SRINIVASA PADAYACHI Vs. PARVATHIAMMAL

JUDGEMENT

(1.) IN this second appeal by the chief contesting first defendant who has failed in both the courts below, the short question for consideration is whether the settlement deed Ex. A. I, executed in favour of the plaintiff by her husband just before the marriage, is wholly void, or valid as against his share in the properties covered by the deed. The courts below have upheld the plaintiffs claim of a half share in the properties, declared her right to the same, and decreed delivery thereof with mesne profits. The suit properties, an extent of one acre and 80 cents in R. S. 18/2 and a house in Vadakrishnapuram village, Chidambaram taluk, stood in the name of the plaintiffs husband Muthulinga Padayachi. His brother is one palanivelu Padayachi, father of defendants 5 to 8 in the suit who have not contested the plaintiff's claim. The finding of the courts below is that, on the plaintiff's parents insisting upon a settlement of property being made in her favour as a consideration for the plaintiff marrying him, Muthulinga Padayachi settled the properties on her under the deed Ex. A. 1, dated 30-6-1943. The courts below have accepted the evidence that the settlement was a condition for the plaintiff marrying Muthulinga Padayachi. The further finding is that the plaintiff was a major at the time of the marriage negotiations and settlement. The marriage was celebrated a week after the execution of the document and there is evidence that she had been put in possession of the properties settled and was in enjoyment of the same. Some years after the execution of the settlement deed, Palanivelu padayachi, the brother of the settlor, instituted the suit, O. S. 282 of 1951 on the file of the District Munsif Court, Chidambaram for partition and separate possession of his half share in the suit properties, contending that they are joint family properties, and that the plaintiff's husband, in whose name the properties stood, had no exclusive right in the properties. The plaintiff and her husband were both made defendants in that suit They made common cause in the suit, and it was pleaded therein that the plaintiffs husband, Muthulinga Padayachi, had been in possession of the properties till the settlement and thereafter his wife, the 2nd defendant in that suit, had been in possession of the same, and that the properties were separate properties of Muthulinga Padayachi. It was held in that suit that the properties were joint family properties of the brothers, Muthulinga Padayachi and palanivelu Padayachi, and following the finding a decree for partition and possession of a half share in the properties was granted on 29-11-1952 in favour of Palanivelu Padayachi. As a result of the partition proceedings, Palanivelu padayachi got the eastern 80 cents of the suit first item. Subsequently Mufhulinga padayachi, ignoring the rights of his wife under the settlement deed, sold away the eastern 90 cents to the present appellant, the first defendant in the suit out of which the second appeal arises, under Ex. B. 3, dated 12-4-1954. Defendants 2 and 3 claim under the first defendant and the second appeal relates only to the 90 cents, the subject of conveyance by the plaintiffs husband in favour of the first defendant. It may, here, be stated that the first defendant is an attestor to the settlement deed Ex. A. l.

(2.) THE contention of the appellant, with reference to the settlement, is that it was a gift of joint family properties and, therefore, wholly void, void even as against the settlor. It is said that the settlee, the plaintiff, got no title under the document even in respect of the settlor's half share in the properties, so the subsequent alienation by the settlor in favour of the first defendant prevailed over the claim under the settlement deed. The Courts below concurrently find that the settlement deed is not a gift, pure and simple, but a conveyance for consideration and, therefore, binding on the settlor to the extent of his half share in the properties.

(3.) NOW at the time of execution of Ex. A. 1 the properties were joint family properties and the settlement was made by a coparcener. The other coparcener filed the suit for partition and secured his half share therein. In that suit, there was no plea as between the settlor and the present plaintiff, that the document was void, nor was there any finding in that suit given as to the true character of the settlement deed, whether it was a gift or conveyance for consideration. The plaintiff in that suit, the brother of the plaintiffs husband, was given a half share in the properties, ignoring the alienation as not binding on his share, overruling the defence that it was not joint family property. But if in Jaw the alienation was a gift, it is well settled that the same would not bind even the settlor and the absence of a finding in the earlier suit is neither here nor there. It was sufficient for the determination of that suit if it did not bind the plaintiff therein. The law is thus summed up in Mullah's Hindu Law 13th Edn. at page 291, thus:-" according to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property".