SAROJINI AND ORS. Vs. NANJAKKAL AND ORS.

JUDGEMENT

(1.) The plaintiffs, who are the appellants in A.S. No. 52 of 1994, filed this Second Appeal against the reversing judgment of the lower appellate court. During the pendency of this appeal the first appellant died and her legal heirs were impleaded as the fourth appellant and third respondent. The dispute raised in the suit is between the grand children through daughter and the daughter-in-law Nanjakkal through son of one Veerabathra Gounder, who was admittedly the original owner of the suit property. Veerabathra Gounder had two wives by names Karimari and Samakkal and one son by name Subbaiyan through his first wife Karimari and one daughter by name Nanjakkal through second wife Samakkal and the first wife predeceased Veerabathra Gounder and he married the second wife after the death of the first wife. While the son married one Nanjakkal, the daughter having the same name, married one Erianna Gounder and gave birth to the plaintiffs by names Sarojini, Rani and Govindarajan. Veerabathra Gounder died on 26.6.1937, leaving behind him, his second wife, son and daughter. The son Subbaiyan died on 30.5.1940 leaving behind his widow Nanjakkal Step mother Samakkal and Step sister Nanjakkal. As the suit property is agricultural land, on the date of death of the original owner Veerabathra Gounder in 1937 and his son in 1940, either of the female heirs i.e., second wife/Samakkal, daughter-in-law/Nanjakkal and daughter/Nan-jakkal got no preexisting right over the same. However, dispute arose between Veerabathra Gounder's second wife Samakkal and daughter-in-law Nanjakkal regarding the enjoyment of the same and both of them entered into a settlement in the presence of panchayathars and the same was reduced into writing by way of Muchalika under Ex. A6 agreement dated 5.8.1953. As per the terms of the same, the second wife Samakkal and the daughter-in-law Nanjakkalwere allotted 'A' and 'B' schedule respectively for enjoyment through personal cultivation without any right of alienation or without any right to create any encumbrance. In pursuance of the same, the parties had been in possession and enjoyment of the specific extent allotted to them.

(2.) The second wife Samakkal died on 11.2.1957, leaving behind her only daughter Nanjakkal, who died on 6.3.1979 leaving behind the plaintiffs. The suit came to be filed by the LRs of daughter Nanjakkal alleging an attempt on the part of the first defendant daughter-in-law Nanjakkal to convey the property to the second defendant and the suit reliefs claimed are suit for declaration that the plaintiffs are absolutely entitled to the property, after the life time of the first defendant and for consequential relief of permanent injunction restraining the first defendant from alienating the suit property or otherwise encumbering it in any manner. It is the case of the plaintiffs that the first defendant has no pre-existing right de hors the family arrangement and she is conferred the right to enjoy the property only under Ex. A6 family arrangement and the right so conferred on her is restricted one without any right for alienation or encumbrance and on her death the property shall revert back to the legal heirs/grand children.

(3.) The suit relief was seriously resisted by the defendants by denying any panchayat and execution of any document in the form of settlement between the parties on 5.8.1953. According to the first defendant, after the death of Veerabathra Gounder, her husband Subbayan became the owner of entire extent and on his death, she became the absolute owner of the same and she has every right to deal with the same as absolute owner.