of one Sayammal the window of his brother Venkitaswamy Naicker was not valid and binding on them, for a declaration that the subsequent sale deed exhibit A -3, dated 31st August, 1959 executed by Sayammal in favour of the first Respondent first Defendant in respect of the suit properties is not valid and binding on them and for recovery of possession there of with past profits at Rs. 500 per annum and future mesne profits at Rs. 250 per annum.
(2.) The suit properties have been described in Schedule A and B. The description of the property in the A Schedule is as per the document exhibit A -1, while the description in Schedule B is as per the re -survey and the sale deed exhibit A -3. The suit properties are 6.11 acres, made up of 3.49 acres in Survey No. 159/2 and 2.62 acres in Survey No. 1641 of Vadapalli village, Palladam Taluk. The second Respondent second Defendant said to be a trespasser is alleged to be in possession of the suit properties after the death of Sayammal on 17th October, 1967. The third Respondent -third Defendant is said to be a mortgagee of the properties originally belonged to one Gangn Naicker and subsequently to his two sons, Venkitaswamy Naicker and Narayanaswamy Naicker who inherited the same prior to 1905. Venkitaswamy Naicker died prior to 1905 leaving behind his wife Sayammal and his daughter Krishnammal. After the death of Venkitaswamy Naicker his brother Narayanaswamy Naicker executed the maintenance deed exhibit A -1 in favour of Sayammal and Krishnammal conferring maintenance right in the properties in favour of Sayammal and an absolute estate on Krishnammal who was then minor. On the same day, Sayammal executed the counter document exhibit A -2, acknowledging the document exhibit A -1 and the receipt of possession of the properties in pursuance thereof. Krishnammal died unmarried in or about 1917 or 1919. The case of the Appellants was that under exhibit A -1 Sayammal had only a right to enjoy the properties for life and it did not get enlarged as per the provisions of Sec. 14(1) of the Hindu Succession Act, 1956(Act XXX of 1956) here in after referred to as the Act. and she had therefore no right to execute the sale deed exhibit A -3 in favour of the first Respondent. It was further contended that Narayanaswamy Naicker had a son Subba Naicker and therefore, he had no right to execute the document exhibit A -1 in respect of the joint family properties and that he had been made to execute exhibit A -1 by under Influence of Sayammal 's sister and her husband. The defence was that Krishnammal had a vested right in the properties and on her death in 1917 or 1919 Sayammal inherited the properties as her heir and even if Sayammal had a right to maintenance, her right got enlarged under the Hindu Succession, Act.
(3.) Both the Courts below found that it has not been proved that Narayanaswamy Naicker had a son Subba Naicker and that there was an undue influence on Narayanaswamy Naicker for the execution of exhibit A -1. The trial Court found that Sayammal had merely a right to enjoy the properties for her maintenance under exhibit A.1, that her daughter Krishnammal had not acquired any absolute Interest in the properties as she predeceased her mother and, therefore, Sec. 14(2) of the Act applied and not Sec. 14(1) and therefore exhibit A -3 executed by Sayammal was not valid and binding on the Appellants. On these findings the trial Court decreed the suit as prayed for, namely, for declaration and possession with past mesne profits at Rs. 500 per annum and future mesne profits at Rs. 250 per annum. But on appeal it was found that Krishnammal had a vested right in the properties and that on her death, her mother Sayammal had become the absolute owner of the properties and therefore the sale deed exhibit A -3 was valid and binding on the Appellants.;


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