S RAMASAMY Vs. RAMAN

JUDGEMENT

(1.) THE legal representatives of the first defendant in O.S. No. 802/81 on the file of the District Munsif Court, Villupuram, who came on record before the lower appellate Court namely, Sub Court, Villupuram in A.S. No. 79/85 on its file, on the death of the first defendant pending appeal, are the appellants in this Second Appeal.

(2.) RESPONDENTS 1 to 4 herein filed the said suit for declaration on the following averments: The suit property originally belonged to one Chinnammal. She had settled the suit property and other properties in favour of the second defendant one Iyyamperumal and Natesa Gounder on 2.9.1952 giving life interest to the settlees and vested remainder to the male issue of the settlees. The plaintiffs, who were the sons of one of the settlees were entitled to the suit property. The first defendant Narayanasamy who knew fully well about the existence of the settlement deed, got a sale deed executed by the father of the plaintiffs. The other defendants/defendants 2 to 5 were impleaded as per the statement of the first defendant Narayanasamy. There was no need for the plaintiff's family to alienate the suit property. The truth and validity of the sale deed executed by the father of the plaintiffs in favour of Narayanasamy were denied, Natesa Gounder had no power to alienate the suit property. The plaintiffs had issued a notice to the first defendant Narayanasamy on 25.7.1960. He had sent a reply containing false allegations.

(3.) THE next decision is Jugdeo Sharma v. Nandan Mahto (AIR 1982 Patna 32). In that case before the Patna High Court there was a stipulation in the gift deed that the gifted land would be held by the dones and after her death it would be held by her heirs generation after generation, but neither the dones nor her heirs would ever have the right of alienating the same either by way of sale, exchange or mortgage ate. It was father stipulated that in case the gifted land was alienated in any manner either by the dones herself or by the heirs of the dones then the effect of such alienation would be that the deed of gift would stand automatically cancelled and the donor would get the right to come in possession of the gifted property. THE learned single Judge of the Patna High Court held that Section 126 is a genera) Section which is controlled by Section 10 and therefore, Section 126 could not be read in isolation and has to be read with Section 10 which says that any stipulation completely restraining the dones from transferring the gifted property is void and therefore, the gift deed would not stand cancelled due to the alienation of the gifted land as the stipulation in the gift deed restraining alienation was void in view of Section 10.