S SUKUMAR Vs. S GOPAL

JUDGEMENT

(1.) The short point for consideration in the appeal is as to the scope of Ex.A-1, which is a settlement deed executed by one Seshachala Chetty, the grandfather of the plaintiff and the second defendant, and father of the first defendant. Under the said document, he gave absolute rights in favour of his wife and in case, during her life time she did not alienate or deal with the property, his grandsons through his two sons would have to take the property equally. The document further provided that in case the second son Gopal, who is the first defendant in the suit, had no issue whatsoever, he should be allowed to live in 123, Audiappa Naicken Street, George Town, Madras, for his life time and further the settlee should allow her daughter Saraswathi to enjoy two rooms in any of the houses free of rent for her life time.

(2.) The plaintiff/appellant filed the suit for declaring that he is entitled to an undivided half share in the suit property bearing Door No.129, Audiappa Naicken Street, Madras-600 001; consequent direction to the first defendant to hand over possession of two rooms in the second floor portion of the said premises without any rent or hindrance; directing the third defendant to put the plaintiff in possession of the western shop portion of the ground floor of the premises on the ground of own use and occupation; directing the fifth defendant to pay the plaintiff and the second defendant a sum of Rs.6660/- towards arrears of rent for the period 1-11-1979 to 30.11.1982 with subsequent interest at 6% per annum from the date of plaint till realisation; to direct the fifth defendant to put the plaintiff in possession of the eastern portion in the ground floor of the premises on the ground of wilful default in the payment of rent; and to direct defendants 3 to 5 to pay the cost of the suit.

(3.) According to the plaintiff, the suit property originally belonged to his grandfather Sooraseshachalam Chetty; he executed a deed of settlement dated 10-3-1959 in respect of the suit property and another property bearing Door No.13, Manikanda Mudali Street, Madras-1, in favour of his wife Soora Lakshmanamma @ Varalakshmiammal, grandmother of the plaintiff and the second defendant; she was granted absolute powers to alienate the property in any manner she might desire; however, it was provided in the settlement deed that if the property was left unalienated by her, the settlor should enjoy the income from the property for his life time and after the life time of the settlor and the beneficiary, the remaining properties if not alienated by then, would go to the plaintiff, the second defendant and any son that might be born to their son Ramachandra Chetty and also the sons of the first defendant in equal shares with full powers of alienation; (The other details have already been set out.); the settlee was in possession and enjoyment of the suit property and the other property; she sold the other property and at the time of her death on 2.5.1978, only the suit property was available; the settlor pre-deceased his wife; the father of the plaintiff and the second defendant Ramachandra Chetty died on 4-4-1982; as per the terms of the settlement, the plaintiff and the second defendant alone were entitled to the suit property and the first defendant had no right whatsoever to claim any interest in the suit property except the right of residence till his death; defendants 3 to 5 were the original tenants under the settlor. It is not necessary to notice the details of the pleadings relating to defendants 3 to 5. Suffice it to say that the plaintiff and the second defendant took rent control proceedings against defendants 3 and 5 and by order dated 14-11-1979 the learned Rent Controller dismissed the petition holding that there existed some bona fide doubt as to the persons entitled to receive the rent from the tenants. By the same order he allowed the application filed by the third defendant for deposit of the rent in default. As per the terms of the settlement deed, the plaintiff and the second defendant are alone entitled to the suit property. The first defendant stealthily took over two rooms in the second floor, with the result, the plaintiff and the second defendant were greatly handicapped. In these circumstances, the suit came to be filed.