LAWS(MAD)-1992-12-48

DHANAPAL PILLAI Vs. PALANISWAMY PILLAI

Decided On December 21, 1992
DHANAPAL PILLAI Appellant
V/S
PALANISWAMY PILLAI Respondents

JUDGEMENT

(1.) (Prayer: Appeal against the Decree of the Court of the I Addl. Subordinate Judge, Cuddalore, dated 23.1.82 in Appeal Suit No. 198 of 1981 preferred against the decree of the Court of the Addl. District Munsif, Cuddalore dated 29.7.81 in Original Suit No. 1063 of 1979.) The plaintiff who has lost in both the Courts below has preferred this appeal. The Suit O.S. No. 1063 if 1979 on the file of the Additional District Munsif, Cuddalore, is for declaration of the plaintiff's alleged title to the suit property and for consequential injunction, or alternatively for partition of his 2/3rd share in the suit property, which is in extent of 66 cents in R.S. No. 700/4 out of a total extent of 78 cents therein. The plaintiff based his title on Ex. A6 dated 23.5.1979, a sale deed in relation to the suit property executed by one Vridhambal and her daughter Rani in favour of the plaintiff and according to the plaintiff, the said vendors under Ex. A6 got the property under a settlement deed Ex. B1 dated 21.12.1938 (registration copy of which is Ex. A1) executed by the 1st defendant, his father Murugesam Pillai and brother Manickam Pillai in favour of the said Vridhambal and Ram. Under the said Ex. B.1, the said Vridhambal was given life interest and after her lifetime, the remainder absolute interest went to the abovesaid daughter Rani. But, the case of the 1st defendant is that the said settlement deed Ex. B.1 is not valid since the property is a joint family property and cannot be gifted away. Regarding the character of the property gifted, there is no dispute and it is admitted that the property under Ex. B.1 was a joint family property belonging to the family of the 1st defendant, his said father and brother. Defendants 2 to 5 are only tenants.

(2.) THE Courts below have held that the contention of the plaintiff's Counsel that Ex. B.1 is not a gift deed, but only a pre-marital arrangement cannot be accepted. Ex. B1 recites that the property under Ex. B1 is given to the abovesaid Vridhambal, the second wife of the 1st defendant for her maintenance since the 1st defendant has taken a third wife. THErefore, the courts below have held that Ex. B.1 cannot be held to be a document executed in lieu of promise to marry the abovesaid Vridhambal and that is why, the Courts below have held that Srinivasan Padayachi v. Parvathi Ammal (62 L.W. 411) is not applicable to the present case.

(3.) THE abovesaid decisions 27 M.L.J. 485, I.L.R 40 Madras 1122 and A.I.R. 1936 Madras 967 = 44 L.W. 483 and also Kuppuswami v. Perumal (A.I.R 1964 Madras 291 D.B.) and T. Venkata Subbamma v. T. Rattamma (A.I.R 1987 S.C. 1775) support the abovesaid contention of the learned counsel for the appellant. No doubt, these decisions reiterate the principle that even where one coparcener makes a gift of the family property with the consent of all the Other than existing coparceners, the gift is valid. But, in the present case, no consent is necessary since admittedly all the then existing coparceners, viz., the 1st defendant, his father and brother were the excutants of Ex. A1 settlement. No doubt on the date of Ex. B1 one of the abovesaid persons viz., the 1st defendant's brother was a minor. But, he was represented by his natural guardian, and father, Murugesan Pillai. THErefore, there is proper representation of the abovesaid minor executant also. Further, the said minor also did not subsequently challenge the validity of Ex. B1 in so far as his share in the family property. No doubt the learned Counsel for the respondent argues that it is borne out by Ex. B2 mortgage deed executed by the 1st defendant in 1947 that a partition took place in 1944 between the 1st defendant and his abovesaid minor, brother, relating to the suit property and other properties and that the factum of the said partition would show that the abovesaid minor brother had impliedly challenged the settlement under Ex. B1 in so far as his share. I am unable to accept this contention. First of all no deed has been produced showing the abovesaid partition of 1944, though there is reference in Ex. B.2 about the factum of the above said partition thus: Tamil This only shows the factum of the abovesaid partition. Even regarding that, it is stated in Ex. B2 that the said partition was through unregistered written document. That apart, the recitals of the said written document is not known. While so it cannot be said that by virtue of the said partition, the abovesaid 1st defendant's brother challenged Ex. B.1 settlement in so far as his share in the suit property is concerned. THErefore, on this ground I have to hold that Ex. B.1 is valid.