ADHMARANI NACHIYAR Vs. KUMARAGURUBARAMANANDHAM

JUDGEMENT

(1.) THE plaintiffs are the appellants in the second appeal. THEy are challenging the concurrent findings of the courts below. THE facts which are necessary are shortly these: THE suit property originally belonged to one Muthuvel Nachiyar, who died in 1938. She had a son Chandrasekara Pandiyan and two daughters Mangaleswari Nachiyar and Sankareswari Nachiyar. As the property was anwadheyaka stridhana, it devolved on the two daughters mangaleswari Nachiyar and Sankareswari Nachiyar and the son did not take any share therein. Mangaleswari Nachiyar died on 11. 4. 1952 leaving her son the first defendant and daughter, the first plaintiff. Mangaleswari Nachiyar' s husband Sami Pandian had married Sankareswari Nachiyar also. That is, of course, not very material in this case. Sankareswari Nachiyar, under Ex. A-4, dated 5. 2. 1966, entered into a partition with the first plaintiff, who was then a minor, represented by her guardian Rajalakshmi. THE guardian was the sister of Sami Pandian, being the aunt of the first plaintiff. Under the partition, the suit property was allotted to the share of the first plaintiff. She executed a usufructuary mortgage in favour of the second plaintiff under Ex. A-6, dated 20. 7. 1976. Alleging that the first defendant had no right to the property, but he sold the same to the second defendant on 229. 1976 under Ex. B-3 and that the defendants were denying title of the first plaintiff and attempting to interfere with her enjoyment, the suit was filed by the plaintiffs for declaration of title and injunction.

(2.) THE plea raised in the written statement was that sankareswari Nachiyar could not claim the share of Mangaleswari Nachiyar after her death when the latter had two legal heirs. According to the defendants, the first plaintiff and the first defendant being the legal heirs of Mangaleswari nachiyar were entitled to the property and that the partition deed Ex. A-4 was a fabricated one and it was not true or valid in law. It was also alleged that the usufructuary mortgage under which the second plaintiff was claiming was not true and valid and not binding on the defendants. It was also the contention of the defendants that Mangaleswari Nachiyar died in June, 1956 and the first defendant became entitled to half share in the property by virtue of the provisions of the Hindu Succession Act.

(3.) LEARNED counsel submits that even assuming that the parties treated the document as a partition deed, it is open to the court to construe it as a family arrangement and hold that the first plaintiff obtained an interest in the property. I do not accept this contention. A similar question arose before the Supreme Court in Neelakantan v. Ve-1ayudhan,a. I. R. 1958 S. C. 832. The Supreme Court held that in a deed of release where it was stated that by reason of sarvaswadanam marriage, the appellants were entitled to all movable and immovable properties belonging to Illom and, therefore, the executant was executing the release deed conferring all the rights and claims they had obtained over the Illom properties of sarvaswadanam form of marriage, the document, in terms confers the pre-existing rights of the appellants and when in fact they had no pre-existing rights, the document does not confer any interest' to them. The principles laid down in the judgment of the Supreme Court would squarely apply to the present case. The partition deed proceeds on the footing that the first plaintiff had pre-existing rights in the property, but in fact the first plaintiff did not have any such right. Hence Ex. A-4 cannot confer any right on the first plaintiff as such.