RAMASWAMI NAIDU Vs. M.S. VELAPPAN AND ORS.

JUDGEMENT

(1.) THIS Letters Patent Appeal comes up before us, after leave has been granted by Sethuraman, J., permitting an appeal to be filed against his judgment in S.A. No. 81 of 1973. In the second appeal the learned Judge also considered an application filed by the plaintiff to amend the plaint, whereunder the plaintiff sought for possession of the suit properties. We shall reserve consideration of this part of the Judgment of the learned Judge, relating to the allowance of the application for amendment of the plaint, at a later stage.

(2.) THE relevant facts which led to this appeal may briefly be stated. Alagiriswami Chettiar was the original owner of the suit properties. Under a will, dated 20th August, 1929 (Exhibit B -8), he bequeathed the suit properties in 'favour of his daughter, Kuppammal. Kuppammal, after she became the owner of the properties made a will, Exhibit B -9, dated 2nd August, 1933, in favour of her mother, Meenakshi Animal. Meenakshi Animal executed Exhibit A -1, dated 14th October, 1946, the terms and tenor of which are the subject -matter of this appeal. Under Exhibit A -1, Meenakshi Ammal, while styling the instrument as a "settlement deed", inter alia, provided that she should enjoy the properties during her lifetime and that thereafter the properties should devolve upon Velappan, the first plaintiff, in the suit for life. She also set out in detail the immediate provocation which prompted her to settle the properties on the first plaintiff, Velappan Kuppammal, the daughter of the settlor under Exhibit A -1 brought up one Muniammal, who was the daughter of Kuppammal's co -widow and, according to Meenakshi Ammal, Kuppammal had expressed a desire that she should benefit Velappan, who had married Muniammal. It was to propitiate Kuppammal, who had bequeathed the property to her that Meenakshi Ammal purported to settle the properties on Velappan, the first plaintiff in the suit. In the course of our judgment, we shall refer to the specific recitals in Exhibit A -1, to bring out its true import and intendment. It appears that Meenakshi Ammal, just two days, before her death, revoked the settlement, deed, Exhibit A -1, which was not revocable as per its terms, and executed a will, Exhibit B -13, on 26th April, 1970. Under Exhibit B -13 she bequeathed the suit properties to the first defendant. The first plaintiff would aver that by virtue of the recitals in Exhibit A -1, he is entitled to the suit properties, that he was performing the charities as per the recitals in the deed, along with Meenakshi Ammal, when she was alive, thereafter by himself, that he leased out the suit lands to the second -plaintiff and that because of interference by defendants 2 to 5, who alleged that they had secured a lease of the suit properties from the first defendant, the first plaintiff, impleading also the second plaintiff, has filed the present suit for a declaration of the first plaintiff's title to the suit properties and for an injunction restraining the defendants from interfering with their possession and enjoyment of the suit properties.

(3.) THE learned District Munsif, who tried the suit, held that Exhibit A -1 was a settlement deed and not a will and that therefore Meenakshi Ammal had no capacity or right to execute Exhibit B -13, as the settlement deed, Exhibit A -1, was valid and binding and was in force, and could not be superseded by a later will, as the settlement deed was expressed to be not revocable, besides being registered. The learned District Munsif also held that the provisions in Exhibit A -1 restricting the absolute and vested interest in favour of the plaintiff could not impinge upon the other provisions in the instrument under which the first plaintiff was given an absolute right in the properties and that therefore the restrictions contained in Exhibit A -1 interfering with the absolute proprietorship of the first plaintiff in the suit properties were void. He accordingly granted a decree for declaration of title, but dismissed the suit in so far as it related to the relief of injunction, on the ground that defendants 2 to 5 were in possession of the suit properties, and that the first plaintiff had not proved such possession on the date of the action.