VELUSWAMI THEVAR Vs. GANESA THEVAR AND OTHERS

JUDGEMENT

(1.) The first defendant is the appellant. The Emit was filed by the plaintiff for declaration of his title and for recovery of possession. The suit property was purchased by one Angammal as guardian for her minor son Muniyandi on 29th May, 1907. Muniyandi predeceased his mother and she executed a gift deed over the property on 25th April, 1952 in favour of her daughter-in-law Nachiarammal In the gift deed there is a reference to a daughter having been born through Muniyandi and Nachiyarammal. This daughter is named Rajammal, who was the third defendant in the suit. There can be no dispute about the fact that Nachiyarammal bad only a widow's estate in the said land until the coming into force of the Hindu Succession Act, as the gift document by Angammal, who had no rights in the Property, could not enlarge Nachiyarammal's interest until it was enlarge by the statute. Nachtarammal executed a settlement deed or, 1st June, 1956 In favour of one Veluswami Thevar, who was the first defendant in the suit, and who is the appellant herein and also one minor daughter, Rajammal. This Veluswami Thevar is a cousin of Nachiyarammal who, after her husband's death sometime in or about 1952 had been looking after the family consisting of Nachiyarammal and her daughter Rajammal. It is stated in the document that Veluswami should marry Kajammal and that they should take the properties without any power of alienation. The male issue of the two persons would have absolute right over the property. If Veluswami did not look after the minor properly or did not marry her after Rajammal attained property, then thereafter he had no interest in the suit properties. She had also made it a condition that Veluswaml should not alienate the properties and that if any necessity arose therefor, the properties would be alienated only by Veluswami and Nachiyarammal. The settler had declared that she had no right to cancel the settlement.

(2.) On 23rd Oct., 1957 Nachiyarammal purported to cancel the said deed and thereafter executed a sale deed in favour of Ganesa Thevar on 24th Nov., 1958. The purchaser, Ganesa Thevar, filed a suit for declaration of his title and possession of the property and impleaded in the said suit Veluswami Thevar and another person. This suit ultimately reached this Court in S.A. No. 1589 of 1963. By a judgment dated 18th July, 1967, construing the settlement of 1st June, 1956, this Court held that there was a transfer in present of the suit property in favour of Veluswarni and Rajammal, that the cancellation by Nachiyarammal, if the said settlement deed on 23rd Oct., 1957 was invalid and that Nachiyarammal still retained some interest in the property because Veluswami could not by himself alienate this property. In the course of the judgment the learned Judge pointed out the following :

(3.) Rajammal attained puberty and she is said to have married one Dharmar Thevar on 1st Nov., 1968, and not Veluswami. The purchaser from Nachiyarammal, Ganesa Thevar who was the first plaintiff in the earlier proceedings which came to this Court in S.A. No. 1589 of 1963 has come forward with this suit for declaration of his title and recovery of possession of the suit property. He claimed that defendants 1 and 2 had trespassed on the property and that the property belonged to him by the sale. Defendants 1 and 2 resisted the suit saying that Rajammal had not married Dharwar Thevar, that she had married the first defendant and that the sale deed dated 24th Nov., 1988 was not valid and true, as Nachiyarammal had no right or title to the suit property on that date. The third defendant, Rajammal, then a minor through her guardian, filed a written statement saying that she had married Dharmar Thevar and that the first defendant had forfeited his right in the suit property as there was no marriage between her and the first defendant.