VENKATESA MUDALIAR Vs. N KRISHNASWAMY MUDALIAR TRUST VELLORE

JUDGEMENT

(1.) THE respondent herein instituted the suit, which has given rise to this Second Appeal for a declaration of its absolute ownership of the suit property and for injunction restraining the appellants from interfering with the possession and enjoyment of the said property. THE claim of the respondent is based on a deed of settlement executed by one Chandrasekaran on 1.11.1975 (Ex.A-2) gifting an extent of 1.40 acres in Survey Number 152 in Allapuram Village, Vellore Taluk, North Arcot District which is the subject matter of the suit.

(2.) IT is not now in dispute that the suit property and some other properties were bequeathed by V.Kothandarama Mudaliar, the grand father of the plaintiff's donor under a Will dated 15.11.1937 (Ex.A-1) in favour of his son Nataraja Mudaliar and grandson Chandrasekaran. According to the plaintiff, Nataraja Mudaliar got a life estate without any power of alienation and Chandrasekaran had the vested remainder. IT was stated in the plaint that the sale by Nataraja Mudaliar in favour of the first appellant's father by name Choolai Sabapathi Mudaliar on 30.9.1943 under Ex.B-6 was not valid or binding on Chandrasekaran. Nataraja Mudaliar had no right, according to the plaintiff, to sell the property and there was no necessity for such a sale. IT was stated in the plaint that Chandrasekaran ignored the sale deed as it was not binding on him, and there was no necessity to set aside the same. IT was alleged that possession was always with the plaintiffs donor and at the time of the settlement deed, it was handed over to the plaintiff. The plaintiff alleged that appellants 2 to 4, who purchased portions of the suit property from the first appellant and the fifth appellant, who purchased a portion from the second appellant, were not in possession. Appellants 1, 6 and 7 are brothers, being the sons of the purchaser from Nataraja Mudaliar. The second appellant has purchased on extent of 4 cents on 22.11.1972 under Ex.A-11 from appellants 1, 6 and 7. The third appellant has purchased an extent of 4 cents from appellants 1, 6 and 7 under Ex.A-12 dated 26.11.1972. The fourth appellant has purchased an extent of 4 cents from appellants 1, 6 and 7 under Ex.A-10 dated 17.11.1972. The fifth appellant is a purchaser from the second appellant under Ex.A-13 dated 17.2.1973.

(3.) THUS, the only question which has to be considered by this Court is whether the plaintiff is entitled to have a decree declaring its title to the suit property. It is contended by learned counsel for the appellants that under Ex.B-6 dated 30.9.1943, Nataraja conveyed not only his interest in the property, whatever it may be, but also the interest of his minor son Chandrasekaran as his guardian. According to learned counsel Chandrasekaran ought to have repudiated the transaction within a period of three years from the date of his attaining majority and as he has not done so, the plaintiff claiming under a settlement deed dated 1.11.1975 executed after the right of Chandrasekaran to take action was barred by the law of Limitation,was not entitled to maintain the suit. Itwas also contended that by the conduct of the plaintiff before the institution of the suit in moving the Government to acquire the property under the provisions of the Land Acquisition Act, admitting the ownership of the appellant's in the said property the plaintiff was estopped from denying the title of the appellants in these proceedings. Per contra, learned counsel for the respondent contended that the subject matter of the sale in favour of the first appellant's father was only the life interest of Nataraja Mudaliar and there was no necessity for his son Chandrasekaran to set aside the transaction or repudiate the same within a period of three years after attaining majority. It is also contended that Chandrasekaran's right to recover possession would arise only on the death of his father Nataraja Mudaliar and as he was alive on the date of suit and even at the time of the filing of the second appeal, the suit was not barred by limitation. Learned Counsel also submitted that there was an embargo in the will of Kothandarama Mudaliar on any alienation by Nataraja and the transaction was therefore, void and did not require to be set aside. It is also argued that by the execution of the settlement deed, Chandrasekaran avoided the transaction and the said avoidance dated back to thedateof alienation viz. 30.9.1943 and there was, therefore, no need for the plaintiff to set aside the sale.