AMSAVENI Vs. T UMAPATHY

JUDGEMENT

(1.) This second appeal is directed against the judgment of the learned Subordinate Judge, Vellore, made in A.S.No.7 of 1992 affirming the judgment of the trial Court made by the District Munsif in a suit for declaration and permanent injunction.

(2.) The following facts are noticed in the pleadings of the parties: The plaintiff is the daughter of the first defendant through his wife Thulasiammal. On 24.8.49, the first defendant executed a settlement deed in favour of Thulasiammal, settling the suit properties in her favour absolutely for consideration of her giving consent to the second marriage, in advancement of her interest and for the benefit of her daughter, the plaintiff, who was minor that time. While executing the document, the first defendant stealthily introduced a clause, without the knowledge and consent of Thulasiammal, restraining her right to a life and vesting the remainder upon himself or in the alternative upon the male sons to be thereafter born to him. This clause was vitiated not only by fraud, but also by the provisions of law. The said Thulasiammal had pre-existing right of maintenance in view of his proposal to marry second time against law. She was put in absolute possession of the property, and hence, Sec.14(1) of the Act alone applies, and Sub Section (2) will not operate. The plaintiff had succeeded to the absolute title to the properties and was in possession and enjoyment of the same. She and her mother have perfected title by such adverse possession. Neither the first defendant nor his illegitimate sons can claim interest in them. At the time of execution of the settlement deed, the defendants 2 to 7 were not in existence. They were illegitimate children of the first defendant. While so, the defendants interfered with the plaintiff's possession, and hence, this suit.

(3.) The suit was resisted by the defendants stating that the settlement deed was made in favour of the first defendant's wife for a limited purpose; that it prescribed a restricted estate in the property in favour of the deceased Thulasiammal; that before the execution of the document, she had no pre-existing interest in the properties, and hence, Sec.14(2) of the Hindu Succession Act will only apply; that such a restricted estate will not be enlarged into an absolute estate under Sec.14(1); that after her death, the first defendant as the holder of the vested remainder, became entitled to the suit properties; that the plaintiff has no right, title or interest in the properties; that the defendants were in possession and enjoyment of the properties; that the plaintiff was never in possession; that neither the plaintiff nor her mother perfected title by adverse possession, and hence, the suit was to be dismissed.