RATHINAMMAL Vs. SUGANTHIRI

JUDGEMENT

(1.) THE defendants in the suit are the appellants.

(2.) THE case in brief is as follows: THE plaintiff filed a suit for declaration and recovery of possession with mesne profits. One Kasiappa Gounder had two wives, namely, Marathal and Kannammal alias Subbathal (1st defendant). THE plaintiff is the only daughter of Marathal. Defendants 2 to 4 are the children of the 1st defendant. Kasiappa Gounder died in January, 1974 and Marathal died in July, 1974. On 30.6.1956 Kasiappa Gounder settled the property in favour of Marathal and she was given the right to enjoy the property and thereafter, the legal heirs of Kasiappa Gounder can enjoy the property and Marathal has no right to either mortgage or sell the property. Possession of the property was also given to Marathal. She had a pre-existing right in the property for maintenance and after the passing of Hindu Succession Act, it gets enlarged and she became the absolute owner of the property. However, with a mala fide intention, Kasiappa Gounder executed the sale of the property in favour of one Palaisamy Gounder, brother of the 1st defendant and the husband of the 5th defendant; but possession was not given to him. THE defendants attempted to trespass into the property and hence the suit.THE defendants contended that the plaintiff has to prove that Kasiappa Gounder executed a maintenance deed on 30.6.1956 in favour of Marathal. He did not execute any settlement deed in her favour and in any event, it has not come into force and it was never acted upon. Marathal was also not put in possession of the property. Kasiappa Gounder has got every right to execute sale deed in favour of Palanisamy Gounder. Possession was also given to him in pursuance of the settlement deed. Although Marathal was aware of the same, she never objected. Palanisamy Gounder and the legal heirs were in possession and enjoyment of the property and they have also prescribed title. THE trial Court framed 3 issues and on behalf of the plaintiff. P.Ws.1 and 2 were executed and Exs.A-1 and A-2 were marked and on the side of the defendants, the 5th defendant alone was examined as D.W.1 and Exs.B-1 to B-35 were marked. THE trial Court dismissed the suit and aggrieved against this, the plaintiff preferred A.S. No.65 of 1989 on the file of Sub Court, Udumalpet and the learned Judge after hearing the parties allowed the appeal, set aside the judgment and decree of the trial Court and decreed the suit in favour of the plaintiff and aggrieved against this, the defendants have come forward with the present second appeal.

(3.) IT is admitted that the property originally belonged to Kasiappa Gounder and he had two wives, namely, Marathal, the 1st wife and the 1st defendant, the 2nd wife. The plaintiff is the only daughter of Marathal, and defendants 2 to 4 are the children of the 1st defendant. Defendants 5 to 9 are the legal heirs of deceased Palanisamy Gounder. Ex.A-1 dated 30.6.1956 was the settlement deed executed by Kasiappa Gounder in favour of Marathal, was in possession and enjoyment of the property till her death in July, 1974. However, Kasiappa Gounder alone agreed to pay house tax for the property. No doubt, in Ex.A-1 there is recital to the effect that Marathal, is entitled to enjoy the property till her lifetime and she had no power of alienation and ultimately on her demise, the property will devolve on the legal heirs. IT is stated by the plaintiff that Ex.A-1 was executed by Kasiappa Gounder in lieu of maintenance to Marathal on 30.6.1956 and after the passing of Hindu Succession Act, her right got enlarged and she became the absolute owner of the property.