P K MOHAN RAM Vs. B N ANANTHACHARY

JUDGEMENT

(1.) This is an appeal for setting aside judgment dated 27.2.2001 passed by the learned Single Judge of Madras High Court in Second Appeal No. 1090/1983 and Civil Miscellaneous Petition No. 8137/1983 whereby he reversed the judgments and decrees of the trial Court and the lower appellate Court and dismissed the suit filed by the appellant for partition of his 1/17 share in the suit property.

(2.) Shri K. Perumal Iyer, who owned the suit property, executed Settlement Deed dated 27.3.1969 in favour of the appellant, respondent Nos. 1 and 2 and 13 others and declared that from the date of execution he and the beneficiaries shall enjoy the land and house etc. without creating any encumbrance or making any alienation whatsoever. He further declared that during his life, he will collect the rental income from the land and house and after paying the municipal taxes, remaining income would be spent by him according to his choice; that after his death, the property shall be sold at the prevailing market price by all 16 beneficiaries and out of the sale proceeds, a religious trust should be created by paying Rs. 4,000/- to Devasthanam of Sri Prasanna Venkatesa Perumal in the office of the Saurashtra Sabha at Madurai for the purpose of taking out annual procession of Perumal in the sacred streets on Amavasai day in the month of Margazhi; that the honors of the temple should be bestowed upon beneficiary Nos. 1 and 2 and, after them, upon their heirs; that from the sale proceeds, the beneficiaries shall purchase an immoveable property of Rs. 4,000/- in the name of Balu G. Perumal Iyer Feeding Charities and all 16 trustees shall provide for feeding of his relatives on the day of the procession of the deity (Perumal) and that if there is delay in purchasing the immovable property, the beneficiaries shall be free to advance the money on interest for the purpose of generating income which could be used for feeding; that his last rites shall be performed by beneficiary Nos. 1 and 2 and all 16 persons shall together spend Rs. 2000/- from their personal funds for that purpose. The settlor also indicated that he had mortgaged the land and house to Ramaseshan and Co. vide Mortgage Deed dated 24.3.1969 for a sum of Rs. 1500/- which shall be redeemed by him and in the event of death before redemption, all 16 beneficiaries shall discharge the debt. The settlor further ordained that after deducting Rs. 8,000/- from the sale price, the balance amount should be divided into 17 shares of which beneficiary Nos. 1 and 2 shall take three shares and beneficiary Nos. 3 to 16 shall take one share each. If any one of 16 beneficiaries was to die before sale of the property, the remaining persons were to get absolute right to sell the property. The settlor finally recorded that he shall have no right whatsoever to cancel the 'Settlement Deed' for any reason whatsoever or alter the terms thereof.

(3.) Shri K. Perumal Iyer died on 4.12.1972. After his death, the appellant filed a suit (O.S. No. 626/1972) for appointment of receiver to carry out the directions mentioned in the 'Settlement Deed'. The trial Court decreed the suit, but on appeal, the High Court reversed the decree of the trial Court and dismissed the suit with an observation that the same shall not operate as res judicata against the fresh suit which may be filed by the plaintiff (appellant herein). After disposal of the appeal, the appellant filed O.S. No. 858 of 1979 for partition of his 1/17 share in the suit property and for grant of a declaration that in view of the negative covenant contained in the 'Settlement Deed', the settlor had no right to execute Revocation Deed dated 27.2.1970 or Will dated 30.7.1972. In the written statement filed by defendant Nos. 1 and 2 (respondent Nos. 1 and 2 herein), it was claimed that the appellant and his brothers and sisters obtained the 'Settlement Deed' by playing fraud and on discovery thereof, Shri K. Perumal Iyer executed 'Revocation Deed' and then executed the 'Will' whereby he bequeathed the property in their favour. They also pleaded that the suit filed by the plaintiff (appellant herein) is barred by Order II Rule 2 of the Code of Civil Procedure (CPC) because the earlier suit filed by him for appointment of receiver for carrying out the directions contained in the 'Settlement Deed' was dismissed by the High Court in A.S. No. 374/1974.