A. K. Mathur, J. - (1.) This appeal is directed against an order passed by learned single Judge of the High Court of Madras in Second Appeal No.1866 of 1986 on November 19, 1998 whereby learned single Judge affirmed the judgment and order of the First Appellate Court and dismissed the second appeal filed by the appellant herein.
(2.) Brief facts giving rise to this appeal are as follows. The plaintiff-respondent instituted Original Suit No.8182 of 1980 before the XVIth Assistant Judge, City Civil Court, Chennai praying for seven reliefs. The main reliefs prayed for in the suit read as under: "(i) Declaring that the plaintiff is entitled to the properties in plaint A and B Schedule absolutely after the life time of the 1st defendant; (ii) For a declaration that the deeds of revocation dated 27-3-1979 registered as document Nos.431 and 432 of 1979 in the office of the Sub-Registrar, Madras in respect of properties described in Schedules A and B hereunder are void in law and not valid and binding on the plaintiff; (iii) For a declaration that the deeds of settlement dated 30-3-1979 executed by the 1st defendant in favour of defendants 2 and 3 in respect of plaint A and B schedule properties are void in law and are not valid and binding on the plaintiff; (iv) For a declaration that the deed of mortgage dated 29-9-1979 executed by defendants 1 to 3 in favour of 4th defendant in respect of the plaint A and B Schedule properties are not valid and binding on the plaintiff; (v) Directing the defendant to render true and correct account of the rental income from the properties described in the Schedules A and B and to pay over the half share payable to the plaintiff;" According to the plaintiff in the suit, schedule properties A and B belonged to one Late Manicka Mudaliyar, the husband of the first defendant. That the said Manicka Mudaliyar died in or about 1963 leaving behind Kokilambal, the first defendant as his sole legal heir. Since the deceased Manicka Mudaliyar had no issue, he showered his love and affection to his elder sisters son Varadan and had a mind to adopt him but before he could do so, he expired. Keeping in view the wishes of her deceased husband, Kokilambal got all the last rites performed through Varadan. Kokilambal, the wife of deceased Manicka Mudaliyar made settlement on June 2, 1963 of A schedule property in favour of Varadan while reserving her right and interest therein. Similarly, she also made a settlement on June 27, 1964 in respect of B schedule property and executed a deed of settlement in favour of Varadan. By virtue of these two settlement deeds, settlor Kokilambal stipulated certain terms and conditions (reference shall be made hereinafter). Varadan who was a bachelor executed a will on May 22, 1978 in respect of his other properties other than those properties which were received by him from Kokilambal by way of settlement in favour of his brother (Plaintiff). But Varadan died as a bachelor on February 1, 1979. On March 27, 1979 the settlor, Kokilambal revoked both the settlement deeds in favour of Varadan and she executed a fresh settlement deed in favour of one Babu @ Pilani and Shantha @ Shanthi, the wife of Babu. Shanti was the daughter of Kokilambals brother. Thereafter, Varadans brother, N. Raman filed a suit to declare that he is entitled to the suit properties after the death of Varadan and sought a declaration that the revocation of settlement deed made by Kokilambal on March 27, 1979 be declared as null and void and likewise the fresh deed of settlement executed by Kokilambal on March 30, 1979 in favour of Defendant Nos. 2 and 3 i.e. Babu and Shanthi be declared void in law. The suit was dismissed by the trial court. The plaintiff preferred an appeal before the first appellate court which decreed the same. Against that an appeal was preferred by the appellant and the same was also dismissed by the impugned judgment of the High Court in second appeal on November 19, 1998. Aggrieved against this order dated November 19, 1998, special leave petition was filed and on grant of special leave this appeal has come up for disposal before us.
(3.) The basic question which calls for consideration is what is the effect of the earlier two settlements made by settlor Kokilambal in favour of deceased Varadan; and whether by virtue of that settlement deceased Varadan became the absolute owner and after his death whether Kokilambal reserved her right to revoke the settlement or not In order to appreciate the contents of the settlement of the suit schedule properties i.e. A and B it would be necessary to reproduce the recitals in the settlement deeds (A-1 and A-2) which read as under : "Since we did not beget issues, even during my husbands life time he brought up Varadan, the younger son of his elder sister viz., Kuppammal, as his own son. He (my husband) suddenly passed away. Even during his life time he has decided to take Varadan as an adopted son. I have also decided to act according to his wishes and hence, I performed the last rites of my deceased husband through Varadan. Due to the love and affection that I have towards Varadan, I intend to make an arrangement for him, and hence I executed and delivered this Deed of Settlement. This income derived from out of the under-mentioned Schedule property viz., Door No.43, Kakkaran Basin Road, shall be enjoyed by myself and Varadan, till my life time. After my demise, the house, more fully described in the schedule, shall be enjoyed by Varadan absolutely. From now on, the aforesaid Varadan himself, shall collect the rental income of the aforesaid House and pay the corporation and land tax, repairs etc., and the reminder rental amount shall be enjoyed by me and Varadan in moiety. Hereafter, I have no right to alienate the property. But, both of us have right to alienate the same jointly." ;