N A MOHAMMAD KASIM Vs. SULOCHANA

JUDGEMENT

(1.) In this civil appeal the appellants, who are original defendants 1 and 2 in Original Suit No. 52/63 in the Court of the Subordinate Judge, Kumbakonam, have brought in challenge the decision rendered by learned single Judge of the Madras High Court v. Ramaswami, J. in Second Appeal No. 195/69 which was allowed by the learned Judge and the suit of the respondent-plaintiffs 1 and 2 was decreed.

(2.) A few relevant facts leading to this appeal deserve to be noted at the outset. Respondents 1and 2 filed the aforesaid suit for a declaration that two sale deeds executed by respondent. No. 3 herein who was father-in-law of plaintiff No. 1 and grand father of plaintiff No. 2 were null and void and not binding on the plaintiffs. Those sale deeds were executed by defendant No. 3 in favour of the present appellants who were original defendants 1 and 2. The contention of the plaintiffs was that a trust was created in favour of the plaintiffs by defendant No. 3 in connection with the suit lands and in breach of that trust defendant No. 3 had sold the lands to the defendant-appellants 1 and 2. For the sake of convenience we shall refer to the parties as original plaintiff and defendants. The first plaintiff is the wife of the fourth defendant and the second plaintiff is the daughter of the first plaintiff and defendant No. 4. The marriage between the first plaintiff and the fourth defendant took place some time in April, 1995. The fourth defendant was considered to be wanting in worldly wisdom and fickle minded. Even before the marriage was settled the sixth defendant who is the father of the plaintiff required the third defendant who is the father of the fourth defendant to settle substantial portion of the properties on the fourth defendant and the first plaintiff if he were to give his daughter in marriage to the fourth defendant. The third defendant agreed and the marriage was settled. After the marriage finding that the third defendant was not settling the properties as agreed to earlier, the sixth defendant was taking all steps to persuade defendant No. 3 to settle properties for the first plaintiff as promised. The first three items of the plaint schedule which were wet land in Uller vattam of Thanjavur District which belonged to the third defendant were in the possession and cultivation of the sixth defendant. Since the third defendant had not settled any property on the first plaintiff as promised to the sixth defendant he appeared to have set up certain claims as against the third defendant as cultivating tenant in respect of these lands in his possession. Thereafter the third defendant filed a petition before the Revenue Court against the sixth defendant for eviction and recovery of possession. In these eviction proceedings, they filed what is termed a memorandum of compromise. As required by one of the clauses in this agreement defendants 7 and 8 were appointed as power of attorney agents by the third defendant for the purpose of selling the suit lands and carrying out the directions as contained in the document. Though this power of attorney was specifically mentioned as non-revocable the third defendant by registered notice dated 4-9-59 revoked the power of attorney. Therefore on 24-10-59, he executed two sale deeds conveying the suit lands in favour of the first and the 3 second defendants. The suit was filed on the ground that the compromise memo filed in the Revenue Court treated a trust in respect of the first and the second defendants. The suit was filed in the Revenue Court treated a trust in respect of the suit lands conferring a beneficial interest on the plaintiffs and that therefore the third defendant had no right to sell the same and any such sale executed by him was void and inoperative.

(3.) The case of the contesting defendants, present appellants, was that no trust was created in favour of the plaintiffs by the said compromise and power of attorney. Consequently, the sale deeds in their favour were not invalid or inoperative in law. The trial Court as well as the appellate Court construed the memorandum of compromise and the power of attorney had took the view that no trust was created by these documents in favour of the plaintiffs and hence the suit was dismissed. In second appeal taken out by the plaintiffs, as noted earlier, the learned Judge took a contrary view. According to the learned Judge the intention of the parties was that the third defendant shall not claim full ownership in respect of one half of the suit lands and that should be given for the benefit of the fourth defendant and the first plaintiff. The memorandum of compromise and the power of attorney executed read together established that the third defendant was holding one half of the suit land as and from the date of memorandum of compromise only as a trustee for the benefit of the fourth defendant and his wife the first plaintiff. It was further held that on the terms of the agreement all the requirements of Sections 5 and 6 of the Indian Trusts Act were satisfied. In the result the second appeal was allowed. The decrees and judgments were set aside and the suit was decreed as prayed for but without costs.