- (1.) This appeal is directed against the judgment and decree passed by the first appellate court in A.S.No.51 of 2002 (A.S.No.49 of 1998 of Sub-Court, Tindivanam) dated 18.6.2002 in reversing the judgment and decree passed by the trial court made in O.S.No.512 of 1994 dated 13.2.1998 in dismissing the suit. The appellants 1 and 2 herein were the defendants 2 and 3 and the respondents 1 and 2 were the plaintiff and the first defendant respectively before the trial Court. The appellants 3 and 4 are the legal representatives of the deceased second appellant. For convenience, the status of parties before the trial Court is adopted in this judgment.
(2.) The case of the plaintiff as stated in the plaint before the trial Court would be follows: The suit property belonged to the plaintiff. Originally, the suit property belonged to Boomi Achari. Boomi Achari died in the year 1972. The first defendant is the wife and the second defendant is the daughter of Boomi Achari. In respect of the suit property, Boomi Achari had executed a settlement in favour of the first defendant on 16.2.1965 which came into force after his death. The first defendant was given with life estate and the vested remainder was settled to the second defendant when she was minor. After the death of Boomi Achari, the first defendant became the guardian of the second defendant who was a minor. The first defendant is entitled to alienate the life estate to whomsoever concern and as a guardian of the second defendant, she can alienate the property for legal necessity and for the maintenance of the minor. The first defendant had executed a sale deed in favour of the plaintiff for discharging the outstanding mortgaged debt and also for the maintenance of the minor second defendant. The said sale deed executed by the first defendant in favour of the plaintiff would also bind the second defendant. If the second defendant wanted to question the execution of the said sale deed executed by the first defendant in favour of the plaintiff, she could have taken action within 3 years after attaining majority but the second defendant did not take any action and therefore, the alienation done by the first defendant has become absolute. The second defendant had encroached into the suit property in the year 1994 and even though, a notice has been sent by the plaintiff to hand over possession, the second respondent has neither handed over possession nor replied to the notice. Hence, the suit has been filed by the plaintiff for declaration of his title and for recovery of possession of the suit property, as he was the purchaser of the suit property .
(3.) The case of the defendants 2 and 3 before the trial Court as seen from the written statement would be as follows: The suit filed by the plaintiff is not maintainable. The settlement deed executed by the father, Boomi Achari was clearly intended that his wife / first defendant to enjoy the property till her life time and after her life time, the absolute right of the said property would devolve upon the second defendant. Therefore, the vested remainder on the second defendant when she was minor, cannot be disturbed by the first defendant, since Boomi Achari, father has expressly barred the alienation by the first defendant. Such settlement executed by Boomi Achari is known to the plaintiff and others. The sale deed executed by the first defendant in favour of the plaintiff did not come into force at any point of time, since the suit property was in continuous possession of the second defendant. The plaintiff was never found in in possession of the suit property. The plaintiff is not entitled for the relief asked for. Therefore, the suit has to be dismissed with costs.;